Gujarat High Court
Executive Engineer vs Dhirabhai Bhurabhai Pagi Since ... on 28 February, 2023
Bench: Hemant M. Prachchhak
C/LPA/159/2023 ORDER DATED: 28/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 159 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 12082 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 159 of 2023
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EXECUTIVE ENGINEER
Versus
DHIRABHAI BHURABHAI PAGI SINCE DECD. THROUGH SHANTABEN
WD/O DHIRABHAI PAGI
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR DIPAK DAVE, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/02/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The appellant Nos. 1 and 2, i.e. the original
Respondent Nos. 1 and 2, have preferred the present
appeal under Clause-15 of the Letters Patent,
challenging the oral judgment and order passed by the
learned Single Judge of this Court, Dated:
28.09.2022, in Special Civil Application No. 12082 of
2019, whereby, the learned Single Judge allowed the
said petition filed by the present opponent-original
petitioner, directing the appellant Nos.1 and 2 to
grant pensionary, terminal and other benefits, which
had accrued in favour of the late worker, who
happened to be the husband of the opponent-wife, i.e.
the original petitioner.
2. The brief facts of the case are as under;
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The husband of the present opponent-wife was engaged
by the appellants as a dailywager with effect from
21.11.1972 and he passed away on 25.07.2003, after
rendering the services for about 30 years.
2.1 Therefore, the opponent-wife approached the
Labour Court, Godhra, by filing an application, being
Recovery Application No. 66 of 2013, under Section
33(C)(2) of the Industrial Disputes Act, 1947
( 'Act', in brief), claiming pensionary benefits.
2.1.1 It appears that the Labour Court dismissed
the application filed under Section 33(C)(2) of the
Act by the opponent-wife, on the ground that there
was no pre-existing right in favour of the opponent-
wife, so as to entitle her to claim the benefits,
which had accrued in favour of her late husband.
2.2 In view of the above, the opponent-wife filed
Special Civil Application No. 12082 of 2019 before
this Court, challenging the order of the Labour Court
and seeking a direction qua the appellant to
immediate fix pension and grant other retiral
benefits by taking into consideration the entire
period or length of services rendered by her late
husband, i.e. from the date of entry in service in
the year 1972, till his demise in the year 2003.
2.2.1 The appellants filed reply in the said
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petition and opposed the same, stating that the late
husband of the opponent-wife had not completed 240
days of service in each year.
2.2.2 Further, the appellants also filed an
additional affidavit, wherein, it was pointed out
that the late husband of the opponent-wife was
engaged as a dailywager and therefore, he cannot be
granted the benefit of pension, as he had hardly
worked for about six years, which does not satisfy
the minimum stipulated period of completion of 10
years' service.
2.2.3 The opponents also produced a separate chart
along with the affidavit and it was contended that
the late workman had completed 240 days' service only
in six years and therefore, he was not entitled to
get the benefits, as prayed for in the said petition.
2.3 After hearing both the sides, at length, the
learned Single Judge allowed Special Civil
Application No. 12082 of 2019, filed by the opponent-
wife, and directed the appellants to grant the
benefits, as prayed for, in the said petition. While
so ordering, the learned Single Judge specifically
observed that the late husband of the opponent-wife
had completed 240 days service in 12 years, if, the
Sundays and official / public holidays are included
in the working days for the said period.
C/LPA/159/2023 ORDER DATED: 28/02/2023
3. Being aggrieved and dissatisfied with the same,
the appellants have preferred the present appeal.
4. Learned Advocate, Mr. Munshaw, appearing for the
appellants, mainly, submitted that the husband of the
petitioner had not completed 240 days' service in
more than six years and therefore, the learned Single
Judge committed an error in coming to the conclusion
that late husband of the opponent-wife had completed
240 days' work in more than 12 years, if, the Sundays
and official / public holidays are included in the
same.
4.1 Learned Advocate, Mr. Munshaw, then, referred to
the document produced at Page-45 of the compilation
and submitted that only in the years 1997-1998, 1998-
1999, 1999-2000, 2000-2001, 2001-2002 and 2002-2003,
the late husband of the opponent-wife had completed
240 days' work and therefore, as per the GR dated
17.10.1988, the late husband of the opponent-wife, is
not entitled to get the benefits and in spite of that
the learned Single Judge, passed the impugned
judgment and order and allowed the petition.
