Gujarat High Court
Bhudarbhai Bhagwanbhai Hulani vs State Of Gujarat on 13 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12667/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12667 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHUDARBHAI BHAGWANBHAI HULANI
Versus
STATE OF GUJARAT
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Appearance:
MR MUKESH H RATHOD(2432) for the PETITIONER(s) No. 1
MS SNUSHA S. JOSHI, AGP (1) for the RESPONDENT(s) No. 1,3,4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,5
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/06/2018
ORAL JUDGMENT
1. Heard Mr.Rathod, learned advocate for the petitioner and Ms.Joshi, learned AGP for the respondents.
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2. In present petition, the petitioner has prayed, inter alia, that:
"14B. This Hon'ble Court may be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or directions for to direct the Respondent Authorities to pay all the retirement benefits as per Govt. Resolution dated 17.10.1988 i.e. the amount of Gratuity, Pension, Leave Encashment, 6th Pay Commission to the petitioner with 9% interest and be further quash and set aside the order dated 12.05.014 passed by the Deputy Executive Engineer, Halvad (At AnnexureF to this petition) in the interest of justice."
3. The limited grievance of the petitioner is that though he has been granted benefits flowing from the Government Resolution dated 17.10.1988 and though he fulfills terms and conditions prescribed by the said Government Resolution dated 17.10.1988, any retiral benefits viz. gratuity, pension, difference of salary on the basis of recommendations of 6th Pay Commission, leave encashment, etc. are not paid only on the ground that he joined the service after 1988 (i.e. the date of eligibility prescribed under Government Resolution dated 17.10.1988). 3.1 So as to support and justify the claim for retiral benefits, the petitioner has averred and stated that:
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C/SCA/12667/2015 JUDGMENT "3.1 The petitioner was appointed as Daily wager employee with the Respondents in the year of 1985. The petitioner had continuously worked with the Respondents. Though, without any reasons and justification, the service of the present petitioner was orally terminated by the Respondents on dated. 25.02.1991. Therefore, being aggrieved and dissatisfied from the termination, the present petitioner had approached to the Labour Court, Surendranagar by way of preferring Reference (LCS) No. 242/1991. During the pendency of the reference before the Labour Court, the Respondents had reinstated the petitioner on dated. 09.11.1992. Therefore, the Labour Court has passed an award on dated. 06.09.1993, whereby, question of reinstatement does not arised because the petitioner was in service and therefore, 70% back wages of interim period ie. date of termination to date of reinstatement was granted by the Labour Court. The copy of award dated. 06.09.1993 passed by the Labour Court, Surendranagar in Reference (LCS) NO. 242/1991 is annexed herein and marked as Annexure A' to this petition.
3.2 The petitioner states that, thereafter, after completion of five years of continuous service, the Respondents has granted the benefits of Govt. Resolution dated. 17.10.1988 by the Respondent No. 3 herein, wherein, the petitioner was made Work charge Labourer and Rs. 750/ fix salary and other benefits as per Govt. Resolution has been granted by order dated. 11.11.1997. Theneafter, the Respondents had again granted the benefits of Govt. Resolution dated. 17.10.1988 after completion of ten years continuous service in the pay grade of Rs. 25503200 by way of order dated. 31.01.2003. The copy of Govt. Resolution dated. 17.10.1988 is annexed herein and marked as Annexure"B' to this petition. The copy of order dated. 11.11.1997 is annexed herein and marked as Annexure 'C' to this petition. The copy of order dated. 31.03.2003 is annexed herein and marked as Annexure "D' to this petition. 3.3 Thenafter, the present petitioner was retired from service w.e.f. 31.03.2014. The Respondents has only paid the amount of Provident Funds, and rest of the retirement dues are not paid by the Respondents till date. The petitioner had put almost 29 years continuous service with the Respondents. Not only that, the Respondents had granted the benefits of Govt. Resolution dated. 17.10.1988 in favour of the petitioner, though, retirement benefits not given to the petitioner. 3.4 The petitioner had made representation on dated. 24.01.2014 to the Respondent No.4 and requested that, kindly grant Pension in his favour. The Respondent No. 4 had replied the petitioner vide reply dated. 