Gujarat High Court

Kanbai Jakubhai Harijan W/O Jakubhai ... vs State Of Gujarat on 17 November, 2025

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                          C/SCA/6220/2018                                     JUDGMENT DATED: 17/11/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CIVIL APPLICATION NO. 6220 of 2018


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE MAULIK J. SHELAT

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                                 Approved for Reporting                      Yes           No
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                                 KANBAI JAKUBHAI HARIJAN W/O JAKUBHAI KEDABHAI
                                                               Versus
                                                 STATE OF GUJARAT & ANR.
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                     Appearance:
                     MS. REENA KAMANI for MR. P. H. PATHAK(665) for the Petitioner(s) No. 1
                     MR. PARTH PATEL, ASSISTANT GOVERNMENT PLEADER for the
                     Respondent(s) No. 1,2
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                        Date : 17/11/2025

                                                        ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government

Pleader, Mr. Parth Patel, waives service of notice of Rule on

behalf of the respondents.

2. With consent of learned Advocates appearing for the respective

parties, the matter is taken up for hearing.

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3. Heard learned Advocate Ms. Reena Kamani for learned

Advocate Mr. P. H. Pathak for the petitioner and learned

Assistant Government Pleader Mr. Parth Patel for the

respondents.

4. The present writ application is filed under Articles 14, 16, and

226 of the Constitution of India, seeking the following reliefs:

"(A) The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction declaring the inaction on the part of the respondents to grant the benefits of resolution dated 17.10.1988 to the husband of the petition and the retirement benefits, leave encashment including grant of pension, as unjust, arbitrary, illegal and merciless approach and direct the respondents to pay all arrears to the petitioner, payable to the husband of the petitioner with 12% interest.

(B) Be pleased to declare that the respondents have no justification to deny the family pension to the petitioner after the death of her husband and therefore, direct the respondents to grant the benefits of family pension to the petitioner with all arrears with 12% interest and further direct to pay heavy cost to the petitioner.

(C) Be pleased to direct the respondents to pay compensation of rupees one lac to the petitioner for harassing her and denying her of benefits of family pension and direct the respondents to recover the amount so awarded by the court from the personal salary of the erring officer.

(D) Pending admission and final disposal of the petition, be pleased to direct the respondents to start paying family pension to the petitioner to enable her to maintain her body and soul together.

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(E) Pending admission and final disposal of the petition, be pleased to direct the respondents to pay all arrears of amounts payable to the husband of the petitioner to the petitioner pursuant to the resolution dated 17.10.1988 forthwith.

(F) Any other and further reliefs as this Hon'ble Court may deem fit and proper in the interest of justice be granted."

5. THE SHORT FACTS OF THE CASE APPEAR TO BE

THAT:

5.1. The husband of the petitioner namely late Jakubhai Ukeda

Harijan joined the service under respondent No. 2 as a daily

wager on 14th May 1986 and discharged his duty as a Class IV

employee until retirement from his services on 31st December

2013. The said Jakubhai died on 28th February, 2014. So, it is

the case of the petitioner that the deceased entitled for leave

encashment and pensionary benefits, and being her widow,

entitled for a family pension, which denied by the respondent

on the ground that the deceased- Jakubhai not completed 10

years of service when reached at age of superannuation, as had

not worked for more than 240 days in each year continuously

for 10 years, thereby, not qualified to get a pension and other

benefits. Hence, the present petition.

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6. SUBMISSIONS OF THE PETITIONER:

6.1. Learned Advocate Ms. Kamani would submit that husband of

petitioner joined the Forest Department as a daily wager and

worked till 2013 and as such, his service also regularized by

respondent, which can be seen from his service book. It is

submitted that, as per the settled legal position of law, a daily

wager whose services otherwise regularized and worked for

more than 240 days a year for 10 years, entitled to receive leave

encashment and pensionary benefits, which were wrongly

denied in the present case.

6.2. Learned Advocate Ms. Kamani would further submit that the

respondent authorities have erroneously not considered

Sundays and Public Holidays while calculating 240 days as

working days of the deceased - daily wager, thereby, committed

serious illegality. It is respectfully submitted that as per the

decision of the Honorable Supreme Court of India in the case

of Workmen of American Express International Banking

Corporation V/s. Management of American Express

International Banking Corporation reported in AIR 1986 SC 458

and the decision of the Division Bench of this Court dated 2nd

February 2023 in Letters Patent Appeal No.1705 of 2022, passed

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in the case of Executive Engineer V/s. Amrabhai Vechatbhai

Khant Since Decd. Through HS Savitaben Wd/o. Amrabhai

Khant, which in fact, confirmed by the Honorable Apex Court

while dismissing the Special Leave Petition No.51199 of 2023

filed by the State, would clearly laid down the law that the

respondent-State requires to consider Sundays and Public

Holidays of each year while calculating 240 days service of

daily wager per year.

