Gujarat High Court
Mahavirsinh Keshubha Gohil vs Gujarat Maritime Board on 17 April, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/7695/2023 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7695 of 2023
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MAHAVIRSINH KESHUBHA GOHIL
Versus
GUJARAT MARITIME BOARD & ANR.
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/04/2025
ORAL ORDER
1. Heard Ms. Pandya, learned advocate for the petitioner
and Ms. Mandavia, learned advocate for the respondents.
2. By way of this petition, the petitioner, who was working
with the respondent Board has approached this court for a
direction that the pay of the petitioner be revised from
Rs.2550-3200 to Rs.4440-7440 (G.P of Rs.1300) as per the 6 th
Pay Commission and consequential revision as per the 7 th Pay
Commission.
3. Facts in brief would indicate that the petitioner was
working as a daily wager 'Khalasi' with the respondent Board.
He joined services in the year 1984. After some time, the
services of the petitioner were terminated, but, he was re-
engaged in the year 1991. Then, he was retrenched from
service on 07.08.1993 without any notice or notice pay. He,
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therefore, preferred Reference Case (LCB) No. 120 of 1994,
which came to be allowed by the Labour Court vide award
dated 04.04.2006, directing the Respondent-Board to reinstate
the petitioner in service, on his original post and with
continuity of service and 50% back-wages. The Respondent -
Board challenged the same by way of filing Special Civil
Application No. 25336 of 2006 and pursuant to the interim
order, the petitioner was reinstated on 07.08.2017. Thereafter,
the Respondent - Board's petition was allowed to the extent of
granting 20% back-wages, instead of 50% back-wages, vide
order dated 31.03.2014. The benefits of the resolution dated
17.10.1988 were extended to the petitioner on completion of
five and ten years by order dated 30.12.2014. He was placed
in the regular pay-scale of Rs.2550-3200 (5 th Pay Commission)
with effect from 01.06.2002. The petitioner retired from service
on 31.01.2017. The pension papers of the petitioner were
finalized and his pension was based on pre-revised pay-scale
of Rs.2550-3200. While computing the benefits of pension, the
respondent Board considered only fourteen years of service as
pensionable service, instead of counting the same from the
date of his initial appointment, i.e. 07.08.1993, for the purpose
of computing pension.
4. Ms. Pandya, learned advocate for the petitioner would
submit that despite the decision of this court in the case of
'Executive Engineer Panchayat (MAA & M.) Department
& Another vs. Samudabhai Jyotibhai Bhedi', reported in
2017 (4) GLR 2952, the respondents did not extend the
benefits of pension by counting service from the initial date of
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appointment. Reliance is also placed on the decision of this
court in the case of 'State of Gujarat vs. Ranabhai
Ajmalbhai Harijan', rendered in Letters Patent Appeal No.
1518 of 2017. She would rely on the observations made by this
court, wherein, the court had observed that for the purposes of
counting pensionable service the past service from the initial
date of appointment ought to be counted once an employee
had been granted benefits of resolution dated 17.10.1988. For
the purposes of extending the benefits of 7th Pay Commission,
she would rely on the decision of this court in the case of
'Kanojia Dharmendra Jaysukhlal vs. Gujarat Maritime
Board', rendered in Special Civil Application No. 3756 of 2018,
wherein, the daily wagers of the Board had approached this
court for revising their pay-scales in accordance with the 6 th
and the 7th Pay Commission recommendations, where, the co-
ordinate bench of this court by order dated 26.10.2018, issued
directions for granting such benefits by the aforesaid order.
5. Ms. Mandavia, learned advocate appearing for the
respondent Board would invite the court's attention to the
affidavit-in-reply filed by the Board and submit that the
undisputed facts would indicate that the petitioner joined
services as a daily wager on 07.08.1993 and retired on
31.01.2017. Though, the total service rendered by the
petitioner was 23 years and 5 months, in accordance with the
government resolution dated 24.03.2006, service of 09 years
and 09 months have been deducted. Reliance was placed on
the resolution dated 24.03.2006. Based on this and the pay-
scale of Rs.2550-3200, the pension amount of Rs.1913/- per
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month is granted.