12.05.2014 and because of only one reason that, his appointment was made after 01.10.1988 and therefore, the petitioner is 3 C/SCA/12667/2015 JUDGMENT not entitled for the benefits of Pension. The copy of representation dated. 24.01.2014 is annexed herein and marked as Annexure'E to this petition. The Copy of Reply dated. 12.05.2014 is annexed herein and marked as AnnexureF' to this petition. 3.5 The petitioner further state that, the petitioner was getting the benefits of 5th pay commission, but the Respondents has not granted the benefits of 6th pay commission to the present petitioner till the date of his retirement. The petitioner had made several request to the Respondents, but not considered it. Therefore, the petitioner had made representation on dated. 05.02.2014 to the Respondent No.4 Deputy Executive Engineer, Halvad for getting the benefits of 6th pay commission, but till date it is not given to the petitioner. The copy of representation dated. 05.02.2014 is annexed herein and marked as Annexure C: to this petition. 3.6 The petitioner further states that, thenafter, the petitioner had served legal notice on dated. 16.10.2014 to the present Respondents. Wherein, it is categoricaly mentioned that, the Respondent Authority had acted in discriminatory manner amongst the one class of employees. The Respondents had granted the benefits of pension in favour of other two co employees of the petitioner namely Mr. Laxmanbhai Ramabhai Danger who was appointed on 02.12.1988 and retired from service on dated. 30.09.2011 and Mr. Ajitsinh Prabhatsinh Parmar who was appointed on 19.11.1988 and retired from service on dated. 31.01.2010. The Respondents had extended granted the benefits of pension in favour of both the employees but it is not extended in favour of the petitioner. The copy of legal notice dated. 16.10.2014 along with acknowledgments are annexed herein and marked as Annexure 'H' (Colly) to this petition.
3.7 The Respondent No. 4 Deputy Executive Engineer, Halvad had replied it vide Reply dated. 05.11.2014 to the advocate that, in the other case of Late Shri. Bhikhubhai Govindbhai Raval, the Director of Pension and Provident Fund, Gandhinagar has rejected an application for pension, and therefore, the petitioner is also not entitled for Pension Benefits. The petitioner states that, the Respondents has not replied the important aspect about two similar situated employees has been granted benefits of Pension.
The copy of reply dated. 05.11.2014 is annexed herein and marked as AnnexureI'to this petition. 3.8 The petitioner states that, thenafter, the Respondent No. 5 Director of Pension and Provident Funds, Gandhinagar had replied the said legal notice vide reply dated. 27.11.2014 and categorically stated that, this office is not having powers for granting the benefits of 4 C/SCA/12667/2015 JUDGMENT Pension.
The copy of reply dated. 27.11.2014 is annexed herein and marked as AnnexureJ' to this petition. 3.9 Thenafter, again, the petitioner had served another legal notice dated. 24.03.2015 to the Respondent No. 4 Deputy Executive engineer, Halvad with clarification that, the case of the present petitioner is similar to Mr. Laxmanbhai Ramabhai Danger who was appointed on 02.12.1988 and retired from service on dated. 30.09.2011 and Mr. Ajitsinh Prabhatsinh Parmar who was appointed on 19.11.1988 and retired from service on dated. 31.01.2010 and not similar to Late Shri. Bhikhubhai Govindbhai Raval, therefore, again, requested to grant benefits of pension, leave encashment, gratuity etc. But the respondent has not replied the same, and therefore, the petitioner is constrained to file present petition.
4. Mr.Rathod, learned advocate for the petitioner reiterated the said facts and submitted that the action of the respondents viz. refusing to grant retiral benefits to the petitioner is unjustified. He would submit that in view of the fact that the petitioner has rendered service for almost 29 years, there is no justification to refuse or deny said benefits, particularly pension and gratuity. Learned advocate for the petitioner further submitted that even on factual premise, the respondents' objection is unjustified because the petitioner had joined service before 1988 inasmuch as, according to the petitioner, he joined the 5 C/SCA/12667/2015 JUDGMENT service in 1985. However, even if the said fact and his submission is not accepted or acknowledged by the respondents, then also the respondents should consider their own document which reflects that the petitioner is considered in service since 1987. According to the petitioner, in light of the facts mentioned in the document of the respondents, there is no ground or justification for refusing the benefits.
