Gujarat High Court

Karsanbhai Govabhai Vadher vs Gujarat Maritime Board on 30 March, 2022

Bench: Nikhil S. Kariel

     C/SCA/1902/2020                                  JUDGMENT DATED: 30/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1902 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                         Sd/-

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

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                NO

2     To be referred to the Reporter or not ?
                                                                           NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                    NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                  NO
      of India or any order made thereunder ?

==========================================================
                       KARSANBHAI GOVABHAI VADHER
                                  Versus
                         GUJARAT MARITIME BOARD
==========================================================
Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS REETA CHANDARANA(3023) for the Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 30/03/2022

                             ORAL JUDGMENT

1. Heard learned Advocate Ms.Harshal Pandya on behalf of the petitioner

and learned Advocate Ms. Reeta Chandarana appearing for the

respondents.


     2. Issue Rule returnable forthwith.         Learned Advocate Ms. Reeta





 C/SCA/1902/2020                                   JUDGMENT DATED: 30/03/2022

Chandarana appearing for the respondents waives service of Rule.

3. By way of this petition, the petitioner inter alia prays for the following

reliefs:-

"6. ... the Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order, or direction to the respondent authorities and may be pleased to -

(A) quash and set aside letter dated 19.10.2019 of Annexure-A to this petition and further be pleased to direct the respondent authorities to finalize the pension case of petitioner and make payment of other retirement dues considering his entire service i.e. from 1.7.1980 with all consequential benefits including revision as per subsequent pay commissions, and

(B) direct the respondent authorities to pay arrears of pension and other retirement dues flowing from above prayer clause with interest at the rate which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case,"

4. The facts leading to present petition are as under:-

4.1. The petitioner had been working as Daily Wager Mazdoor from

1.7.1980 till his termination on 11.11.1984 with respondent Gujarat

Maritime Board (hereinafter referred to as "respondent Board" for

short). The petitioner had challenged his termination from service

by preferring a Reference being Ref. (LDR) No.1548 of 1989, which

was renumbered as Res. (LCJ) No.1374 of 1990, before the

learned Labour Court, Junagadh. Learned Labour Court, Junagadh

vide award dated 24.5.2000 partly allowed the Reference, directing

the respondent authorities to reinstate the petitioner in service with

20% back wages with continuity of service. It is the case of the

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

petitioner that he came to be reinstated vide Service Order dated

9.1.2001. Thereafter, the petitioner was given benefit of

Government Resolution dated 17.10.1988 by paying him fixed pay

after five years and regular pay-scale of Rs.750-940 (revised pay-

scale of Rs.2550-3200) upon completion of ten years i.e. from

1.3.1994. It is further submitted that the pay-scale of the petitioner

came to be revised as Rs.4,440-7,440 (GP Rs.1,300) as per the

Sixth Pay Commission recommendation vide Order dated

19.10.2010. On attaining the age of superannuation, the petitioner

retired from service on 31.8.2007.

4.2. It is the case of the petitioner that while computing the pension

and other retiral dues, the respondent authorities had considered

service of the petitioner for only 14 years and 6 months, whereas

the actual period of service prior to completion of ten

years/regularization of service had not been considered at all. It is

further submitted that vide award dated 24.5.2000, the learned

Labour Court had directed the respondent authorities to reinstate

the petitioner with continuity of service, which award had never

been challenged by the respondent authorities before any appellate

forum. It is submitted that, therefore, the respondent authorities are

bound to consider the entire service period for pensionary and other

consequential benefits. It is also averred in the petition that though

the petitioner was given the benefits of 6 th Pay Commission

recommendation from 1.1.2006 as reflects from the Order dated

19.10.2010 (Annexure-C), the said aspect had not been considered

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

while calculating pension and other consequential dues. It is

submitted that the petitioner had raised his grievance by submitting

a representation dated 8.2.2008 before the Chairman and

Mamlatdar of Swagat Programme on 8.2.2008, which was

forwarded to the respondent No.2. As there was no reply from the

respondent authorities, the petitioner again made a detailed

representation on 4.10.2019, in response to which vide letter dated

19.10.2019, the petitioner was intimated that there was no error in

fixing the pension of the petitioner. Left with no other option, the

petitioner has preferred the present petition.

5. Learned Advocate Ms.Harshal Pandya appearing on behalf of the

petitioner would submit that the petitioner's service as daily wager had

been terminated after a period of four years by the respondent

Authorities, which led to filing of Reference being Ref. (LCJ) No.1374

of 1990 and the learned Labour Court, Junagadh was pleased to

reinstate the petitioner with 20% back wages and continuity in service.

