Juvansinh Babaji Vaghela vs State Of Gujarat
2023 Latest Caselaw 4048 Guj

     C/SCA/4618/2023                              JUDGMENT DATED: 05/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4618 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                      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 ?

==========================================================
                       JUVANSINH BABAJI VAGHELA
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,7,8,9
MS NIRALI SARDA, LD.AGP for the Respondent No.1
MR. HARDEEP L MAHIDA(7112) for the Respondent(s) No. 2 to 5.
==========================================================
    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 05/06/2023

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government Pleader Ms.Nirali Sarda waives service of notice of Rule on behalf of respondent No.1 - State, and learned Advocate

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

Mr.Hardeep Mahida waives service of notice of Rule on behalf of respondent Nos.2 to 5.

2. This petition under Article 226 of the Constitution of India is filed with the following prayers: -

"(A) Your Lordship be pleased to issue an order, writ in the nature of mandamus and/or Certiorari or any other appropriate writ/order or direction declaring the impugned action of respondents in not granting the benefits of leave encashment to the petitioners as such benefits have been decided to give similar situated employees of petitioners vide G.R. dated 21.10.2022 (Annexure-C) which is discriminatory, illegal, unjust, arbitrary and violation of Article-14 & 16 of Constitution of India.

(B) Your Lordship be pleased to direct respondents to release the amount of Leave Encashment (unavailed privilege leave) to the extent of 300 days with 12% interest thereon;

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

(C) Your Lordship be pleased to pass any other further order as may be deemed fit, just and proper in facts and circumstances of the case and in the interest of justice."

3. Heard learned advocate Ms.Ashlesha Patel for the petitioners and learned Assistant Government Pleader Ms.Nirali Sarda for the respondent - State and learned advocate Mr.Hardeep Mahida on behalf of respondent Nos.2 to 5.

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 petitioners from the date of appointment. The prayers in relation to other benefits, if any, referred in this petition, is not pressed at this stage.

4.1 She 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 petitioners from the date of their 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 present petitioners were working

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

with the respondent department with more than 3 decades and they all had retired upon attaining the age of superannuation and therefore considering their continuous service, they are entitled for the benefits of leave encashment.

4.2. He pointed 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.

4.3. He pointed out that in the Government Resolution dated 24.01.2023, of Road and Building Department, Sachivalaya, Gandhingar which has been adopted by the Irrigation Department, wherein it has resolved as under:

"At the end of active deliberations, subject to the following conditions, it is hereby prescribed to pay gratuity to the daily wagers working in offices under various departments of the State within the maximum limit of 33 (thirty-three) years as per the Resolution dated 21.10.2020 of this Department:

(1) The concerned Department will have to check the eligibility of the daily wagers as per the Payment of Gratuity Act, 1972, of the Government of India.

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

(2) The order of this Department will also apply to the cases of retired/deceased daily wagers/work-charge employees after issuance of the resolution dated 24.03.2006 of this Department.

(3) The concerned Department will have to pay gratuity to the daily wagers/work-charge employees, for the services rendered before becoming permanent, upon verifying their eligibility as per the resolution dated 21.10.2020 of this Department. Whereas, the payment of gratuity for the pensionable services after becoming permanent will be made by the Director, Pension & Provident Fund Office. The Department will ensure that the gratuity is paid within the maximum limit of 33 years by counting both the services together and in any case no double payment is made.

(4) The payments made to the daily wagers/ work-charge employees under the Resolution dated 21.10.2020 of this Department before issuance of this order will not be reopened."

5. In relation to leave encashment vide Government Resolution dated 21.10.2022 issued by Irrigation Department, Government has also taken a policy decision, which reads as under: -

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

"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

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

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 Assistant Government Pleader for the respondent - State and learned advocate Mr.Hardeep Mahida for respondent Nos.2 to 5.

7. In view of the abovesaid position, this 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 eligible then a proposal shall be forwarded to the State Authorities in this regard and thereafter, the State Authority shall consider proposal of each of the petitioners herein expeditiously and in consonance with the State policy.

C/SCA/4618/2023 JUDGMENT DATED: 05/06/2023

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 made absolute to the aforesaid extent.

Direct service is permitted.

sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL