Gujarat High Court

Hasmukhbhai Somabhai Parmar vs State Of Gujarat on 5 June, 2023

Bench: Mauna M. Bhatt

     C/SCA/8724/2023                             JUDGMENT DATED: 05/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8724 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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                HASMUKHBHAI SOMABHAI PARMAR & 1 other(s)
                               Versus
                         STATE OF GUJARAT
==========================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
MS. NIRALI SARDA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 05/06/2023

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government

Pleader waives service of notice of Rule on behalf of the

respondent - State.

C/SCA/8724/2023 JUDGMENT DATED: 05/06/2023

2. This petition under Article 226 of the Constitution of India is

filed with the following prayers: -

(A) Your Lordships may be pleased to admit the petition.

(B) Your Lordships may be pleased to allow the petition by issuing a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus directing the respondents to release the benefits of 300 days unavailed leave encashment in favour of the petitioners with 12% interest per annum.

(C) Your Lordships may be pleased to direct the respondents to revise the gratuity of the petitioners by taking into consideration their entire period of service from their date of appointment till their date of retirement in the interest of justice.

(D) Your Lordships may be pleased to award any such other and further relief as may be deemed just and expedient in the interest of justice.

3. Heard learned advocate Mr. Murali Devnani for the

petitioners and learned Assistant Government Pleader Ms. Nirali

Sarda for the respondent - State.

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

C/SCA/8724/2023 JUDGMENT DATED: 05/06/2023

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 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 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 petitioner submitted that present

petitioners were working with the respondent No. 3 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 as well as pension and gratuity.

4.2 He pointed out that in the Government Resolution dated

24.01.2023, of Road and Building Department, Sachivalaya,

Gandhingar the State Government 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

C/SCA/8724/2023 JUDGMENT DATED: 05/06/2023

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.

(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 circular dated

07.10.2022 the Government has also taken a policy decision

which reads as under: -

C/SCA/8724/2023 JUDGMENT DATED: 05/06/2023

"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 :