Gujarat High Court
Surendranagar Dist.Panchayat & vs Umarkhan Alikhan Malek & 2 on 29 March, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
C/LPA/2047/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2047 of 2004
In SPECIAL CIVIL APPLICATION NO. 11355 of 2002
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SURENDRANAGAR DIST.PANCHAYAT & 1....Appellant(s)
Versus
UMARKHAN ALIKHAN MALEK & 2....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1 - 2
MS VACHA DESAI ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 2 - 3
MR. EKRAMA H QURESHI, ADVOCATE for the Respondent(s) No. 1.1 -
1.4
RULE SERVED BY DS for the Respondent(s) No. 1.5
UNSERVED-EXPIRED (N) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 29/03/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The challenge in this appeal under Clause 15 of Letters Patent is the oral order dated 16.7.2003 passed in Special Civil Application No.11355 of 2002 whereby petition filed by the employee came to be allowed by quashing and setting aside the order dated 18.8.2002 passed by Executive Engineer of respondent Panchayat and further directions were issued to pay the pensionary benefits to the petitioner with all due arrears with running interest thereon at the rate of 6% p.a. to the petitioner w.e.f. the date of his retirement i.e. 31.10.1991 till 31st Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER July, 2003.
2. While issuing Rule in this appeal on 26.11.2004 a Division Bench of this Court stayed the judgement under challenge and subsequently as per order dated 10.4.2015 passed in Civil Application No.4344 of 2015 as the original petitioner/respondent No.1 has expired, legal heirs were brought on record. Today, when this appeal is taken up for hearing for final disposal, we are informed that legal heirs namely, respondent No.1/1 Buriben Umarkan Malek w/o of Umarkhan Alikhan Malek, original petitioner, has also died and all other legal heirs being respondent Nos.1/2, 1/3, 1/4 an 1/5 are children of the petitioner on record, no other procedure is to be followed and they being legal heirs will be entitled to the order and direction issued by the learned Single Judge as the matter has genesis in pensionary benefits accrued to the original petitioner.
3. When this matter was listed earlier on 14.10.2015, learned counsel for respondent/original legal heirs relied on two decisions of the Apex Court as well as this Court in the context of number of working days to be counted for treating the service of workman as continuous and Sundays, paid holidays and other such days were also to be counted and to be treated as actual working days. The copy of the above order dated 14.10.2015 is reproduced below.
"1. Heard learned advocates appearing for the parties.Page 2 of 11
HC-NIC Page 2 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER
2. Mr.Ekrama Qureshi, learned advocate, for the respondent/legal heirs of the deceased employee state that there is no scope for interference of this Court under Clause 15 of Letters Patent Appeal, in view of categorical findings of facts by learned Single Judge based on service record of deceased workman about completion of 10 years of continuous service relying on various decisions of the Apex court including this Court whereby in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, while interpreting Section 25B(2) and Section 25F of I.D.Act, 1947 in the context of continuous service and actual working days and calculation thereof, the Apex Court held that Sundays and other paid holidays can be taken into account. Thus, there is another decision of Division Bench of this Court in Letters Patent Appeal No.1495 of 1997 in Special Civil Application No.7539 of 1997 in case of Chhaganbhai Ranchhodbhai vs. Dy. Executive Engineer decided on 6.8.1998 in the similar facts and Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER circumstances of the case this Court ordered payment of pension and other dues by relying on Workmen of American Express International Banking Corporation (supra) and Government Resolution dated 17.10.1988.
Accordingly, legal heirs of the deceased workman are entitled to receive pension from the date on which it became payable.
3. As against above, learned advocate, for the appellant-District Panchayat would contends that there was no continuous service for a period of 10 years and being a daily wager, respondent workman was not entitled to receive pension.
4. For orders on 21.10.2015."
4. In addition to above, reliance was placed on the calculation and discussion of days of presence of the workman commencing from the year 1978 to 1991 as found by the learned Single Judge who after taking into consideration aspect of pension and pensionary benefits in the context of definition of continuous service under Section 25B of the I.D. Act, 1947 held the petitioner to be entitled as such namely, to receive pension and other such benefits.
5. Learned advocate for the appellant-Panchayat, Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER however, contended that learned Single Judge erred in holding the entitlement of the petitioner to receive pension since the workman had not completed 10 years of continuous service. Inter alia it is submitted that for the period between 21.2.1978 to 31.10.1991 is the number of days on which the workman had actually performed the duties it would go to 9 years of period during which the workman had completed 240 days in each of the year. Therefore, it is submitted that order under challenge deserves to be quashed and set aside. Learned counsel for the appellant also challenged interpretation of Section 25B of the I.D.Act and Government Resolution dated 17.10.1988.
