Gujarat High Court
Suketu Amratlal Desai vs State Of Gujarat on 22 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/17813/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17813 of 2015
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SUKETU AMRATLAL DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the PETITIONER(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,6,7,8
,9
MR. D.M.DEVNANI, AGP (1) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 22/03/2018
ORAL ORDER
1. Heard Mr.Desai, learned advocate for the petitioners and Mr.Devnani, learned AGP for the respondent State.
2. In this petition which is taken out by 52 employees, below quoted relief is prayed for:
"6(A) The Hon'ble Court be please to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to calculate and pay the gratuity to the petitioners who have retired by considering their qualifying service from the respective dates of their joining and not from 01.10.1988 and to release the differential amount with interest as early as possible.
(B) The Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to calculate the qualifying services for gratuity of those petitioners who are still in service by considering the date of joining of the respective petitioner and not from 01.10.1988."Page 1 of 20 C/SCA/17813/2015 ORDER
3. At the outset, it is relevant to mention that since some of the petitioners / claimants have yet not retired from service and consequently, the cause of action to demand gratuity has yet not arisen in respect of said petitioners / claimants, Mr.Desai, learned advocate for the petitioners clarified that he does not press the petition in respect of those employees i.e. the petitioners whose names are mentioned at Sr.Nos.40 and 42 to 54 in AnnexureA to the petition.
3.1 Therefore, in view of the said statement and clarification by Mr.Desai, learned advocate for the petitioners, this petition stands disposed of as withdrawn / not pressed so far above mentioned petitioners at Sr.Nos.40 and 42 to 54 are concerned.
4. So far as factual background is concerned, the petitioners have averred and stated that :
"2.1 The petitioners herein are/ were employees of the respondents Nos. 2 and 3 herein. It is submitted that some of the petitioners have died and the petition is preferred through their respective legal heir and representative. Details of each of the petitioners are Page 2 of 20 C/SCA/17813/2015 ORDER produced by way of a statement which is annexed hereto and marked as AnnexureA to this petition. 2.2 The petitioners submit that the all the petitioners were appointed at Rojamdars in the Department of the respondent No.1 and were placed under the respondent Nos. 2 and 3 herein.
2.3 The petitioners submit that the respondent No.1 State Government issued Government Resolution dated 17.10.1988 whereby the Rojamdars who has completed certain period of service as on 01.10.1988 they would be considered as permanent employees and would be absorbed in regular pay scale and would be given all benefits of the permanent employees. A copy of the Government Resolution dated 17.10.1988 is annexed hereto and marked as AnnexureB to this petition.
2.4 The petitioners submit that the State Government thereafter issued another Government Resolution dated 30.05.1989 clarifying the resolution dated 17.10.1988 and answered almost all the questions and confusions that were arising in the various offices of Superintending Engineers regarding implementation of the resolution dated 17.10.1988. In the said resolution dated 30.05.1989, more particularly clause No.6 it was asked as to what is the pensionable service to be considered for such Rojamdars who have been made permanent as per the resolution dated 17.10.1988 and to that query the answer which was given was that the length of service has to be considered from the date of joining and each year has to be considered provided that the provisions of Sectin 25(B) of the Industrial Disputes Act is complied with meaning thereby in any year where the Rojamdar has completed 240 or more days the said year has to be considered for the purpose of pensionable service. A copy of the resolution dated 30.05.1989 is annexed hereto and marked as AnnexureC to this petition.
2.5 Further in clause No.10 it is specifically answered that a year has to be considered on the basis of provisions of Section 25B and thereby year in which 240 days are completed would be considered as one complete year.
2.6 It is therefore submitted that all the employees who have been absorbed on permanent establishment as per resolution dated 17.10.1988 would be entitled to calculation of the pensionable service from the date of joining.
2.7 It appears that as far as the petitioners are concerned their pensionable services are considered from 01.10.1988 i.e. from the date on which they are absorbed as per Government Resolution dated 17.10.1988. However, the said interpretation is going contrary to the very resolution dated 17.10.1988 which provides that the benefits are to be given from the date of joining and not from 01.10.1988.Page 3 of 20 C/SCA/17813/2015 ORDER
2.8 The petitioners submit that the respondent authorities are calculating the pensionable service from 01.10.1988 and as far as the petitioners who have retired, their gratuity is paid accordingly whereas the petitioners who are still in service their gratuity is also been calculated by considering the pensionable service from 01.10.1988.
2.9 It is submitted that because of the same the petitioners are suffering huge pecuniary loss as about 10 years of their pensionable service is not being considered.