6.3. Learned Advocate Ms. Kamani would further submit that,

after taking note of the decisions of the Honorable Apex

Court, the State has passed a resolution on 15 th September,

2014 followed by amended resolution dated 6th April 2016,

issued by the Forest Department, State of Gujarat, would clear

the doubts in everyone's minds, that State is under a legal

obligation to consider Sundays and Public Holidays while

calculating 240 days per year in the case of daily wagers.

6.4. Thus, making the above submissions, learned Advocate Ms.

Kamani would request this Court to grant the reliefs as prayed

in the writ petition.

7. SUBMISSIONS OF THE RESPONDENTS:

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7.1. Per contra, learned AGP Mr. Patel would submit that as per

Annexure R2 submitted with affidavit in reply, would clearly

indicate that between 1990 to 2000, though husband of

petitioner worked in the Forest Department, but not completed

240 days, thereby, not entitled to receive any pensionary benefit

and leave encashment. It is submitted that, as per School

Leaving Certificate made available with the respondent by

employee concerned, would indicate that he born on 12th

January 1940, thereby, ought to have been superannuated in

the year 2000, but for any reason, allowed to work till 2013, as

the case may be. It is further submitted that a daily wager

might have continued to work for more number of years after

reaching the age of superannuation, but such services cannot be

considered as qualifying service to receive pension. Even

otherwise, there are few years in which he has not completed

240 days beyond the year 2000.

7.2. Learned AGP Mr. Patel would submit that no Sundays and

Public Holidays to be added in a case of daily wagers for

counting 240 days working per year and thus, claim made by

petitioner is not sustainable in law.

7.3. To buttress his argument, learned AGP Mr. Patel would rely

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upon the following decision of the Honorable Division Bench

of this Court in the case of Ranjit Natvarlal Chauhan V/s.

Morbi Nagar Palika reported in (2011) 2 GLR 1783.

7.4. So, according to the submissions of the learned AGP Mr. Patel,

the decision of American Express International Banking

Corporation (supra) would not be applicable to the case of the

petitioner as the husband of the petitioner was a daily wager

and not a temporary employee.

7.5. Making the above submissions, learned AGP Mr. Patel would

request this Court to reject the present writ petition.

8. No other and further submissions are being made.

9. Having heard learned advocates appearing for the respective

parties and after going through the averments made in the

present writ petition as well as reply and documents annexed

therewith, it remains undisputed on record that the husband of

the petitioner worked as a daily wager since 1990 till 2013.

Nonetheless, considering his date of birth i.e. 12th January,

1940, he would reach age of superannuation on 12th January,

2000. He might have worked till year 2013 for any reasons, but

to consider pensioner benefits, qualifying service from date of

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his 1st completing 240 days in year till age of superannuation

needs to be taken into account. As per Annexure R2, his actual

number of working days in respective years depict that between

the years 1990 to 2000, except for two years, he worked for

more than 240 days per year.

10. So, in view of aforesaid facts and circumstances of the present

case, the question arises for my consideration as to whether, in

a case of daily wagers like husband of petitioner, can Sundays

and Public Holidays requires to be added while counting 240

days or not?

11. The aforesaid question is no longer remained res integra,

having already first decided by the Honorable Apex Court in

the case of American Express International Banking

Corporation (supra), followed by the Division Bench of this

Court in the case of Amrabhai Vechatbhai Khant (supra).

12. The pertinent observation and ratio of the Honorable Apex

Court in the case of American Express International Banking

Corporation (supra) needs reproduction, which reads as under:

"5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under Section 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one

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year under an employer. What is continuous service has been defined and explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is Section 25-B (2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer'. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to Section 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression "actually worked under the employer". The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression "actually worked under the employer" is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning than what we have done would bring the object of Section 25-F very close to frustration. It is not necessary to give examples of how Section 25-F may be frustrated as they are too obvious to be stated."