4.2 Learned Advocate, Mr. Munshaw, placed reliance
on the decision of the Apex Court in 'STATE OF
GUJARAT VS. PWD & FOREST EMPLOYEES UNION', reported
in (2019) 15 SCC 248, and submitted that, if, a
workman has completed 240 days' service in each year,
then only, the benefits of the GR dated 17.10.1988 is
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to be granted to the concerned workman.
4.3 Learned Advocate, Mr. Munshaw, therefore,
submitted that the present appeal be allowed and the
impugned judgment and order passed by the learned
Single Judge be quashed and set aside.
5. Per contra, learned Advocate, Mr. Dave,
appearing for the opponent-wife, i.e. the original
petitioner, strongly opposed this appeal.
5.1 Learned Advocate, Mr. Dave, referred to the
reasoning given by the learned Single Judge, so also
the documents, which are placed on record, including
GR dated 17.10.1988 and submitted that the opponent-
wife rightly filed Recovery Application No. 66 of
2013 before the concerned Labour Court, as she was
claiming the right of pension and other retiral
benefits, as per GR dated 17.10.1988.
5.2 Learned Advocate, Mr. Dave, in support of the
case of the opponent-wife, relied on the order of the
learned Single Judge, Dated: 22.12.2016, rendered in
Special Civil Application No. 12350 of 2016 and the
allied matters and more particularly, Paragraphs-8
and 10, thereof.
5.2.1 Learned Advocate, Mr. Dave, submitted that
the order dated 22.12.2016 was challenged before the
Division Bench of this Court by way of Letters Patent
C/LPA/159/2023 ORDER DATED: 28/02/2023
Appeal No. 2152 of 2017 and the same was dismissed
vide order dated 10.01.2018.
5.2.2 Learned Advocate, Mr. Dave, submitted that
being aggrieved with the same, the State had
preferred SLP before the Apex Court, which was also
dismissed by the Apex Court vide order dated
04.01.2019.
5.2.2.1 It was, therefore, submitted that no error
is committed by the learned Single Judge, by setting
aside the order of the Labour Court, Godhra, in
passing the impugned judgment and order.
5.3 Learned Advocate, Mr. Dave, submitted that the
learned Single Judge committed no error by observing
that, if, the Sundays and the official / public
holidays are counted, the late workman would
completed 240 days' work in each year for the period
of 12 years.
5.4 At this stage, learned Advocate, Mr. Dave,
referred to the decision of the Division Bench of
this Court rendered in Letters Patent Appeal No. 1495
of 1997 and submitted that the Division Bench of this
Court, relying on the decision rendered by the Apex
Court in 'WORKMEN OF AMERICAN EXPRESS Vs MANAGEMENT
OF AMERICAN EXPRESS', reported in AIR 1986 SC 458,
observed that continuous services is to be counted by
calculating the Sundays, official / public holidays,
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sick-leave and authorized leave etc..
5.5 Learned Advocate, Mr. Dave, next, placed
reliance on the decision of the Division Bench of
this Court, Dated: 29.03.2016, rendered in Letters
Patent Appeal No. 2047 of 2004 as well as the order
passed by the learned Single Judge of this Court,
Dated: 29.11.2019, in Special Civil Application No.
5319 of 2019, where, the learned Single Judge, after
considering the decision rendered by the Apex Court
in the case of 'STATE OF GUJARAT' (Supra) allowed the
said petition filed by the concerned workmen.
5.5.1 It was submitted that the order passed by
the learned Single Judge, Dated: 29.11.2019, was
challenge before the Division Bench by way of Letters
Patent Appeal No. 93 of 2021, which came to be
dismissed on 18.01.2021.
5.5.2 Learned Advocate, Mr. Dave, submitted that
the order dated 18.01.2021 was challenged before the
Apex Court by filing Special Leave to Appeal (Civil)
No. 13048 of 2021. However, the Apex Court did not
entertain the same and dismissed vide order dated
31.08.2021.
5.6 Learned Advocate, Mr. Dave, therefore, submitted
that the present appeal be dismissed.
6. We have heard the learned Advocates for the
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parties and perused the material produced on record.
