Gujarat High Court
Abdulbhai Rasulbhai Niyatar vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16748 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
==========================================================
Approved for Reporting Yes No
==========================================================
ABDULBHAI RASULBHAI NIYATAR & ANR.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR ND SONGARA(2198) for the Petitioner(s) No. 1,2
MS HETAL PATEL, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MR TEJAS P SATTA(3149) for the Respondent(s) No. 5
==========================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 03/01/2025
ORAL JUDGMENT
1. Heard Mr. N. D. Songara, learned advocate for the
petitioners nos.1 and 2, Mr. Hetal Patel, learned AGP for
respondents nos.1 and 2, Mr. H. S. Munshaw, learned
advocate for respondents nos.3 and 4, Mr. Kiran Udasi,
learned advocate appearing on behalf of Mr.Tajas Satta,
learned advocate for respondent no.5.
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
2. The present petition is preferred by praying the
following reliefs:
"22(A) Your Lordships may kindly be pleased to allow
this petition.
22(B)Your Lordships may kindly be pleased to issue a
Writ of Mandamus and or/any other writ, order or
direction, directing the respondents to quash and set
aside the communications dated 24.04.2013, 03.05.2013
and 04.12.2018 at annexure J, K and N respectively to
this petition.
22(C) Your Lordships may kindly be pleased to issue
a Writ of Mandmus and or/any other writ, order or
direction, directing the respondents to pay the
retirement dues, pensionary benefits to the petitioners
calculating on the basis of as per the Sixth Pay
Commission, along with interest @ 18% per annum.
22(D) Pending hearing and final disposal of this
petition, Your Lordships may kindly be pleased to direct
the respondents to pay the retirement dues, pensionary
benefits to the petitioners calculating on the basis of as
as per the Sixth Pay Commission, along with interest @
18% per annum.
22(E)Any other and further relief may kindly be granted
as Your Lordships deemed fit, just and proper in the
interest of justice."
3. The brief facts of the present matter are as follows:
3.1. The petitioners nos.1 and 2 (herein after referred to as
"the petitioners" for short) were appointed as drivers by
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
respondent no.5, Chuda Nagar Panchayat (herein after
referred to as "the respondent Nagar Panchayat" for short) on
28/01/1985 and 01/05/1986 respectively. It was the case of
the petitioners that they were performing their duties on
permanent vacant posts and the respondents were not
extending benefits of permanent employees to the petitioners.
In wake of such dispute, the petitioners raised an industrial
dispute which was registered before the Labour Court,
Surendranagar (herein after referred to as the "labour court"
for short) being reference (LCD) No.10 of 1992. Prayer made
in the reference was with regard to regularization in service.
After conclusion of hearing of the dispute, the labour court
was pleased to pass an award dated 29/11/1994 whereby the
respondent Nagar Panchyat was directed to make petitioners
permanent employees with effect from 01/01/1993 and pay all
the benefits of permanent employees along with all
consequential benefits from 01/01/1993. The fact is not in
dispute that the respondent Nagar Panchayat has not
challenged award dated 29/11/1994 and the same has
attained finality. Pursuant to award dated 29/11/1994, the
respondent Panchayat accepted and implemented the award
and the petitioners were made permanent. Consequently an
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
entry with regard to the same was made in the service books
of the petitioners. The fact is also not in dispute that neither
the State Government nor the office of the District Panchayat,
Surendranagar were party to the proceedings which
culminated before the labour court.
3.2. It is the case of the petitioners that they reached the age
of superannuation on 30/07/2012 and 31/12/2012
respectively. Consequent to attaining the age of
superannuation, communications were preferred to the
District Panchayat, Surendranagar (herein after referred to as
"the District Panchayat" for short) to consider the case of the
petitioners for pension and other retirement benefits. On
26/09/2012, the office of the Taluka Panchayat preferred a
communication to the respondent Nagar Panchayat. The
communication preferred on 26/09/2012 categorically
inquired with regard to permission obtained by the
respondent Nagar Panchayat from the State Authorities with
regard to the appointment of the petitioners. It was also
inquired with regard to whether any appeal was being preferred
by the respondent Nagar Panchayat against the award dated
29/11/1994. Pursuant to such communication, there were
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
other communications which were addressed by the District
Panchayat and the respondent Nagar Panchayat inter se.
However, the Taluka Development Officer by way of
communication dated 24/04/2013 refused the request for
grant of pension to the petitioners referring to the
Government Resolution dated 05/06/1984. Consequently, the
respondent Nagar Panchayat refused to pay pension to the
petitioners which culminated into a dispute being raised by
the petitioners. It is the case of the petitioners that being
aggrieved by inaction on part of the respondent Nagasr
Panchayat and State Authorities as well as non-payment of
retirement dues and pensionary benefits, the petitioners
preferred a writ petition before this Court by filing Special
Civil Application No. 18470 of 2013. By way of order dated
16/06/2015, this Court disposed of the writ petition by giving
direction to the respondents Authorities and Nagar Panchayat
to look into the matter and take appropriate decision in
accordance with law and in particular take decision as to
whether the petitioners were entitled to retirement benefits.