It is submitted that the petitioner was extended benefits of Government

Resolution dated 17.10.1988 and his regular pay-scale came to be

revised from Rs.750-940 to Rs.2,550-3,200/-. Ms.Harshal Pandya

would submit that the pay-scale of the petitioner got revised from

1.1.2006 as per the recommendation of 6 th Pay Commission. Learned

Advocate Ms.Pandya would further submit that upon retirement on

reaching the age of superannuation, the respondent Authorities had not

considered the past service of the petitioner for calculating and fixing

the pension and other retiral dues, in spite of the order of the learned

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

Labour Court in Reference being Ref.(LCJ) No.1374 of 1990 for

continuation of service. Ms.Pandya submits that the Government

Resolution dated 30.5.1989 also clarifies the said aspect. It is also

submitted by learned Advocate Ms.Pandya that though the pay-scale

of the petitioner had been revised from 1.1.2006 as per the Sixth Pay

Commission recommendation, pension of the petitioner has been fixed

on pre-revised pay-scale. Learned Advocate Ms.Pandya has relied

upon the decision of this Court in case of Executive Engineer,

Panchayat (MAA & M) Department & Anr. Vs. Samudabhai

Jyotibhai Bhedi & Ors., reported in 2017 (4) GLR 2952, more

particularly paragraphs 4 and 13 to buttress her submission. She has

also relied upon the decision of the learned Division Bench in case of

Chhaganbhai Ranchhodbhai Rathod Vs. Dy. Executive Engineer

(in LPA No.1495 of 1997), whereby the learned Division Bench,

considering Section 25B of the Industrial Disputes Act, had held that

the petitioner therein was entitled for the benefits of pension in terms of

Government Resolution dated 17.10.1988. Ms.Pandya has also relied

upon the decision of this Court in case State of Gujarat Vs. Ranabhai

Ajmalbhai Harijan (LPA No.1518 of 2017) to submit that the

respondent Authorities could not have denied the benefits of

Government Resolution dated 17.10.1988, more particularly in view of

the order of the Labour Court in Reference being Ref.(LCJ) No.1374 of

1990 and the settled legal position as held by this Hon'ble Court in

various judgements. Learned Advocate Ms.Pandya, therefore, submits

that the present petition may be allowed and the decision vide letter

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

dated 19.10.2019 of the respondent Authorities may be quashed and

set aside and respondent Authorities may be directed to fix the pension

after taking into consideration the entire service of the petitioner and

pay the retiral benefits and other consequential benefits accordingly.

6. Learned Advocate Ms.Reeta Chandarana appearing on behalf of the

respondent Authorities has vehemently opposed the petition by

submitting that the respondent Authorities have not committed any

error in fixing the pension of the petitioner or in paying all his

admissible dues. Learned Advocate Ms.Reeta Chandarana would

submit that the petitioner had joined the service of Gujarat Maritime

Board on 1.7.1980 and on 11.11.1984 the petitioner was relieved from

service as the Project for which he had been engaged was over. It is

submitted by Ms.Reeta Chandarana that the petitioner was reinstated

on 17.1.2001 as per the award dated 9.1.2001 passed by the learned

Labour Court in the above Reference. It is further submitted that as no

work was available at the place of his initial appointment as daily

wager, he had joined at Bhavnagar Alang Department and later on he

was transferred to Veraval and the petitioner had retired on 31.8.2007.

Ms. Reeta Chandarana would submit that the petitioner has never

completed 27 years of qualified service, as claimed by the petitioner,

as contemplated in the relevant provisions of Industrial Disputes Act

and according to Ms.Reeta Chandarana, his total qualified service of

14 years and 6 months has been calculated as per the provisions of

Section 24B of the Industrial Disputes Act. It is submitted that from the

year 1984 to the year 2001, the petitioner had not worked as there was

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

no work available, and on the strength of the order of the learned

Labour Court, he could join the service on 17.1.2001 and, therefore,

during the above period, he could not be stated to have completed 240

days of work in a year and, therefore, there is no error in computing his

qualified period of service and consequential fixation of pension and

other retiral dues. Learned Advocate Ms.Reeta Chandarana has also

relied upon the affidavit filed by Capt. Arvind K. Mishra, Authorized

Officer of the respondent Board to reiterate that there was no error on

the part of the respondents in fixing the pension of the petitioner and in

paying his dues and, therefore, this Court may not entertain the present

petition.

7. Heard learned Advocates for the parties.

8. It is required to be noted that insofar as not considering the period prior

to 1.3.1994 i.e. the date on which the petitioner had been confirmed

with the benefits of Government Resolution dated 17.10.1988 and had

been treated as a regular employee, the dispute raised by the

respondents being that the petitioner did not do actual physical work

from 1984 till 2001 i.e. the date of termination of the petitioner till the

date of actual reinstatement and furthermore, reliance has also been

placed upon Government Resolution dated 24.3.2006. In this regard it

would be relevant to mention that the submissions on part of the

respondents in addition to being against the settled principles of law in

this regard, also appears to be self-contradictory. The petitioner upon

being terminated from service had filed a Reference being Ref (LCJ)

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

No.1374/1990 and whereas vide an award dated 24.5.2000 the

respondents were directed to reinstate the petitioner in service with

20% backwages with continuity of service. The said award of the

learned Labour Court having been accepted by the respondents, the

respondents had to give proper effect to the direction of continuity of

service. The term 'continuity of service' would envisage that the

service of the petitioner from the date of termination till date of

reinstatement has to be treated as period in service and whereas it

would not be open for the respondents to now contend that the

petitioner had not done actual physical work during the said period.