From the record, it emerges that the late husband of
the opponent-wife joined services with the appellants
in the year 1972 and he continued to work till his
death in the year 2003. It is also not in dispute
that the provisions of GR dated 17.10.1988 would be
applicable to the case of the late husband of the
opponent-petitioner.
6.1 It appears that on demise of late worker, since,
the opponent-wife was not granted pensionary and
other benefits, she approached the Labour Court,
under Section 33(C)(2) of the Act, by way of Recovery
Application No. 66 of 2013. The Labour Court
dismissed the said application on the ground that
there is no pre-existing right so as to entitle the
opponent-wife to claim the benefits, which had
accrued in favour of her late husband.
6.2 Being aggrieved with the same, the opponent-wife
approached this Court by way of Special Civil
Application No. 12082 of 2019, wherein, the learned
Single Judge considered the issue, whether, the
application under Section 33(C)(2) can be directly
filed before the Labour Court or not and the learned
Single Judge of this Court allowed the said petition
vide order dated 28.09.2022 by observing as under at
Paragraphs- 8 and 10, thereof;
"8. The Court in para 8 of the decision did consider the settled
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legal position under Section 33(C)(2) of the I.D. Act and after
considering the decisions of this Court as well as the
Supreme Court, held as under: "8. True that the settled legal
position as regards Section 33C(2) of the Act is, as
canvassed by learned AGP. Section 33C(2) of the Act cannot
be applied for adjudicating the facts in dispute but the facts in
dispute must be genuinely disputed and not for the sake of
disputing them. The crucial expression used in Section
33C(2) of the Act is thus: "Where any workman is entitled to
receive from the employer .... "The expression "entitlement"
will have to be given its due and appropriate meaning.
"Entitlement" may flow from statutorily recognised rights or
recognised policy as may have been interpreted by the High
Court or the Supreme Court or from some other legal source.
If the legal position concerning the statute or the policy is
made clear by interpretation by High Court or the Supreme
Court, and if by virtue of such interpretation, the beneficiary is
found to be entitled to certain benefits contemplated in the
statute or the policy, such entitlement, in the opinion of this
Court, would be the entitlement within the meaning of
subsec.2 of Section 33(C) of the Act. If there are genuine
reasons for disputing the entitlement, as contemplated in
Section 33(C)(2) of the Act, of course, the court or the judicial
authority exercising the power under Section 33(C)(2) of the
Act would not have a jurisdiction to adjudicate upon disputed
entitlement. If the issue of law has been raised in past and is
settled by the court and is accepted and implemented, raising
of such an issue once again to challenge the entitlement of
the workman under Section 33(C)(2) of the Act would not, in
the opinion of this Court, constitute a genuine dispute. When
the Government or the public body is a litigant before the
C/LPA/159/2023 ORDER DATED: 28/02/2023
judicial authorities like Labour Court, it owes an extra duty
and a fair approach for resolution of the claims genuinely
raised by the lower strata of the society wherein the workman
comprises. In stead of raising in-genuine dispute,
constitutional obligation of the State would require it to place
before the judicial authority the facts if any against and in
favour of the workman. The fairness would require the State
or its instrumentality the other public body to point out to the
judicial authority, the legal position relating to the subject
matter of the dispute irrespective of its adverse effect on its
case for the object of the state or its instrumentality. If the
scheme of some of the relevant provisions, namely, Sections
3, 4, 5, 9C, 10(i) (a) and 12 of the Industrial Disputes Act is
borne in mind, the legislative intent to ensure the resolution of
the industrial dispute through mechanism like Works
Committee, Conciliation Officers and Board of Conciliation
before its reference to the adjudicating forum is eloquent and
clear. Appropriate Government is required to play a crucial
role in above referred provisions even as it is duty bound to
ensure the constitution of the appropriate dispute resolution
mechanism for resolution of the industrial disputes before its
reference to the adjudicating forum. The very object of the
constitution of the mechanism aforestated being resolution of
the industrial disputes at the threshold, the obligation of the
appropriate Government to ensure resolution of the industrial
dispute by avoiding avoidable pleas in cases where it is one
of the parties to the industrial dispute multiples manifold. In
other words, when the appropriate Government is a party to
industrial dispute, it owes extra responsibility to ensure the
use of the said mechanism for settlement of the disputes by
avoiding avoidable contest. Article 14 of the Constitution of
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India would prohibit it to conduct a case like a private litigant
who can raise all sorts of hurdles to unnecessarily resist the
claim of the workman. When such is the statutory and
constitutional obligation of the appropriate Government, its
disputant department or its instrumentality who may be
summoned to aforestated mechanism for resolution of the
industrial dispute would be constitutionally obliged to
scrupulously follow the binding judicial pronouncements in a
bid to resolve the dispute at the threshold rather than
ensuring the mechanical or artificial reference of the disputes
to adjudicatory forum; else they will be failing in observing the
constitutional obligation. 9. The interpretation of the
G.R.dated 17.10.1988 so far made by this Court briefly stated
is that, once the eligible daily wager is found to have rendered
specified service within the meaning of Section 25B of the
Act, entire such service from the date of his entry until
retirement has to be reckoned for pensionary and other
related benefits. If the reference is required on this count, this
Court may refer to the case of Tribhovanbhai Jerambhai v.
