Gujarat High Court

Navuji Hemuji Jhala vs State Of Gujarat on 11 January, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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     C/SCA/446/2024                                      ORDER DATED: 11/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 446 of 2024

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                              NAVUJI HEMUJI JHALA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS VILAS A PURANI(9038) for the Petitioner(s) No. 1
MS NIRALI SARDA, AGP for Respondent State
for the Respondent(s) No. 2,3,4
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 11/01/2024

                                 ORAL ORDER

1. Heard learned Advocate Ms.Vilas Purani for the petitioner and learned AGP Ms.Sarda for the respondent State.

2. By way of this petition, the petitioner inter alia makes a grievance as regards non-payment of benefits for the period of service rendered by her late husband with the respondents.

3. It is the case of the petitioner that her late husband had joined the service of the respondent No.3 in the year 1977 and whereas the late husband of the petitioner had worked intermittently with the respondents and whereas the attendance sheet produced before the Controlling Authority under the Payment of Gratuity Act is relied by the learned Advocate to show the number of days for which the late husband of the petitioner had worked. Accordingly to learned Advocate Ms.Purani, perusal of the chart would reveal that the late

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C/SCA/446/2024 ORDER DATED: 11/01/2024

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husband of the petitioner had worked for approximately 10 years, where he had completed more than 240 days per annum in service. Learned Advocate would further submit that if the law laid down by the Hon'ble Apex Court in case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, reported in (1985) 4 SCC 71 is taken into account and the days are recalculated, then the late husband of the petitioner would be treated as having worked for more than approximately 15 years where he had completed more than 240 days per annum in service. Learned Advocate would submit that the respondents in spite of the fact that the late husband of the petitioner had worked clearly for 10 years, and applying the law laid down by the Hon'ble Apex in American Express (supra) 15 years, were required to grant benefits as available under G. R. dated 17.10.1988 and whereas having not done so, the petitioner is constrained to prefer the present petition.

4. In the considered opinion of this Court, while the grievance of the petitioner could be assuaged at this stage by directing the respondents to consider the case of the petitioner in line of the law laid down by this Court as well as the Hon'ble Apex Court as regards the scope and ambit of G. R. dated 17.10.1988.

5. Before issuing such directions, it would be apposite to refer to certain decisions of the Hon'ble Apex Court as well as of this Court, more particularly whereby the scope and ambit of G.R. dated 17.1988 has been explained by the Courts concerned. The Hon'ble Apex Court, in case of State of Gujarat Vs. PWD and Forest and Employees' Union, reported in (2019) 15 SCC 248, at paragraph 14, has observed as thus:-

"14.Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is

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pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is (arising out of SLP (C) No. 43592 of 2018) & Anr. emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature (arising out of SLP (C) No. 43592 of 2018) & Anr. which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above.

6. From the above quoted paragraph, it would clearly appear that the Hon'ble Apex Court had inter alia clarified that upon an employee, who had originally been appointed on daily-wages, completing a specific number of years, more particularly the same being in consonance with Section 25B of Industrial Disputes Act, then the employee is entitled to be granted benefits of permanency. The Hon'ble Apex Court has also further inter alia observed that upon attaining the status of permanency the employee, who was born in the department as daily-wager is entitled to be treated at part with employees, who have been appointed on regular/permanent basis by way of direct selection.








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 C/SCA/446/2024                                    ORDER DATED: 11/01/2024

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7. In case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Another, reported in 2011(2) GLR 1290 the Division Bench of this Court had stated the very position as stated by the Hon'ble Apex Court as noted herein above and whereas the Division Bench had also observed that the employees, upon being granted the benefits of permanency are also entitled to be granted the benefits of pension, higher pay scale, etc.

8. In case of Executive Engineer Panchayat (MAA & M) Department and Another Vs. Samudabhai Jyotibhai Bhedi & Ors., reported in 2017(4) GLR 2952, Division Bench of this Court had taken the view that upon completion of a certain number of years, while the employees concerned would be entitled to claim permanency and whereas the period of service put in by the employees concerned on the date when they were treated as permanent employees was to be treated as continuous service for deciding pension as available to the petitioners.

9. It would also be pertinent to mention here that in a proceeding before the Hon'ble Apex Court i.e. in SLP No.7229 of 2022, the State has accepted its liability of paying leave encashment of 300 days to the employees, who have been granted permanency under G.R. dated 17.10.1988.

10. In case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, reported in (1985) 4 SCC 71, the Hon'ble Apex Court has inter alia laid down that while computing the period of service rendered by an employee under Section 25 of ID Act, Sundays and Public Holidays also to be added. The said decision though not expressly as regards the scope and ambit of G. R. dated 17.10.1988, yet the law laid down is to be followed while computing the

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number of days having put in by an employee while considering his case for grant of benefits under the said Government Resolution.

11. The above are but few of the important decisions on the aspect of the applicability of the G. R. dated 17.10.1988 and whereas the above law as well as any further decisions that would have been passed by this Court or Hon'ble Apex Court shall be kept in mind by the respondents while deciding the representation which the petitioner would prefer.

12. Considering the above discussion, the following directions are issued :-

12.1. Petitioner to prefer a detailed representation to the respondents within a period of one week from the date of receipt of this order;

12.2. Upon receipt of the said representation, the respondent No.2 in consultation with respondent No.1 shall take an appropriate decision, more particularly in line of the decisions of this Court as well as the Hon'ble Apex Court;

12.3. All the financial benefits that would accrue in favour of the petitioner shall be paid to the petitioner within a period of four weeks thereafter;

12.4. In case the petitioner is aggrieved by the decision, which would be taken by the respondents wholly or in part, then it would be open for the petitioner to approach appropriate forum in accordance with law;

12.5. It is clarified that this Court has not gone into the merits of the matter and whereas the respondents shall take appropriate decision strictly in accordance with law. At the same time, it requires to be observed that the law as far as G.R. dated 17.10.1988 having been

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settled, except for the issue pending before the Hon'ble Apex Court, the respondents shall do well in applying the law laid down by this Court and Hon'ble Apex Court in this regard in its true perspective.