[Cites 13, Cited by 0]

Gujarat High Court

Bhathibhai Valambhai Baria vs State Of Gujarat on 27 January, 2026

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                           C/SCA/16189/2020                                        JUDGMENT DATED: 27/01/2026

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 16189 of 2020


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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                                   Approved for Reporting                         Yes           No
                                                                                   ✓
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                                                  BHATHIBHAI VALAMBHAI BARIA
                                                             Versus
                                                   STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
                      MR. SIDDHARTH RAMI, AGP for the Respondent(s) No. 1,2,3,4,5
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                             Date : 27/01/2026
                                                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned AGP waives service of notice of rule on behalf of respondents-State.

With consent of the parties, the matter is taken up for

final hearing.

2. Heard Mr. Dipak Dave, learned advocate for the

petitioner and Mr. Siddharth Rami, learned AGP for the

respondents-State, at length.

3. The present writ petition is filed under Article 226

of the Constitution of India, inter alia, seeking following

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reliefs:

"A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction

(i) to hold and declare that action on part of the respondents in not making payment of pensionary benefits to the petitioner by counting his entire

length of service from 01.06.2002 till 31.05.2016 as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioner by counting his service from 01.06.2002 until the date of his retirement, i.e. 31.05.2016, and fix the pension accordingly;

(ii) to hold declare and petitioner is that entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the respondents to pay amount of leave encashment of leave standing in the account of the petitioner;

(iii) to hold and declare that the petitioners shall be paid all other benefits like Public Holidays, Transport Allowance, Medical Allowance, Group Insurance, D.A. Merger etc. at par with the permanent employees.

(iv) to direct the respondents to pay difference of pensionary benefits, full gratuity, other benefits and leave encashment with 18% interest from the date when it fell due;

(B) Pending the admission hearing and final disposal of this petition, this Hon'ble Court may be pleased direct the respondents immediately fix the pension of the to to petitioner on the basis of his total length of service, i.e. from 01.06.2002 till 31.05.2016;

(C) Any other and further relief reliefs to or which this Hon'ble Court deemed fit, in the interest of justice; may

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kindly be granted;"

BRIEF FACTS:-

4. The short facts of the case appear to be that the

petitioner had been working as a daily wager with the

respondent-Forest Department since the year 2002 and

superannuated on 31.05.2016. It is the case of the

petitioner that despite working for more than 10 years,

he was not granted the benefits of Government

Resolutions dated 17.10.1988 as well as 21.06.2019 by

the respondent. Because of the aforesaid fact, the

petitioner has approached this Court by way of this

petition with the aforesaid prayer.

5. SUBMISSIONS ON BEHALF OF PETITIONER:

5.1 At the outset, Mr. Dave, learned advocate, would

point out to this Court that the issue germane in the

matter is no longer res integra and decided by various

judgments of the learned Single Judge and Division

Bench of this Court, and one of which is confirmed up

to Hon'ble Supreme Court. It is submitted that the

petitioner had been working as a daily wager since 2002

and, having completed more than 10 years of service,

entitled to get the benefit of Government Resolution

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dated 17.10.1988, which is followed by another

Government Resolution dated 21.06.2019 issued by the

respondent-State.

5.2 Mr. Dave, learned advocate, would further submit

that as per the affidavit-in-reply filed by the respondent,

the service of the petitioner was shown w.e.f. 01.09.2004

to 31.05.2016, wherein respondents have not calculated

Sundays and other holidays in the first two years of

service of the petitioner, i.e., from 01.09.2004 to

31.08.2006. It is further submitted that as per the

settled legal position of law, the respondents were

supposed to consider Sundays and holidays while

calculating the number of days in a year and if it will be considered, the petitioner would have completed more

than 10 years of his service, thus, entitled to get the

benefits of the said resolutions.

5.3 Mr. Dave, learned advocate, under the instructions

of his client, would concede to the fact that the

petitioner's engagement in service with the respondent

may be considered w.e.f. 01.09.2004.

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5.4 To buttress his arguments, he would rely on the

following judgments:

(i) Chhaganbhai Ranchhodbhai vs. Dy. Executive

Engineer rendered in Letters Patent Appeal No.

1495 of 1997 in Special Civil Application No. 7539

of 1997 dated 06.08.1998.

(ii) Surendranagar Dist. Panchayat and Others Vs.

Umarkhan Alikhan Malek rendered in Letters

Patent Appeal No. 2047 of 2004 dated 29.03.2016.

(iii) Dudharejia Jasmatbhai Maganbhai Vs. State of

Gujarat rendered in Special Civil Application No.5319 of 2019 dated 29.11.2019.

(iv) State of Gujarat Vs. Dudharejia Jasmatbhai

Maganbhai rendered in Letters Patent Appeal No.

93 of 2021 in Special Civil Application No. 5319 of

2019 dated 18.01.2021.

(v) State of Gujarat Vs. Dudharejia Jasmatbhai

Maganbhai rendered in SLP No. 13048 of 2021

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dated 31.08.2021.

(vi) Ratilal Balvantsinh Bariya Vs. State of Gujarat

rendered in Special Civil Application No. 15601 of

2020 dated 27.01.2022.

