Gujarat High Court
Motibhai Ambalal Padhiyar vs State Of Gujarat on 30 January, 2023
Bench: A.Y. Kogje
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26820 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 ?
================================================================
MOTIBHAI AMBALAL PADHIYAR
Versus
STATE OF GUJARAT
================================================================
Appearance:
ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1,2,3,4,5
MR JAY MEHTA, AGP for the Respondent(s) No. 1,2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 30/01/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Learned AGP waives service of
notice of rule for and on behalf of the respondents - State.
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
2. This petition under Article 226 of the Constitution of India
is filed for the following reliefs :
"(A) That this Hon'ble Court be pleased to hold and declare
that the petitioners are entitled for leave encashment of 300
days at par with other employees of the respondents and
accordingly be pleased to direct the respondents to pay the
amount towards leave encashment to the petitioners
considering the initial date of appointment of the petitioners
as mentioned in the pension payment order;
(B) That this Hon'ble Court may be pleased to issue a writ
of mandamus or any other appropriate writ, order or
direction, directing to calculate and re-fix the pension and
gratuity and further be pleased to direct to pay the arrears
of pension and gratuity by considering the total length of
service of the petitioners;
(C) That this Hon'ble Court may be pleased to issue a writ
of mandamus or any other appropriate writ, order or
direction, directing the respondents to hold and declare that
the petitioners shall be paid all benefits like Transport
Allowance, Travelling Allowance, Transfer Travelling
Allowance, Leave Travel Concession and other benefits at
par with the permanent employees;
(D) Pending hearing and final disposal of the present
petition, Your Lordships may be pleased to direct the
respondent authorities to forthwith consider the case of the
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
petitioners for extending Transport Allowance, Travelling
Allowance, Transfer Travelling Allowance, Leave Travel
Concession, payment of 300 days leave encashment and for
the payment of pension and gratuity for initial years of
service period considering the total length of service
rendered by the petitioners and pay the same in light of the
law laid down by this Hon'ble Court and confirmed by the
Hon'ble Apex Court."
3. It is the case of the petitioners that they had been working
as Daily Wagers since more than three decades and have now
retired upon attaining the age of superannuation. The claim of
the petitioners is to grant all the benefits arising out of the
Government Resolution dated 17th October 1988.
4. Pursuant to the notice issued by this Court, learned AGP
has drawn attention of this Court to a very recent Government
Resolution dated 24th January 2023 and a Circular dated 7 th
October 2022 in connection with the aforesaid issues.
5. Vide Government Resolution dated 24th January 2023, the
Government has resolved as under :
"At the end of active deliberations, subject to the following
conditions, it is hereby prescribed to pay gratuity to daily
wagers working in offices under various departments of the
State within the maximum limit of 33 (thirty-three) years as
per Resolution dated 21.10.2020 of this Department :
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
(1) The concerned Department will have to check the
eligibility of daily wagers as per the Payment of Gratuity
Act, 1972 of the Government of India.
(2) This order of this Department will also apply to cases
of retired/deceased daily wagers/work charge employees
of establishment (expenditure) after issuance of this
resolution dated 24.03.2006
(3) The concerned Department will have to pay gratuity of
services before getting permanent by verifying the eligibility
of daily wagers/work charge employees of establishment
(expenditure) as per resolution dated 21.10.2020 of this
Department. Whereas, the payment of gratuity for
pensionable services after becoming permanent will be
made by the Director, Pension & Provident Fund Office. The
Department will ensure that gratuity is paid within the limit
of 33 years combining both services together & no double
payment is made.
(4) Before the issuance of this order, cases of payment
made to daily wagers/work charge employees of
establishment (expenditure) under Resolution dated
21.10.2020 of this Department will not be revived."
6. In case of leave encashment, vide Circular dated 7 th
October 2022 the Government has also taken a policy decision
which would reflect as under :
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
"According to the decision of the Supreme Court, since the
retiral benefits given to the daily wagers under the
resolution dated 17.10.1988 also includes the benefit of
leave encashment, therefore the daily wagers are entitled to
the benefit of leave encashment as per Clause (5) of the
State Litigation Policy of the Government. The instructions in
this regard are circulated after consultation and as per the
approval received through the informal note dated
3.10.2022 of the Finance Department.
With regard to the various claims filed before the Hon'ble
Court, after verifying the service record of the petitioners -
daily wagers and after calculating as per rules and the
policy of the Government applicable to the regular services,
the benefit of encashment of earned leaves (within the
maximum limit of 300 earned leaves) shall be paid in the
following terms :
(1) The petitioners - daily wagers who have retired and
completed 70 years as on 1.10.2022 shall be paid latest by
31.10.2022.
(2) Rest of the petitioners - daily wagers shall be paid
within a period of three months, i.e. on or before
31.12.2022."
7. Learned AGP has also placed on record a proposal which is
already forwarded by the Deputy Executive Engineer to the
Executive Engineer along with all the necessary documents. The
same is ordered to be taken on record.
C/SCA/26820/2022 JUDGMENT DATED: 30/01/2023
8. In view of the aforesaid position, the Court deems it
appropriate to direct the respondents to undertake scrutiny of
individual cases of each of the petitioners herein, and upon such
scrutiny if they are found to be entitled, then the State
authorities shall consider proposal of each of such petitioners
expeditiously and in consonance with the State policy.
9. In the aforesaid view of the matter, the petition stands
disposed of with a direction that the proposal forwarded by the
Deputy Executive Engineer to the Executive Engineer be
processed in accordance with law within a period of eight weeks
from today.
10. Rule made absolute to the aforesaid extent. Direct service
is permitted.
(A.Y. KOGJE, J.)
/MOINUDDIN
