Gujarat High Court
Chief Executive And Vice Chairman, ... vs Ahmedhussain Abdulkarim Sherwani on 4 August, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/10798/2021 ORDER DATED: 04/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10798 of 2021
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CHIEF EXECUTIVE AND VICE CHAIRMAN, GUJARAT MARITIME BOARD
Versus
AHMEDHUSSAIN ABDULKARIM SHERWANI
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Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 04/08/2021
ORAL ORDER
1. In the present petition, the petitioners have challenged the order dated 15.07.2020 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 in Gratuity Application No.34 of 2019 as well as the order dated 19.04.2021 passed by the Appellate Authority under the Payment of Gratuity Act in Gratuity Appeal No.193 of 2020.
2. At the outset, learned advocate Ms.Sejal K. Mandavia appearing for the petitioners has submitted that the only issue raised in the present petition is with regard to interpretation of Government Resolution dated 24.03.2006 issued by the Road and Building Department of the State Government to the effect that whether the workman should be granted benefit of permanency after completion of 10 years or from the date of initial appointment and hence, his gratuity is to be calculated accordingly. She has referred to the order date 21.12.2017 passed in Letters Patent Appeal No.1200 of 2017 in Special Civil Application no.1572 of 2016 wherein, she has submitted that the issue with regard to grant of gratuity under the Gujarat Civil Services (Pension) Rules, 2002 and Payment of Gratuity Act, 1972 is pending before the Division Bench and hence, the present petition may be admitted. She has submitted that the workman would not be entitled to the gratuity under two different provisions of Page 1 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 law.
3. I have heard the learned advocate for the petitioners at length.
4. The case of the present petitioners is solely premised on the Government Resolution dated 24.03.2006 with regard to denying the benefit of gratuity to the respondent workman. A perusal of the said resolution reveals that the same refers that the service of the workman before he is granted the status of permanency, is required to be ignored for the purpose of calculation of his pension and retirement benefits.
5. At this stage, I may refer to the judgment dated 27.12.2018 passed by the Coordinate Bench of this Court in Special Civil Application No.16904 of 2015. The Coordinate Bench, after referring to array of the judgments, has observed thus:-
"4. Several decisions were pressed into service by learned advocate for the petitioner. By referring to decision in Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R&B Department [1998(2) GLH 1] and confirmed in Letters Patent Appeal No.696 of 1999, the principle was highlighted that once a daily-rated workman is treated as permanent under Resolution dated 17th October, 1988, his entire continuous service from the date of entry until he retires, including his services rendered prior to the date of his regularisation is taken into consideration. Decision in Karshanbhai Vastabhai Bhasker v. State of Gujarat [1999(1) GCD 638] in which Tribhovanbhai Jerambhai (supra) was relied on, was pressed into service. Another decision in Balvantbhai Sardarbhai Pagi v. Deputy Engineer [2017 (3) GLH 102] was relied on for similar submission. 4.1 Next pressed into service was decision of Division Bench of this Court in Executive Engineer, Panchayat v. Samudabhai Jyotibhai Bhedi [2017 (4) GLR 2952]. Yet another judgment of Division Bench relied on was in State of Gujarat v. Govindbhai Ukabhai Parmar being Letters Patent Appeal No.174 of 2017 decided on 11th July, 2018 wherein Samudabhai Jyotibhai Bhedi (supra) was relied on. On the basis of all the abovesaid judgment, petitioner contended that for the purpose of pension, his services ought to have been counted from the date of initial appointment whereas the respondents committed error and illegality in not counting accordingly but reckoning from the date of reinstatement. 4.2 Learned Assistant Government Pleader on the other hand submitted Page 2 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 that even though the benefits under Resolution dated 17th October, 1988 may flow for the petitioner, as far as pensionable period of service is concerned, it could be reckoned only from the date since the petitioner was treated as permanent under the said Resolution. Thus it is not the date of initial appointment but the date of absorption as permanent as per policy under Resolution dated 17th October, 1988, which would hold good for pensionability and would count for pensionable service. Learned Assistant Government Pleader relied on decision of this Court in Govindbhai Madhabhai Vaghela v. Director, Pension & Provident Fund decided on 24th September, 2003.
5. The issue and the controversy of the kind and nature involved here was considered by the Division Bench of this Court in State of Gujarat v. Ranabhai Ajmalbhai Harijan, since deced. Through legal heirs being Letters Patent Appeal NO.1518 of 2017 decided on 10th April, 2018. The learned Single Judge while deciding the Special Civil Application No.18036 of 2013 held that pension to the original petitioner - respondent was liable to be granted taking into consideration the entire service the petitioner rendered including those years of service when he worked as a Rojamdar from the date of his initial appointment as Rojamdar. The contention on behalf of the State was that since the original petitioner - respondent was granted benefit of regular pay-scale with effect from 01st April, 1998, and he had retired with effect from 30th September, 2007, he did not complete the requisite qualifying service of 10 years to be eligible for pension. It was the contention that since regular pay-scale was granted with effect from 01st April, 1998, the pensionable period will have to be counted from the said date.