(vii) Executive Engineer Vs. State of Gujarat

rendered in Letters Patent Appeal No. 326 of 2022

dated 16.01.2023.

(viii) Medical Officer Vs. Dashrathsinh Gajubha Zala

reported in 2012 (5) GLR 4085.

5.5 Making the above submissions, Mr. Dave, learned advocate, would request this Court to issue suitable

directions to the respondent concerned in the matter.

6. SUBMISSIONS ON BEHALF OF RESPONDENTS:-

6.1 Per contra, Mr. Siddharth Rami, learned AGP would submit that the petitioner had not completed 240 days in

the years between 2004 and 2006, inasmuch as between

01.09.2004 and 31.08.2006, the petitioner only worked for

216 and 221 days, respectively. As the petitioner has not

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completed 240 days of service for more than 10 years

continuously, he is not entitled to any benefits under

Government Resolutions dated 17.10.1988 and 21.06.2019,

as the case may be.

6.2 Mr. Rami, learned AGP would submit that there is

no error committed by the respondent in not granting

other retirement benefits like pension etc. to the

petitioner as per the aforesaid Government Resolutions as

he could not fulfilled all conditions of the aforesaid

Government Resolutions. It is further submitted that the

payment of gratuity authority vides its order dated

13.11.2016 also considers the fact that the petitioner had

worked only for 10 years and accordingly, granted

gratuity.

6.3 Mr. Rami, learned AGP would further submit that

no Sunday and other holidays in a year to be added

while calculating 240 days per year. To buttress this

argument, Mr. Rami, learned AGP would submit that the

judgment of the Hon'ble Apex Court in the case of

Workmen of American Express International Banking

Corporation Vs. Management of American International

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Banking Corporation reported in AIR 1986 SC 458 is

considered by the Division Bench of this Court in the

case of Ranjit Natvarlal Chauhan Vs. Morbi Nagarpalika

reported in 2011 (2) GLR 1783, whereby it has been

held that the ratio in the case of Workmen of American

Express International Banking Corporation (supra) would

not be applicable to the case of daily wagers. Thus,

according to learned AGP, no error committed by the

respondent while calculating numbers of working days of

the petition for a period between 01.09.2004 and

31.08.2006.

6.4 Making the above submissions, learned AGP would

request this Court to dismiss the present writ petition.

ANALYSIS:-

7. Having heard the learned advocates for the

respective parties and after perusing the pleadings and

documents made available on the record and so also the

decisions cited at the bar, the following would emerge:

7.1 The petitioner was a daily wager engaged by the

respondent in Forest Department and worked from

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01.09.2004 to 31.05.2016; thereby, he would have

completed 12 years of service as on the date of his

superannuation. Yet, the fact remains that for the period

between 01.09.2004 to 31.08.2005 and 01.09.2005 to

31.08.2006, the number of days worked by the petitioner

as workman shown in the list annexed with the reply by

the respondent [Annexure-R1] are 216 and 221 days

respectively.

7.2 Upon inquiry, Mr. Rami, learned AGP, under

instructions of his officer, would state that while

calculating the aforesaid days of work, the department

has not included Sundays and holidays. Further, on

directing the respondent to add the Sundays and holidays and other permissible leaves available to the

petitioner while calculating the same, it has been fairly

conceded by learned AGP, albeit under the instruction

that it crosses 240 days per respective year. The addition

of Sundays and holidays for the aforesaid period between

01.09.2004 and 31.08.2006 would cross 240 days a year

working of the petitioner; thereby, his number of years

of working with the respondent would crosses 10 years.

If it be so, it cannot be gainsaid that the petitioner

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worked for more than 10 years. Consequently, the

petitioner is entitled to get benefits under Government

Resolution dated 21.06.2019.

8. So far as the grievance of the respondent that this

Court should not add Sundays and holidays while

counting 240 days of service in a year is concerned, after

going through the decisions which are cited by Mr. Dave,

learned advocate for the petitioner, there is no scintilla

of doubt that as per the well settled legal position,

which would continue so far after the pronouncement of

the decision of the Hon'ble Apex Court in the case of

Workmen of American Express International Banking

Corporation (supra); the respondent requires to add Sundays and holidays while counting the number of

working days in a year. The relevant observation of the

Hon'ble Apex Court in the aforesaid decision needs to be

referred, 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 year under an employer. What is continuous service has been defined and

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explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of reliance 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 me 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

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the expression-there is no reason why the expression should be limited by the explanation. To give it any other meaning then 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 25 F may be frustrated as they are too obvious to be stated.

6. The leading authority on which reliance was placed by the learned counsel for the Management was Lalappa Lingappa and Ors. v. Laxmi Vishnu Textile Mills Ltd., (AIR 1981 SC 852). We may straightaway say that the present question whether Sundays and paid holidays should be taken into account for the purpose of reckoning the number of days on which an employee actually worked, never arose there. The claim was under the Payment of Gratuity Act. All permanent employees of the employer claimed that they were entitled to payment of gratuity for the entire period of their service, that is, in respect of every year during which they were in permanent employment irrespective of the fact whether they had actually worked for 240 days in a year or not. The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holidays were to be included in reckoning the number of days on which the workmen actually worked ; but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was in service for the whole year whether or not he actually worked for 240 days. On the language employed in Section 2(c) of the Payment of Gratuity Act, the court came to the conclusion that the expression 'actually employed' occurring

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in Explanation I meant the same thing as the expression 'actually worked' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. They further question as to what was meant by the expression 'actually worked' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us."