6. Considering the submissions made by the learned counsel
for the respective parties, it is undisputed that the date of
appointment of the petitioner was 07.08.1993. During his
service with the Board, he was extended the benefits of the
resolution dated 17.10.1988 on completion of 5 and 10 years.
In other words, it is an admitted fact that considering the
provisions of Section 25B of the Industrial Disputes Act and in
light of the decision of this court in the case of 'Samudabhai
Bhedi' (supra), past services of the employees who had
completed 240 days need to be computed from the initial date
of appointment for the purpose of pension. Reliance placed on
the government resolution dated 24.03.2006 is therefore
misconceived.
7. Even in the case of 'State of Gujarat vs. Ranabhai
Ajmalbhai Harijan', rendered in Letters Patent Appeal No.
1518 of 2017, the Division Bench of this court vide order dated
10.04.2018 considered the government resolution dated
24.03.2006 and held as under:
"8. Even otherwise while considering Sub-rule (3) of Rule
80 of the Pension Rules, learned Single Judge in the context
of Government Resolution dated 24.3.2006, has observed
that the benefit of the Rule for the purpose of bridging the
gap for computation of ten years of service needs to be
granted. As pointed out by Shri Dave, learned counsel for
the respondent herein this issue had again arisen in the case
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of the Executive Engineer, Panchayat (MAA & M)
Department and Another v. Samudabhai Jyotibhai Bhedi and
Others reported in 2017 (4) GLR 2952. Considering the
provisions of the Government Resolution dated 17.10.1988,
the Division Bench of this Court in the judgment of
Samudabhai Bhedi (supra) held as under:-
"6. As is well known, under Government Resolution
dated 17.10.1988, the Government decided to grant
benefits of regularization and permanency to daily
rated workers who had completed more than 10 years
of actual service prior to such date, of course subject to
certain conditions. One of the clauses in the said
Government Resolution was that the benefit of
regularization would be available to those workmen
who had completed more than 10 years of service
considering the provisions of section 25B of the
Industrial Disputes Act. They would get benefits of
regular pay scale and other allowances, pension,
gratuity, regular leaves etc. They would retire on
crossing age of 60 years. That the period of regular
service shall be pensionable.
7. This Government Resolution led to several doubts.
The Government itself therefore came up with a
clarificatory circular dated 30.05.1989, in which,
several queries which were likely to arise were clarified
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and answered. Clause 6 of this circular is crucial for
our purpose. The question raised was that an employee
who had put in more than 10 years of service as on
01.10.1988, would be granted the benefit of
Government Resolution dated 17.10.1988. In that
context, the doubt was whether for the purpose of
pension, the past service of completed years prior to
regularization would be considered or whether the
pensionable service would be confined to the service
put in by the employee after he is actually regularized.
The answer to this query was that those employees who
had put in more than 10 years of service as per
Government Resolution dated 17.10.1988 would get the
benefit of pension. For such purpose, those years
during which the employee had fulfilled the provisions
of section 25B of Industrial Disputes Act, such years
would qualify for pensionary benefit.
8. Two things immediately emerge from this
clarification. First is that the query raised was
precisely what is the dispute before us and second is
that the clarification of the Government was
unambiguous and provided that every year during
which the employee even prior to his regularization had
put in continuous service by fulfilling the requirement
of having worked for not less than 240 days as provided
under section 25B of the Industrial Disputes Act, would
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count towards qualifying service for pension. In view of
the clarification by the government itself, there is no
scope for any further debate. The petitioner was correct
in contending that having put in more than 10 years of
continuous service as a labourer in the past, he had a
right to receive pension upon superannuation. This is
precisely what the learned Single Judge has directed,
further enabling the employer to verify as to in how
many years he had put in such service and then to
compute his pension.