2.10 The petitioners submit that the State authorities are relying upon the resolution dated 24.03.2006 wherein the State Government has resolved that though there is no case of reconsideration of the resolution dated 30.05.1989 but from now onwards the date from which the employee is regularised the said period shall be considered as pensionable service and the said period shall be considered for payment of retiral benefits. A copy of the resolution dated 24.03.2006 is annexed hereto and marked as AnnexureD to this petition. 2.11 The petitioners submit that the said resolution is absolutely unjust and illegal inasmuch as the State Government cannot take away the rights and benefits conferred by the resolution dated 17.10.1988. 2.12 Further, the resolution dated 17.10.1988 was a result of settlement which was arrived at between the State Government and the Gujarat Rajya Karmachari Mahamandal and other labour unions which had made representations to the State Government regarding the various pending questions of daily rated employees. The said settlement was arrived at and subsequent recommendations of Dolatbhai Parmar Committee and ultimately resulted in passing the resolution dated 17.10.1988.
2.13 Therefore, if the State Government wants to withdraw any benefit conferred by the Resolution dated 17.10.1988 then the very method which was adopted for conferring the benefits i.e. for taking the consent of the unions will have to be followed and the State Government unilaterally cannot dilute or curtail any of the rights conferred by resolution dated 17.10.1988."
5. The respondents have opposed the petition. A reply affidavit is filed by the Executive Engineer wherein the deponent has averred and stated that:
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"6. I say and submit that the petitioners date of joining are different and therefore out of 54 petitioners 38 petitioners are retired from the services and the remaining 16 petitioners are still in service therefore the petitioners who are in service are not entitle for the payment of gratuity, as the petitioners are entitle only after his retirement and therefore, this 16 petitioners are not entitle for any reliefs as prayed for. The copy of list showing details of petitioners are annexed herewith and marked as AnnexureR1 to this affidavit.
7. I say and submit that as per the Government Resolution dated 24.03.2006 it is specifically clarified that for the purpose of calculation of daily wager services for pension and gratuity, the daily wagers are entitle for pension and gratuity from the date of his regularization therefore in case of petitioners they are not entitle for gratuity from the date of joining but they are entitle from the respective date of their regularization in services and accordingly, payment was made by the Respondent Authorities to the petitioners. The copy of the Government Resolution dated 24.03.2006 is annexed herewith and marked as AnnexureR2 to this affidavit.
8. I view of the aforesaid facts and circumstances it is clear that as per the Government Resolution dated 24.03.2006 the present petitioners are not entitle for gratuity from the date of his joining but they are entitled from the date of regularisation of this service and the Respondent Authorities has already made a payment to the petitioners considering the date of their regularization accordingly. Therefore, the petition filed by the petitioners is required to be dismissed."
6. The learned advocate for the petitioners submitted that the petitioners have retired from service and on their retirement, the respondents have paid retiral benefits including gratuity, however, according to the petitioners, the respondents have shortpaid the amount towards Page 5 of 20 C/SCA/17813/2015 ORDER gratuity inasmuch as the respondents paid gratuity from and after the date the service of the petitioners came to be regularized. Differently put, according to the petitioners, the respondents have not paid gratuity for the period from the date of appointment until the date on which the petitioners came to be regularized. The petitioners claim that they are entitled for gratuity for their entire tenure of service rendered to the respondents and the actions of the respondents of not paying gratuity for the period prior to the date when their service came to be regularized is not only illegal and arbitrary but also contrary to the G.R. dated 17.10.1988 as well as G.R. dated 30.5.1989.
7. Per contra, Mr. Devnani, learned AGP submitted that the petitioners cannot claim gratuity for the period during which their service were not regularized i.e. for the period during which the petitioners worked on adhoc and Page 6 of 20 C/SCA/17813/2015 ORDER daily wage basis and they were not engaged on regular establishment. Learned AGP also relied on the G.R. dated 24.3.2006 and claimed that by the said Resolution the Government clarified the anomalies which occurred on account of G.R. dated 30.5.1989 and by the said subsequent G.R. dated 24.3.2006 government declared that those daily wagers whose service came to be regularized subsequently would be eligible for gratuity from the date their service came to be regularized and that therefore the claim by the petitioners is not justified.
8. I have considered the rival submissions and material available on record.
9. The facts involved in present case are, broadly, not in dispute. In view of the controversy and contentions raised by the contesting parties, it is relevant to note, at the outset that the petitioners, undisputedly came to be engaged on daily wage basis and for Page 7 of 20 C/SCA/17813/2015 ORDER some time they continued to serve with the respondents as daily wagers.