Further, this Court while disposing the said petition, has made
categorical observations that the authorities will keep in mind
the award passed by the labour court on 29/11/1994. Despite
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
the order passed by this Hon'ble Court, the respondents did
not take any decision. Therefore, the petitioners were again
constrained to approach this Court by filing a second writ
petition being Special Civil Application No.13381 of 2015
wherein this Hon'ble Court disposed of the writ petition by
directing the office of the District Development Officer to
explore the possibility of providing pensionary benefits in
terms of the recent decision given by Hon'ble Division Bench
in Letters Patent Appeal No.409 of 2017 dated 03.05.2018 as
well as by providing guidance to the Nagar panchayat for
making payment of retirement dues in accordance with law to
the petitioners. Despite the order passed by this Hon'ble
Court, the respondents did not make any payment or replied
to the communication made by the petitioners. This resulted
into a contempt petition being preferred by the petitioners.
The contempt petition filed before this Court was numbered
as Misc. Civil Application No.1201 of 2018 in Special Civil
Application No.13381 of 2015. The contempt petition was
disposed of with an observation giving direction to the
petitioner to challenge the decision of the opponents about
ineligibility to receive the benefit from appropriate forum in
accordance with law. Resultantly, the petitioners preferred
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
third writ petition before this Hon'ble Court. The petitioners
preferred present petition impugning the original orders
dated 24/04/2013, 03/05/2013 and 04/12/2018 returning the
service book of the petitioners and declining to give
pensionary benefits to the petitioners. In facts of such case,
present petition has come up for adjudication.
4. Mr. N. D. Songara, learned advocate for the petitioners
has submitted that the fact is not in dispute that the
petitioners were employees of the respondent Nagar
Panchayat. The fact is also not in dispute that they were
made permanent employees by the award of labour court
passed in reference (LCD) No.10 of 1992. Therefore, the fact
cannot be disputed that the petitioners have superannuated as
permanent employees of the respondent Nagar Panchayat. It
is the conflict inter se between the State Government, the
District Panchayat and the respondent Nagar Panchayat to
give pensionary benefits and other retirement benefits to the
petitioners. Once it is established that the petitioners were
permanent employees and the entry of the same has been
recorded in the service books of the petitioners by the
respondent Nagar Panchayat then they cannot be deprived of
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
their pensionary benefits and retirement dues. This would be
violation of their fundamental rights under the Constitution of
India. It was further submitted that not only the petitioners
are permanent employees, the award is passed by the labour
court declaring them as a permanent employees and
regularizing them as permanent employees and further the
respondent Nagar Panchayat has not challenged the award.
Therefore, it is a fit case of giving pensionary benefits and
retirement benefits to the petitioners. Further, this Hon'ble
Court in two round of litigation had directed the concerned
respondents authorities to consider the case of the petitioners
for retirement benefits. Further, the petitioners are praying
for their legitimate right for last 12 to 13 years which is
nothing but gross injustice. In wake of such submissions,
Mr.N. D. Songara, learned advocate for the petitioners has
prayed to grant the prayers made by the petitioners and give
them their legitimate retirement benefits.
5. Per contra, Mr. H. S. Munshaw, learned advocate for
respondent, referring to the affidavit filed by the DDO, has
contended that the petitioners were employed by the Chuda
Nagar Panchayat without following due procedure of
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
recruitment on its own on 01/01/1993 by way of passing a
resolution in its meeting. It was further contended that the
petitioners were continued as employees and paid their salary
out of its own funds. It was submitted that the petitioners
were employed not only without following due procedure of
recruitment but at no point of time, the respondent Nagar
Panchayat had obtained sanction from Taluka Panchayat,
District Development Commissioner or the State Government.
Therefore, the petitioners were employed by the respondent
Nagar Panchayat were not civil servants as envisaged under
the Gujarat Civil Services Rules or Gujarat Panchayat Act,
1993 respectively. It was further submitted that respondent
Nagar Panchayat is statutory body duly constituted under the
provisions of Gujarat Panchayat Act, 1993 and has to manage
its administration on the basis of its financial condition and
provisions of Gujarat Panchayat Act, 1993 and rules framed
there under. It was further submitted that the petitioners
were regularized in employment vide award dated 29/11/1994
passed in Reference (LCD) No.10 of 1992 preferred before the
labour court. However, the higher authorities like Taluka
Panchayat, District Panchayat, District Development Officer
and State Government were not parties in the said
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
proceedings. Thereafter, the respondent Nagar Panchayat on
its own peril continued them in employment. Therefore, when
respondent Nagar Panchayat communicated to the office of
the District Panchayat with regard to pensionary benefits and
the retirement dues of the petitioners, the clear cut
communication was given by the District Panchayat that the
petitioners were not civil servants as envisaged under the
Gujarat Panchayat Act, 1993 and rules framed under the
Gujarat Panchayat Act, 1993 and in wake of such fact, the
pensionary benefits to the petitioners was not entertained.