9. Learned counsel Shri Munshaw for the Panchayat
however drew our attention to some other clauses of the
said clarificatory circular dated 30.05.1989. None of
these clauses have a direct bearing on the controversy
at hand. These clauses merely refer to from which point
of time such benefits may be available. It may be that
benefits of regular services such as regular pay scale,
leave, gratuity and pensionary benefits may be
available only after regularization of an employee.
However, this does not mean that his past continuous
service would be wiped out for the purpose of
pensionary benefits. The stand of the authorities that
only that service which the employee had put in after
actual order of regularization would count for pension
is thus in conflict with the Government circulars itself.
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10. The issue can be looked from slightly different
angle. As it likely to happen in many cases and appears
to have happened in the present case, actual order of
regularization may not be passed immediately upon an
employee having put in 10 years of continuous service
for variety of reasons such as inaction on the part of the
employee to press for such benefits, verification needed
at the hands of the administration and sometimes, sheer
inertia may delay actual regularization. Would that
mean, the benefit of pension would be denied to an
employee because after the belated regularization he
did not have sufficient time to render 10 years of
qualifying service? The answer has to be in the
negative.
11. In the past, same or similar issues have traveled to
the Division Benches in Letters Patent Appeals.
Learned Single Judge in case of Tribhovanbhai
Jerambhai v. Dy. Executive Engineer, Sub Division, R
& B Deptt. & Anr. reported in 1998 (2) GLH 1, held
that once a daily rated workman is treated to be
permanent in terms of resolution dated 17.10.1988, his
entire continuous service from the date of entry till
retirement including his services rendered prior to the
date of his regularization has to be taken into
consideration for the purpose of computing pension or
for making pension available to the employee. This
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decision was carried in appeal by the employer before
the Division Bench. The Division Bench by order dated
04.04.2003 noted that the appeal had become time
barred. Even on merits, the Division Bench was not
inclined to take a different view.
12. In case of Surendranagar Dist. Panchayat and Anr.
v. Umarkhan Alikhan Malek and ors., Division Bench
of this Court in its judgment dated 29.03.2016 rendered
in Letters Patent Appeal No.2047 of 2004, considered
the issue where the employee had sought pensionary
benefits having worked from the years 1978 to 1991.
The learned Single Judge applying the formula of
section 25B of the Industrial Disputes Act held that the
employee had put in continuous service for more than
10 years as a daily wager. He was entitled to benefit of
Government Resolution dated 17.10.1988 including the
benefits of pension. The administration had merely
contended that the workman had not put in actual 10
years of service after regularization before he can seek
pensionary benefits."
9. Having therefore considered the issue at hand, it leaves
no manner of doubt that after repeated reiteration of
position of law as rendered by this Court in the judgment
referred to herein above, the directions are given by learned
Single Judge that entire period of service rendered by him,
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including those years of service as 'Rojmadar' where he has
rendered continuous service of 240 days a year has to be
considered for the purpose of extending pensionary benefits.
The stand of the Government, therefore that the respondent
herein had not completed the stipulated period of qualifying
service is, undisputedly a stand, which is contrary to the
settled position of law, in view of the judgments referred to.
Therefore, we have no reason to interfere with the direction
given by learned Single Judge in the judgment impugned
herein."
8. For the aforesaid reasons therefore, this petition is allowed.
The respondents are directed to revise the pensionary benefits
that are due to the petitioner, by considering his initial date of
appointment as 07.08.1993 and by recomputing the same, on
the basis of the revised pay that he was entitled to,
commensurate with the pay-scale of Rs.2550-3200 as per the
recommendations of the 6th as well as the 7th Pay Commission,
respectively. The pensionable benefits will be recomputed
accordingly. Arrears, on the revision of pension and pay, based
on these directions be computed and paid to the petitioner
within a period of sixteen weeks, from the date of receipt of
a copy of this order, failing which the same shall carry interest
at the rate of 6% per annum. Direct service is permitted.
(NIRZAR S. DESAI,J)
UMESH/-