8.1. As such it appears that at the relevant point of time, the effect of

continuity of service had been given to the present petitioner, more

particularly since the petitioner had been given the benefit of

Government Resolution dated 17.10.1988 w.e.f. 1.3.1994 i.e. upon

completion of 10 years in service. The said contention having been

raised in the petition have not been specially denied by the

respondents. Again it would be pertinent to mention that at

paragraph 8 of the affidavit-in-reply it is stated by the deponent that

"I state that the order of Labour Court is complied with inasmuch as

he was reinstated in his original position and paid 20% backwages

though he did not physically work from 1984 till January 2001."

Thus, having accepted the decision of the learned Labour Court

and having granted benefits of regularization w.e.f. 1.3.1994 and

also having given 20% backwages for the period between 1984 till

2001, it would be completely self-contradictory as well as absolutely

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

illegal on part of the respondents to claim that since the petitioner

did not actually work for the period from 1984 to 2001, therefore,

the said period could not be counted for the purpose of pension.

9. Insofar as Government Resolution dated 24.3.2006, it appears that the

said aspect has been considered in detail by Hon'ble Division Bench of

this Court in case of State of Gujarat Vs. Ranabhai Ajmalbhai

Harijan (supra), relied upon by the petitioner. Paragraphs No.3 to 9 of

the decision of the Hon'ble Division Bench, being relevant, are

reproduced herein below:-

"3. The contentions raised by the learned Assistant Government Pleader before learned Single Judge have been reiterated by Shri Rohan Yagnik, learned AGP for the appellant. According to Shri Yagnik, the petitioner having rendered service of less than ten years, viz. that of nine years and six months, the Government is right in denying the pensionary benefits to the employee-respondent herein in view of Government Resolution dated 24.3.2006.

4. Shri Dipak Dave, learned advocate for the respondentoriginal petitioner, as submitted before learned Single Judge, has contended that the government fell in serious error in computing the period of service. According to Shri Dave, in view of the fact that the employee- original petitioner was granted benefit of the Government Resolution dated 17.10.1988 and was placed in the pay scale with effect from 1.4.1998, his past service as a 'daily wager' with effect from 21.6.1983 could not have been wiped out for computing the period for awarding pensionary benefits. This was particularly in view of the fact that in accordance with Government Resolution dated 17.10.1988 and in accordance with Section 25-B of the Industrial Disputes Act, it was not disputed between the parties that the employee had rendered continuous service for a period of 240 days in a year in compliance of the requirement of Government Resolution dated 17.10.1988.

5. Reliance was placed on the judgment of this Court in the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer, reported in 1998 (2) GLH 1, in support of contention that the service rendered as a 'daily wager' ought to be considered for the purposes of counting the period of qualifying service for pension purpose. Learned Single Judge has considered the said judgment and we too, deem it fit to

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

reproduce the relevant paragraphs which learned Single Judge has reproduced:-

"9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularization is taken into consideration for the purpose of

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

computing pension or making pension available to such retired employee.

10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same." (emphasis supplied)

6. Reading of the judgment categorically suggests that there is no room for doubt that Government Resolution dated 17.10.1988 when read in the context of meaning of continuous service as defined under Section 25B of the Industrial Disputes Act suggests that while conferring benefits, viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits. (from the date of initial appointment as a daily wager)

7. Learned Single Judge has observed that the judgment so rendered has attained finality and, therefore, in consonance with the question of law decided by the Division bench, learned Single Judge thought it fit to give the direction as reproduced herein above in the earlier part of the judgment.

8. Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the purpose of bridging the gap for computation of ten years of service needs to be granted. As pointed out by Shri Dave, learned counsel for the respondent herein this issue had again arisen in the case of the Executive Engineer, Panchayat (MAA & M) Department and Another v. Samudabhai Jyotibhai Bhedi and Others reported in 2017 (4) GLR 2952. Considering the provisions of the Government Resolution dated 17.10.1988, the Division Bench of this Court in the judgment of Samudabhai Bhedi (supra)

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

held as under:-

"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.

7. This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause 6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.

8. Two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under section 25B of the Industrial Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how many years he had

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

put in such service and then to compute his pension.

9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.

10. The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of continuous service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in the negative.

11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1, held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division Bench was not inclined to take a different view.

12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had sought pensionary benefits having worked from

C/SCA/1902/2020 JUDGMENT DATED: 30/03/2022

the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits."

9. Having therefore considered the issue at hand, it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for the purpose of extending pensionary benefits. The stand of the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to. Therefore, we have no reason to interfere with the direction given by learned Single Judge in the judgment impugned herein."

10. Having regard to the law laid down by the Hon'ble Division

Bench it becomes clear that reliance placed by the respondents on

Government Resolution dated 24.3.2006 is misplaced. The petitioner

is entitled to pensionary benefits considering his entire service from the

date of his entry in service with respondents. Furthermore, in view of

the observations in the preceding paragraphs the period for which the

petitioner did not work cannot be excluded more particularly since such

period would be covered under the term "continuity of service" as held

by the learned Labour Court and as accepted by the respondents

herein.

11. Having regard to the discussions herein above, the impugned

order dated 19.10.2019 is required to be quashed and set aside and