(emphasis supplied)

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13. At the same time, taking note of the aforesaid judgment and

previous decision of the Division Bench of this Court, in

Amrabhai Vechatbhai Khant (supra), the Division Bench held

thus:

"4.1 Learned Single Judge noticed the undisputed fact that petitioners were appointed in the year 1976 and 1981 respectively and they had completed more than 10 years of service with completion of 240 days, if Sundays and holidays were to be included in the working days to earn qualifying service to be entitled to pension.

4.2 The decision of the Division Bench of this Court in Executive Engineer Panchayat (MAA & M) Department And Another Versus Samudabhai Jyotibhai Bhedi & Other [2017 (4) GLR 2952], was relied on by learned Single Judge to hold that total services from date of initial appointment were liable to be reckoned for the petitioners.

4.3 In Samudabhai Jyotibhai Bhedi (supra), the contention was raised by the authorities that for the purpose of entitlement of pension under the Resolution, the services rendered on regular basis only have to be counted to determine the qualifying service and entitlement of pension. The stand that the petitioners in the said case became permanent on 01.10.1988 and therefore qualifying service was not rendered, counted from 1988, was negatived by learned Single Judge to hold that the date of entering into service was to be applied to count the entire service at such length.

4.4 Learned Single Judge relied on the decision in Special Civil Application No. 15601 of 2020 dated 27.01.2022, as also decision of the Division Bench Chhaganbhai Ranchhodbhai Rathod Vs. Deputy Executive Engineer in Letters Patent Appeal No. 1495 of 1997 decided on 06.08.1998, in which, similar facts and issue was involved about the qualifying service vis-a-vis the completion of 240 days of continuous

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service in terms of Section 25B of the Industrial Disputes Act.

4.5 It was observed thus in paragraph 13,

"In light of the judgement rendered in Special Civil Application No.15601 of 2020 which has been passed on the basis of two Division Bench judgements of this Court passed in LPA No.1495 of 1997 and LPA No.2047 of 2004, it becomes very clear that as per the Government Resolution dated 17.10.1988, once daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned in Subsection (1), whatever kind of cessession of work which is not due to the fault of daily wager then, his service must have to be considered continuous for a period of one year, irrespective of the fact that whether such daily wager has completed 240 days actual work or not during that year. The judgements relied upon by learned advocate Mr. Shastri would not be helpful to the present case inasmuch as in the said cases, there was no controversy as to how 240 days in a year shall have to be calculated. On the other hand, the above said judgments in LPA No.1495 of 1997 and LPA No.2047 of 2004 is to the point which would clearly indicate as to how calculation of 240 working days for the purpose of entitlement under Government Resolution dated 17.10.1988 is to be done."

4.6 Also referred by Learned Single Judge, was the decision in Special Civil Application No.5319 of 2019, which was confirmed in the Letters Patent Appeal No. 93 of 2021 and further confirmed by the Supreme Court in Special Leave to Appeal No.13048 of 2021 as per order dated 31.08.2021 of the Supreme Court.

5. By virtue of all the above decisions in which the decision of the Supreme Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation[(1985) 4 SCC 71] was relied on for the purpose of applying the principle that computation of Sundays and leave holidays as well as

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other public holidays were to be added to the benefit of the employees while counting 240 days of continuous service.

5.1 It may be stated that in Executive Engineer Versus State Of Gujarat in Letters Patent Appeal No.326 of 2022 decided as per judgment dated 16.01.2023, similar issue was addressed in respect of the similarly situated daily-rated petitioners.

5.2 In Workmen of American Express International Banking Corporation (supra), the Supreme Court held thus,

"...the net effect of section 25-B sub section (1) is to the effect that if the daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned mentioned in subsection (1), whatever kind of cessation of work which is not due to the fault of the daily wager, then, his service must have to be considered continuous for a period of one year irrespective of the fact whether such daily wager has completed 240 days actual work or not during this one year. Reason is that during the one year, though the daily wager has not completed 240 days continuous service, but during that period also, the services of such daily wager has not been terminated by the employer and in-between the relationship of the employer and employee was remaining in force which makes continuous service of one year and that period must be taken into consideration irrespective of the fact that 240 days actual work has been completed or not by such daily wager but such daily wager has remained in service with the employer on permanent employment and pensionable service. Similarly, in respect of sub section (2) of section 25B of the ID Act, if the daily wager is not remaining in service for a period of 12 calender months but even less number of months but he completes 240 days working, then also, that less number of months may be considered for one year continuous service. This being two distinct and different situation incorporated by the legislature in sub section (1) and (2) of section 25B of the ID

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Act, if the daily wager is satisfying either of the one, then his services must have to be considered continuous for a period of one year within the meaning of section 25B of the Industrial Disputes Act, 1947."