However, it has been categorically accepted by Mr.Munshaw,
learned advocate that the petitioners were made permanent
employees through the award passed by the Labour Court and
the respondent Nagar Panchayat had given entry of the same
in the service books of the petitioners. But it was contended
by Mr.Munshaw, learned advocate that the respondent Nagar
Panchayat had made them permanent employees on its own
peril.
6. As far as respondent Nagar Panchayat is concerned,
right from the inception of the matter in the year 2019, till
culmination, they have chosen not to file any reply to the writ
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
petition. The respondents are duly represented by their
advocates but neither they have filed reply to the writ petition
nor they have controverted the factual aspects raised in the
present writ petition. However, a categorical statement was
made by learned advocate for the respondent Nagar
Panchayat on 29/11/2024 that they are ready and willing to
make payment of pension and retirement dues to the
petitioners and calculation with regard to the same would be
exchanged with the petitioners.
7. Having heard learned advocates for the parties and
perused the material on record, certain things are not in
dispute. It is not in dispute that the petitioners were
employed by the respondent Nagar Panchayat. It is also not
in dispute that the labour court by way of award dated
29/11/1994, continued them in the service and entry in order
to the same was made in the service books of the petitioners.
It is also not in dispute that the award dated 29/11/1994
passed in Reference (LCD) No.10 of 1992 has attained finality.
Therefore, there cannot be any dispute with regard to
legitimate right of the petitioner about pensionary and
retirement dues. It is also not in dispute that the petitioners
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
have raised this issue before this Court and by way of order
dated 16/06/2015 passed in Special Civil Application
No.18470 of 2013 and order dated 14/06/2018 passed in
Special Civil Application No.13381 of 2015, this Court had
directed the respondents to consider the case of the
petitioners. However, only one of contention has been raised
by respondent no.4 District Panchayat is that the respondent
Nagar Panchayat had not followed appropriate procedure in
recruiting the petitioners and they had not taken sanction
from the higher authorities and therefore they will not be
considered as permanent employees and the respondent
Nagar Panchayat has made them employees on its own peril.
Be that as it may, the inter se allegations and counter
allegations cannot take away the fact that the petitioners are
permanent employees pursuant to the award dated
29/11/1994 which has attained finality. The stand taken as
well as the conduct of the respondent Nagar Panchayat is very
dubious. The respondent Nagar Panchayat at one hand
accepts the award passed by the labour court and implements
the same by passing resolution and giving effect of the same
in the service book of the petitioners and on the other hand
they had not followed the due procedure of taking sanction
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
from the District Panchayat and the Development
Commissioner with regard to the employment of the
petitioners and thereafter refused the retirement dues only on
the ground that respondent no.4 District Panchayat and the
State Authorities are not considering it. Therefore on one
hand respondent Nagar Panchayat accept the award of
Labour Court and avail service of petitioner. Further, it does
not follow due procedure of informing the authority about
award and following the procedure of giving entitlement of
petitioner as state employee. Further, the retirement benefits
are denied by respondent Nagar Panchayat only on ground
that higher authorities have refuse to grant the relevant dues.
Unfortunately such conduct of the respondent Nagar
Panchayat is not only dubious but highly deprecated.
Subsequent to superannuation of the petitioners various
communications were addressed to respondent Nagar
Panchayat and various litigation were initiated even before
this Court wherein directions were given to the respondent
concerned to consider the issue of the petitioners. The
petitioners have gone from pillar to post to various authorities
and initiated various litigation which has remained unfruitful
even after 12 years of superannuation. Even in the present
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
writ petition, the respondent Nagar Panchayat has chosen not
to controvert the facts of the petition but still has declined to
give the benefit to the petitioners. Much can be said about
the conduct of respondent Nagar Panchayat in the present
writ petition. However, when learned advocate for the
respondent Nagar Panchayat has submitted that they are
ready and willing to give retirement dues and benefits to the
petitioners, this Court deems it fit to put the controversy at
rest. In view of the same and in view of the statement made
by learned advocate for the respondent no.5 Nagar
Panchayat, respondent no.5 Nagar Panchayat is directed to
calculate the pensionary dues and retirement dues of the
petitioners and give the same to the petitioners within a
period of four weeks from receiving the copy of this order
failing which they will have to pay 9% till the actual date of
realization. Additionally the petitioner has also prayed for
benefits of Sixth Pay Commission. As the issue pertains to
Nagar Panchayat, the benefit of Sixth Pay Commission also
ought to be given to the petitioner if the requisite funds are
available with the respondent Nagar Panchayat.
8. In view of above same, present petition is disposed of
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
undefined
with above mentioned observations and directions with no
orders to costs. Rule is answered accordingly.
(PRANAV TRIVEDI,J)
ILA
