Samjibhai Fulabhai Chauhan vs State Of Gujarat
2022 Latest Caselaw 8051 Guj

      C/SCA/5542/2020                            JUDGMENT DATED: 16/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 5542 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 ?

================================================================
                        SAMJIBHAI FULABHAI CHAUHAN
                                   Versus
                             STATE OF GUJARAT
================================================================
Appearance:
MS ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1
MR MP PRAJAPATI(677) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2
================================================================
     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 16/09/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned

Assistant Government Pleader waives service of notice of

Rule for the respondents.

2. With the consent of the learned advocates for the

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

respective parties, the petition is taken up for final hearing

today.

3. It is the case of the petitioner that his pensionary benefits

be revised as per the initial date of appointment and also

to release 300 days unavailed privileged leave.

4. The petitioner in this petition has prayed for the relief that

his pensionary benefits be revised as per the initial date of

appointment and also to release 300 days unavailed

privileged leave.

5. It is the case of the petitioner that in light of the decision in

the case of State of Gujarat and another v.

Mahendrakumar Bhagvandas & another reported in

2011(2) GLR, 1290, he was granted the benefits of GR

dated 17.10.1988. However, while fixing the pensionary

benefits, his initial date of appointment has not been taken

into account in light of the decision dated 18.09.2019

rendered in Special Civil Application No.14137 of 2019 of

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

this Court which reads as under:

"In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today.

1.1 Rule returnable forthwith. Learned Assistant Government Pleader Dr. Venugopal Patel waives service of Rule for the respondent State and its authorities.

1.2 Heard learned advocate Ms. Nidhi Trivedi for learned advocate Mr. Dipak Dave for the petitioners and learned Assistant Government Pleader for the respondents.

2. By filing the present petition, the petitioners have prayed as under: "

(i) to hold and declare that action on part of the respondents in not making full payment of pensionary benefits to the petitioners by counting their entire length of service from date of joining till date of retirement as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioners by counting their service from date of joining until the date of retirement and fix the pension accordingly;

(ii) to hold and declare that petitioners are entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

respondents to pay amount of leave encashment of leave standing in the account of the petitioners;

(iii) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due;"

3. The two petitioners herein served under the office of Executive Engineer (Road and Building), respondent herein for long 20 years and 36 years, respectively. Petitioner No.1 joined the office of respondent No.2 with effect from 23.9.1989 whereas, petitioner No.2 started his service from 21.3.1982. Petitioner No.1 retired on 31.5.2018. Petitioner No.2 retired on 30.4.2018. They put in long number of years as above. They served continuously as contemplated under Section 25B of the Industrial Disputes Act, 1947. When the petitioners completed 10 years of their service, benefits under resolution dated 17.10.1988 were extended to them.

3.1 The grievance in the present petition is that while counting the pensionary benefits, the respondents have not taken into account their services fully and the total pensionary services were reckoned deducting initial 10 years of services. The pension was calculated from the date when the two employees completed 10 years and were made permanent under Resolution dated 17.10.1988. The grievance is that the entire service starting from initial date of appointment was required to be counted for the purpose of pension and accordingly the pension ought to have been determined.

3.2 It was observed in order dated 17.7.2019

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

that the issue involved in the present petition is answered by the Division Bench of this Court in Executive Engineer, Panchayat v. Samudabhai Jyotibhai Bhedi [2017 (4) GLR 2952] followed in Sardarbhai Panabhai Chauhan v. State of Gujarat being Special Civil Application No.14504 of 2016 decided on 5.9.2018.

4. Learned advocate for the petitioners submitted that the respondent authorities committed an error of law in not reckoning the services of the petitioners from the date of their initial entry in service for the purpose of pension. In addition to the decision in Samudabhai Jyotibhai Bhedi (supra) and Sardarbhai Panabhai Chauhan (supra), learned advocate for the petitioner could successfully press into service yet another decision of this court in Balvantbhai Sardarbhai Pagi & Ors. vs Deputy Engineer & Ors. being Special Civil Application No. 12350 of 2016 and allied petitions decided on 22.5.2016 taking a similar view. The ratio in Samudabhai Jyotibhai Bhedi (supra) was relied on in all the aforementioned decisions.

5. It was held in Samudabhai Jyotibhai Bhedi (supra) by the Division Bench, upholding the decision of the learned single Judge that the past services of the daily wagers where they have completed 240 days continuous service as per section 25F of the Industrial Disputes Act, would qualify for pension. In the present case, the respondents have not been able to dispute that both the petitioners have put in continuous service as contemplated under the law.

