Ravjibhai Shankarbhai Vaghela vs State Of Gujarat
2023 Latest Caselaw 6705 Guj

                                                                                     NEUTRAL CITATION




       C/SCA/9050/2023                                ORDER DATED: 12/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 9050 of 2023

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                         RAVJIBHAI SHANKARBHAI VAGHELA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR SURESH BHATT FOR MR VK JOSHI(2329) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                         Date : 12/09/2023

                                  ORAL ORDER

1. Heard learned Advocate Mr. Suresh Bhatt for learned Advocate Mr.V.K. Joshi for the petitioners and learned AGP Ms. Nirali Sarda for the respondent-State.

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

3. By way of this petition, the petitioners have sought for the following prayers: -

"6(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of mandamus and /or any other appropriate writ, order or direction:

(i) to hold and declare that action on the part of the respondents in not making full payment of pensionary including higher grader pay scale and the

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Government Resolution dated 16.08.1994 etc. benefits to the petitioners by counting their entire length of service from the date of joining till date of retirement as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioners by counting his service from date of joining until the date of retirement and fix the pension accordingly;

(ii) to hold and declare that the petitioners are entitled to all other retiral benefits including the benefit of leave encashment and higher grade pay scale and be pleased to further direct the respondents to pay amount of retiral benefits; leave encashment difference of gratuity and higher grade pay scale

(iii) to direct the respondents to pay difference of pensionary benefits, gratuity and leave encashment with 18% interest from the date when it fell due.

(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to immediately revise the pension of the petitioners on the basis of their total length of service.

(D) Your Lordships may be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstance of the case."

4. It is required to be noted that in view of the order dated 06.06.2023 passed by learned Co-ordinate Bench the petitioners have restricted their prayers in relation to 300 day leave encashment, payment of pension and payment of gratuity counting the entire length of their service.

5. Learned Advocate for the petitioners would submit that the issue in the present petition pertains to grant of benefit of 300 days unavailed earned

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leave and not calculating the retirement benefits of the petitioners from the date of appointment. The prayer in relation to other benefits, if any, referred in this petition, is not pressed by the learned Advocate for the petitioners at this stage.

5.1 Learned Advocate would further submit 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 would also submit that present petitioners were working with the concerned respondent department for approximately 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.

5.2 Learned Advocate would also rely upon the Government Resolution dated 24.01.2023, of Road and Building Department, Sachivalaya, Gandhingar, wherein 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.

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(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."

6. 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

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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."

7. The above factual position could not be controverted by learned Assistant Government Pleader for the respondent - State.

8. It is also not in dispute that for counting entire length of service for payment of gratuity and leave encashment benefits, the decision of this Court in case of Executive Engineer, Panchayat (Maa & M) Department vs. Samudabhai Jyotibhai Bhedi reported in 2017 (4) GLR 2952 would be applicable.

9. Considering the above position, more particularly since it appears that the issue has been decided by this Court and even by the Hon'ble Apex Court and whereas since the State has also issued guidelines, as to how the said benefit has to be computed, in the considered opinion of this Court, the present petition could be disposed of with the following directions,

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which would meet the ends of justice.

(A) The respondent authorities concerned shall undertake a scrutiny of the case of the petitioners, more particularly for payment of gratuity from the actual appointment as well as for payment of leave encashment and whereas if the petitioners are found eligible, then the State Government shall consider the proposal for grant of gratuity from the actual appointment as well as for grant of leave encashment and pass appropriate orders within a stipulated time frame.

(B) The respondent authorities concerned shall conduct the above referred scrutiny within a period of 04 weeks from the date of receipt of this order and whereas appropriate proposal for grant of gratuity from the actual appointment as well as for grant of leave encashment shall be moved to the State Government within such time.

(C) Upon such proposal being received by the concerned Department, the same shall be considered and a final decision of including payment shall be taken by the State within a period of 08 weeks from the date of receipt of such proposal.

With the above observations and directions, the present petition stand disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIKHIL S. KARIEL,J) NIRU