Gujarat High Court
Sardarbhai Panabhai Chauhan vs State Of Gujarat on 5 September, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14504/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14504 of 2016
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SARDARBHAI PANABHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1
MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1
MR UM SHASTRI(830) for the RESPONDENT(s) No. 2,3
NOTICE SERVED(4) for the RESPONDENT(s) No. 1,4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 05/09/2018
ORAL ORDER
Heard learned advocate Mr.Dipak R. Dave for the petitioner and learned Assistant Government Pleader Mr.K.M. Antani for the respondents.
2. By filing this petition, the petitioner has prayed as under.
(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 12.12.1986 till 30.04.2012 as illegal;
(ii) to direct the respndoents to fix the pension of the petiitoner by counting his service from 12.12.1986 until the date of his retirement, i.e. 30.04.2012, and fix the pension accordingly;
(iii) to hold and declare that pentitioner is 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;
Page 1 of 6 C/SCA/14504/2016 ORDER(iv) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due.
3. The facts are that the petitioner joined as Rojamdar in the office of respondent No.3 - Deputy Executive Engineer, Panchayat (Road & Building) Department, Sahera Sub-division, Panchmahal from 12th December, 1986 and retired upon reaching the age of superannuation with effect from 30th April, 2012. The petitioner put in more than 29 years of service. The benefits of State Government Resolution dated 17th October, 1988 were grantable to the petitioner but the same were granted only on 01st December, 1999. It is an uncontroverted case of the petitioner that he having served uninterruptedly and continuously as provided under Section 25B of the Industrial Disputes Act, 1947, after completion of five years the benefits under Resolution dated 17th October, 1988 were required to be extended but they were extended at a much later stage. The pay-scale of permanent employee was given to the petitioner with effect from 01st December, 2004. The petitioner retired on 30th April, 2012. The petitioner was paid gratuity of Rs.01,07,820/- upon his retirement on the basis that he completed 18 years of 240 days continuous service.
4. When the petitioner made a representation that he was entitled to pension having completed 10 years of service, the respondent came out with the stand that counting the period from the date when the petitioner was made permanent, he did not complete 10 years. The respondents refused to treat the services Page 2 of 6 C/SCA/14504/2016 ORDER of the petitioner as pensionable on the ground that the services rendered prior to the date of regularisation was not liable to be counted for the purpose of qualifying service.
4.1 Learned advocate for the petitioner could also successfully rely on decision of this Court in Balvantbhai Sardarbhai Pagi v. Deputy Engineer being Special Civil Application No.12350 of 2016 and allied petitions decided on 22nd May, 2016 taking the similar view.
5. In Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017 (4) GLR 2952], the Division Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the daily-wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.
5.1 The Division Bench in Samudabhai Jyotibhai Phedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph 6 of the judgment stating 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, Page 3 of 6 C/SCA/14504/2016 ORDER gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable."
5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under.
"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."
5.1.2 The Court thereafter held, "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 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."
Page 4 of 6 C/SCA/14504/2016 ORDER5.2 Thus it is a clear position of law emerging from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of daily-wager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension. In the facts of the case of the petitioner, the factum is not controverted and it is undisputed that the petitioner has throughout worked since his joining, to make his services continuous.
6. The only reason put-forth by the authorities to deny the petitioner the pension is that after he was made permanent, he has not completed 10 years of qualifying service, however if the date of joining of the petitioner which is 12th December, 1986 is considered, the petitioner has evidently completed the qualifying period to be entitled to pension as per the law laid down in Samudabhai (supra).
6.1 The decision on part of the authorities reflected in communication dated 18th July, 2016 that the petitioner had not completed 10 years of service since the date of becoming regular from 01st December, 1999 cannot stand in eye of law to deny the pensionary benefits to the petitioner. The entire service period right from the date of joining till the petitioner retired on 30th September, 2012, is liable to be counted and the pension is required to be paid accordingly. The present petition has to succeed.
7. For the foregoing reasons and discussion, it Page 5 of 6 C/SCA/14504/2016 ORDER is hereby declared that the action on part of the respondents in not making payment of pensionary benefits to the petitioner and in not counting the entire length of services of the petitioner from 12th December, 1986 till 30th April, 2012 is arbitrary and illegal. The respondents are directed to fix the pension of the petitioner counting his entire service period from 12th December, 1986 till the date of retirement. The petitioner is also held entitled to all other retirement benefits including leave encashment and difference of gratuity, as may be payable. The total amount payable towards pension to be calculated as above, the arrears arising thereby and the other retirement benefits including those mentioned hereinabove, shall be paid to the petitioner within a period of six weeks from the date of receipt of this order.
8. It is provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry interest at the rate of 6.5% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioner duly calculated as above.
9. The petition stands allowed as above.
(N.V.ANJARIA, J) Anup Page 6 of 6