Gujarat High Court
Kesharben Punashi Garava vs State Of Gujarat on 20 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/5178/2023 ORDER DATED: 20/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5178 of 2023
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KESHARBEN PUNASHI GARAVA
Versus
STATE OF GUJARAT
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS REENA M KAMANI(6007) for the Petitioner(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2,3
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/12/2023
ORAL ORDER
1. Heard learned advocate Ms.Reena Kamani on behalf of
the petitioner, learned Assistant Government Pleader
Mr.Ayaan Patel on behalf of the respondent - State and
learned advocate Mr.N.R.Koyani for learned advocate
Mr.Premal Joshi on behalf of respondent nos.2 and 3.
2. Rule returnable forthwith. Learned advocate Mr.Ayaan
Patel and learned advocate Mr.N.R.Koyani for learned
advocate Mr.Premal Joshi waives service of rule on behalf of
the respondent - State and respondent nos.2 and 3
respectively.
2.1. By way of this petition, the petitioner has inter alia
sought for the following prayers:-
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"(A) The Hon'ble Court be pleased to issue a writ
of mandamus or any other appropriate writ, order or
direction declaring the order dated 19.12.2022
(Annexure-E) passed by the respondent no.2 and 3 in
denying monetary compensation to the petitioner in
lieu of compassionate appointment as per the
government resolution dated 5.7.2011 (Annexure-
B(Colly)) as illegal, unjust, arbitrary, without
application of mind and be pleased to quash and set
aside the same by directing the respondents to pay
monetary compensation to the petitioner in lieu of
compassionate appointment as per resolution dated
5.7.2011 (Annexure-B(Colly)) with 12% interest;
(B) Pending admission and final disposal of the
present petition, the Hon'ble Court be pleased to
direct the respondents to reconsider the request of
the petitioner for monetary compensation in lieu of
compassionate appointment as per the Government
Resolution dated 5.7.2011 (Annexure-B(Colly));
(C) Any other and further relief which this
Hon'ble Court deem just, fit and proper in the
interest of justice may be granted together with
cost."
3. It is the grievance of the petitioner by way of this
petition that while the learned Coordinate Bench of this Court
vide order dated 30.11.2018 had directed the respondents to
consider the case of the petitioner for grant of benefit of lump-
sum compensation flowing from Government Resolution dated
05.07.2011 and whereas while the said decision having not
been taken within a reasonable time, the present petitioner
was required to file an application under the Contempt of
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Courts Act and whereas, the respondents vide an order dated
19.12.2022 having taken a decision rejecting the request of
the petitioner more particularly on the ground that the daily
wagers are not entitled to benefit of GR dated 05.07.2011.
4. Learned advocate Ms.Reena Kamani would submit that
the issue in question no more res integra inasmuch as, as per
the GR dated 17.10.1988, upon completion of ten years of
working as a daily wager where the workman has completed
240 days in each year, the workman would be entitled to the
benefit of regularization and whereas, upon being granted the
benefit of regularization/permanency, the workman stand at
par with the regularly appointed permanent employees and
would be entitled to all the benefits as available to the later
employees.
4.1. Learned advocate would submit that since the benefit of
lump-sum compensation was available to regular employee
and since there is no dispute about the fact that late husband
of the petitioner had been granted the benefit of permanency,
therefore, the decision of the respondents was clearly
erroneous. Learned advocate would further submit that since
the respondents, inspite of a direction of this Court had taken
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four years to decide the application, that too for lump-sum
compensation in lieu of compassionate appointment upon
demise of the employee concerned, therefore, appropriate
interest also may be awarded.
5. This petition is vehemently opposed by learned advocate
Mr.N.R.Koyani who would support the decision of the
respondents.
6. Heard learned advocates for the respective parties who
have not submitted anything else. In the considered opinion of
this Court, the issue of grant of lump-sum compensation to
employees who had been granted permanency is no more res
integra. The Hon'ble Division Bench of this Court has recently
reiterated the law on this issue and whereas para 3.1, 3.2, 3.3,
4 and 5 of decision dated 24.08.2023 in Letters Patent
Appeal No.934/2023 and allied matters in case of Gujarat
Water Supply and Sewerage Board vs. Hansaben
Pramodbhai Patel being relevant for the present purpose,
are reproduced herein for benefit:-
"3.1 This question has been dealt with by a recent
decision delivered by the Division Bench of this Court
in State of Gujarat vs. Chhanaji Bhagaji
Makwana (Deceased) through Legal Heir
Punjiben Chhanaji Makwana, which was Letters
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Patent Appeal No. 1073 of 2023 decided on
10.08.2023.
