Gujarat High Court

Gujarat Water Resources Development ... vs Viraji Anarji Thakarda on 17 February, 2025

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                             C/SCA/5572/2021                                       JUDGMENT DATED: 17/02/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 5572 of 2021

                                                            With
                                         R/SPECIAL CIVIL APPLICATION NO. 5634 of 2021

                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MRS. JUSTICE M. K. THAKKER

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

                                     Approved for Reporting                       Yes           No
                                                                                  ✔
                        ==========================================================
                              GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION
                                             LIMITED CORPORATION
                                                     Versus
                                            VIRAJI ANARJI THAKARDA
                        ==========================================================
                        Appearance:
                        MR DG CHAUHAN(218) for the Petitioner(s) No. 1
                        RONAK D CHAUHAN(7709) for the Petitioner(s) No. 1
                        MR PH PATHAK(665) for the Respondent(s) No. 1
                        MS REENA M KAMANI(6007) for the Respondent(s) No. 1
                        ==========================================================

                           CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 17/02/2025

                                                              ORAL JUDGMENT

1. Since the issue raised in these appeals are similar, they are

being decided by a common judgment. The facts of Special Civil

Application No.5572 of 2021 are taken for the purpose of

adjudication.

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2. The present petition is filed under Articles 226 and 227 of

the Constitution of India challenging the order passed by the

learned Labour Court, Mahesana in Recovery Application No. 20

of 2016, whereby the learned Labour Court has allowed the

application filed under Section 33-C(2) of the Industrial Disputes

Act, 1947 and the petitioner was directed to pay the benefit of

leave encashment of Rs.2,40,372/- with 6% interest which shall

be counted from the date of filing application i.e. 23.08.2016 till

the date of realization.

3. The facts needed for disposal of the present case are as

under:

3.1 The respondent was serving as an Operator and he retired

on attaining the age of the superannuation on 30.06.2015 and at

the time of retirement, he was receiving monthly salary of

Rs.24,280/-. The recovery application is filed by the respondent

claiming leave encashment of 294 days leaves which are shown in

the service book. It is claimed by the respondent that as per the

Resolution passed dated 17.10.1988, he is entitled for the leave

encashment of benefit on completion of 10 years service,

however, the same was not given and therefore, the recovery

application came to be filed under Section 33-C(2) of the

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Industrial Dispute Act, 1947. The present petitioner appeared

before the learned Court and submitted that all the benefits

which have already been given to the respondent and as per G.R.

dated 17.10.1988, where there is no provisions for giving the

benefit of leave encashment, the said benefits were not given to

the present respondent. It is also submitted that there is no pre-

existing rights in favour of the respondent and therefore, learned

Labour Court would not have jurisdiction to adjudicate the claim,

which is disputed by the present petitioner. It is submitted that

as per Rule 65 of Gujarat Civil Services (Leave) Rules, 2002, the

encashment of the leave can be given to the regular employees,

however, as petitioner was not regular employee and he was a

daily wager, therefore, he would not be entitled for the benefit,

which he has claimed. Learned Labour Court, after considering

the submissions made by both the parties, has concluded the

application in favour of the respondent, which is subject matter

of challenge before this Court.

4. Heard learned advocate Mr. Chauhan for the petitioner and

learned advocate Ms.Kamani for the respondent.

4.1 Learned advocate Mr. Chauhan has submitted that

proceedings under Section 33-C(2) is a proceeding in the nature

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of execution proceedings, in which learned Labour Court

calculates the amount of money due to a Workman from the

employer. The right to the money which is sought to be

calculated must be pre-existing right and the same must be

adjudicated prior to filing the application. In absence of prior

adjudication, learned Labour Court has committed error in

holding that the respondent is entitled for the benefit of leave

encashment. Learned advocate Mr. Chauhan further submits that

the Government has passed an order dated 18.04.2000 and

issued the Circular dated 02.12.2005, in which it is decided the

the daily wagers are not entitled for leave encashment. Learned

advocate Mr. Chauhan submits that learned Labour Court has

overlooked the affidavit filed by the witness of the petitioner

below Exh.10, which suggests that the respondent was a daily

wager and there was no pre-existing right to claim 294 days leave

encashment and the order was passed in favour of the

respondent. Learned advocate Mr. Chauhan submits that as the

respondent is not entitled for the benefit of leave encashment,

therefore, no question arises for payment along with the

interest, which is ordered by the learned Labour Court. Learned

advocate Mr. Chauhan has also submitted that by allowing the

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application under Section 33-C(2) of the Industrial Disputes Act,

1947, Learned Labour Court has exceeded his jurisdiction and

therefore, impugned order passed, hence, needs no interference

and the petition is required to be allowed.