10. Subsequently, the respondents granted benefit of the G.R. dated 17.10.1988 to present petitioners.
11. Consequently, the service of the petitioners came to be regularized in light of and in accordance with the G.R. dated 17.10.1988. The petitioners came to be regularized in service w.e.f. different dates. The relevant details i.e. the date on which the concerned petitioner entered in service (as daily wager), total tenure of their service and the date on which the service of the claimant came to be regularized, are found in the statement placed on record by the respondents along with the reply affidavit at page66 in SCA No.17813/2016 (relevant page70 to
74). The said details, as mentioned above, are not in dispute.
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12. In this background, the only question which arises for consideration as to whether the petitioners are entitled for gratuity for the period prior to the date on which their service came to be regularized.
13. In this context, it is relevant to take into account the observation by Division Bench in case of State of Gujarat & Anr. v/s. Mahendrakumar Bhagvandas & Anr., wherein the Division Bench of this Court observed, inter alia, that:
"3. According to G.R. dated 17.10.1988, a committee under the Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was constituted to consider conditions of service of daily rated labourers and artisans employed in several departments of the State Government. That committee had submitted its report and it was resolved to accept recommendations of the committee and provide several benefits to the workmen concerned with effect from 1.10.1988. Those benefits included payment of minimum wages, paid weekly holidays, medical facility and national holidays. After completion of five years of continuous service in terms of provisions of Section 25B of the Industrial Disputes Act, 1947 such daily rated employees were to be entitled to fixed monthly salary of Rs.750/ with dearness allowance prevalent from time to time and few more benefits of paid holidays and leave wages as well as membership of provident fund. It is stipulated in Clause 3 of the G.R. dated 17.10.1988 that daily rated employees, who had completed, as on 1.10.1988, continuous service of ten years in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, would be treated as permanent and such permanent employees shall be entitled to the pay scale of Rs.750940/ and shall also be paid dearness allowance and house rent allowance accordingly. They would also be entitled to pension, gratuity and benefits of provident Page 9 of 20 C/SCA/17813/2015 ORDER fund in accordance with prevalent rules. The age of superannuation for such permanent labourer is fixed at 60 years and the period of permanent service is to be counted as pensionable service. It is further stipulated that the employees, who had completed 15 years of service as on 1.10.1988, shall be placed in the pay scale as aforesaid and their age for retirement shall be 60 years. Such workers, who would have completed 15 years of service on 1.10.1988, were to be entitled to one increment, and the employees, who had completed 25 years of service were to be granted three increments, before fixing their wages in the pay scale on 1.10.1988.
4. Bare reading of above stipulations contained in the G.R. dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees. Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government.
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. Page 10 of 20 C/SCA/17813/2015 ORDER dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager" (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder.
6. Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms:
".................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of..............."
14. A profitable reference can also be had to the decision in case of Executive Engineer Panchayat (MAA&M) Department v. S.J.Bhedi [2017 (4) GLR Page 11 of 20 C/SCA/17813/2015 ORDER 2952)] wherein the Division bench observed, inter alia, that:
"5. Facts are not seriously in dispute. According to the petitioner, he had completed in all close to 22 years of service with the Panchayat, during which, he had worked for more than 240 days in each year. Even if this claim of having put in 240 days of actual service in each of the 22 years is subject to verification, even the original respondents do not dispute that the petitioner had completed far more than 10 years of such service. It was precisely because of this reason granting benefit of Government Resolution dated 17.10.1988, he was regularized in services on 31.03.2006. From such date onwards till he retired, the employee had concededly put in just over three years of service. The crucial question therefore is would the past service of completed years prior to regularization would count towards pensionary benefits.
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 Page 12 of 20 C/SCA/17813/2015 ORDER 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 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 Page 13 of 20 C/SCA/17813/2015 ORDER 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.
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.
13. Yet again, the Division Bench of this Court in case of Chhaganbhai Ranchhodbhai Rathod v. Dy Executive Engineer, vide judgment dated 06.08.1998 rendered in Letters Patent Appeal No.1495 of 1997, took up the issue of pensionary benefits of a daily wager in terms of Government Resolution dated 17.10.1988. The controversy was whether the employee had put in 10 years of service during which he had worked for not less than 240 days in every year. Learned Single Judge having rejected the petition, the employee had filed the said Letters Patent Appeal. The Division Bench applying the provisions of Section 25B of the Industrial Disputes Act, held that the workman had put in such service of a minimum 10 years and consequently granted the benefits of pension in terms of Government Resolution dated 17.10.1988. Here also the authorities had not raised a contention which is sought to be raised before us.
14. Be that as it may, in view of the discussion above, we find no merits in this appeal. The same is therefore dismissed".
15. Before proceedings further, it is necessary to mention that the respondents have opposed the petitioners' claim on the strength of the G.R. dated 24.3.2006.