5.1 The Division Bench in Samudabhai Jyotibhai Bhedi (supra) noticed the provisions of the Resolution dated 17.10.1988 with reference to the nature of benefits flowing therefrom, in paragraph 6 of the judgment stating as under:

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

"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."

5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under:

"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. Clause6 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

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

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."

5.1.2 The Court thereafter held:

"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 put in such service and then

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

to compute his pension."

5.2 Thus, it is a clear position of law emerging from decision in Samudabhai Jyotibhai Bhedi (supra) that entire past services of daily wager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension. In the facts of the case of the petitioners, the factum is not controverted and it is undisputed that petitioner Nos.1 and 2 have throughout worked since their joining, to make their services continuous.

6. In view of the above, action on part of the respondents in not recognizing the services of the petitioners herein from the date of their initial joining as daily rated workman cannot stand valid in eye of law. The respondents were not justified in counting the services for the purpose of pension from the date when the petitioners were made permanent at the completion of 10 years. The entire prior service ought to have been recognized and the pension should have been calculated and fixed accordingly.

7. Petitioner No.1 would be accordingly entitled to receive the pension by counting the pensionable service from the date of initial entry, that is 23.9.1989. Similarly, petitioner No.2 would be entitled to family pension by counting the pensionable service from the date of initial entry, that is 21.3.1982. The respondents are directed to fix the pension for the petitioners accordingly. The petitioners are also entitled to other benefits such as leave encashment, gratuity etc. as may be payable.

7.1 The total amount of pension and other benefits as above, becoming payable and the arrears thereof, shall be paid to the petitioners

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

within a period of six weeks from the date of receipt of this order.

8. It is provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry interest at the rate of 6.5% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioners duly calculated as above.

9. The petition stands allowed as above."

6. Accordingly, the petition is allowed. In view of the above,

action on part of the respondents in not recognizing the

services of the petitioner herein from the date of their

initial joining as daily rated workmen cannot stand valid in

eye of law. The respondents were not justified in counting

the services for the purpose of pension from the date when

the petitioner was made permanent at the completion of

10 years. The entire prior service ought to have been

recognized and the pension should have been calculated

and fixed accordingly.

7. The total amount of pension and other benefits as above,

becoming payable and the arrears thereof, shall be paid to

the petitioner within a period of twelve weeks from the

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

date of receipt of this order. The petitioner is also entitled

to 300 days leave encashment in light of the decision

dated 26.11.2011 rendered by the Coordinate Bench of this

Court in SCA No.15469 of 2020. Relevant portion of the

said decision reads as under.

"21. The fourth group of appeals has been preferred by the employees who have not been extended five benefits by the learned Single Judge despite the same having been claimed as relief in the petitions, however, the leave encashment benefit has been extended. Hon'ble Division Bench, for the reasons recorded above, has held that the five benefits to these appellants not being extended could not be sustained and as such, the appellants of these appeals would also be entitled to the same benefits as the other similarly situated set of employees regarding the five benefits. Accordingly, all the aforesaid appeals are allowed to the above extent.

22. During the hearing of the present petitions, learned Advocates appearing for the respective parties has drawn the attention of the Court to the decision of the Coordinate Bench dated 05.09.2018 passed in Special Civil Application No. 14504 of 2016, which is also based upon several other decisions and therefore, the Court deems it appropriate to reproduce relevant portion of the said decision, as it is not disputed by either side. Paragraphs 4.1 to 8 are reproduced herein below:-

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

"4.1 Learned advocate for the petitioner could also successfully rely on decision of this Court in Balvantbhai Sardarbhai Pagi v. Deputy Engineer being Special Civil Application No.12350 of 2016 and allied petitions decided on 22nd May, 2016 taking the similar view.

5. In Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017 (4) GLR 2952], the Division Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the dailywagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.

5.1 The Division Bench in Samudabhai JyotibhaiPhedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph 6 of the judgment stating 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

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

be pensionable."

5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under.

"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."

5.1.2 The Court thereafter held,

"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

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

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 put in such service and then to compute his pension."

5.2 Thus it is a clear position of law emerging from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of dailywager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension.

In the facts of the case of the petitioner, the factum is not controverted and it is undisputed that the petitioner has throughout worked since his joining, to make his services continuous.

