Gujarat High Court
State Of Gujarat vs Ranabhai Ajmalbhai Harijan, Since ... on 10 April, 2018
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1518/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1518 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18036 of 2013
With
CIVIL APPLICATION NO. 2 of 2017
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STATE OF GUJARAT
Versus
RANABHAI AJMALBHAI HARIJAN, SINCE DECD. THROUGH LEGAL
HEIRS
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Appearance:
MR ROHAN YAGNIK, AGP (1) for the PETITIONER(s) No. 1,2,3
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No.
1.1,1.2,1.3,1.4,1.5,1.6
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 10/04/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. This appeal arises out of oral judgment dated 19th October 2016 passed by learned Single Judge in Special Civil Application No.18036 of 2013. By the judgment under challenge, learned Single Judge held that the heirs and legal representatives of the petitioner-respondent herein shall be granted the pension for the services rendered by the petitioner by taking into consideration entire period of service rendered by him, including those years of service as 'Rojmadar' where he had rendered continuous service of 240 days in a year. According to learned Single Judge, computation of pension should, therefore, be made keeping the entire period of service in mind, i.e. from the date of his initial appointment as 'Rojmadar'.
Page 1 of 10 C/LPA/1518/2017 ORDER2. The facts, in brief, which are not in dispute even according to learned counsel for the respective parties are as under:-
2.1 The respondent-original petitioner was appointed as a "daily rated employee" with effect from 21.6.1983. By an order dated 16.6.1992, the respondent-original petitioner was appointed on the work charge establishment on completion of ten years. Benefits of the Government Resolution dated 17.10.1988 were extended to the respondent and he was placed in the regular pay scale after completion of ten years of service. The regular pay scale was granted with effect from 1.4.1998. The petitioner retired on superannuation with effect from 30.9.2007.
2.2 Aggrieved by inaction of the appellant herein in paying pensionary benefits, the respondent approached this Court by filing aforesaid petition, contending that having completed the requisite number of years of service, for being eligible for pension, the respondent was entitled to payment of pensionary benefits. It appears that the stand of the appellant herein was that since the original petitioner-respondent herein was granted the benefit of regular pay scale with effect from 1.4.1998 and had retired on superannuation on 30.9.2007, he did not complete the requisite qualified service of ten years.
According to the appellant, since the employee had completed only nine years and six months of service, the qualifying service falls short by six months and, therefore, pensionary benefits were denied to the employee. The government also pressed into service a Government Resolution dated 24.3.2006 to contend that, in accordance with the said resolution in view Page 2 of 10 C/LPA/1518/2017 ORDER of the fact that the employee's service fell short by six months in completing the qualifying service of ten years, the employee was not entitled to pension.
3. The contentions raised by the learned Assistant Government Pleader before learned Single Judge have been reiterated by Shri Rohan Yagnik, learned AGP for the appellant. According to Shri Yagnik, the petitioner having rendered service of less than ten years, viz. that of nine years and six months, the Government is right in denying the pensionary benefits to the employee-respondent herein in view of Government Resolution dated 24.3.2006.
4. Shri Dipak Dave, learned advocate for the respondent- original petitioner, as submitted before learned Single Judge, has contended that the government fell in serious error in computing the period of service. According to Shri Dave, in view of the fact that the employee-original petitioner was granted benefit of the Government Resolution dated 17.10.1988 and was placed in the pay scale with effect from 1.4.1998, his past service as a 'daily wager' with effect from 21.6.1983 could not have been wiped out for computing the period for awarding pensionary benefits. This was particularly in view of the fact that in accordance with Government Resolution dated 17.10.1988 and in accordance with Section 25-B of the Industrial Disputes Act, it was not disputed between the parties that the employee had rendered continuous service for a period of 240 days in a year in compliance of the requirement of Government Resolution dated 17.10.1988.
Page 3 of 10 C/LPA/1518/2017 ORDER5. Reliance was placed on the judgment of this Court in the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer, reported in 1998 (2) GLH 1, in support of contention that the service rendered as a 'daily wager' ought to be considered for the purposes of counting the period of qualifying service for pension purpose. Learned Single Judge has considered the said judgment and we too, deem it fit to reproduce the relevant paragraphs which learned Single Judge has reproduced:-
""9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, Page 4 of 10 C/LPA/1518/2017 ORDER for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularization is taken into consideration for the purpose of computing pension or making pension available to such retired employee.
10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same."
(emphasis supplied) Page 5 of 10 C/LPA/1518/2017 ORDER
6. Reading of the judgment categorically suggests that there is no room for doubt that Government Resolution dated 17.10.1988 when read in the context of meaning of continuous service as defined under Section 25B of the Industrial Disputes Act suggests that while conferring benefits, viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits. (from the date of initial appointment as a daily wager)
7. Learned Single Judge has observed that the judgment so rendered has attained finality and, therefore, in consonance with the question of law decided by the Division bench, learned Single Judge thought it fit to give the direction as reproduced herein above in the earlier part of the judgment.
8. Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the purpose of bridging the gap for computation of ten years of service needs to be granted. As pointed out by Shri Dave, learned counsel for the respondent herein this issue had again arisen in the case of the Executive Engineer, Panchayat (MAA & M) Department and Another v. Samudabhai Jyotibhai Bhedi and Others reported in 2017 (4) GLR 2952. Considering the provisions of the Government Resolution dated 17.10.1988, the Division Bench of this Court in the judgment of Samudabhai Bhedi (supra) held as under:-
Page 6 of 10 C/LPA/1518/2017 ORDER"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.
7. This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause 6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.
8. Two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under section 25B of the Industrial Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any Page 7 of 10 C/LPA/1518/2017 ORDER further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how many years he had put in such service and then to compute his pension.
9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.
10. The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of continuous service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in the negative.
11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1, held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his Page 8 of 10 C/LPA/1518/2017 ORDER services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division Bench was not inclined to take a different view.
12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had sought pensionary benefits having worked from the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits."
9. Having therefore considered the issue at hand, it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for the purpose of extending pensionary benefits. The stand of the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to. Therefore, we have no reason to interfere with the direction given by learned Single Judge in the judgment impugned herein.
Page 9 of 10 C/LPA/1518/2017 ORDER10. Letters Patent Appeal is accordingly dismissed along with Civil Application for stay.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) R.S. MALEK Page 10 of 10