5. The petition is opposed by the respondents. Deputy Executive Engineer has filed reply affidavit, wherein it is averred and stated that:
"5. It is the case of the petitioner that the petitioner is entitled for all the retirement benefits i.e. gratuity, pension, leave encashment be and sixth pay commission as per the GR dated 17.10.1988. At the outset I state that the petitioner as per the muster roll was working as a daily wager employer from 23.11.1988. Therefore, the main contention of the petitioner that he is appointed in the year 1985 is totally against the records and therefore, the contention of the petitioner is false and malafide with a view to get the benefits of GR dated 17.10.1988.
6. It is the case of the answering respondent that he had not completed 240 days and working of him was taken only during the month of a particular season. However, pursuant to the award of the Labor Court, he was reinstated in the service on 04.07.1994.
7. As per the GR dated 17.10.1988, the initial appointment of the petitioner is irregular, on the temporary basis, appointed as part time, and therefore, he is not entitled to get the benefits of GR dated 6 C/SCA/12667/2015 JUDGMENT 17.10.1988.
8. I further state that even though the petitioner was granted the benefit of 5th pay commission. However, on perusal of the GR dated 17.10.1988 as well as his date of initial appointment, he was not entitled for any benefits of the said resolution. I state that as per the GR dated 23.09.2010, it is specifically stated that the sixth pay commission benefits would be granted only to those persons who are appointed on regular post by regular appointment and it is not applicable to those persons who are not considered as Government employees and the daily wager (Rojamdars) are specifically excluded. A copy of the GR dated 23.09.2010 is annexed herewith and marked as ANNEXURERI
9. I state that in so far as reliance placed on the order of one Shri Lakhmanbhai Ramabhai Danger is concerned I state that he was appointed in the year 1985 and therefore, he was granted the benefits. A copy of the order passed in Lakhmanbhai Ramabhai Danger' s case is annexed herewith and marked as ANNEXURERII. Even otherwise the reliance placed on the order or benefits granted to other similarly situated persons is concerned. I state that same is to be verified from the original records as to the date of the appointment whether it was before 1988 or after 1988."
6. Learned AGP reiterated the said details. She submitted that since the petitioner joined service after 1988, he is not entitled for benefits in accordance with the Government Resolution dated 17.10.1988 and that, therefore, there is no error or illegality in the decision of the respondents. Learned AGP further submitted that the claim of the petitioner that he was appointed in 1985, is contrary to record. Any other submission or objection is not raised by learned AGP.
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7. I have considered rival submissions and material available on record.
8. From the details mentioned by the petitioner and the objection raised by the respondents, it has emerged that the only ground on which the petitioner's claim is refused, is that the petitioner joined the service after 1988. It is claimed that the benefits on the basis of Government Resolution dated 17.10.1988 would be available to only those employees who joined the service before the cut off date mentioned in the Government Resolution dated 17.10.1988, i.e. 1.10.1988.
9. The premise of the objection raised by the respondents gives out that if the petitioner can demonstrate and if he can establish that he joined the service before the cut off date mentioned in the Government Resolution dated 17.10.1988, then he would be entitled for the said benefits.
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10. In this context, it is relevant to note, at the outset, that the contention on ground of objection raised by the respondents is not justified and it is not sustainable in light of the record of the respondents.
11. The respondents, through the reply affidavit, more particularly with the details mentioned in paragraph No.5 of the reply affidavit, have disputed the petitioner's claim that he joined the service in 1985. It is asserted that the said claim of the petitioner is contrary to record.
12. However, when the annexures to the affidavit are examined, it comes out that the respondents have not placed any document on record to demonstrate that the petitioner's claim that he joined the service in 1985, is incorrect and/or to demonstrate that the petitioner joined service after 1988 (or after 17.10.1988).