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16. The said submission and defence by the respondent is misconceived and unsustainable for more than 1 reasons.
17. The first and foremost reason being that the clarification / decision declared by the respondents vide G.R.dated 24.3.2006, so far as it is contrary to the above quoted observation in the two decisions in case of State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr.(Supra) and Executive Engineer Panchayat Department v. S.J.Bhedi (Supra), cannot be sustained. Such instructions cannot operate, cannot prevail and Court would not recognise and approve such instructions or decision.
18. The second reasons in light of which submissions and objection based on G.R.dated 24.3.2006 cannot be sustained is that the G.R.dated 24.3.2006 cannot be applied retrospectively and that therefore the petitioners who came to be engaged by the Page 15 of 20 C/SCA/17813/2015 ORDER respondents before the date on which the G.R. came to be issued and the petitioners whose service came to be regularised before the State issued the said G.R i.e. before 24.3.2006, cannot be deprived from the benefit accrued to them by virtue of G.R.dated 17.10.1988 read with G.R. dated 30.5.1989 i.e. accrued before the date when the State issued the Resolution (i.e. 24.3.2006).
19. The third reason is that the language/ text and the contents of the G.R. dated 24.3.2006 itself oust or negates the right and claim of respondents inasmuch as the Para1 of the Resolution dated 24.3.2006 itself categorically and in express terms clarifies that the persons whose service "may be regularised hereafter"
(i.e. after issuance of G.R. dated 24.3.2006) shall be eligible for the benefits from the date of regularization. The said Para1 clarifies two aspects namely:Page 16 of 20 C/SCA/17813/2015 ORDER
(i) that the clarification is applicable in respect of cases where service of the employee is regularised after 24.3.2006; and
(ii) the decision declared vide said G.R. dated 24.3.2006 does not have retrospective effect and it would not operate retrospectively.
20. The fourth reason in light of which the right and the claim of present petitioners cannot be denied on strength of G.R. dated 24.3.2006 lies in the G.R. dated 30.5.1989 inasmuch as by means of clarification at Para6 of G.R.dated 30.5.1989 read with Clause of the Para3 of the said G.R., it emerges clearly that it was never intention of the government that the persons who rendered/ completed continuous service as contemplated under Section 25B of the Industrial Disputes Act for 10 years and became eligible for benefit under G.R.dated 17.10.1988 (regularization of service) be deprived from the benefit of gratuity for the period during which they rendered service as daily wager. Page 17 of 20 C/SCA/17813/2015 ORDER
21. The clarification @ Para No.6 of G.R. dated 30.5.1989 make it clear that the person who completes 10 years continuous service as contemplated under Section 25B of the Act would be eligible for gratuity without any bifurcation of service on the basis of preregularisation and postregularisation period.
22. Of course, the respondents can certainly take into account relevant factual aspect (viz. the years during which the concerned claimants/ petitioners completed continuous service in accordance with Section 25B of the Act) so as to determine total eligibility period. However, it is not permissible and not open to the respondents to deny gratuity for the period prior to the date of regularization even though during the said prior period the petitioners/ claimants rendered service for 240 days i.e. continuous service as contemplate under Section 25B of the Act. Neither the G.R. dated 30.5.1989 nor the G.R. dated 24.3.2006 contemplated such situation, Page 18 of 20 C/SCA/17813/2015 ORDER atleast in respect of the persons whose service came to be regularised in accordance with G.R. dated 17.10.1988, prior to G.R.dated 24.3.2006.
23. In this view of the matter, the decision of the respondent to reject the demand and claim of the petitioners is unjust and cannot be sustained.
24. In light of the facts of the case, the petitioners are entitled for the relief prayed for in Para6(A) i.e. for declaration that the claimants are entitled for gratuity from the respective dates on which they joined the service and not from 1.10.1988 or from the date when their service came to be regularized.
25. Consequently, the petition is allowed with the declaration that the petitioners (except the employees whose names are mentioned at Sr. No.40 & 42 to 54 in Annexure A to the petition) shall be paid gratuity even for the period prior to 1.10.1988/ prior to date on which their service Page 19 of 20 C/SCA/17813/2015 ORDER came to be regularised, of course subject to the condition of complying the requirement of continuous service as contemplated under Section 25B of the Act.
26. The respondents shall take steps to make the payment of date of gratuity to the petitioners in consonance with the said decision and declaration as expeditiously as possible and preferably within 3 months from receipt of certified copy of the order.
27. The petitioners will be entitled for interest at the rate of 6% for the period from date of retirement until the date of actual payment.
28. With aforesaid clarification and direction, the petition is disposed of.
(K.M.THAKER, J) saj Page 20 of 20