Gujarat High Court

Ramkundiben Wd/O Hirabhai Malivad vs State Of Gujaratthrough Secretary ... on 3 February, 2025

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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                            C/SCA/60/2021                                        JUDGMENT DATED: 03/02/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/SPECIAL CIVIL APPLICATION NO.                        60 of 2021


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                      =====================================================

                              Approved for Reporting    Yes      No
                                                        Yes
                      =====================================================
                                RAMKUNDIBEN WD/O HIRABHAI MALIVAD
                                              Versus
                         STATE OF GUJARATTHROUGH SECRETARY DEPARTMENT OF
                                          FOREST & ORS.
                      =====================================================
                      Appearance:
                      MR JITENDRA H SINGH(3199) for the Petitioner(s) No. 1
                      MR. ANANTANAND J SINGH(10046) for the Petitioner(s)
                      No. 1
                      PRABHATSINH J PARMAR(7996) for the Petitioner(s) No.
                      1
                      MS KRINA CALLA ASSISTANT GOVERNMENT PLEADER for the
                      Respondent(s) No. 1,2,3,4
                      =====================================================

                         CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                                      Date : 03/02/2025

                                                          ORAL JUDGMENT

1. Heard learned advocate Mr. Anantanand J. Singh

appearing for the petitioner and learned

Assistant Government Pleader Ms. Krina Calla

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appearing for the respondents - State.

2. By way of this petition, the petitioner has

prayed for a declaration that the petitioner is

entitled for getting family pension with

interest from the date on which her husband died

i.e. on 19.6.2010 as per the eligibility

criteria for getting pension. The petitioner has

also prayed for an interest on the pensionery

benefits at the rate of 18% with effect from

19.6.2010.

3. With the consent of learned advocates appearing

for the respective parties, the matter was taken

up for final hearing. Hence, RULE. Learned

Assistant Government Pleader Ms. Krina Calla

waives the service of rule on behalf of the

respondents.

4. Brief facts giving rise to the present petition

are stated as under :-

4.1 It is the case of the petitioner that

the petitioner's husband viz. Hirabhai Malivad

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was employed as daily wager Class-IV employee

from the year 1990-1991 and he was in continuous

service with the respondents till his death.

His last pay drawn was Rs.154.20 per day and

Rs.2776/- per month and he has completed nearly

19 years of service before he died i.e. on

19.6.2010.

4.2 As the petitioner has put forward the

case that her husband has completed 10 years

continuous service as per the judgment of

Workmen of American Express International

Banking Corporation Versus Management of

American Express International Banking

Corporation reported in 1985 (4) SCC 71, the

holidays like Saturday, Sunday and public

holidays are required to be considered while

counting 240 days. The petitioner's husband had

completed ten years service under the

respondents and therefore, he was entitled to

pension and accordingly, the petitioner is

entitled to family pension.

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5. It is in respect of this fact, the entire case

of the petitioner was argued by learned advocate

Mr. Anantanand Singh by making following

submissions :-

5.1 Learned advocate Mr. Anantanand Singh

appearing for the petitioner submitted that the

respondents have while pointing out that the

petitioner has not completed 240 days services

have not counted the Saturday, Sunday and public

Holidays while calculating number of days

husband of the petitioner has worked and

therefore in light of the judgment of the

Hon'ble Supreme Court in case of American

Express International Banking Corporation

(Supra), those days are required to be counted

and if those holidays are added in petitioners

actual working days, the petitioner has

completed 240 days even prior to 2005 in every

year and therefore, he is eligible to have the

benefits of pension as per old scheme and that

is why the petitioner is entitled to family

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pension as per old scheme.

5.2 Learned advocate Mr. Anantanand Singh

submitted that even otherwise, in view of

Government Resolution dated 17.10.1988, the

petitioner's husband has completed ten year

services and therefore, as he is eligible and

entitled to have pensionery benefits upon his

death, the petitioner is entitled to have family

pension.

6. The petition was opposed by learned Assistant

Government Pleader Ms. Krina Calla appearing for

the respondent - State, who tried to demonstrate

from the Annexure which depicts a tabular form

indicating that the petitioner has work less

than 240 days in year from 1993 to 2010. In the

year 1992, the petitioner has worked for 300

days and in rest of the year, the petitioner has

worked for less than 240 days as per the chart.

However, upon a query from the Court, learned

Assistant Government Pleader Ms. Krina Calla was

fair enough in stating that the aforesaid chart

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does not include the Saturday, Sunday and public

holidays. Learned Assistant Government Pleader

Ms. Krina Calla also submitted that the issue

about the applicability of American Express

International Banking Corporation (Supra) is

pending before the Hon'ble Supreme Court by way

of SLP (Civil) No. 15286 of 2021 whereby there

are about six to seven matters are tagged along

however, learned Assistant Government Pleader

Ms. Krina Calla could not produce any order by

the Hon'ble Supreme Court or could state

anything upon instructions which would indicate

that the Hon'ble Supreme Court has stayed the

benefits flowing from the interpretation of the

judgment of the American Express International

Banking Corporation (Supra).

