Gujarat High Court
Govindbhai Madhabhai Vaghela vs Director, Pension And P.F. And Anr. on 24 September, 2003
Author: R.M. Doshit
Bench: R.M. Doshit
JUDGMENT R.M. Doshit, J.
1. Feeling aggrieved by the denial to pay pension the petitioner has preferred the present petition.
2. It is the claim of the petitioner that he was appointed as a daily wage labourer in the State Government under respondent No.2 in the year 1960. Since his appointment the petitioner continuously served under respondent No.2 until he reached the age of superannuation (i.e. 60 years) and retired from service on 31st October, 1995. Thus, the petitioner has served the State Government for 35 years. However, his service prior to the year 1987 has not been considered admissible for the purpose of payment of gratuity and retirement benefits. The petitioner has been paid a sum of Rs.10,183=00 being the amount of gratuity calculated on the basis of his service rendered from 15th January, 1987 till the date of his retirement. Feeling aggrieved, the petitioner approached the Controlling Authority under the Payment of Gratuity Act, 1972. Under order made by the Controlling Authority the petitioner has been paid an additional sum of Rs.24,574=50 and the interest thereon by way of gratuity. However, the petitioner has not yet been paid pension. Hence, the present petition.
3. Mr.Acharya has relied upon the judgments of this Court in the matters of Karshanbhai Vastabhai Bhasker v/s. State of Gujarat & Anr. [1999(1) GCD 638 (GUJ); of Chhaganbhai Ranchhodbhai Rathod v/s. Dy.Executive Engineer (Letters Patent Appeal No.1495/1997 in Special Civil Application No.7539/1997 decided on 6th August, 1998, Coram : K.G.Balakrishnan, C.J. as he then was and Mr.Justice J.M.Panchal) and of Devubha Tejubha v/s. State of Gujarat and others (Special Civil Application No.502/2001 decided on 6th October, 2001, Coram : C.K.Buch, J.).
4. The claim made in the petition has been contested by the State Government. It is denied that the petitioner has been serving as a daily wager since the year 1960. It is stated that the petitioner was appointed as daily wager since January, 1968. On 15th January, 1987 the petitioner was absorbed in work charge establishment. It is admitted that the petitioner retired from service on 31st October, 1995. It is submitted that on 4th July, 1973 the State Government had passed a resolution to consider the daily wage workmen for appointment to the work charge establishment on completion of five years' service as daily wager. By subsequent Resolution dated 16th November, 1973 the State Government resolved how to calculate five years' service. Pursuant to the said Resolutions the petitioner was, under order dated 7th January, 1987, absorbed in the work charge establishment on 15th January, 1987. It is this service rendered in the work charge establishment which alone is the pensionable service. Hence, the petitioner can be said to have rendered pensionable service from 15th January, 1987 to 31st October, 1995 i.e. for eight years and 8-1/2 months. The petitioner cannot be said to have rendered ten years' completed pensionable service (minimum service required for pension). The petitioner's claim for pension, therefore, is not maintainable.
5. In the matter of Karshanbhai Vastabhai Bhasker (supra), in similar set of facts, the Court considered, "whether the period of work put in by the petitioner as a daily wager i.e. from 1979 till 1987 should be taken into consideration for the purpose of pensionary benefits." Relying upon the Government Resolution dated 17th October, 1988 and the judgment in the matter of Chhaganbhai Ranchhodbhai Rathod (supra) the Court held that, "it is clear beyond any manner of doubt that services of the petitioner as daily rated employee, if not from the year 1960, atleast from the year 1979, is required to be taken into consideration until, he retired for the purpose of computing pensionary benefits."
6. In the matter of Chhaganbhai Ranchhodbhai Rathod (supra) the question was whether the petitioner had continuously served for ten years as envisaged in the Government Resolution dated 17th October, 1988. The State Government claimed that though the said petitioner had been serving since the year 1968 there were certain breaks in his service and he could not be said to have completed ten years' continuous service. The Hon'ble Judges of this Court have, considering the year-wise details of the petitioner's presence and the meaning of the words 'completed years of service' for the purpose of the said Resolution dated 17th October, 1988, held that the said petitioner had served for 240 days continuously in all the 14 years. The Hon'ble Judges have also held that whatever breaks in service were condoned by the respondent. Accordingly the claim of the petitioner was allowed. Similar is the judgment in the matter of Devubha Tejubha (supra).
7. I am also informed that several other similar judgments have been rendered in the subject matter.
8. So far as the petitioner's claim that he entered the service of the State Government as daily wager in the year 1960 is concerned, there is no evidence on record except the bare statement made in the petition. However, Mr.Acharya has relied upon the order of the Controlling Authority made on 28th December, 1998 (Annexure-'C' to the petition). In the said claim also the petitioner had stated that petitioner entered the service in the year 1960. The said fact was denied by the State Government. The State Government maintained that the petitioner was engaged in January, 1968. However, the Controlling Authority disbelieved the State Government on the ground that the State Government had not produced the Muster Rolls for the years prior to the year 1971. Mr.Acharya has submitted that the said order was challenged before this Court and this Court has dismissed the petition. Thus, the finding recorded in the said order has become final and is binding.
9. Mr.Dabhi has submitted that the writ petition preferred before this Court was dismissed only on the ground of alternative statutory remedy of appeal before the Appellate Authority and not on merits.
10. Be that as it may, I do not suppose that the matter should hold the Court's attention any longer. In a petition under Article 226 of the Constitution of India, this Court shall proceed on undisputed/admitted facts.