13. When the respondents assert that the petitioner's claim is contrary to record, then 9 C/SCA/12667/2015 JUDGMENT the respondents should have placed on record the material / document to support their submission and demonstrate that the petitioner did not join the service in 1985, but he was employed after 1988.
14. However, in present case, the respondents have failed to place such material on record.
15. Under the circumstances, the objection and the submission by the respondents in paragraph No.5 of the reply affidavit are not supported by the document or any record.
16. In this view of the matter, the petitioner's claim has to be considered.
17. It is undisputed position that the respondents have granted benefits flowing from the Government Resolution dated 17.10.1988 to the petitioner.
18. When the petitioner completed 5 years of service, the benefits which would be available 10 C/SCA/12667/2015 JUDGMENT under said Government Resolution to an employee (daily wager) on completion of 5 years, were granted to the petitioner. This fact flows from and emerges from the document available on record at page 20. The said document demonstrates that the benefits of salary etc. which would be available to the daily wager on completion of 5 years of service, came to be granted to the petitioner.
19. The material available on record also demonstrates that when the petitioner completed 10 years of service, the benefits which would be available to the employees on completion of 10 years of service in accordance with the Government Resolution dated 17.10.1988, were also granted to the petitioner. This fact emerges from the document at AnnexureB, page 24.
20. Thus, the respondents have, undisputedly, granted benefits flowing from the Government Resolution dated 17.10.1988 to the petitioner. 11
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21. Under the circumstances, it does not lie in the mouth of the respondents that the petitioner is not entitled to benefits flowing from the Government Resolution dated 17.10.1988 and/or that the petitioner had joined service after 1988 and therefore, he cannot claim retiral benefits in accordance with the Government Resolution dated 17.10.1988.
22. If the petitioner joined the service after 1988, the respondents, in first place, would not have granted the benefits payable under the Government Resolution. However, as borne out from above mentioned two documents) the benefits have been granted to the petitioner.
23. Actually, the fact that the benefits have been paid to the petitioner demolishes the basic premise of the respondents' objection.
24. Further, it also appears that the learned advocate for the petitioner is justified in his contention that even if the fact that the 12 C/SCA/12667/2015 JUDGMENT benefits of salary etc. in accordance with Government Resolution dated 17.10.1988 came to be granted to the petitioner when he completed 5 years of service and thereafter 10 years of service, then also in light of the document at page 28, the objection by the respondents should fall flat.
25. On this count, learned advocate for the petitioner referred to the document at page 28 and submitted that the respondents, after verification of attendance register and other documents, reached to the conclusion that the petitioner had completed service of 240 days on or before 1.10.1987 and that, therefore, the petitioner's entitlement for benefits flowing from the Government Resolution dated 17.10.1988 have been considered by taking 1.8.1987 as the base.
26. On reading the said document, it emerges that learned advocate for the petitioner is right and justified in his submission that even according 13 C/SCA/12667/2015 JUDGMENT to the record (the document at page 28 of the petition) of the respondents, the petitioner is considered in service on or before 1.10.1987 and it is recorded that as on 1.10.1987 he had put in service for 240 days and on that basis, his entitlement for benefits available on completion of 5 years was calculated and paid by the respondents.
27. Thus, the document, which is available on record at page 28 of present petition, does not support the respondents' objection viz. that the petitioner joined service after 1988 and that, therefore, his claim is unjustified and cannot be accepted.
28. In light of foregoing discussion, it becomes clear that the petitioner has successfully demonstrated that he had joined service before 1988.
29. Under the circumstances, the solitary ground on which the respondents have rejected the 14 C/SCA/12667/2015 JUDGMENT petitioner's claim, does not survive.