6. The only reason putforth by the authorities to deny the petitioner the pension is that after he was made permanent, he has not completed 10 years of qualifying service, however if the date of joining of the petitioner which is 12th December, 1986 is considered, the petitioner has evidently completed the qualifying period to be entitled to pension as per the law laid down in Samudabhai (supra).

6.1 The decision on part of the authorities reflected in communication dated 18th

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

July, 2016 that the petitioner had not completed 10 years of service since the date of becoming regular from 01st December,1999 cannot stand in eye of law to deny the pensionary benefits to the petitioner. The entire service period right from the date of joining till the petitioner retired on 30th September, 2012, is liable to be counted and the pension is required to be paid accordingly. The present petition has to succeed.

7. For the foregoing reasons and discussion, it is hereby declared that the action on part of the respondents in not making payment of pensionary benefits to the petitioner and in not counting the entire length of services of the petitioner from 12thDecember, 1986 till 30th April, 2012 is arbitrary and illegal. The respondents are directed to fix the pension of the petitioner counting his entire service period from 12th December, 1986 till the date of retirement. The petitioner is also held entitled to all other retirement benefits including leave encashment and difference of gratuity, as may be payable. The total amount payable towards pension to be calculated as above, the arrears arising there by and the other retirement benefits including those mentioned hereinabove, shall be paid to the petitioner within a period of six weeks from the date of receipt of this order.

8. It is provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry interest at the rate of 6.5% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioner duly calculated as above."

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

23. From the aforesaid observations which are made by the coordinate bench relying upon the various decisions, there is no reason for this Court to deviate from the aforesaid preposition of law. The past services rendered by the petitioners where they have completed 240 days of service as per Section 25B of the ID Act would qualify for pension as laid down by the Division Bench in case of Executive Engineer, Panchayat V. Samudabhai Jyotibhai phedi (2017 (4) GLR 2952). Hence, keeping in view the said proposition of law laid down by the Hon'ble Division Bench, in the considered opinion of this Court, a case is made out by the petitioners. Even, recently, this Court relying upon the same, has also dealt with yet another petition being Special Civil Application No. 19374 of 2018 and other allied matters decided on 17.12.2020. The said decision has been

of 2021 and other allied group of appeals by order dated 22.06.2021. In yet another recent decision passed in SCA No. 15110 of 2020 and other allied matters decided on 03.09.2021, the similar preposition has been laid down. The said decision has been confirmed with modification in group of appeals being LPA NO. 884 of 2021 and allied appeals by order dated 12.10.2021. Paragraph 6 of the said common order reads thus:-

"6 In the above view, all the present Letters Patent Appeals are disposed of by modifying the directions of learned single Judge in the impugned judgment and order, in particular contained in paragraph 10, by clarifying that the benefits accorded and directed to be paid to the petitioners of retirement dues and others allowances such as Transport Allowance,

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concession shall be counted and paid in respect of those years only in which the petitioners - the employees concerned have completed 240 days of service. The directions of learned single Judge in all cases shall operate accordingly and with such qualification"

24. In view of foregoing reasons and discussion, it is declared that the action on part of the respondent authority in not making payment of pensionary benefits and other allowances and benefits as aforesaid to the petitioners and in not counting the entire length of service from their initial dates of employment reflecting from table till their retirement/death is arbitrary, illegal and not sustainable in the eye of law. The respondents are as such directed to fix the pension of each of the petitioners by counting their entire service from their respective dates of joining till the date of retirement as provided in the table which is quoted herein before and the petitioners are also entitled to all other retirement benefits including leave encashment and difference of gratuity as may be permissible with the clarification that the benefits accorded and directed to be paid to the petitioners of retirement dues and others allowances such as Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concession shall be counted and paid in respect of those years only in which the petitioners - the employees concerned have completed 240 days of service.

25. It is further directed that if the same is not paid within the stipulated period of eight weeks from the date of receipt of this order, it shall carry interest at the rate of 6% from the date of

C/SCA/5542/2020 JUDGMENT DATED: 16/09/2022

filing of respective petition till the date of actual payment. The respondents are further directed to continue to pay the pension to the petitioners duly calculated as above.

26. With the above observations and directions, present petitions stand allowed. Rule is made absolute in each of the petitions."

8. The petition is allowed accordingly. Rule is made absolute

to the aforesaid extent. Direct service is permitted. No

costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA