Gujarat High Court
Amratbhai Ranchhodbhai Dabhi vs State Of Gujarat on 25 April, 2023
Bench: Mauna M. Bhatt
C/SCA/3876/2023 ORDER DATED: 25/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3876 of 2023
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AMRATBHAI RANCHHODBHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9
for the Respondent(s) No. 2,3
MS NIRALI SARDA ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/04/2023
ORAL ORDER
1. Draft amendment is allowed. To be carried out
forthwith.
2. Rule returnable forthwith. Learned Assistant Government
Pleader waives service of notice of Rule on behalf of the
respondent - State.
3. This petition under Article 226 of the Constitution of
India is filed with the following prayers: -
(A) Your Lordships may be pleased to
C/SCA/3876/2023 ORDER DATED: 25/04/2023
admit the petition.
(B) Your Lordships may be pleased to
allow the petition by issuing a writ of
mandamus or any other appropriate writ,
direction and/or order in the nature of
mandamus by directing the respondents to
release the benefits of 300 days unavailed
leave encashment in favor of the petitioners
with 12% interest per annum as well as
public holidays, transport allowance,
travelling allowance, LTC, arrears of 5 th pay
commission in the interest of justice.
(C) Your Lordships may be pleased to
direct the respondents to revise the pension
as well as gratuity calculating from the date
of initial appointment of the petitioners
release the same along with arrears and 12%
interest.
(D) Your Lordship may be pleased to
award any such other and further relief as
may be deemed just and expedient in the
interest of justice.
4. Heard learned advocate Mr. Murali Devnani for the
petitioner and learned Assistant Government Pleader Ms. Nirali
Sarda for the respondent - State.
5. Learned advocate for the petitioners submitted that the issue
C/SCA/3876/2023 ORDER DATED: 25/04/2023
in the present petition pertains to grant of benefit of 300 days
unavailed earned leave and not calculating the retirement
benefits of the petitioners from the date of appointment. The
prayers in relation to other benefits, if any, referred in this
petition, is not pressed at this stage.
5.1 He further pointed out that the issue involved in the
present petition which is in relation to payment of leave
encashment for 300 days leave as also counting the retirement
benefits available to the petitioners from the date of their
appointment, is no more res integra in view of decision of
Hon'ble Supreme Court dated 01.09.2022, in Special Leave
Petition (C) No. 7229 of 2022. Learned advocate for the
petitioner submitted that present petitioners were working with
the respondent No. 3 department with more than 3 decades
and they all had retired upon attaining the age of
superannuation and therefore considering their continuous
service they are entitled for the benefits of leave encashment
as well as pension and gratuity.
5.2. He pointed that by Government Resolution dated
21.10.2022 of Irrigation Department, Gandhinagar had issued
directives for implementation of the decision of the Hon'ble
Supreme Court in Special Leave Petition (C) No.7229 of 2022.
C/SCA/3876/2023 ORDER DATED: 25/04/2023
5.3. He pointed out that in the Government Resolution dated
24.01.2023, of Road and Building Department, Sachivalaya,
Gandhingar which has been adopted by the Irrigation
Department, wherein it has resolved as under:
"At the end of active deliberations, subject
to the following conditions, it is hereby
prescribed to pay gratuity to the daily
wagers working in offices under various
departments of the State within the
maximum limit of 33 (thirty-three) years as
per the Resolution dated 21.10.2020 of this
Department:
(1) The concerned Department will have to
check the eligibility of the daily wagers as
per the Payment of Gratuity Act, 1972, of
the Government of India.
(2) The order of this Department will also
apply to the cases of retired/deceased daily
wagers/work-charge employees after issuance
of the resolution dated 24.03.2006 of this
Department.
(3) The concerned Department will have to
pay gratuity to the daily wagers/work-charge
employees, for the services rendered before
becoming permanent, upon verifying their
eligibility as per the resolution dated
21.10.2020 of this Department. Whereas, the
payment of gratuity for the pensionable
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services after becoming permanent will be
made by the Director, Pension & Provident
Fund Office. The Department will ensure
that the gratuity is paid within the
maximum limit of 33 years by counting both
the services together and in any case no
double payment is made.
(4) The payments made to the daily wagers/
work-charge employees under the Resolution
dated 21.10.2020 of this Department before
issuance of this order will not be
reopened."
6. In relation to leave encashment vide Government
Resolution dated 21.10.2022 issued by Irrigation Department,
Government has also taken a policy decision which reads as
under: -
"According to the judgment of the Hon'ble
Supreme Court referred in No. (1) above,
since the Resolution of the Roads and
Buildings Department dated 17-10-1988 also
provides that the retirement benefits granted
to daily workers include the benefit of
"encashment of leave" also, as per the clause
(5) of the State Litigation Policy of the State
Government, daily wages workers are
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entitled to the benefit of conversion of leave
into cash, the instructions in this regard
regarding the payment of leave encashment
to the daily wages worker petitioner under
this section, instructions are hereby
circulated as per the approval received vide
informal note dated 17/10/2022 of the
Finance Department on the equal numbered
files as follows.
With reference to various claims filed before the
Hon'ble Court, the petitioner daily wagers shall be
paid the encashment of accrued leave (within the
maximum limit of 300 leave accumulated) in cash
as is being paid for regular services as per the
policy of the Government, by calculating leave as
per the rules on the basis of the service record of
the daily workers.
(1) Payment in case of retired petitioners who
have completed 70 years of age as on 01/10/2022,
shall be made by 31/10/2022,
(2) Payment to the remaining retired
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petitioner daily workers will be within three
months i.e. by 31/12/2022."
7. The above factual position could not be controverted by
learned Assistant Government Pleader for the respondent -
State.
8. In view of the above said position, this Court deems it
appropriate to direct the respondents to undertake scrutiny of
individual cases of each of the petitioners herein, and upon
such scrutiny, if they are found eligible then a proposal shall
be forwarded to the State Authorities in this regard and
thereafter, the State Authority shall consider proposal of each
of the petitioners herein expeditiously and in consonance with
the State policy.
9. It is reported that in many of such matters, the
concerned department has already moved a proposal to the
State Government in this regard. However, wherever such
proposal is not moved, the same shall be moved by the
concerned department within a period of eight weeks from the
date of receipt of copy of writ of this order.
10. The aforesaid exercise shall be completed within a period
of twelve weeks from today.
C/SCA/3876/2023 ORDER DATED: 25/04/2023
11. With the aforesaid, the petition stands disposed of. Rule
made absolute to the aforesaid extent. Direct service is
permitted.
(MAUNA M. BHATT,J)
NAIR SMITA V.