30. Once above mentioned aspect is crystalised, it is appropriate to turn to the decision by order passed by Hon'ble Apex Court in case of State of Gujarat and Others vs. PWD Employees Union and Others [(2013) 12 SCC 417], wherein Hon'ble Apex Court observed that:
"25. ... ... ... We have already noticed that the Resolution of the State Government dated 17th October, 1988 is not limited to any particular department, it applies to all the departments including Road and Building, Forest and Environment Department, Water Resources Department, etc. We have also noticed that the Committee headed by the Minister of Road and Building Department looked into the wages of daily wage workers and work related facilities provided to the daily wage workers engaged in building maintenance and repairing work in different departments, only for the purpose of its recommendations. The Committee has not limited the recommendations amongst the daily wage workers engaged in building maintenance and repairing work in different departments by its aforesaid Resolution. It is applicable to all daily wage workers including semi skilled workers performing any nature of job, working in different departments of the State including the daily wage workers of the Forest Department performing work other than building maintenance and repairing work."
31. At this stage, it would also be appropriate to take into account the decision in Letters Patent Appeal No.958 of 2001 and other cognate matters. In the said decision, the Court observed and held that:
"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 15 C/SCA/12667/2015 JUDGMENT 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. 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 16 C/SCA/12667/2015 JUDGMENT 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..............."
7. Apparently the aforesaid resolution dated 18.7.1994 was not pressed into service when the impugned judgment dated 6.4.2000 was delivered. It is observed by learned Single Judge as under:
".......It appears that the Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay. When these employees are treated as permanent employees with regular scale of pay, I do not find any reasons that they will be deprived of the benefits given to other government employees of same category. There cannot be any confusion about the Government Resolution and it is obligatory on the part of the government to extend all the benefits to these petitioners, who have been regularized on regular posts with regular scale of pay..................."
8. Letters Patent Appeal No.962 of 2001 is preferred from oral judgment dated 23.10.1999 of learned Single Judge in Special Civil Application No.5757 of 1988. In that impugned judgment also, the petition was allowed with the direction to treat all the workmen concerned as permanent employees and to treat them at par with other employees and to grant all the benefits as such. Thus, common issue of interpretation and application of relevant clause of government resolution dated 17.10.1988 is involved in all the appeals and it is decided as aforesaid against the appellant, in the facts and circumstances of each case."
32. At this stage, a profitable reference can also be had to the observations in subsequent 17 C/SCA/12667/2015 JUDGMENT decision by Division Bench in case of Executive Engineer Panchayat (Maa & M.) Department & Anr. vs. Samudabhai Jyotibhai Bhedi & Anr. Division Bench observed, inter alia, that:
"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. Clause6 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 further debate. The petitioner was correct in contending that having put in more than 10 years of 18 C/SCA/12667/2015 JUDGMENT 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, SubDivision, 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.
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 19 C/SCA/12667/2015 JUDGMENT 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."
33. A joint reading of above quoted observations in the decisions in above mentioned cases bring out that the persons who are eligible for the benefit of salary in accordance with the Government Resolution dated 17.10.1988 would also be entitled for retiral benefit in light of and in accordance with the Government Resolution dated 17.10.1988. Such retiral benefit would include pension and gratuity.
34. Under the circumstances, following order is passed:
(a) The rejection of petitioner's claim by 20 C/SCA/12667/2015 JUDGMENT the respondents is unjustified and deserves to be set aside and is accordingly set aside.
(b) The case of the petitioner is remanded to the respondent authorities for fresh decision in light of the foregoing discussion and in light of the above mentioned decisions by Hon'ble Apex Court as well as Division Bench.
(c) The competent authority of the respondents shall take the petitioner's case for fresh decision in light of the foregoing discussion in present order and the observations in above mentioned decisions and pass appropriate order with regard to the retiral benefits viz. pension, gratuity, leave encashment, etc. in accordance with the Government Resolution dated 17.10.1988.
(d) The authority shall also consider the petitioner's claim for benefit of difference 21 C/SCA/12667/2015 JUDGMENT of salary on the basis of recommendations of 6th Pay Commission, and shall decide as to whether the said benefit is available to the petitioner, or not. The authority shall record the decision with reasons and take consequential action accordingly.
In view of the fact that the petitioner has retired from service since last about four years, it would be appropriate that the competent authority shall consider and decide the petitioner's claim expeditiously and preferably within four months.
With the aforesaid clarifications, directions and observations, the petition is disposed of. Orders accordingly. Notice is discharged.
Sd/ (K.M.THAKER, J) BHARAT 22