Deputy Executive Engineer [1998(2) GLH 1]. The Court had
extensively discussed the issue similar to the one raised in
these petitions thus:
"1. The petition relates to travails of a person who has
been in the employment of the State Government for
almost 28 years and still awaiting for his retiral
benefits in terms of the Government's order, revealing
a pathetic insensitivity towards the fellow employees
who has superannuated and look for a peaceful and
quiet life at the twilight of his life banking upon the
retiral benefits assured under the relevant rules and
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orders of the State authorities themselves.
2. The facts which are not in dispute are that the
petitioner had been in service of the State
Government mostly as a daily rated workman since
1966 until he was treated permanent in terms of
Government Resolution dated 17.10.1988 and retired
on completing sixty years on 31.1.1994. After laying
the claim before the Assistant Labour Commissioner
and Provident Fund Commissioner his retiral benefits
in the form of gratuity and provident fund contributions
were determined and paid by treating the period of
service rendered by the petitioner from 1966 to 1994.
However, the pension, the regular source of income to
maintain a retired employee had not so far not been
granted. In fact, an attempt has been made to show
that the petitioner is not entitled to pensionary benefit
because he has not completed qualifying service as
per the award read in the light of Bombay Civil
Services Rules governing the grant of pension.
3. Though initially the learned counsel for the
respondent tentatively sought to urge that as on the
date of retirement on 31.1.1994 the petitioner has not
completed 10 years of service as daily rated
employee and he cannot be treated as permanent in
terms of resolution dated 17.10.1966. But when it was
pointed out that in reply the respondents have
admitted that the petitioner was a daily wager for the
period of 1966 to 1987. It is further revealed from the
reply that though department initially treated the
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petitioner in employment as daily rated workman on
work charge establishment with effect from 16.4.1987
only, and paid gratuity for that period only, ultimately
on a dispute having been raised in that regard the
petitioner was held to be in service with effect from
1966 and gratuity was paid for the entire period from
1966 to 1994, the learned counsel candidly stated that
the fact that petitioner was in service of respondents
since 1966 cannot be disputed. This further makes it
clear that as on date resolutions dated 17.10.1988
was made by the Government the petitioner had been
in employment of State for more than ten years as
daily rated employee, entitled to be treated as
permanent.
4. The short question which concerns the issue before
me is whether the petitioner is entitled to pension or
not. Primarily, the question of pension in pensionable
service has been determined under Section III of the
Bombay Civil Services Rules, 1959 commencing from
Rule 230 onwards. It has been contended by the
learned counsel for the respondents that the petitioner
being on daily wages, was not holding a pensionable
service under Section 230 nor he falls in the exception
to the Rule provided thereunder, therefore, the
services rendered on daily wages basis prior to his
becoming permanent cannot be considered as
qualifying service for the purpose of pension.
5. It was urged also that the service has been
declared as pensionable by the resolution dated
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17.10.1988 by the Government, which deems a daily
rated workman on completion of ten years service as
on 1.10.1988 or thereafter as deemed to be in
permanent service and has been made entitled to
pension. However, for the purpose of entitlement of
pension under resolution the service on regular basis
only has to be counted for determining qualifying
service and entitled to pension. As the petitioner has
not been on permanent basis after he can be deemed
to have become permanent as on 1.10.1988, for the
qualifying period of ten years he is not entitled to
pension.