5. As against the same, Learned advocate Ms. Reena Kamani

submits that on completion of the requisite number of service

the benefit of G.R. dated 17.10.1988 was given to the respondent

and therefore, leave encashment benefit for being the

permanent employee of the respondent Authority is required to

be granted to the present respondent. Learned advocate Ms.

Kamani submits that even the Government Resolution dated

02.12.2005, which was relied by the learned advocate Mr.

Chauhan for the petitioner, does not supersede the previous

Government Resolution dated 17.10.1988 by which the

respondent was considered as a regular employee on completion

of number of years of service. Learned advocate Ms. Kamani

further submits that as per the evidence of the witness of the

petitioner, who was examined below Exh.10, the respondent is

entitled for the benefit of leave encashment as the same is

admitted by the witnesses. Learned advocate Ms. Kamani

submits that the service book is also produced Mark-8/6, wherein

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the endorsement is made regarding the credit of the leave of 300

days. Learned advocate Ms. Kamani submits that the Division

Bench of this Court in the decision rendered in the Letters Patent

Appeal No.1653 of 2017 has held that recovery applications filed

under Section 33-C(2) of the Industrial Disputes Act, 1947

towards the claim of leave encashment and interest are

maintainable and therefore, no interference in the impugned

judgment is required and the petition is required to be dismissed.

6. Considering the submissions made by learned advocates for

the respective parties, it emerges from the record that the

respondent was serving as an Operator since 1998 who was

retired on attaining the age of the superannuation on

30.06.2015. Initially, he was placed in the pay-scale of Rs.950-

1500/- and thereafter the same was revised and at the time of

retirement, he was receiving the salary of Rs.24,280/-, he has

been given the benefit of G.R. dated 17.10.1988 and all the

terminal benefits were paid to the present respondent. The claim

was made with regard to the payment of leave encashment of

300 days leave as endorsed in the service book, which was not

granted and therefore, application under Section 33-C(2) of the

Industrial Dispute Act, 1947 was filed before the learned Labour

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Court. For non-granting the benefits reasons are offered by the

present petitioner mainly is that respondent was regularized by

giving the benefit of the G.R. dated 17.10.1988 where there is no

clarification with regard to the payment of leave encashment

benefits. The another ground stated for the respondent not

being entitled of the claim is that no prior adjudication was made

on the claim which was raised and therefore, there is no pre-

existing rights occurred in favour of the present respondent. So

far as the first objection with regard to the non-entitlement of

the leave encashment to the daily wager whose services were

regularized by giving the benefit of G.R. dated 17.10.1988 is

concerned, the said issue has already been decided by this Court

in the Special Civil Application No.19913 of 2019 in the order

dated 26.11.2019, the relevant observations in para Nos.4 to 6

which are made by the Coordinate Bench of this Court as under;

"4. Learned advocates appearing for the parties are ad idem that the controversy involved in thispetition is squarely covered by the decision ofthis court in Babarbhai Ambalalbhai Patel vs. State of Gujarat being Special Civil ApplicationNo. 6396 of 2018 decided on 17.1.2019.

5. In Babarbhai Ambalalbhai Patel (supra), this court relied on Chimansingh Nathusingh Solanki vs. State of Gujarat being Special Civil Application No. 21473 of 2016 decided on 27.12.2017. In Chimansingh Nathusingh Solanki (supra), the following was

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observed which forms the reasoning of this order,

"5. As far as the first prayer is concerned, learned advocate could successfully rely on decision of this Court in Special Civil Application No.9484 of 2013 dated 21st August, 2015 in Jorubhai Jijibhai Dabhi v. State of Gujarat wherein the petitioner was retired employee whose grievance was about non-payment of leave encashment upon his retirement. This Court relied on decision in State of Gujarat v.

