Shanabhai Kalubhai Chokiyat vs State Of Gujarat Thro Principal ...
2023 Latest Caselaw 1894 Guj

     C/SCA/6080/2012                              JUDGMENT DATED: 24/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6080 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                  SHANABHAI KALUBHAI CHOKIYAT
                             Versus
      STATE OF GUJARAT THRO PRINCIPAL SECRETARY & 4 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS TEJALBEN RAJPUT AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 24/02/2023

                              ORAL JUDGMENT

1. The present Special Civil Application is filed praying for the following reliefs :-

"(A) direct the respondent authorities to make payment of pension, gratuity and commutation of

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pension, flowing from the pension payment, at the rate which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case, and

(B) award the cost of the petition, and

(C) grant any other relief or pass any other order which the Honourable Court may consider just and proper in the facts and circumstances of the case,

and

(D) pending admission and final disposal of this petition the Honourable Court may be pleased to stay the execution, operation and implementation of the order passed by the respondent no.5 by order dated 23.12.2011 direct the respondent authorities to start paying monthly pension."

2. The factual matrix in the present case is as follows :-

2.1 The petitioner served in the Road & Building Department, Godhra from the year 1977 to 2008 as Rojamdar continuously. The petitioner completed his services from the year 1977 to 1989 with the Road & Building Sub-Department of Lunavada of Panchmahal District Panchayat continuously on regular basis. Thereafter, the Department was converted to the Road & Building Department, Godhra in the year 1989 wherein he put in his continuous service. The petitioner retired on 30.06.2008. It is the case of the petitioner that by letter dated 26.09.2007, the petitioner was intimated to supply the necessary documents for preparing his pension papers. Thereafter, respondent No.4, by letter dated 20.05.2008, wrote a letter to the senior authority for the recommendation of the retirement benefits to the petitioner. Respondent No.2 also sent a communication to respondent No.5 with the recommendation to confirm the pension in case of the petitioner.

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2.2 It is the case of the petitioner that thereafter, for a long time, the pension papers of the petitioner were not processed. By communication dated 23.12.2011, the petitioner has been refused the pension despite his continuous service with the department and instead, the petitioner has been given three installments as per 6 th Pay Commission recommendation. Aggrieved, the petitioner has preferred the present Special Civil Application.

3. Learned advocate Ms. Reena Kamani appearing on behalf of learned advocate Mr. P. H. Pathak for the petitioner submits that the issue with respect to payment of pension to the persons who have been granted the benefits of Government Resolution dated 17.10.1988 has since been settled in the decision of this Court in case of Executive Engineer, Panchayat (MAA & M) Department and anr. vs. Samudabhai Jyotibhai Bhedi and anr. [2017 (4) GLR 2952]. She submits that the petitioner's case is squarely covered by the said judgment of this Court. She submits that the present petition be disposed of in terms of the said judgment.

4. Per contra, learned Assistant Government Pleader Ms. Tejalben Rajput appearing on behalf of the respondents submits that the petitioner has been duly granted the benefit of Government Resolution dated 17.10.1988 and accordingly, he has been conferred all the benefits which were available to him. She further submits that as per the said Government Resolution, the petitioner was entitled to gratuity only and therefore, the petitioner was paid the same on 02.12.2008. It is submitted that the petitioner is not entitled to any pension in light of Government Resolution dated 24.03.2006 which in clear terms states that the

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tenure of the service put in after the date of regularization is only required to be considered for pension. She submits that the petitioner has put in approximately 6 years 4 months as regular employee and therefore, the petitioner has not completed the minimum years of service entitling him for pension and accordingly, the respondents have paid only the gratuity to the petitioner. Learned AGP Ms. Rajput, however, could not dispute the legal position settled by this Court in Samudabhai Jyotibhai Bhedi (supra).

5. Heard learned advocates for the respective parties and perused the documents on record.

6. By order dated 11.02.1997, the petitioner was granted the benefits of Government Resolution dated 17.10.1988 and was placed in the pay-scale of Rs.750/- on completion of five years. Thereafter, by order dated 14.02.2004, the service of the petitioner was regularized and the petitioner was placed in the pay-scale of Rs.2550-3200 on completion of 10 years of service. This Court in Samudabhai Jyotibhai Bhedi (supra) held as under :-

"11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub- Division, R & B Deptt. & Anr.reported in 1998 (2) GLH 1, held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division

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Bench was not inclined to take a different view.

12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had sought pensionary benefits having worked from the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits.

13. Yet again, the Division Bench of this Court in case of Chhaganbhai Ranchhodbhai Rathod v. Dy Executive Engineer, vide judgment dated 06.08.1998 rendered in Letters Patent Appeal No.1495 of 1997, took up the issue of pensionary benefits of a daily wager in terms of Government Resolution dated 17.10.1988. The controversy was whether the employee had put in 10 years of service during which he had worked for not less than 240 days in every year. Learned Single Judge having rejected the petition, the employee had filed the said Letters Patent Appeal. The Division Bench applying the provisions of Section 25B of the Industrial Disputes Act, held that the workman had put in such service of a minimum 10 years and consequently granted the benefits of pension in terms of Government Resolution dated 17.10.1988. Here also the authorities had not raised a contention which is sought to be raised before us."

6.1 The said law as laid down has been consistently followed by this Court in various judgments rendered thereafter also. There is no doubt that the above position of law has been repeatedly reiterated that the entire period of service rendered by the employee including the number of years of service as Rojamdar where the said employee has rendered continuous service of 240 days in a year, has to be considered for the purpose of extending

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the pensionary benefits.

7. In the present case, impugned communication dated 23.12.2011 does not take into consideration the settled law as pronounced by this Court. In view of the decision of this Court in Samudabhai Jyotibhai Bhedi (supra), it is held that the petitioner is entitled to pension, gratuity and commutation of pension flowing from the pension payment by counting the period of service, for which, the date of initial appointment and those years from the date of initial appointment in which the petitioner has completed 240 days have to be counted for the purpose of fixing the pension.

8. Accordingly, the present petition is allowed. Impugned communication dated 23.12.2011 is set aside. The respondents are directed to fix the pension and other terminal benefits of the petitioner counting his service from the date of his appointment in the year 1977 till the date of his retirement. The said benefits along with arrears shall be paid to the petitioner within a period of twelve weeks from the date of receipt of this order. It is clarified that if the pension and arrears are not paid within twelve weeks, thereafter the said amount shall carry interest at the rate of 6% per annum till the date of actual payment.

Rule is made absolute to the aforesaid extent. Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.)

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