Gujarat High Court
Ravajibhai Bijalbhai Dabhi vs State Of Gujarat on 6 June, 2023
Bench: Mauna M. Bhatt
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9057 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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RAVAJIBHAI BIJALBHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR DHARMESH V SHAH(1050) for the Petitioner(s) No. 1
MS DRASHTI D SHAH(11443) for the Petitioner(s) No. 1
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
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
respondent - State.
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
petitioner and learned Assistant Government Pleader Ms. Pooja
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
Ashar 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 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.
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
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 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
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
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: -
"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 :
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
(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."
6. The above factual position could not be controverted by
learned Assistant Government Pleader for the respondent -
State.
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.
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
C/SCA/9057/2023 JUDGMENT DATED: 06/06/2023
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)
SHRIJIT PILLAI
