Hiralal Nathabhai Chamar vs State Of Gujarat
2023 Latest Caselaw 6181 Guj

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     C/SCA/14346/2023                                       JUDGMENT DATED: 23/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 14346 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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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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                         HARILAL NATHABHAI CHAMAR
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR HB SINGH(2073) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,4,5,6,7,8,9
MR UT MISHRA FOR MR MAHESHKUMAR R YADAV(11944) for the Petitioner(s)
No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,4,5,6,7,8,9
 for the Respondent(s) No. 2,3,4,5,6,7
MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 23/08/2023

                                  ORAL JUDGMENT

1. Heard learned Advocate Mr. U.T. Mishra for learned Advocate Mr.Maheshkumar Yadav on behalf of the petitioners and learned AGP Ms.

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Nirali Sarda for the respondent-State.

2. Learned Advocate moves a draft amendment. Draft amendment qua qua petitioner no. 21 is granted. Amendment to be carried out forthwith.

3. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent - State.

4. By way of this petition, the petitioners have sought for the following prayers :

            "15 (a)     To admit and allow this petition.
                 (b)    Your Lordships may be pleased to issue a writ of

mandamus or any other appropriate writ, order or direction, to declare and hold that the petitioners are entitled for encashment of leave to the extent of 300 days at par with other permanent employee of the respondent as recorded in the service book of the petitioners; and direct the respondents to forthwith pay the same to the petitioners, preferably within a stipulated period as may be deemed fit by this Hon'ble Court.

(c) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to pay the leave encashement to the petitioners.

(d) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

5. Learned Advocate for the petitioners submitted that the issue in the present petition pertains to grant of benefit of 300 days unavailed earned

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leave. The prayers in relation to other benefits, if any, referred in this petition, is not pressed at this stage.

5.1 Learned Advocates for the parties would submit that the issue involved in the present petition, more particularly with regard to grant of benefit of encashment of 300 days unavailed leave, is no more res integra, more particularly in view of the decision of the Hon'ble Apex Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of 2022. It would appear that the petitioners had worked for approximately 10 years with the respondent-Department and whereas the petitioners in view of the Government Resolution dated 17.10.1988 would be entitled for leave encashment.

5.2. Learned Advocate 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.

5.3. 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 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

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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 petitioner daily workers will be within three months i.e. by 31/12/2022."

6. The above factual position could not be controverted by learned Assistant Government Pleader for the respondent - State.

7. Considering the above position, more particularly since it appears that the issue has been decided by this Court and even by the Hon'ble Apex Court and whereas since the State has also issued guidelines, as to how the said benefit has to be computed, in the considered opinion of this Court, the present petition could be disposed of with the following directions, which would meet the ends of justice.

(A) The respondent authorities concerned shall undertake a scrutiny of the case of the petitioners, more particularly for grant of benefit of 300 days leave encashment and whereas if the petitioners are found eligible, then the State Government shall consider the proposal for grant of leave encashment and pass appropriate orders

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within a stipulated time frame.

(B) The respondent authorities concerned shall conduct the above referred scrutiny within a period of 04 weeks from the date of receipt of this order and whereas appropriate proposal for grant of leave encashment shall be moved to the State Government within such time.

(C) Upon such proposal being received by the concerned Department, the same shall be considered and a final decision of including payment shall be taken by the State within a period of 08 weeks from the date of receipt of such proposal.

With the above observations and directions, the present petition stand disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIKHIL S. KARIEL,J) NIRU