Gujarat High Court
Rupsing Kalusing Roth Through Lhs vs State Of Gujarat on 3 July, 2023
Bench: Mauna M. Bhatt
C/SCA/4607/2023 JUDGMENT DATED: 03/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4607 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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RUPSING KALUSING ROTH THROUGH LHS
Versus
STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1.1,1.2,1.3
MS. NIRALI SARDA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MS. RICHA SHAH for MR. ALKESH N SHAH(3749) for the Respondent(s)
No.2 to 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 03/07/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government
Pleader Ms. Nirali Sarda waives service of notice of Rule on behalf of
the respondent - State.
C/SCA/4607/2023 JUDGMENT DATED: 03/07/2023
2. This petition under Article 226 of the Constitution of India is
filed with the following prayers: -
"(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 respondents to
pay the benefit of 300 days leave encashment to
the petitioners as per the order passed by this
Hon'ble Court on 27-8-2021 passed in LPA
No.326/2018 and order dated 1-9-2022 passed
in SLP, with 6% simple interest;
(AA). That Your Lordships be pleased to quash
and set aside the order dated 6-2-2023 issued
by the Executive Engineer, Narmada Yojna
Nehar Vibhag No.3, as being illegal and be
pleased to direct the respondents to
immediately extend the benefit of 300 days
leave encashment;
(B) Any other and such further relief as the
Hon'ble court deems fit and proper in the
interest of justice together with costs;"
3. Heard learned advocate Mr. M.T. Mishra for the petitioners,
learned Assistant Government Pleader Ms. Nirali Sarda for the
respondent No.1 - State and learned advocate Ms. Richa Shah for
Mr. Alkesh Shah learned advocate for respondent Nos. 2 to 4.
4. Learned advocate for the petitioners submitted that the issue in
the present petition pertains to grant of benefit of 300 days
unavailed earned leave and not calculating the retirement benefits
of the deceased - employee from the date of appointment. He relied
C/SCA/4607/2023 JUDGMENT DATED: 03/07/2023
upon the Government Resolution dated 21.10.2022, which has been
adopted by Sardar Sarovar Narmada Nigam Limited. The prayers in
relation to other benefits, if any, referred in this petition, is not
pressed at this stage.
4.1 He further pointed out that the issue involved in the present
petition which is in relation to payment of leave encashment for 300
days leave as also counting the retirement benefits available to the
deceased- employee from the date of his appointment, is no more
res integra in view of decision of Hon'ble Supreme Court dated
01.09.2022, in Special Leave Petition (C) No. 7229 of 2022. Learned
advocate for the petitioners submitted that deceased - employee
was working with the respondent department for more than 3
decades and he had retired upon attaining the age of
superannuation and therefore considering his continuous service, he
is entitled for the benefits of leave encashment.
4.2 He pointed out that by Government Resolution dated
21.10.2022 of Irrigation Department, Gandhinagar had issued
directives for implementation of the decision of the Hon'ble
Supreme Court in Special Leave Petition (C) No.7229 of 2022.
5. In relation to leave encashment, the Irrigation Department,
Gandhinagar, vide Government Resolution dated 21.10.2022 has
taken a policy decision which reads as under: -
C/SCA/4607/2023 JUDGMENT DATED: 03/07/2023
"According to the judgment of the Hon'ble
Supreme Court referred in No. (1) above, since
the Resolution of the Roads and Buildings
Department dated 17-10-1988 also provides
that the retirement benefits granted to daily
workers include the benefit of "encashment of
leave" also, as per the clause (5) of the State
Litigation Policy of the State Government, daily
wages workers are entitled to the benefit of
conversion of leave into cash, the instructions in
this regard regarding the payment of leave
encashment to the daily wages worker petitioner
under this section, instructions are hereby
circulated as per the approval received vide
informal note dated 17/10/2022 of the Finance
Department on the equal numbered files as
follows.
With reference to various claims filed before the
Hon'ble Court, the petitioner daily wagers shall
be paid the encashment of accrued leave (within
the maximum limit of 300 leave accumulated) in
cash as is being paid for regular services as per
the policy of the Government, by calculating
leave as per the rules on the basis of the service
record of the daily workers.
(1) Payment in case of retired petitioners who
have completed 70 years of age as on
01/10/2022, shall be made by 31/10/2022,
(2) Payment to the remaining retired petitioner
daily workers will be within three months i.e. by
31/12/2022."
6. The above factual position could not be controverted by
learned advocate Ms. Richa Shah for the respondent Nos. 2 to 4 and
learned Assistant Government Pleader for the respondent No. 1 -
State.
C/SCA/4607/2023 JUDGMENT DATED: 03/07/2023
7. In view of the abovesaid position, the order of the respondent
No.4 - Executive Engineer, Narmada Yojna Nehar Vighag No.3
dated 06.02.2023 is hereby quashed and set aside. This Court
deems it appropriate to direct the respondents to undertake
scrutiny of the case of the deceased-employee, and upon such
scrutiny, if he is found eligible then a proposal shall be forwarded to
the State Authorities in this regard and thereafter, the State
Authority shall consider proposal of the petitioners herein
expeditiously and in consonance with the State policy.
8. 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 eight weeks from the date of receipt of copy of writ of this order.
9. The aforesaid exercise shall be completed within a period of
twelve weeks from today.
10. With the aforesaid, the petition stands disposed of. Rule is
made absolute to the aforesaid extent. Direct service is permitted.
(MAUNA M. BHATT,J)
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