Khodabhai Oghadbhai Makwana vs State Of Gujarat
2023 Latest Caselaw 4084 Guj

     C/SCA/9055/2023                              JUDGMENT DATED: 06/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9055 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT                      -sd/-
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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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                       KHODABHAI OGHADBHAI MAKWANA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DHARMESH V SHAH(1050) for the Petitioner(s) No. 1,2
MS DRASHTI D SHAH(11443) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 06/06/2023

                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent - State.

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

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 and allow this petition.

(B) 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 extend the benefit of 300 days leave encahsment and gratuity from the date of their initial date of appointment of the petitioner with reasonable rate of interest in the interest of justice.

(C) Your Lordships may be pleased to Pending admission and final disposal of this petition, Your Lordship be pleased to direct the respondents to immediately pay the gratuity considering and counting the service of petitioners from the initial date of their appointment with 12% of interest

(D) Your Lordship pleased to pass such other and further orders in the interest of justice as may be deemed fit, just and proper in the peculiar facts and circumstances of this case.

3. Heard learned advocate Mr. Dharmesh Shah for the petitioners and learned Assistant Government Pleader Ms. Pooja Ashar for the respondent - State.

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

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 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 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

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

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.

(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.

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

(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: -

"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.

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

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 Assistant Government Pleader for the respondent - State.

7. In view of the above said 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

C/SCA/9055/2023 JUDGMENT DATED: 06/06/2023

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 made absolute to the aforesaid extent. Direct service is permitted.

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(MAUNA M. BHATT,J) SHRIJIT PILLAI