(emphasis supplied)

8.1 Further, the Division Bench of this Court in its

order dated 06.08.1998 passed in Letters Patent Appeal

No. 1495 of 1997 in Special Civil Application No. 7539 of 1997 also considered the dictum of the aforesaid

decision laid down by the Apex Court and held thus:

"From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years the appellant had worked for more than 240 days. The Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 458 has ruled that continuous service is to be counted by including sundays and other

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holidays, sickness or authorised leave and accident or strike which is not illegal or a cessation which is not due to any fault on the part of workman. The respondents have failed to produce any material on record of the case to indicate that in the year 1980-81 and 1981-82 there was a cessation of work due to any fault on the part of the appellant. Therefore, the appellant had continuously served for a period of more than 10 years within the meaning of Resolution dated October 17, 1988. The submission made by the learned Counsel for the respondents that the appellant had completed 240 days' work in 8 years only, which is less than 10 years and, therefore, the appellant is not entitled to pension, cannot be accepted. It is an admitted fact that while denying the claim of the appellant, sundays and other holidays, sickness or authorised leave etc. were not taken into consideration by the respondents, nor the question was considered whether there was any cessation of work which was not due to any fault on the part of the appellant. It may be stated that the appellant served as a daily wager for about 21 years and retired from service on October 13, 1989. Having regard to the facts of the case, even there were some small breaks in service of the appellant which had taken place in the years 1980-81 and 1981-82, they have been condoned by the respondents for the purpose of retiral benefits. On the facts and in the circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days, he is entitled to the benefit of pension. The learned Single Judge was not justified in rejecting the claim ofthe appellant on the ground that the

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appellant had not worked for 240 days' continuously in 10 years and was, therefore, not entitled to pension. The appeal, therefore, deserves to be accepted."

(emphasis supplied)

8.2 Additionally, there are other decisions also referred

to by Mr. Dave, learned advocate for the petitioner,

which also follow the aforesaid decision of the Hon'ble

Apex Court. It is not out of place to mention here that

an order dated 18.01.2021 passed by the Division Bench

of this Court in Letters Patent Appeal No. 93 of 2021 in

Special Civil Application No. 5319 of 2019, confirming

the order of the learned Single Judge, has taken the

same view as held aforesaid. The State appears to have

carried the said decision before the Hon'ble Apex Court

by way of Special Leave to Appeal No. 13048 of 2021, which came to be summarily dismissed by the Hon'ble

Apex Court vide its order dated 31.08.2021.

9. In light of the aforesaid, one cannot and should not

dispute the fact that while calculating the number of

working days per year for a workman worked with the

respondent-employer, Sundays and holidays and other

permissible leave days must be calculated for counting

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the total number of working days in the year for S. 25-

F of I.D. Act.

10. It is true that departure was taken by the Division

Bench of this Court in the case of Ranjit Natvarlal

Chauhan (supra) by distinguishing the ratio of the

judgment of the Hon'ble Apex Court in the case of

Workmen of American Express International Banking

Corporation (supra) by holding that the ratio of the Apex

Court would be applicable to the case of a workman,

who worked as a temporary employee and not as the

daily wager.

11. With profound respect to the Division Bench, such was not the ratio of the decision of the Hon'ble Apex

Court in the case of Workmen of American Express

International Banking Corporation (supra), which can be

seen from the passages reproduced hereinabove. Apart

from the above, the aforesaid order dated 06.08.1998

passed by the Division Bench of this Court in Letters

Patent Appeal No. 1495 of 1997 in Special Civil

Application No. 7539 of 1997 appears to have not been

brought to the notice before the Division Bench when

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decided the case of Ranjit Natvarlal Chauhan (supra).

According to the settled legal position, where subsequent

bench fails to notice a prior bench's decision and arrives

at a contrary finding, the later decision does not

constitute a binding precedent and is instead regarded as

per incuriam. In the case of Union of India Vs. S.K.

Kapoor, reported in (2011) 4 SCC 589, held thus:

"9. It may be noted that the decision in S.N.Narula's case

(supra) was prior to the decision in T.V.Patel's case(supra). It is

well settled that if a subsequent co- ordinate bench of equal

strength wants to take a different view, it can only refer the matter

to a larger bench, otherwise the prior decision of a co-ordinate

bench is binding on the subsequent bench of equal strength. Since,

the decision in S.N.Narula's case (supra) was not noticed in

T.V.Patel's case(supra), the latter decision is a judgment per

incuriam. The decision in S.N.Narula's case (supra) was binding on

the subsequent bench of equal strength and hence, it could not

take a contrary view, as is settled by a series of judgments of this

Court."