6. This plea, in my opinion, cannot be sustained being
contrary to record and Government's own decision.
7. Rule 230 of Bombay Civil Services Rules says that
unless in any case it is otherwise provided by or under
the Rules a Government Servant is considered in
pensionable service if he holds substantively a
permanent post in Government service. The argument
is that though the petitioner may be treated as
permanent under Resolution dated 17.10.1988, he
cannot be deemed to holding a permanent post.
Without going into this contention it may be noticed
that rule itself envisages that a person may be
otherwise eligible to pension if so provided by or
under the Rules. In this connection, attention has
been drawn to Rule 248 of the Rules.
8. Rule 248 of the Bombay Civil Services Rules
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provide that Government may by general or special
order permit service other than pensionable service
for performing which a government servant is paid
from State revenues or from a local fund to be treated
as a duty counting for pension. In issuing such order
the Government is to specify the method at which the
amount of duty shall be calculated and may impose
any condition which it thinks fit. Thus Government has
necessary power to provide for pension even in cases
where service other than pensionable service may
become eligible for grant of pension.
9. In the resolution dated 17.10.1988, it has been
envisaged that those workman who as on 1.10.1988
or thereafter completes ten years of continuous
service to be counted in accordance with provisions of
Section 25B of the Industrial Disputes Act shall be
deemed to be permanent and amongst other benefits
conferred on being treated as permanent their age of
superannuation was fixed at 60 years and they were
made entitled for pensionary benefit. By yet another
resolution dated 30.5.1989 (Annexure E), in which a
specific query was raised at item No (6) with
reference to resolution dated 17.10.1988, about the
calculation of period of qualifying service for the
purpose of entitlement to pension in connection with
the pensionary benefits made available to those daily
wagers who are deemed to be permanent on
completion of ten years of service and it was
specifically made clear that within the meaning of
resolution dated 17.10.1988, the service which is to
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be counted is that which can be said as continuous
within the meaning of Section 25B with effect from the
date of entry in the service is duty counted for the
purpose of pension and pension has to be accordingly
determined. This does not say that qualifying service
is to be counted with effect from date of becoming
permanent. This leaves no room of doubt that the
resolution dated 17.10.1988 along with clarification
issued on the various aspects of it vide resolution
dated 30.5.1989 is in consonance with the provisions
of Rule 248 of the Bombay Civil Services Rules, 1959
which provide that Government has not only power by
general or special order to permit service other than
pensionable service, for performing which a
Government servant is paid from State revenues or
from a local fund, to be treated as duty counting for
pension and in issuing such an order Government is
to specify the method by which the amount of duty
shall be calculated for the purpose of pension. Once
the Government has made it clear that those who
have completed ten years of service as daily rated
workman are to be deemed permanent with effect
from and after 17.10.1988 and are entitled to various
benefits on that basis including pension and thereafter
has provided by the resolution dated 30.5.1989 that
the continuous service for the purposes of pension,
made available to employees under resolution dated
17.10.1988, is to be counted with effect from the date
of entry in the service provided it can be continuous
within the meaning of Section 25B of the Industrial
Act, thus making it clear that once a daily rated
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workman is treated to be permanent under the
resolution dated 17.10.1988 his entire continuous
service from the date of entry until he retires including
his services rendered prior to the date of his
regularisation is taken into consideration for the
purpose of computing pension or making pension
available to such retired employee.
10. There is yet another aspect of the matter.
Assuming that Bombay Civil Services Rules do not
provide for grant of pension to those, who are not
holding a permanent post in the service, then it must
be held that daily rated workman working on daily
wages, are ex cadre employees and not governed by
particular service rules, but are governed by terms of
employment under which they have been engaged.
This further leads to conclusion that area of
employment on daily wages is not covered by
statutory rules either promulgated under Act 309 or by
other legislature enactment. That is the area left
uncovered by specific law, and such employment is in
exercise of general executive powers of the State and
terms and conditions of such employment is governed
by terms of order under which such employment is
made and shall be further governed by orders made
by State in exercise of its executive power from time
to time. The resolution dated 17.10.88 and 30.5.89
shall thus govern the terms of employment of such
employees. If considered from this view, the
conclusion will be the same.