3.2 The following was observed and held in the
decision, which reasoning would apply and govern
the present case also,
"6. Learned Assistant Government Pleader
however harped on the aspect that the benefit of
lumpsum compassionate compensation under the
Resolution dated 05.07.2011 would not be
payable to the petitioner's heirs inasmuch as the
said policy would not apply to the daily rated
employees, but would be available to only those
employees regularly employed. It was submitted
that even if the deceased employee would draw
the benefit on the basis of the length of services
rendered under the Resolution dated 17.10.1988,
the scheme of compassionate appointment and
lumpsum compensation in lieu of appointment as
envisaged in Resolution dated 05.07.2011 could
not be applied for the simple reason that the
employee was a daily rated employee and despite
governed by Resolution dated 17.10.1988, he
would not loose the status of daily rated
employee.
6.1 In order to advance the contention that the
kith and kin of daily rated employees, seeking
application of scheme of compassionate
appointment, and therefore also the Resolution
dated 05.07.2011 providing for lumpsum
compensation, would not be governed
thereunder, learned Assistant Government
Pleader wanted to press into service the decision
of this Court in Javeed A Surangi vs. State of
Gujarat, which was Special Civil Application
No. 12270 of 2013, decided on 30.08.2016.
The petitioner therein claimed the benefit of
grant of appointment on compassionate basis
upon death of father, who was Class-IV daily
wager Watchman on the ground that the
deceased employee had put in 32 years of service
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and in view of the provisions of the Resolution
dated 17.10.1988, the services was liable to be
regularised to be treated for permanency benefit.
6.2 The Court in paragraph 5.1 observed,
"A daily wager receiving benefits under the
Resolution dated 17th October, 1988 does not
stand on same pedestal with a permanent
employee who is permanent because he was
appointed in regular way upon regular selection
process. Therefore, though the daily wagers
would receive benefits of permanency in form of
pay-scales and perks, they do not form a same
class as 'permanent employees' or 'regular
employees'. A daily wager though getting
benefits under the Resolution of 17th October,
1988, he is not regular or permanent employee
per se. His original or inherent character and
status remain unchanged, but benefits of pay,
perks, etc., are secured. They stand as valid
classification operating for respective different
purposes."
6.3 According to the view taken, the Resolution
dated 17.10.1988 operated to grant benefit of
pay-scale and other service perks and the
purpose was limited to conferment of such
benefits and could not have any further import. It
was observed in paragraph 5.2 thus,
"5.2 In any view, even if for such purposes, the
daily-rated employees are deemed to be viewed
as 'regular' or given 'regularisation', the said
concept is limited for applying and operating the
Resolution in question. It cannot extend to seek
benefits under the other benefit-oriented
schemes when the scheme of compassionate
appointment provides that the same applies to
permanent employees only and not to ad-hoc or
daily-waged employees."
6.4 Similar view was taken in another decision in
Dharmeshgiri Balvantgiri Goswami Vs. State
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Of Gujarat in Special Civil Application No.
14126 of 2017 as well as in Suresh
Maganbhai Chavda vs. State of Guajrat
passed in Special Civil Application No. 14834
of 2010, which were also the decisions of
learned Single Judges.
7. The issue whether the compassionate
appointment/lumpsum compensation scheme
could be extended in the cases of daily rated
workmen securing benefits under the Resolution
dated 17.10.1988 came up for consideration
before the Court in Fatmabai Abdul Sumra vs.
State of Gujarat, which were Special Civil
Application No. 11554 of 2021 and another
decided on 14.02.2022 and again in Gauriben
Hargovinbhai Vaghela vs. Secretary,
Narmada and Water Resources Department
in Special Civil Application No. 2884 of
2022, decided on 20.04.2022.
7.1 In those cases, learned Single Judge held
otherwise. It was noticed that the decision in
Javeed A Surangi (supra), in Suresh
Maganbhai Chavda (supra) and
Dharmeshgiri Balvantgiri Goswami (supra)
taking the view that benefit of compassionate
scheme would not be available to the daily rated
workmen was without noticing the binding
observations of the Division Bench in State of
Gujarat v. Mahendrakumar Bhagvandas
[2011 (2) GLR 1290]. The view was taken by
the Division Bench is inter alia that there was no
concept such as permanent daily wager and it
was strange in service jurisprudence to bring out
the nomenclature or concept of permanent daily
wager.
7.2 In Mahendrakumar Bhagvandas (supra),
the Division Bench stated thus,
"5. ...Once the employees concerned were, in
fact, treated for all purposes as permanent
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employees in terms of G.R. dated 17.10.1988,
any discrimination or denial of benefits for a
segment of such employees, who were
subsequently rebranded as "daily wager"
(rojamdar) by G.R. dated 18.7.1994, could not be
rationally explained and could not be
countenanced in the face of Articles 14 and 16 of
the Constitution. Nor can the State Government
legally take away the rights conferred and
benefits, already accorded to the employees
concerned by or under a subsequent government
resolution, which expressly supersedes earlier
instructions and not earlier G.R. dated
17.10.1988 by which the benefits were accorded
to the employees. It also sounds absurd and
baseless that employee employed on daily wage
basis for 15 years would be made permanent
under G.R. dated 17.10.1988 but subsequently
rebranded and treated as a daily wager. The
submission of learned AGP that such employees
had to continue as daily wage employee, with
limited benefits in terms of subsequent G.R.
dated 18.7.1994 and that they were at best
"permanent daily wage employees", is
contradictory and has no backing of any legal
provision or precedent. Therefore, there is no
reason to interfere with the impugned common
judgment except for the clarification made
hereunder."