5.1 The Division Bench considered the decision in Tribhovanbhai Jerambhai (supra) and after quoting paragraphs 9 and 10 from the said judgment, it was observed in paragraph 6 as under.
"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)."
5.2 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) followed the decision of Division Bench of this Court in Samudabhai Jyotibhai Bhedi (supra). The observation of the learned Single Judge that "Even otherwise while considering Page 3 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 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." In Samudabhai Jyotibhai Bhedi (supra) the Court observed as under, which observations were quoted by the Division Bench in Ranabhai Ajmalbhai Harijan (supra) to read as under.
"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.
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 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.Page 4 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021
C/SCA/10798/2021 ORDER DATED: 04/08/2021
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."
5.3 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) finally held as under.
"9. ... ... ... 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."
After referring to the several decisions of this Court, the Coordinate Bench has finally held that the workman is entitled to pension, gratuity and other monetary benefits from the date of employment once he is regularized in service.
6. The Controlling Authority vide the impugned order has directed the petitioners to grant gratuity to the respondent - workman by counting his entire service. The petitioner has placed reliance on paragraph No.2 of Government Resolution dated 24.03.2006 for denying the service benefit to the respondent, since it mentions that only the service from the date of regularization is required to be considered for pension and gratuity. The Division Bench and Coordinate Benches of this Court in catena of decisions has held that the entire service of a workman, in which he has completed 240 days, is required to be Page 5 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 considered for the purpose of pension and gratuity, if he is regularized in service.
7. The Division Bench in the case of State of Gujarat vs Ranabha Ajmalbhai Harijan, 2018 JX (Guj.) 829, judgement dated 10.04.2018 passed in Letters Patent Appeal No.1518 of 2017, after considering the provisions of section 80 of teh Gujarat Civil Services (Pension) Rules, 2002, and Government Resolution dated 24.03.2006, has held thus:
"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:-
"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regular- ization 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 Gov- ernment 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 In- dustrial 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 Govern- ment 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 con- fined to the service put in by the employee after he is actually reg- ularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Reso- lution dated 17.10.1988 would get the benefit of pension. For such Page 6 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 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 unam- biguous 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 fur- ther 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, fur- ther 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 circu- lar 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, gratu- ity and pensionary benefits may be available only after regulariza- tion 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 or- der of regularization would count for pension is thus in con- flict with the Government circulars itself."
The Supreme Court in the case of the State of Gujarat vs. PWD and Forest Employees Union and Ors., (2019) 3 SCALE 642, while examining the cases of the workmen, who are engaged on daily wagers, while clarifying the decision of the Apex Court in the case of State of Gujarat and Ors. vs. PWD and Forest Employees Union and Ors., (2013) 12 SCC 417, has held that the daily wagers are also entitled to the benefit of pay-scale as per the Gujarat Civil Services (Revision of Pay) Rules, 2009, as revised from time to time, however, it is clarified that such daily wagers though would not be entitled to the pay- scales of permanent employee, but they are entitled to pay-scales under those Rules as per their job description. It is specifically observed that on attaining the status of permanency/regular employees, they become at par with those employees who are appointed as permanent, after undergoing the proper Page 7 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 selection procedure on proving their merit, however, such daily wagers cannot be given the pay-scales which are even better than the pay scales given to the regularly appointed employees.
8. Thus, the order of the Controlling Authority directing the payment of gratuity to the respondent-workman by counting the same from the date of his appointment cannot be said to be tainted with any perversity or illegality. It is held by the Controlling Authority the workman has rendered 240 days for all these years. The Controlling Authority has specifically observed that the workman had completed 240 days from December, 1978 to 31.07.2017 and has completed 33 years and 6 months of service and accordingly, he has retired. Thus, the order of the Controlling Authority dated 15.07.2020 as well as the order dated 19.04.2021 passed by the Appellate Authority are in consonance with the law declared by this Court in the afore-noted judgments.
9. With regard to the submissions advanced by the learned Advocate for the petitioners to wait for the result of Letters Patent Appeal No.1200 of 2017; subsequently it was noticed by this Court, that similar issue of payment of gratuity under the Gujarat Civil Pension Rules, 2002 and the Payment of Gratuity Act, 1972 has been decided by the Division Bench in Letters Patent Appeal No.156 of 2017 in Special Civil Application No.1573 of 2016. It appears that Letters Patent Appeal No.1200 of 2017 is separated from the group of matters, since the same is filed against Special Civil Application No.1572 of 2016, whereas Letters Patent Appeal No.156 has been filed in Special Civil Application No.1573 of 2016, which is decided by the Division Bench.