Mahendrakumar Bhagvandas [2011 (2) GLR 190] which was confirmed upto the Apex Court, and held in favour of the petitioner that the petitioner was entitled to leave enashment which benefit would held to be flowing from the State Government Resolution dated 17th October, 1988.

5.1 In Jorubhai Jijibhai Dabhi (supra) it was held as under,

9. Learned advocate Mr. Munshaw for respondent No.1 does not dispute that the case of State of Gujarat and another vs. Mahendrakumar Bhagvandas and another (supra) has reached to the conclusion at the hands of the Apex Court, whereas the decision of the Letters Patent Appeal NO.325 of 2013 is bagging attention, as the same has been challenged before the Apex Court. He has urged, therefore, not to decide the matter on merits.

10. On thus having heard learned advocates for both the sides and having also considered the list of events so also the Government Resolution dated 17.10.1988 and the decisions of the Apex Court and that of Letters Patent Appeal Bench, this Court is of the opinion that the petitioners are entitled to the leave encashment benefit for being the permanent employees of the respondent authorities. This Court has interpreted the entitlement of permanent employees, who have become permanent by virtue of the said Government Resolution dated 17.10.1988. Leave encashment benefits in the decision sought to be relied upon by the petitioner is granted in the

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following manner:-

5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. Dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits.

Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently re-branded as daily wager (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently re- branded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best permanent daily wage employees, is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder.

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6. Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms:

11. .................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees.

With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of...............

11. Resultantly, the petition is allowed. Leave encashment benefits shall be paid to the petitioners within six weeks from the date of receipt of copy of this judgment. If not paid, interest at the rate of 6% shall be calculated on the amount granted. Petition is allowed to the above extent. Rule is made absolute accordingly. 5.2 The aforesaid decision was confirmed in Letters Patent Appeal No.457 of 2016 decided on 26th July, 2016. The Division Bench also referred to observations in paragraphs 5, 6 and 8 of Mahendrakumar Bhagvandas (supra) and observed as under.

7. The issue before the Division Bench of this Court in the case of Mahendrakumar Bhagvandas(supra) was similar. There also there was no controversy about the fact that the concerned petitioners who entered services as daily rated employees have been regularized in their service under the Government Resolution dated 17.10.1988 and most of the benefits under the said Government Resolution available to the regular government servants were extended to the concerned petitioners. However, the said petitions were resisted on the ground that the said petitioners were daily rated employees and the benefits accorded to the permanent employee of the government could not be extended to them. In the said case, learned Single Judge, after considering the Government Resolutions, opined that the said petitioners were regular permanent employees of the respondent and

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were entitled to all the benefits of permanent employees of the concerned respondents. The petitions were allowed by the learned Single Judge with a direction that all the workmen concerned be treated as permanent employees at par with other regular employees and they were to be granted all the benefits as such. 5.3 The Division Bench in the said Letters Patent Appeal No.457 of 2016 also referred to another Division Bench judgment dated 30th October, 2015 delivered in Letters Patent Appeal No.1310 of 2015 and held to confirm the Jorubhai Jijibhai Dabhi (supra) and finally stated as under.

10. Thus, we are of the opinion that the present case is also squarely covered by the aforesaid two decisions rendered by this Court. Learned Single Judge has, therefore, not committed any error while placing reliance upon the Division Bench decision rendered in the case of Mahendrakumar Bhagvandas(supra). We are also in agreement with the reasons recorded by learned Single Judge."

5.1 The decision in Babarbhai Ambalalbhai Patel (supra) was relied on by the Court in Ganpatji Nenaji Thakor v. State of Gujarat being Special Civil Application No.8498 of 2019 which was decided on 3.5.2019. Against the decision in Ganpatji Nenaji Thakor (supra), Letters Patent Appeal No.1614 of 2019 was filed.

5.2 The Division Bench did not disturb the entitlement for 300 days leave adjudged for the petitioner. However, liberty was given to the appellant authorities to verify about the admissibility of 300 days by observing and modifying the order as under:-

"6. Thus without disturbing the entitlement allowed by the learned Single Judge, we dispose of this appeal with the limited modification that before making the payment, the appellants would verify about the admissibility of 300 days for conversion into leave encashment as per the direction given by the learned Single Judge considering the total length of the service of the writ petitioners (respondents 1 and 2)."