7.3 The Division Bench of this Court in State of
Gujarat vs. Nathabhai Ghemarbhai Parmar,
which was Letters Patent Appeal No. 1234 of
2017, decided on 04.08.2017 observed thus in
paragraph 8, in which also, the decision in
Mahendrakumar Bhagvandas (supra) was
relied on,
"8. In this case, it is not in dispute that late
father of the respondent herein was initially
appointed as a daily wager and thereafter, his
services were regularized vide order dated
28.03.2008. A copy of such order is also placed
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on record. As per the terms of the said order, it is
made clear that late father of the respondent
herein would be entitled to the benefits of
regular employees including retiral benefits,
seniority, etc.......Further, we have also perused
the Government Resolution dated 5.7.2011.
While it is true that para 3 clause 2 of the
Government Resolution dated 5.7.2011 states
that such scheme of paying compensation
amount is applicable to the employees, who are
regularly recruited persons, but there is a
specific clause which excludes applicability of the
scheme to the category of persons namely, daily
wager, casual worker, apprentice, adhoc,
contract or reemployment."
7.3.1 It was further observed and held in same
paragraph,
"If both the clauses are conjointly read, it is clear
that this scheme is to be extended to all the
persons, who are on regular services on the date
of death of the deceased employee. As the
scheme itself is a beneficial scheme for the
employees, who die in harness, the respondent
herein cannot be denied the same on the ground
that late father of the respondent was initially
recruited as a daily wager."
7.4 Therefore, there stands a binding proposition
of law that a daily rated workman who is
extended the benefit of Resolution dated
17.10.1988 to be considered for permanency
benefit on the basis of length of service would
derive all attendant benefits and benefits
including of the scheme of compassionate
appointment. The original status of the daily
rated workman would not be an impediment or
debilitating factor for the kith and kin of the
deceased to claim the benefit of the scheme of
compassionate appointment/compassionate
lumpsum payment, provided their case falls
within the corners of the scheme.
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8. Learned Single Judge in the impugned
judgment and order has rightly taken a view that
the petitioner, who was the heir of the deceased
daily rated workman would be entitled to be
considered for the benefit under the Resolution
dated 05.07.2011 for compassionate lumpsum
payment even if they were the successor of the
deceased daily wager. Learned Single Judge was
justified in relying on the decision in Gauriben
Hargovinbhai Vaghela (supra) to allow the
petition.
3.3 The final directions given in Chhanaji Bhagaji
Makwana (supra) were as under,
"8.1 It is therefore directed that the case of the
petitioner shall be examined for the purpose of
extending the benefit of Resolution dated 05.07.2011
and the petitioner shall be considered for lumpsum
compensation under the said scheme provided the
petitioner fulfills the conditions of the scheme to fall
within the bounds of the scheme and that his claim
shall not be rejected on the ground that the deceased
employee was a daily wager."
4. Learned advocates for the respondents were not in
a position to dispute the position of law emanating
from the above decision holding the field.
5. In the above view, the present appeals are
required to be disposed of in the same lines."
6.1. Having regard to the position of law as laid down by this
Court as noted by the Hon'ble Division Bench as above and
further reiterated as above, the decision rendered by the
respondents being completely against the settled position of
law requires interference.
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7. Furthermore, it also requires to be mentioned that the
learned Coordinate Bench of this Court vide decision in
Special Civil Application No.18164/2018 dated 30.11.2018
had directed the respondents to consider the case of the
petitioner more particularly the terms of consideration having
been stated in the order itself. As noted hereinabove, it is only
after a petition under the Contempt of Courts Act having been
filed by the petitioner before this Court that the respondents
had complied with the decision of this Court and whereas, it
would also appear that the Hon'ble Division Bench taking up
contempt had imposed cost of Rs.25,000/- upon the
respondents.
7.1. Under such circumstances, since no reason much less
any reasonable cause having been stated in the order itself for
the delay of four years, in the considered opinion of this
Court, the prayer for grant of interest also requires
consideration.
8. Having regard to the above observations the following
directions are passed:-
(i) The present petition is allowed.
(ii) The impugned order dated 19.12.2022 is hereby
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quashed and set aside.
(iii) The respondent no.2 is forthwith directed to pay to the
petitioner the lump-sum compensation as entitled to by the
petitioner as per the GR dated 05.07.2011. Such lump-sum
compensation shall be paid to be petitioner within a period of
six weeks from the date of receipt of this order.
(iv) Furthermore, the respondent shall grant to the
petitioner interest upon the amount of lump-sum
compensation at the rate of 8% from 01.04.2019 till the date
of realization.
9. With these observations and directions, the petition
stands disposed of as allowed. Rule is made absolute to the
aforesaid extent.
(NIKHIL S. KARIEL,J)
Bhoomi