10. At this stage it would be apposite to incorporate the observations made by the Division bench in the judgment dated 28.12.2017 passed in Letters Patent Appeal No.156 of 2017. The Division Bench, after considering the case of the appellant conferring the benefit of gratuity under the Payment of Gratuity Act viz-a-viz the provisions of the Gujarat Civil Services and Pension Page 8 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 Rules, 2002 has held thus:
"8. Taking into consideration the facts in all these aforesaid appeals the sole and the common question of law that arises before us is whether an employee is entitled to the benefit of his past service rendered as a daily wager, for the purposes of being granted the benefits of gratuity under the Payment Of Gratuity Act, 1972. This question should not hold us any longer in view of the fact that we have considered this question of law in similar circumstances in Letters Patent Appeal No. 1195 of 2017 decided on 16.11.2017 wherein we have held as under:
"4.0. At the outset, it is required to be noted that the only question which calls for the consideration of this Court is whether the continuous of service rendered by concerned employee as a daily wager is required to be counted for the purpose of calculation of amount of gratuity under the provision of the Payment of Gratuity Act or not and / or whether the concerned employee is entitled to gratuity under the Payment of Gratuity Act for the period during which he worked as a daily wager or not.
4.1. That the concerned employees were not paid the gratuity under the Payment of Gratuity Act, 1972 for the period, they worked as a daily wager. They were also not paid the gratuity under the Gujarat Civil Services (Pension) Rules, 2002 for the aforesaid period, during which, they worked as a daily wager. Therefore, the concerned employee approached the Controlling Authority under the provisions of the Payment of Gratuity Act claiming the gratuity under the Payment of Gratuity Act for the period they worked as a daily wager i.e. in the case of Special Civil Application No. 214 of 2016for the period from 24.06.1983 to 22.06.1997 and in the case of Special Civil Application No.213 of 2016 for the period between 16.07.1985 to 14.07.1997. The Controlling Authority rejected the claim. The Appellate Authority confirmed the same. That after considering the provisions of the Payment of Gratuity Act, 1972 and also provisions of Gujarat Civil Service (Pension) Rules, 2002, under which, the concerned employees were not paid the amount of gratuity during the period for which they worked as a daily wager and after considering the decision of the Hon'ble Supreme Court in the case of Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer reported in AIR 2004 SC 1426, decision of the Himachal Pradesh High Court in the case of State of H.P. vs. Lashkari Ram reported in 2008 I LLJ 137 and relying upon the other decisions of this Court referred to in para 13.1 to 13.2 of the impugned order, the learned Single Judge by impugned judgment and order has held that the concerned employees shall be entitled to gratuity under the Payment of Gratuity Act also for the period they worked as a daily wager, the Page 9 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 period for which they were not paid the gratuity either under the Payment of Gratuity Act or under the provisions of the Gujarat Civil Service (Pension) Rules, 2002.
5.0. Having heard the learned advocates for the respective parties and considering the provisions of Payment of Gratuity Act, under which there is no distinction between the regular employee and daily wager and there is no specific provision that daily wagers are not entitled to payment of gratuity and on the contrary considering the provisions of the Payment of Gratuity Act, more particularly, Section 3 to 5 of the Act, any employee who has worked for not less than 5 years shall be entitled to the amount of gratuity and considering the proviso to Section 4 of the Payment of Gratuity Act, daily rated worker and even seasonal workers are entitled to gratuity under the Payment of Gratuity Act, it cannot be said that the learned Single Judge has committed any error in holding that the concerned employees are entitled to the gratuity under the Payment of Gratuity Act for the period, for which, they worked as daily wager. At this stage, it is required to be noted that it is not the case on behalf of the State that for the aforesaid period, during which they worked as daily wagers, the concerned employees were paid the gratuity under the provisions of the Gujarat Civil Service (Pension) Rules, 2002."
9. Having considered the judgement rendered in Letters Patent Appeal No. 1195 of 2017, relevant portion of which is reproduced hereinabove, we are of the opinion that the view taken by the Controlling Authority and confirmed by the Appellate Authority as well as the learned Single Judge do not require interference. The provisions of the Payment Of Gratuity Act make no distinction between a regular employee and a daily wager. There is no specific provision that daily wagers are not entitled to the payment of gratuity. Considering the provisions of the Payment Of Gratuity Act, 1972 particularly Sections 3 to 5 and 14, it can very well be seen that the provisions of the Act shall have effect notwithstanding anything in consistent with any other enactments. The submission therefore made by learned counsel for the respective appellants that once having earned the gratuity under the relevant provisions of Gujarat Civil Service (Pension) Rules, 2002, the period rendered prior to such regularization and claimed under such rules would disentitle such employee from claiming gratuity under the Gratuity Act as a daily wager cannot be sustained."
11. The Division Bench, has held that an employee is entitled to claim the gratuity under the Gratuity and Pension Rules, 1972 for the period for which he was regularized as per the Gujarat Civil Services and Pension Rules, 2002. Thus, the submission advanced by the petitioner with regard to dis-entitlement Page 10 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021 C/SCA/10798/2021 ORDER DATED: 04/08/2021 of the gratuity under different provisions of Rules, stands rejected in light of the observations made by the Division Bench.
12. Thus, both the issue raised by the petitioners are decided by the decisions of the Division Benches of this Court hence, it cannot be said that the impugned award passed by the Controlling Authority are absolute perverse or illegal.
13. Thus, the present writ petition fails. The same stands rejected.
(A. S. SUPEHIA, J) ABHISHEK Page 11 of 11 Downloaded on : Fri Sep 10 11:33:26 IST 2021