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11. In view of the aforesaid, I have no hesitation in
coming to the conclusion that resolution dated
17.10.1988 read with resolution dated 30.5.1989 read
with Rule 248, of the Bombay Civil Services Rules,
the petitioner is entitled to pensionary benefits by
counting the entire period of service from 1966 to
1994 until the date of his retirement which is to be
counted continuous under Section 25B of the
Industrial Disputes Act as qualifying service and
determining the pension payable to the petitioner who
has retired on 31.1.1994, on that basis.
12. Accordingly, this petition is allowed. The
respondents are directed to compute the pension
payable to the petitioner on the aforesaid basis within
the period of months from today and release the
arrears of pension payable to the petitioner on such
determination within a further period of one month and
start making regular payment of pension with effect
from the date of such determination. The petitioner be
paid the costs of this petition which is quantified at
Rs.3000/-. Rule made absolute accordingly." The ratio
laid down in the said case which has subsequently
been followed by this Court in several cases, relied
upon by the learned counsel for the petitioners ought
to have concluded the issue as regards entitlement to
the pension and other related benefits or clubbing of
two periods of service indicated above; and in all
fairness, the respondent No.2 ought to have
conceded to the fact that the benefits under G.R.
dated 17.10.1988 were already conferred upon the
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eligible daily wagers, and that, in view of the ratio laid
down by this Court in the above case, the petitioners
are entitled to more benefits including pension and
related terminal benefits. The entitlement of the
workman under the circumstances could not have
been genuinely disputed inasmuch as, at the cost of
repetition, it must be observed that the grant of benefit
under G.R. dated 17.10.1988 implies an admission on
the part of the respondents that they were so entitled
and the relevant criteria including completion of the
service as provided in Section 25B of the Act was
satisfied inasmuch as, in absence of such satisfaction,
the benefits under G. R. dated 17.10.1988 could not
have been conferred upon the workmen. The matter
is, therefore, squarely covered by the decision of this
Court in Tribhovanbhai (supra) and could not have
been reagitated. ... ... 11. Only question which ought
to have been asked by the Labour Court was: whether
the G.R. dated 17.10.1988 has been interpreted by
this High Court, and if yes, whether the High Court
has held that the past continuous service of the
workman are required to be taken into consideration
for extending the benefits under G.R. dated
17.10.1988. If the answer to the said question was in
affirmative, there remained nothing to be adjudicated
and thus recovery applications were maintainable. 12.
Even otherwise, in the opinion of this Court, a writ
petition under Article 226 of the Constitution of India
for enforcing the G.R. dated 17.10.1988 would lie in
absence of the serious dispute of the facts of the
case. Concededly, G.R. dated 17.10.1988 has been
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applied to the petitioners and, therefore, its
applicability is not in dispute. The only dispute raised
by the State in its affidavit is with regard to the
interpretation of the said G.R. which has already been
interpreted in Tribhovanbhai (supra), and thus,
applying the ratio laid down therein, in the opinion of
this Court, the respondents are not right when they
say that for the purpose of pensionary benefits, the
services post regularisation only must be reckoned.
13. Reliance placed on G.R. dated 24.3.2006 in
support of the above contention is also misconceived
since the said issue has been set at rest in Nirubha
Vajubhai Sarvaiya v. State of Gujarat and three others
[2016 Lawsuit (Guj) 155]. The said case has been
followed by this Court in Ranabhai Ajmalbhai Harijan,
since deceased through legal heirs - petitioners v.
Secretary, Road and Building, Sachivalaya,
Gandhinagar and two others [Special Civil Application
No. 18036 of 2013 decided on 19.10.2016. It is,
however, stated by the learned AGP that the decision
in Nirubha (supra) is pending consideration in Letters
Patent Appeal. In the opinion of this Court, mere
pendency of the appeal would not be sufficient to
deter this Court from following the said case."
XXX XXX XXX
10. Mr. Munshaw learned counsel for the respondent would
also rely on the decision of the Division Bench of this Court in
Letters Patent Appeal No.214 of 2021, which indicates that for
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only those period in which the workman had worked for 240
days in a year, the benefits would be available."