6.1 Learned Assistant Government Pleader

Ms. Krina Calla however submitted that in view

of the fact that the husband of the petitioner

has not completed 240 days in ten years prior to

his death, the husband of the petitioner is not

eligible and entitled for family pension and

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accordingly, petitioner is also not entitled to

family pension.

7. To counter that learned advocate Mr. Anantanand

Singh submitted that an identically situated

person viz. Reshamben Kalubhai Shelot, whose

husband also had died after rendering more than

ten years services and though his actual number

of days he worked were less than 240 days by

adding Saturday, Sunday and Public Holidays as

he was completing 240 days in ten years

preceding his death, the respondents themselves

have granted benefits of pension in respect of

Reshamben Kalubhai Shelot as per old pension

scheme and therefore, the petitioner's case is

required to be considered in light of that

decision taken by the respondent themselves.

Learned advocate Mr. Anantanand Singh also

relied upon the decision of Division Bench of

this Court in Letters Patent Appeal No. 2047 of

2004 in Special Civil Application No. 11355 of

2002 dated 29.3.2016 in case of Surendranagar

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District Panchayat and others Versus Umarkhan

Alikhan Malek and others and by relying upon

paragraph Nos. 7 and 8 of the aforesaid

decision, he submitted that the petitioner is

also entitled to the benefits of family pension

as the petitioner's husband had completed ten

years of services and he was entitled to

pensionery benefits.

8. I have heard learned advocates appearing for the

respective parties and perused the record. Along

with affidavit-in-reply, the respondents have

produced a chart at page No.50, the chart

indicates that in the year 1992 husband of the

petitioner has worked for 300 days and from 1993

till 2009, the petitioner has worked for more

than 200 days except in the year 2000 where the

petitioner's husband worked for 190 days. In the

year 2010, the husband of the petitioner who

died on 19.6.2010 had worked for 18 days but

that is not of much relevance for the reason

that the petitioner's entire claim is based on

the fact that the petitioner has, for ten

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continuous years, served for more than 240 days,

in view of decision of American Express

International Banking Corporation (Supra) by

counting the Saturday, Sunday and other public

holidays as if the petitioner has worked.

8.1 As the chart indicating the

petitioner's number of days work does not

indicate that whether the respondents have

considered Saturday, Sunday and public Holidays

or not, pursuant to a query learned Assistant

Government Pleader Ms. Krina Calla, submitted

that in the above calculation only actual number

of working days are included and not total

number of days including Saturday, Sunday and

public Holidays are considered while preparing

the above chart.

8.2 If on the basis of chart produced by

the respondents even fifty Sundays are added,

then the husband of the petitioner has worked

for more than 240 days as the least number of

days the husband of the petitioner has worked is

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190 in the year 2000.

8.3 In view of that now the decision of the

Division Bench of this Court is required to be

considered. In case of Surendranagar District

Panchayat (Supra), the Division Bench of this

Court has observed as under in paragraph Nos.7

and 8:-

"7. Having heard learned advocates appearing for the parties and perusal of the record and the order under challenge, we find no error on law much less on facts appears in the judgement under challenge. Learned Single Judge having adverted to nature of right of an employee to receive pension upon completion of 10 years of continuous service in the context of definition of Section 25B of I.D.Act, 1947 read with Government Resolution dated 17.10.1988 of State of Gujarat, and relying on decisions of the Apex Court for the expression 'actually worked under the employer' would mean number of days namely, Sundays and other paid holidays on which the workman had actually performed the duties. By applying the above parameter in the light of decision of the Apex Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and even as appeared from the record of the case namely, certificate issued by Dy. Executive Engineer, Panchayat Department, Road and Building Patadi at Annexure J to the petition reveal that in the year 1981, 1984 to 1991 for all these 9 years workman

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had completed more than 240 days and in the year 1983 workman-petitioner had actually worked even as per the above certificate for 235 days, in which, public and paid holidays are included would exceed 240 days and thus continuous service for 10 years of the petitioner surfaces on record. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. So on facts and on law as a whole the case of the petitioner is squarely covered and there is not an iota of doubt of completion of 10 years of continuous service by the workman having served for 240 days in a year during such period, we find no error in the judgement under challenge passed by the learned Single Judge.

8. Since the subject petition is pertaining to entitlement of pension to be released in favour of the original petitioner (now deceased) so as the wife of the deceased employee who was brought on record as respondent No.1/1 also died during pendency of this appeal remaining legal heirs respondent Nos. 1/2, 1/3, 1/4 and 1/5 shall be entitled to receive the pension as ordered by learned Single Judge. The amount of pension as ordered by learned Single Judge shall be released within eight weeks from the date of receipt of order/writ of this Court."

9. In view of above observations made by the

Division Bench of this Court as the petitioner's

husband has completed 240 days service in ten

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years prior to his death, the petitioner's

husband can be said to be entitled to have the

pensionery benefits. When the petitioner's

husband is entitled to have the benefits of

pension, more particularly, when he has been

paid the amount under the Payment of Gratuity