11. It is not disputed that the petitioner's service on work charge establishment with effect from 15th January, 1987 is pensionable service. However, the question is whether the service prior to 15th January, 1987 as daily wage employee can be said to be pensionable service. Payment of pension to the Government servants is governed by the rules contained in Chapter XI of the Bombay Civil Services Rules, 1959 (hereinafter referred to as 'the Rules of 1959') and the Revised Pension Rules, 1950 (hereinafter referred to as 'the Rules of 1950'). It is not in dispute that on the date of retirement of the petitioner from service i.e. on 31st October, 1995 the said Rules were in operation. In my view the relevant rules are Rules 230, 233, 240-B of the Rules of 1959 and Rule 6 of the Rules of 1950 read with Appendix XIV-C.
12. The aforesaid rules are included in Section 3 of Chapter XI of the Rules of 1959 under the heading "Pensionable Service". Rule 230 provides, inter alia, that a Government servant is in pensionable service if he holds substantively a permanent post in Government service or holds a lien on such a post. Rule 233 thereof enumerates the services which are not pensionable service. Clause 3 thereof reads "Government servants who are paid from contingencies". Rule 240-B provides, inter alia, that the duty performed during temporary or officiating service under Government followed without interruption by confirmation in the same or any other post shall count in full as duty for the purpose of Rule 239 (Rule 239 provides for the duty performed by the Government servant counting for pension). But, even the said Rule makes exception, inter alia, with respect to (i) periods of temporary or officiating service in non-pensionable establishment; (ii) periods of service in work charge establishment; and (iii) periods of service paid from contingencies.
13. Rule 1(ii) of the Rules of 1950 provides that the existing pension rules contained in the Bombay Civil Services Rules shall be deemed to be modified to the extent indicated in the Revised Pension Rules. Rule 6 thereof read with Appendix XIV-C would show that a Government servant in pensionable service would be entitled to receive pension only on completion of ten years' pensionable service.
14. In my view, a daily wager cannot be said to be holding a post in the state government ( State of Haryana and another v/s. Tilak Raj and others: AIR 2003 S.C. 2658) nor does he hold a lien on such post. Besides, the daily wagers are paid from contingencies and not from the consolidated fund of the State. In view of the above referred statutory rules services rendered as daily wage employee cannot be treated as pensionable service nor can such service be counted for computation of pension. Hence, the service rendered by the petitioner on daily wages prior to 15th January, 1987 cannot be considered pensionable. Since 15th January, 1987 the petitioner has not completed ten years' service. He is, therefore, not entitled to pension as claimed by him.
15. In none of the above referred judgments the Court's attention was drawn to the above referred statutory provisions. Further, the Government Resolution dated 17th October, 1988 has been issued with respect to conferment of certain service benefits upon the daily wage labourers who have been serving as such for a long time. Clause 3 of the said Resolution [relied upon by the Court in the matter of Chhaganbhai Ranchhodbhai Rathod (supra)] provides that a daily wage labourer who has, on 1st October, 1988, completed more than ten years' service in accordance with Section 25-B of the Industrial Disputes Act, 1947 will be deemed to be permanent. It further provides that such permanent labourers will be given the benefit of pay-scale, D.A., H.R.A., C.L.A. and certain other benefits of casual leave, earned leave, etc. As to the pension it provides that the period of permanent service will be considered pensionable. Thus, it is clear that the said Resolution has been passed with a view to conferring certain service benefits upon the daily wage labourers which were otherwise not available to such labourers. The said Resolution does not treat the service rendered on daily wages as pensionable service nor does the said Resolution intended to make provisions with regard to pension/pensionable service. This has also been clarified by the State Government under the instructions/clarifications annexed to the counter affidavit. Moreover, the said Resolution cannot have an overriding effect over the abovereferred statutory rules. Further, the petitioner has not been treated as permanent employee by virtue of the aforesaid Resolution dated 17th October, 1988. As recorded hereinabove, the petitioner was absorbed in work charge establishment under order dated 7th January, 1987 made pursuant to the Government Resolution dated 4th July, 1973 long before the aforesaid Resolution dated 17th October, 1988. Therefore also, the daily wage service rendered by the petitioner prior to 15th January, 1987 cannot be considered to be pensionable service.
16. The upshot of the aforesaid decisions is that non-pensionable service (service rendered as daily wage labourer) rendered immediately preceding the pensionable service (service rendered on work charge establishment or deemed to be permanent service by virtue of the benefit conferred under the Resolution dated 17th October, 1988) has been ordered to be treated as pensionable service for the purpose of computation of pension. This being the view consistently followed by this Court since the year 1998 or even theretofore there is no reason why similar benefit should be denied to the present petitioner.
17. However, I do earnestly believe that the legal position deserves a second look and trust that upon a proper occasion the matter would be considered afresh by a Larger Bench. Scales of justice should weigh evenly.
18. In the premises aforesaid, regardless of the legal position as perceived by me and expressed hereinabove, I allow this petition.
19. The respondent shall examine the records and calculate the number of completed years of service rendered by the petitioner.
20. All the completed years of service rendered by the petitioner as daily wage employee prior to 15th January, 1987 shall be considered pensionable. The respondents are directed to compute the pension which shall be due and payable to the petitioner if all the completed years of service as daily wage employee were considered to be pensionable service along with the service rendered in work charge establishment and to issue pension payment order. The petitioner shall be paid pension regularly every month from 1st January, 2004. The arrears of pension from the date of retirement of the petitioner from service till 31st December, 2003 shall be paid on or before 30th April, 2004.
21. The petitioner has also claimed interest at the rate of 18% per annum.
22. As I have held that under the relevant rules the petitioner is not entitled to pension the claim for interest is rejected.
23. Rule is made absolute to the above extent. There shall be no order as to costs.