6.3 Here, it is pertinent to note that against the
order of the learned Single Judge, Dated: 22.12.2016,
rendered in Special Civil Application No. 12350 of
2016 was challenged before the Division Bench of this
Court by way of Letters Patent Appeal No. 2152 of
2017. However, the Division Bench dismissed the same
vide order dated 10.01.2018.
6.4 Being aggrieved with the order dated 10.01.2018,
the State preferred Special Leave Petition (Civil)
Diary No. 45860 of 2018 and the Apex Court dismissed
the same, on the ground of delay as well as on
merits, vide order dated 04.01.2019.
6.4.1 We are, therefore, of the view that the
opponent-wife rightly claimed the pensionary and
retiral benefits, which had accrued in favour of her
late husband, as per GR dated 17.10.1988 and she was
justified in filing an application under Section
33(C)(2) of the Act and thus, while quashing and
setting aside the order passed by the Labour Court,
Godhra, learned Single Judge committed no error.
6.5 Now, so far as the contention raised by learned
Advocate, Mr. Munshaw, by relying on the chart
produced at Page-45 of the compilation, that the late
worker, i.e. the husband of the opponent-wife,
C/LPA/159/2023 ORDER DATED: 28/02/2023
completed the 240 days work only in six years is
concerned, if, the document produced at Page-45 of
the compilation is seen, it has to be decided, as to
whether, while calculating 240 days, Sundays and
official / public holidays are to be counted in the
same or not.
6.5.1 Aforesaid aspect has already been considered
and decided by this Court vide order dated
06.08.1998, passed in Letters Patent Appeal No. 1495
of 1997, wherein, the Division Bench of this Court
observed as under;
"As per the resolution dated October 17, 1988, daily wage
worker who has put in service for more than 10 years as per
section 25-B of the Industrial Disputes Act, 1947, is entitled to
retiral benefits. Section 25-B of the Industrial Disputes Act,
1947 defines 'continuous service'. According to said provision,
a workman shall be said to be in continuous service for a
period if he is, for that period, in uniterrupted service,
including service which may be interrupted on account of
sickness or authorised leave or an accident or a strike which
is not illegal, or a lock-out or a cessation of work which is not
due to any fault on the part of the workman. Sub-section (2) of
Section 25-B introduces a deeming fiction and provides that
where a workman is not in continuous service within the
meaning of clause (1) for a period of one year or six months,
he shall be deemed to be in continuous service under the
circumstances mentioned in the said sub-section. From the
abstract, which is produced by the learned Counsel for the
C/LPA/159/2023 ORDER DATED: 28/02/2023
respondents, there is no manner of doubt that in all for 14
years the appellant had worked for more than 240 days. The
Supreme Court in the case of Workmen of American Express
International Banking Corporation vs. Management of
American Express International Banking Corporation, A.I.R.
1986 S.C. 458 has ruled that continuous service is to be
counted by including sundays and other holidays, sickness or
authorised leave and accident or strike which is not illegal or a
cessation which is not due to any fault on the part of
workman. The respondents have failed to produce any
material on record of the case to indicate that in the year
1980-81 and 1981-82 there was a cessation of work due to
any fault on the part of the appellant. Therefore, the appellant
had continuously served for a period of more than 10 years
within the meaning of Resolution dated October 17, 1988.
The submission made by the learned Counsel for the
respondents that the appellant had completed 240 days' work
in 8 years only, which is less than 10 years and, therefore, the
appellant is not entitled to pension, cannot be accepted. It is
an admitted fact that while denying the claim of the appellant,
sundays and other holidays, sickness or authorised leave etc.
were not taken into consideration by the respondents, nor the
question was considered whether there was any cessation of
work which was not due to any fault on the part of the
appellant. It may be stated that the appellant served as a daily
wager for about 21 years and retired from service on October
13, 1989. Having regard to the facts of the case, even there
were some small breaks in service of the appellant which had
taken place in the years 1980-81 and 1981-82, they have
been condoned by the respondents for the purpose of retiral
benefits. On the facts and in the circumstances of the case,
C/LPA/159/2023 ORDER DATED: 28/02/2023
we are of the opinion that as the appellant had completed 240
days' work continuously in 10 years in which he had worked
for more than 240 days, he is entitled to the benefit of
pension. The learned Single Judge was not justified in
rejecting the claim ofthe appellant on the ground that the
appellant had not worked for 240 days' continuously in 10
years and was, therefore, not entitled to pension. The appeal,
therefore, deserves to be accepted."