5.3 The service details of the two petitioners and the number of years put in by them would go to show that they had completed 240 days in 10 years of have the qualifying service to their credit for the purpose of getting pension. They became entitled to pension by virtue of their length of service and continuous service.

5.4 Looking to the above decisions in American Express International Banking Corporation (supra) of the Supreme Court as well as the decision of this Court in Chhaganbhai Ranchhodbhai Rathod (supra), the petitioner could be said to have rendered long years of service completing 240 days. The continuous service of the petitioner has to be treated in light of Section 25B of the Industrial Disputes Act as interpreted by the Supreme Court and complied by this Court in the decisions relied on above."

(emphasis supplied)

14. The reading of the aforesaid decisions would clear the doubt in

anyone's mind and clear clouds, whereby there is no scintilla of

doubt remains that a person who works in an establishment

may be as a daily wager, Sundays and Public Holidays requires

to be added while counting 240 days per year when calculate

his actual service for pensionary and other retiral benefits.

15. Furthermore, it is brought to the notice of this Court by

learned Advocate Ms. Kamani that there is an amended

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resolution dated 6th April 2016, issued by the Forest

Department, State of Gujarat, whereby, taking note of the

decision of the Honorable Apex Court, a conscious decision

taken that in the case of a daily wager, the department has to

consider Sundays and public holidays for his services. The

amended resolution dated 6th April 2016 is taken on record.

There is no disputes that deceased-husband of petitioner

worked with Forest Department.

16. When this would be the factual and legal position, this Court

called upon learned AGP Mr. Patel, to provide the actual data

of total working days of the husband of the petitioner between

1990 till 2000, after adding Sundays and Public Holidays, and

to verify as to whether he would complete 240 days a year or

not?.

17. On getting written instructions from his client and having so

prepared the fresh chart of working days as per above, whereby

after inclusion of Sundays and public holidays, learned AGP

Mr. Patel tendered such details, which is taken on record.

18. As per the fresh material made available to this Court i.e. fresh

chart of total working days including Sunday/Public holidays,

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which duly signed by respective officers of the Forest

Department, would indicate that on addition of Sundays and

public holidays in each year between 1990 to 2000, now, it is

remained undisputed fact that the husband of the petitioner

had completed 240 days per year between said period i.e. total

10 years.

19. When, on getting fresh materials made available on record and

having come to know about the fact that the deceased

employee has already completed 240 days a year for 10 years,

as per the policy/resoultion of the Government, he would

naturally be entitled to receive pensionary benefits and leave

encashment, inasmuch as, he completed qualifying service to

receive pension.

20. At this stage, the judgment which has been placed reliance

upon by learned AGP Mr. Patel, of the Division Bench of this

Court in the case of Ranjit Natvarlal Chauhan (supra) is

concern, according to my view, when considering the

subsequent Division Bench judgment in the case of Ranjit

Natvarlal Chauhan (supra) and the aforesaid amended

resolution of the Forest Department dated 6th April 2016, the

judgment pressed into service by learned AGP Mr. Patel would

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not be helpful to his defence as no more considered as good

law.

21. In view of the aforesaid facts and circumstances and having

found that the deceased employee i.e. husband of the petitioner

having completed 240 days a year for 10 years continuously, he

as well as the petitioner being his wife, would be entitled to

receive pension/family pension as well as leave encashment as

per the rules and regulations of the State.

22. Thus, the upshot of the aforesaid and in view of forgoing

reasons, would lead to the following conclusions:

(i). Jakubhai Ukeda Harijan (husband of the petitioner) is

entitled to receive all retirement benefits i.e. pension,

leave encashment, as well as the petitioner herein being

his widow is entitled to receive family pension as per the

prevailing norms of the State.

(ii). The arrears of pension, including family pension till its

payment, must be calculated and requires to be paid to

the petitioner by the respondents. Likewise, benefit of

leave encashment as per norms available to late husband

of petitioner be also paid to petitioner.

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(iii). The aforesaid calculation/payment of arrears of pension

and leave encashment shall be undertaken/paid by the

respondents to petitioner at the earliest, not later than

15th January 2026, failing which the petitioner is entitled

to receive 9% interest on such amount from 16th January

2026 till its reliazation.

(iv). The petitioner having held entitled to receive family

pension monthly, same shall be paid to her regularly by

respondents without fail till she survives, albeit as per