6. That learned Single Judge after adverting to sub- Section (1) of Section 25B of the I.D. Act, 1947 vis-a-vis Government Resolution dated 17.10.1988 held as under:
Therefore, in view of the observations made by this Court as well as the Hon'ble apex court in aforesaid decisions and also in view of the definition of the term 'continuous service' given in section 25-B of the ID Act as interpreted by the apex court in case of American Express (supra), now, I am considering the effect of the Government Resolution dated 17.10.1988. Item 3 page 30 of the said Government Resolution dated 17.10.1988 provides that those daily wager who has completed the service of more than Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER ten years as provided under section 25(B) shall be considered permanent and such permanent labour shall be placed in the pay scale of Rs.750-940 plus other allowances. As per the said item 3 of the said GR, it has been resolved that such daily wagers should be given the pension, gratuity, general provident fund in accordance with the existing rules and regulations and they would be entitled for Sunday leave and national holidays leave over and above two leave per year as well as 14 days casual leave, 30 days' earned leave and 20 days half pay leave. Thus, bare reading of item 3 of the said resolution would make it clear that if the daily wager is satisfies that he has completed ten years service as required under section 25-B of the ID Act, 1947, then, he is entitled to become permanent employee of the respondent establishment. This is the only condition incorporated in item 3 of the said resolution dated 17.10.88 entitling the daily wager for claiming benefit of pension.
Even the clarification which has been brought to the notice of this court. First item No.2 is also making it clear that if the daily wager has remained in continuous service as defined under section 25B of the ID Act and similarly to consider the rest of the years, then, such Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER workman is entitled for the benefit of the Government Resolution dated 17.10.88. Item 38 and 39 thereof also saying the same thing that if the daily wager has completed 240 days continuous service in each year as defined under section 25B of the ID Act, and if the workman has completed ten years of service on the basis of such calculation for every year, then, he is entitled for the benefit of pension from the respondent establishment. It is made clear in the said GR dated 17.10.88 as well as the clarification brought to the notice of this court that it has not been clarified that they are to consider section 25B(1) or 25B(2) but the State Government has mentioned 25B as a whole which includes both namely sub section (1) and (2). In view of that, it is the duty of the State Government to consider entire section 25B with sub section (1) and (2) of the ID Act while considering the entitlement of such workman for such benefits.
In view of the above observations, the net effect of section 25-B sub section (1) is to the effect that if the daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned mentioned in subsection (1), whatever kind of cessation of work which is not Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER due to the fault of the daily wager, then, his service must have to be considered continuous for a period of one year irrespective of the fact whether such daily wager has completed 240 days actual work or not during this one year. Reason is that during the one year, though the daily wager has not completed 240 days continuous service, but during that period also, the services of such daily wager has not been terminated by the employer and in-between the relationship of the employer and employee was remaining in force which makes continuous service of one year and that period must be taken into consideration irrespective of the fact that 240 days actual work has been completed or not by such daily wager but such daily wager has remained in service with the employer on permanent employment and pensionable service. Similarly, in respect of sub section (2) of section 25B of the ID Act, if the daily wager is not remaining in service for a period of 12 calender months but even less number of months but he completes 240 days working, then also, that less number of months may be considered for one year continuous service. This being two distinct and different situation incorporated by the legislature in sub section (1) and (2) of section 25B of the ID Act, Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER if the daily wager is satisfying either of the one, then his services must have to be considered continuous for a period of one year within the meaning of section 25B of the Industrial Disputes Act, 1947."
7. Having heard learned advocates appearing for the parties and perusal of the record and the order under challenge, we find no error on law much less on facts appears in the judgement under challenge. Learned Single Judge having adverted to nature of right of an employee to receive pension upon completion of 10 years of continuous service in the context of definition of Section 25B of I.D.Act, 1947 read with Government Resolution dated 17.10.1988 of State of Gujarat, and relying on decisions of the Apex Court for the expression 'actually worked under the employer' would mean number of days namely, Sundays and other paid holidays on which the workman had actually performed the duties. By applying the above parameter in the light of decision of the Apex Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and even as appeared from the record of the case namely, certificate issued by Dy. Executive Engineer, Panchayat Department, Road and Building Patadi at Annexure J to the petition reveal that in the year 1981, 1984 to 1991 for all these 9 years workman had completed more than 240 days and in the year 1983 workman-petitioner had actually worked even as per the above certificate for 235 days, in which, public and paid holidays are included would exceed 240 days Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER and thus continuous service for 10 years of the petitioner surfaces on record. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. So on facts and on law as a whole the case of the petitioner is squarely covered and there is not an iota of doubt of completion of 10 years of continuous service by the workman having served for 240 days in a year during such period, we find no error in the judgement under challenge passed by the learned Single Judge.
8. Since the subject petition is pertaining to entitlement of pension to be released in favour of the original petitioner (now deceased) so as the wife of the deceased employee who was brought on record as respondent No.1/1 also died during pendency of this appeal remaining legal heirs respondent Nos. 1/2, 1/3, 1/4 and 1/5 shall be entitled to receive the pension as ordered by learned Single Judge. The amount of pension as ordered by learned Single Judge shall be released within eight weeks from the date of receipt of order/writ of this Court.
9. In absence of merit, Letters Patent Appeal is dismissed. No costs.
(ANANT S.DAVE, J.) Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Apr 02 00:08:28 IST 2016 C/LPA/2047/2004 ORDER (R.P.DHOLARIA,J.) SMITA Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Apr 02 00:08:28 IST 2016