Executive Engineer vs Chimanbhai Gabaldas Rana
2022 Latest Caselaw 8825 Guj

     C/LPA/296/2022                           ORDER DATED: 06/10/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/LETTERS PATENT APPEAL NO. 296 of 2022
                             In
       R/SPECIAL CIVIL APPLICATION NO. 15141 of 2020
                            With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
        In R/LETTERS PATENT APPEAL NO. 296 of 2022
=============================================
                         EXECUTIVE ENGINEER
                               Versus
                      CHIMANBHAI GABALDAS RANA
=============================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR TIRTHRAJ PANDYA, AGP on ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 2
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
=============================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                          Date : 06/10/2022

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present Appeal under Clause-15 of Letters Patent, the State Authorities have challenged the judgment and order dated 11.02.2022 passed in captioned writ petition by which learned Single Judge has directed the State Authorities to extend the benefits of 300 privileged leave (leave encashment) to the respondent with further direction to give consequential effect of the same to the pensionary benefit of the respondent and directed that the arrears was to be paid within a stipulated period of time.

2. From the record, it transpires that several petitions were

C/LPA/296/2022 ORDER DATED: 06/10/2022

filed in past in respect of similar issue which were adjudicated and decided on different dates. It is reported that against the judgment and orders passed by learned Single Judges, the State Government had preferred Letters Patent Appeals wherein also, the judgment and orders passed by learned Single Judges remained confirmed. The State Government further assailed the controversy before the Hon'ble Supreme Court through several Special Leave to Appeals. It is pointed out that by order dated 01.09.2022, the Hon'ble Supreme Court has disposed of all such petitions by a common order which reads as under:

"In view of the Resolution No. W.C.E.-1588-(5)/(2)/G.2 dated 17-10-1988, the respondent employees are entitled to retirement benefits, gratuity, provident fund etc. In addition, they are entitled to two yearly optional leaves in total of 14 casual leaves, 30 days of earned leave and 20 days half pay leaves, as well as holiday on Sunday and during the national holidays/occasions.

In view of the aforesaid position, we do not find any good ground and reason to interfere with the directions given by the High Court to pay leave encashments on the retirement of the employees, as the same would pertain to encashment of the unused earned leaves. The payment is also in the nature of retirement benefits.

However, it is clarified that the aforesaid directions would not be treated as granting the respondents a status of permanent or regular employees."

3. It is now settled that the benefits of leave encashment is

C/LPA/296/2022 ORDER DATED: 06/10/2022

a part of the salary and therefore, the respondents are entitled to the benefit of leave encashment. It is apposite to observe that the Hon'ble Supreme Court in the judgment reported in Civil Appeal Nos. 1684-1686 of 2019 observed in para 15 as under:

"15. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position."

The aforesaid observations of the Hon'ble Apex Court clarifies that only those years shall be taken into consideration where the workers have worked for 240 days or more in a year in consonance to the Government Resolution dated 17.10.1988 for the purpose of granting the benefit of the said government resolution.

4. Learned Assistant Government Pleader refers to the order dated 13.09.2019 passed in Letters Patent Appeal No. 1614 of 2019 which has been confirmed by the Hon'ble Apex Court by order dated 13.01.2021 in Special Leave to Petition (Civil)

C/LPA/296/2022 ORDER DATED: 06/10/2022

Diary No.20010 of 2020 and has prayed to pass similar order in the present group of appeals. Such order dated 13.09.2019 passed by the Coordinate Bench in Letters Patent Appeal No. 1614 of 2019 is reproduced as under:-

"1. Heard Shri Krutik Parikh, learned Assistant Government Pleader for the appellant-State.

2. Learned Single Judge has allowed the writ petition filed by the respondents 1 and 2 claiming the benefits of payment of leave encashment of 300 days. Operative portion of the judgment of the learned Single Judge reads as follows:

"6. In view of the above position of facts and law, the present petition deserves to be allowed. The respondents are directed to extend the benefits of payment of leave encashment of 300 days to the petitioners on their retirement, as the denial of this benefit is held to be illegal. The leave days to encashment for 300 the petitioners shall be paid considering the total length of the services of the petitioners within a period of eight weeks from the date of receipt of writ of this order. 7. The petition is allowed accordingly to the aforesaid extent. Rule is made absolute in the said terms."

3. Before us, the learned Assistant Government Pleader Shri Parikh submitted that no liberty has been given to the State to examine as to whether or not the petitioners (respondents 1 and 2 in this appeal) have accumulated the required number of days in their leave account for purpose of grant of payment of 300 days' leave. Insofar as the entitlement of the petitioners- respondents 1 and 2 for the benefit of leave encashment is concerned, there is no issue. Learned Assistant Government

C/LPA/296/2022 ORDER DATED: 06/10/2022

Pleader further submitted that as there is clear mandamus issued to the respondents in the petition (appellants herein) to make payment of leave encashment of 300 days, it may be inappropriate that without verifying about the admissibility of the entire period of leave encashment, amount may be released.

4. To this limited extent, the modification has been sought.

5. Normally, we would have issued notice to the respondents in the appeal, but considering the nature of relief pressed, which appears to be innocuous and even otherwise it is fair and reasonable that the State authorities record (employers) may verify from the regarding entitlement. We We are not issuing notice to the respondents as apparently no prejudice would be caused to them by the modification sought.

6. Thus, without disturbing the entitlement allowed by the learned Single Judge, we the limited dispose of this appeal with the modification that before making the payment, would about verify the appellants admissibility of 300 days for conversion into leave encashment as per the direction given by the learned Single Judge considering the total length of the service of the writ petitioners (respondents 1 and 2).

7. In case, the respondents 1 and 2 feel aggrieved by this order, they would be free to apply for recall of this order.

8. With the above modification, the appeal is disposed of. Consequently, connected civil application for stay is disposed of."

5. We have perused all the relevant orders passed by this Court as well as by the Hon'ble Apex Court. The issue involved in the present group of appeals is limited to the grant of benefits of leave encashment under the Government

C/LPA/296/2022 ORDER DATED: 06/10/2022

Resolution dated 17.10.1988. As the issue is given quietus by the Hon'ble Supreme Court vide order dated 01.09.2022 passed in Special Leave to Appeal No.7229 of 2022 and other allied matters, we are satisfied that the respondents are entitled to the benefits of leave encashment under the provisions of Government Resolution dated 17.10.1988 as directed by the learned Single Judge. The appellants-State Authorities shall make the payment after verifying the record and total length of service of each respondents considering the length of their services.

6. The present appeal is disposed of with the aforementioned direction. It is expected that the State Government shall undertake necessary procedure for verification of the length of service and entitlement of each respondent and shall disburse the amount of benefits as expeditiously as possible.

In view of order passed in LPA, Civil Application (for stay) does not survive and disposed of accordingly.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) T. J. Bharwad