Gujarat High Court
Varsangbhai Kamabhai Dabhi vs State Of Gujarat on 16 September, 2022
Bench: Biren Vaishnav
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5525 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 ?
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VARSANGBHAI KAMABHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MS ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1
MR MP PRAJAPATI(677) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/09/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned
Assistant Government Pleader waives service of notice of
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
Rule for the respondents.
2. With the consent of the learned advocates for the
respective parties, the petition is taken up for final hearing
today.
3. Ms. Prajapati, learned counsel for the petitioner would rely
on an order passed in similar matter by this Court namely;
Special Civil Application No.16104 of 2020 dated
12.09.2022. She further requested this Court to pass a
similar order in this matter too. The order dated
12.09.2022 reads as under:
"1 Rule returnable forthwith. Mr.Kurven Desai,
learned Assistant Government Pleader, waives
service of notice of rule on behalf of the respondent -
State.
2 In this petition under Article 226 of the
Constitution of India, the prayers of the petitioner
read as under:
"9(A) That this Hon'ble Court may be pleased to
admit this Petition.
(B) That this Hon'ble Court may be pleased to
issue a writ of mandamus or any other
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
appropriate writ, order or direction, directing to
hold and declare that the action on the part of
the respondents in not making full payment of
pensionary benefits i.e. Gratuity and Pension to
the Petitioners by counting their entire length of
service from date of their initial appointment till
the date of retirement as illegal, arbitrary,
unjust and discriminatory in nature and further
be pleased to direct the respondents to fix the
Pension and Gratuity of the Petitioners by
considering their service from the date of their
initial date of joining till the date of retirement.
(C) That this Hon'ble Court may also be
pleased to hold and declare that the Petitioners
are entitled for leave encashment of 300 days
at par with other employee of the Respondents
and accordingly be pleased to direct the
Respondents to pay the amount towards leave
encashment to the Petitioners considering the
initial date of appointment (i.e. date of joining)
of the Petitioners as mentioned in the Pension
Payment Orders;
(C) That this Hon'ble Court may be pleased to
issue a writ of mandamus or any other
appropriate writ, order or direction, directing
the Respondents to consider the initial
qualifying period of service rendered as Daily
wager Employee for the purpose of grant of
Pension and Gratuity and direct them to re-fix
the amount of pension and Gratuity and further
be pleased to direct the Respondent Authorities
to pay the arrears of Pension and Gratuity by
considering entire length of services of the
petitioners from the initial date of appointment
(i.e. Date of Joining) of the Petitioners as
mentioned in the Pension Payment Order;
(D) That this Hon'ble Court may be pleased to
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direct the Respondent Authorities to extend the
arrears of the benefit of 7th Pay Commission to
the Petitioners as extended to other similarly
situated employees.
(E) Pending hearing and final disposal of the
present petition, Your Lordships may be
pleased to direct the Respondent Authorities to
forthwith consider the case of the Petitioners for
payment of 300 days leave encashment and for
the payment of arrears of Pension and Gratuity
for initial years of service period considering the
total length of service rendered by the
Petitioners, and further be pleased to direct the
Respondent Authorities to extend the arrears of
benefit of 7th Pay Commission and pay the same
in light of the law laid down by this Hon'ble
Court and confirmed by the Hon'ble Apex
Court"
3 Ms.Prajapati, learned counsel for the
petitioners, would rely on a decision of this Court
rendered in Special Civil Application No. 14137 of
2019 which read 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.
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
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 servicefrom 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
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
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
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 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
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
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 dayscontinuous
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 Phedi (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:
"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
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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 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
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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 to
compute his pension."
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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 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
recognising 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 recognised
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
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benefits as above, becoming payable and the
arrears thereof, shall be paid to the
petitioners 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."
3 In light of the above decision relied upon by the
learned counsel, the petition is allowed. The
respondents are directed to re-fix the pension and
gratuity of the petitioner by counting the pensionable
service from their date of initial entry in service
accordingly. Petitioners are accordingly entitled to
receive the pension, gratuity and other terminal
benefits. The total amount of pension and
gratuity as above, becoming payable and the arrears
thereof, shall be paid to the petitioners. The
respondents are also 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. It is directed to the
respondents that payment towards leave
encashment for 300 days, benefits of arrears of 7 th
Pay Commission and all consequential benefits, shall
be paid to the petitioners considering the total length
of the services of the petitioners. The entire exercise
shall be completed within a period of ten weeks from
the date of receipt of writ of this order. Rule is made
absolute to the aforesaid extent."
C/SCA/5525/2020 JUDGMENT DATED: 16/09/2022
4. The petition is disposed of in light of the order dated
12.09.2022 which shall govern the present petitioner also.
It is directed to the respondents that payment towards
leave encashment for 300 days, benefits of arrears of 7 th
Pay Commission and all consequential benefits, shall be
paid to the petitioner considering the total length of the
services of the petitioner. The entire exercise shall be
completed within a period of ten weeks from the date of
receipt of writ of this order.
5. Rule is made absolute accordingly. Direct service is
permitted. No order as to costs.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
