Gujarat High Court
Dhirubha Karansinh Jadeja vs State Of Gujarat on 1 February, 2023
Bench: A.Y. Kogje
C/SCA/23519/2022 JUDGMENT DATED: 01/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23519 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
================================================================
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 ?
================================================================
DHIRUBHA KARANSINH JADEJA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1
MS NIRALI SARDA, AGP for the Respondent(s) No. 1,2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 01/02/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Learned AGP waives service of
notice of rule for and on behalf of the respondents - State.
2. The present petition is filed claiming leave encashment
which has not been granted to the petitioner.
C/SCA/23519/2022 JUDGMENT DATED: 01/02/2023
3. By way of this petition, the petitioner is claiming for the
following reliefs :
"(A) That Your Lordships be pleased to issue an order,
direction and/or writ in the nature of mandamus and/or
any other appropriate writ, order or direction, directing the
respondent authorities to extend the benefit of 300 days
leave encashment with 6% simple interest;
(B) Pending admission and final disposal of this petition,
Your Lordships be pleased to direct the respondents to
consider the case of petitioner in light of judgment passed
by this Hon'ble Court and upheld by Hon'ble Supreme Court
of India on 1.9.2022."
4. Learned advocate for the petitioner submitted that the
petitioner was initially appointed as Daily Wager in the year
1981 and he worked upto 1989. Thereafter, the services of the
petitioner came to be terminated.
5. It is submitted that thereafter the petitioner raised
industrial dispute, and ultimately, the Labour Court directed
reinstatement of the petitioner with continuity of service. The
respondent, thereafter, challenged the said order by filing Special
Civil Application No.21516 of 2007. The said petition came to be
disposed of on 28.1.2013 and the order of the Labour Court for
20% back-wages was set-aside, however, rest of the order was
confirmed. In pursuance to the said order, the respondent issued
letter reinstating the petitioner.
C/SCA/23519/2022 JUDGMENT DATED: 01/02/2023
6. Learned advocate for the petitioner submitted that
thereafter the petitioner had requested the respondent to
consider his service from the date of initial appointment and
extend the benefit of the Government Resolution dated
17.10.1988, however, the respondent did not consider the said
request. Therefore, ultimately, the petitioner filed another
petition being Special Civil Application No.12420 of 2021 and the
same came to be allowed on 18.2.2022. As the order passed by
this Court in the Special Civil Application No.12420 of 2021 was
not implemented by the respondent, the petitioner had to again
move a contempt petition being Misc. Civil Application No.779 of
2022, wherein vide order dated 29.9.2022 it has been observed
that the respondent has complied with the order passed by this
Court.
7. Learned advocate for the petitioner submitted that in due
compliance to the order passed by this Court, the respondent
passed an order extending the benefits of the Government
Resolution dated 17.10.1988 to the petitioner. It is submitted
that the petitioner has been paid the gratuity amount as well as
the amount of difference in salary, however, leave encashment
amount has not been paid to the petitioner.
8. Pursuant to the notice issued by this Court, learned AGP
has drawn attention of this Court to a Circular dated 21 st
October 2022 in connection with the aforesaid issue.
C/SCA/23519/2022 JUDGMENT DATED: 01/02/2023
9. In case of leave encashment, vide Circular
No.SUT/1022/2898/A dated 21st October 2022 of the
Department of Narmada, Water Resources, Water Supply and
Kalpsar, Gandhinagar, the State Government has also taken a
policy decision which would reflect as under :
"According to the judgment of the Supreme Court dated
1.9.2022 in SLP (C) No.7229 of 2022 and since the
resolution of the Roads and Buildings Department dated
17.10.1988 also provides that the retirement benefits
granted to the daily wagers include the benefit of
'encashment of leave', as per Clause (5) of the State
Litigation Policy of the State Government, the daily wagers
are entitled to the benefit of leave encashment. The
instructions in this regard are circulated after consultation
and approval received through the informal note dated
17.10.2022 of even number file of the Finance Department.
With regard to the various claims filed before the Hon'ble
Court, the petitioners - daily wagers shall be paid leave
encashment (within the maximum limit of 300 leave) for the
regular services as per the policy of the Government by
calculating leave as per the rules and after verifying their
service record, in the following terms :
(1) Payment in case of retired petitioners - daily wagers
who have completed 70 years as on 1.10.2022 shall be
made latest by 31.10.2022.
C/SCA/23519/2022 JUDGMENT DATED: 01/02/2023
(2) Payment to rest of the retired petitioners - daily
wagers shall be made within a period of three months, i.e.
latest by 31.12.2022."
10. In view of the aforesaid position, the Court deems it
appropriate to direct the respondents to undertake scrutiny of
the case of the petitioner, and upon such scrutiny if he is found
to be entitled, then a proposal shall be forwarded to the State
authorities in this regard and thereafter the State authorities
shall consider proposal of the petitioner expeditiously and in
consonance with the State policy.
11. 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 four weeks from the date of receipt
of copy of writ of this order.
12. The aforesaid exercise shall be completed within a period of
eight weeks from today.
13. With the aforesaid, the petition stands disposed of. Rule
made absolute to the aforesaid extent. Direct service is
permitted.
(A.Y. KOGJE, J.)
/MOINUDDIN