6.6 The Division Bench of this Court considered the
very issue in Letters Patent Appeal No. 2047 of 2004,
Dated: 29.03.2016, and observed at Paragraph-7 thus;
"7. Having heard learned advocates appearing for the parties
and perusal of the record and the order under challenge, we
find no error on law much less on facts appears in the
judgement under challenge. Learned Single Judge having
adverted to nature of right of an employee to receive pension
upon completion of 10 years of continuous service in the
context of definition of Section 25B of I.D.Act, 1947 read with
Government Resolution dated 17.10.1988 of State of Gujarat,
and relying on decisions of the Apex Court for the expression
'actually worked under the employer' would mean number of
days namely, Sundays and other paid holidays on which the
workman had actually performed the duties. By applying the
above parameter in the light of decision of the Apex Court in
Workmen of American Express International Banking
Corporation vs. Management of American Express
International Banking Corporation and even as appeared from
the record of the case namely, certificate issued by Dy.
C/LPA/159/2023 ORDER DATED: 28/02/2023
Executive Engineer, Panchayat Department, Road and
Building Patadi at Annexure J to the petition reveal that in the
year 1981, 1984 to 1991 for all these 9 years workman had
completed more than 240 days and in the year 1983
workman-petitioner had actually worked even as per the
above certificate for 235 days, in which, public and paid
holidays are included would exceed 240 days and thus
continuous service for 10 years of the petitioner surfaces on
record. Likewise, in the year 1982 actual days of working are
198 days and upon inclusion of Sundays and paid holidays on
which, the petitioner-workman had performed the duties
would be more than 240 days. So on facts and on law as a
whole the case of the petitioner is squarely covered and there
is not an iota of doubt of completion of 10 years of continuous
service by the workman having served for 240 days in a year
during such period, we find no error in the judgment under
challenge passed by the learned Single Judge."
6.7 The learned Single Judge of this Court also
followed the decision of the Apex Court in 'STATE OF
GUJARAT' (Supra) and vide order dated 29.11.2019,
rendered in Special Civil Application No. 5319 of
2019, observed as under at Paragraph-6.1 thereof;
"6.1 It is also directed that while taking decision as per the
above observations, the law laid down in Workmen of American
Express International Banking Corporation v. Management of
American Express International Banking Corporation [(1985) 4
SCC 71] as well as decision of the Division Bench in
Surendranagar District Panchayat v. Umarkhan Alikhan Malek
being Letters Patent Appeal No.2047 of 2004 decided on 29th
C/LPA/159/2023 ORDER DATED: 28/02/2023
March, 2016 shall be taken into account."
6.7.1 Here, it is pertinent to note that the
order dated 29.11.2019 was challenged by way of
Letters Patent Appeal No. 93 of 2021, which came to
be dismissed by the Division Bench of this Court on
18.01.2021.
6.7.2 At this stage, it may be noted that against
the order dated 18.01.2021, the State had preferred
Special Leave to Appeal (Civil) No. 13048 of 2021
before the Apex Court and the Apex Court without
entertaining the same, dismissed it on 31.08.2021 and
thereby, the order passed by the learned Single
Judge, Dated: 29.11.2019, is confirmed by the Apex
Court.
6.8 Thus, in view of the discussion and the
observations made herein above, we are of the
considered opinion that for calculating 240 days,
Sundays and the official / public holidays are
required to be included in the workdays.
6.9 In the case on hand, the learned Single Judge
specifically observed at Paragraph-16 of the order
dated 28.09.2022 that late worker, i.e. the husband
of the opponent-wife, completed 240 days in more than
12 years, if, Sundays and holidays are to be included
in the said working days.
C/LPA/159/2023 ORDER DATED: 28/02/2023
6.10 We are, therefore, of the view that the learned
Single Judge committed no error, much less any error
of law, in passing the impugned judgment and order.
7. Resultantly, this appeal fails and is DISMISSED,
accordingly.
7.1 In view of the disposal of the main matter,
civil application shall not survive and it also
stands disposed of, accordingly.
(VIPUL M. PANCHOLI, J)
(HEMANT M. PRACHCHHAK,J)
UMESH/-