6. In view of above position of law emerging, the present petition deserves to be allowed. The respondents are directed to extend the benefit of leave encashment of 300 days to the petitioners on their

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retirement. However, it will be open for the authorities to verify about the admissibility of 300 days for conversion into leave encashment as clarified by the Division Bench as per paragraph-6 reproduced hereinabove. Upon the petitioners having been found entitled to 300 days leave, after undertaking above exercise, the benefit shall be paid to the petitioners within period of 8 weeks from the date of receipt of the writ of this order."

6.1 The above order was challenged before the Division Bench,

wherein the Division Bench has dismissed the appeal filed by the

employer vide order dated 06.08.2020. It was carried further

before the Hon'ble Apex Court by way of filing the Petition(s) for

Special Leave to Appeal No.7229 of 2020, wherein also the

Hon'ble Apex Court vide order dated 01.09.2022 has dismissed

the SLP filed by the employer by making following observations;

"Delay condoned.

In view of the Resolution No. W.C.E.-1588-(5)/(2)/G.2 dated 17-10-1988, the respondent employees are entitled to retirement benefits, gratuity, provident fund etc. In addition, they are entitled to two yearly optional leaves in total of 14 casual leaves, 30 days of earned leave and 20 days half pay leaves, as well as holiday on Sunday and during the national holidays/occasions.

In view of the aforesaid position, we do not find any good ground and reason to interfere with the directions given by the High Court to pay leave encashments on the retirement of the employees, as the same would pertain to encashment of the unused earned leaves. The payment is also in the nature of retirement benefits.

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However, it is clarified that the aforesaid directions would not be treated as granting the respondents a status of permanent or regular employees.

Recording the aforesaid, the special leave petitions are dismissed.

Pending application(s), if any, stand disposed of.

6.2 In view of above, this Court is of the view that the issue

with regard to the entitlement of the leave encashment benefit

to the daily wagers is no more res-integra and therefore, no

further discussions required on that issue.

6.3 The second ground on which the petition is filed i.e.

regarding the jurisdiction of the learned Labour Court to

entertain the application filed under Section 33-C(2) of the

Industrial Disputes Act,1947, this issue is also decided by the

Division Bench of this Court in L.P.A. No.1653 of 2017 in the

judgment dated 30.07.2019 wherein following observations are

made in para 4:

"4. Having heard learned advocates appearing for the respective parties, we are not inclined to entertain the present appeals when the issue involved in present appeals has already been heard and decided by this Court by way of order dated 07.05.2018 rendered in Letters Patent Appeal No. 558 of 2018. Paragraph no. 3 of the said order reads as under:

"3. We have perused the order passed by the Labour Court as well learned Single Judge and circular dated 2.12.2015 applicable in the case of workman. Even objections raised and reply filed by the employer in the application filed under Section 33 (C) (2) of I.D.Act,

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1947 towards claim of leave encashment and interest etc., and other resolutions including that of 17.10.1988, we find that it is not in dispute that on completion of number of years of service so envisaged in the G.R. Dated 17.10.1988 namely, 15, 20 and 25 years w.e.f. 1.10.1988 such rojamdar/workman is entitled for various benefits available to the regular and permanent employee. Even DCRG and pension is also available to such employees. We find no reason that such workman should not be entitled for leave encashment available to other employees and accordingly, we do not find any reason to interfere with the order impugned passed by learned Single Judge."

6.4 Considering the above decisions, this Court is of the view

that merely denial of the right by the employer may not be

sufficient to negate the claim made under Section 33-C(2) of the

Industrial Disputes Act, 1947 before the learned Labour Court

and would not take away the jurisdiction of the learned Labour

Court. The jurisdiction of the learned Labour Court is not

confined to the admitted claim and existing rights does not mean

any admitted rights, it only means that right to claim exist and

vested with the workman. The reliance which was placed on the

Government Resolution order dated 02.12.2005, on examining

the same, this Court is of the view that G.R. dated 17.10.1988 has

not been superseded by the above Government Resolution and