Samuben Khemabhai Chamar Wd/O ... vs State Of Gujarat
2022 Latest Caselaw 5322 Guj

      C/SCA/1475/2020                             JUDGMENT DATED: 21/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                R/SPECIAL CIVIL APPLICATION NO. 1475 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
      SAMUBEN KHEMABHAI CHAMAR WD/O KHEMABHAI BHIKHABHAI
                           CHAMAR
                            Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
MR ALOK THAKKAR, ADVOCATE FOR SAN ASSOCIATES LLP(8655) for
the Petitioner(s) No. 1
MR KURVEN DESAI, ASST GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 21/06/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP waives service of notice of rule on behalf of respondent State.

C/SCA/1475/2020 JUDGMENT DATED: 21/06/2022

2. By way of this petition, the petitioner - widow of deceased employee has prayed for a direction that the husband of the petitioner was entitled to the pensionary benefits on his date of retirement i.e. 29.02.2008 and consequently the widow was entitled to the benefits of family pension.

3. Facts in brief would indicate that the husband of the petitioner was appointed as a non-skilled labourer on daily wage contract basis under the respondent irrigation division in the year 1972. He retired from service on attaining the age of superannuation in the year 2008. It is the case of the petitioner that her husband therefore rendered 36 years of service. He passed away in the year 2013.

4. Mr. Alok Thakkar, learned advocate appearing for the petitioner would rely on the statement of number of days, details of which have been produced at Annexure 'A' page 14 to indicate that for the purposes of granting pension 240 days in each year of service in accordance with the provisions of Section 25B of the Industrial Disputes Act have been completed. He would submit that going by the statement, it would indicate that even if there is no continuous period of 240 days of service rendered from 1972-73, preceding 10 years prior to his superannuation i.e. from 1997-98 till 2008, admittedly, the petitioner had rendered more than 240 days of service. Therefore, as per Mr. Thakkar, even if the contention of learned AGP as stated in para 8 of the affidavit-in-reply is accepted, the minimum qualifying service of ten years was rendered by the husband of the petitioner preceding his superannuation.

5. Mr. Kurven Desai, learned AGP relying on para 8 of the affidavit-

C/SCA/1475/2020 JUDGMENT DATED: 21/06/2022

in-reply would submit that the petitioner was appointed as a daily wager on 21.03.1973. He completed 240 days in each year of service and based on completion of five years, only in the year 2003 did he complete ten years of service and therefore he cannot be granted the benefit of pension. The husband of the petitioner became permanent only in the year 2003 i.e. before superannuation in 2008 and therefore only five years of service was rendered.

6. Having heard learned advocates for the respective parties, it is borne out that the appointment and superannuation of the petitioner is not in dispute. The Division Bench of this court in the decision of State of Gujarat vs. Chamanji Heduji Thakor rendered in Letters Patent Appeal No. 1038 of 2018 on 08.08.2018, considering the decision of this court in the case of Executive Engineer, Panchayat (MAA & M) Department and Another vs. Samudabhai Jyotibhai Bhedi and Others [2017(4) GLR 2952] has held as under:

4. A perusal of the impugned judgment reveals that the learned Single Judge while recording the fact that the respondents, after completing five years of continuous service and 240 days in each financial year, were conferred the benefit of regularization and they were put in the regular pay scale. We have perused the judgment relied on the learned Single Judge in the case of Samudabhai Jyotibhai Bhedi and others (supra). After detailed scrutiny of the facts as well as the judgment relied upon by the learned Single Judge this court is of the considered opinion that no interference is required with the impugned judgment since the issue has been squarely covered in the aforesaid judgment. It is no more res integra that a daily wager who completes ten years of service and who has been subsequently regularized in view of the Resolution dated 17.10.1988 is entitled to pensionary benefits provided he completes 240 days in each financial year. Indisputably, in the present case both the respondents have completed the requisite number of days as required under section 25B of the Industrial Disputes Act and thereafter, they have been made permanent. The Resolution dated 17.10.1988 was introduced by the State Government to confer benefits of regular pay scale after completion of requisite number of years and on their retirement they are entitled to pension. Moreover, Rule 25(ii)

C/SCA/1475/2020 JUDGMENT DATED: 21/06/2022

which defines qualifying service for pension includes service rendered in work charge establishment provided that the total service put in as such is 5 years or more. It is not disputed by the State Government that the respondentworkmen were not serving in the work charge establishment of the State Government.

5. In view of the foregoing facts as well as the law enunciated by various judgments of this court the present letters patent appeals fail the legal scrutiny and hence, dismissed."

7. So far as the contention of delay as raised by learned AGP Mr. Kurven Desai is concerned, when there is a question of pension there can be no ground of delay that could non suit the pensioner.

8. Facts on hand would indicate that the petitioner's husband was appointed as a daily wager in the year 1972-73. Intermittently, in the years 1973-74 to 1975-76, he had completed more than 240 days. Thereafter from the year 1998-99 till 2008 he had completed 365 days and 336 days in each year of service which was admittedly more than 240 days and therefore in accordance with the provisions of Section 25B of the Industrial Disputes Act, he was entitled to the benefits of pension on completing qualifying years of service namely 10 years in accordance with the rules. Having held that the deceased was entitled to pensionary benefits, consequently the wife of the deceased employee would be entitled to family pension from the date of death of the employee in the year 2013.

9. In view of the above, the petition is allowed. The husband of the petitioner - deceased employee shall be entitled to the benefits of pension on he having completed ten years of qualifying service on 29.02.2008. The pensionary benefits be calculated accordingly. Consequently, the petitioner is also entitled to benefits of family pension. The same shall also calculated and paid with arrears to the petitioner within a period of

C/SCA/1475/2020 JUDGMENT DATED: 21/06/2022

ten weeks from the date of receipt of the writ of the order of this court. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA