Gujarat High Court
Ramanbhai Tribhovanbhai Patanvadiya vs State Of Gujarat on 5 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/3920/2023 ORDER DATED: 05/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3920 of 2023
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RAMANBHAI TRIBHOVANBHAI PATANVADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,3,4,5,6,7,8,9
MS NIRALI SARDA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 05/12/2023
ORAL ORDER
1. Heard learned Advocate Mr.V. K. Joshi for the petitioners, learned AGP Ms.Sarda for the respondent State and learned Advocate Mr.Rajesh Chauhan appearing for learned Advocate Mr.H. S. Munshaw for respondent No.2.
2. By way of this petition, the petitioners have sought for the following reliefs:-
"7.A) Your Lordships may be pleased to admit and allow this petition;
B) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, directing the respondents to pay the pensionary benefit to the petitioners from the date of their initial appointment in the department including gratuity and leave encashment etc.;Page 1 of 7 Downloaded on : Wed Dec 06 20:44:22 IST 2023
NEUTRAL CITATION C/SCA/3920/2023 ORDER DATED: 05/12/2023 undefined C) Your Lordships may be pleased to direct the respondent authority to pay the arrears arising from revision of pension and all other benefits at the earliest, as the petitioners are senior citizen and retired government employees;
D) Your Lordships may be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case."
3. It is the case of the petitioners that they had been appointed on daily wages with the respondents and whereas upon competition of the requisite number of years, more particularly as per Government Resolution dated 17.10.1988, the petitioners had been granted benefit of the said G.R. It is the case of the petitioners that the respondents have not counted the entire length of service of the petitioners while computing the pension and other benefits to be granted to the petitioners and whereas it is requested by the petitioners the the number of years put in by the petitioners with the respondents where they have worked for more than 240 days in a year should also be counted as period of service while counting the entire length of service for the benefits under G. R. dated 17.10.1988.
4. This petition is vehemently opposed by learned Advocate Mr.Chauhan appearing for learned Advocate Mr.Munshaw for respondent No.2. Learned Advocate Mr.Chauhan would submit that the respondents have submitted the proposal on the basis of the permanency accorded to the present petitioners to the Director of Pension and Provident Fund, Gujarat State and whereas the respondents having done the needful, nothing requires to be done.
5. Learned AGP Ms.Sarda for the respondent State has also opposed for grant of any reliefs as sought for by the petitioners in the present petition.
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6. Heard learned Advocates for the respective parties and perused the documents on record.
7. In the considered opinion of this Court, the issue involved in the present petition is no more res integra, more particularly Hon'ble Division Bench of this Court, in case of Executive Engineer, Panchayat Vs. Samudabhai Jyotibhai Phedi, reported in 2017(4) GLR 2952 having inter alia held that the period of qualifying service i.e. a period of 10 years of qualifying service after which an employee is granted benefit of permanency is also required to be counted for the purpose of computing pension and other retiral benefits. It would also appear that the said decision has been reiterated in a large number of decisions of this Court and whereas the submission that the law on this aspect is no more res integra is required to be accepted.
8. At this stage, this Court seeks to rely upon the observations of a learned Coordinate Bench of this Court in the order dated 28.3.2022 passed in Special Civil Application No.19659 of 2019. Paragraphs 4, 5, 5.1, 5.1.1, 5.2, 5.3, 6 and 7 being relevant for the present purpose is reproduced herein below for benefit:-
"4. The entire relevant discussion in Sardarbhai Panabhai Chauhan (supra) is relevant to be reproduced hereinbelow to be part of reasoning of this order as well to apply to the petitioner.
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.
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"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."
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 Page 4 of 7 Downloaded on : Wed Dec 06 20:44:22 IST 2023 NEUTRAL CITATION C/SCA/3920/2023 ORDER DATED: 05/12/2023 undefined enabling the employer to verify as to in how many years he had put in such service and then to compute his pension."
5.2 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.
5.3 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. While confirming the aforesaid decision, the Letters Patent bench held thus, "4. Learned Single Judge rightly addressed the issue that only reason which weighed with the authority to deny pension to the petitioner was that after being made permanent, he had not completed ten years of qualifying service, however, if the date of joining of the petitioner, which was 12.12.1986 is considered, the petitioner would complete the qualifying service as per law laid down in the case of Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017(4) GLR 2952].
5. Therefore, following declaration of learned Single Judge in Paragraphs 7 and 8 of the impugned order, reproduced hereinbelow, no interference is warranted:
"7. For the foregoing reasons and discussion, it 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 Page 5 of 7 Downloaded on : Wed Dec 06 20:44:22 IST 2023 NEUTRAL CITATION C/SCA/3920/2023 ORDER DATED: 05/12/2023 undefined 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."
6. As noted above, the subject-matter of this appeal and the issues involved therein are no more res-integra and are covered by a decision of this Court in Letters Patent Appeal No.2152/2017 in Special Civil Application No.12350/2016, which attained finality by an order dated 04.01.2019, passed by the Apex Court dismissing Special Leave Petition (Civil) Diary No.45860/2018 preferred by the State of Gujarat and another."
7. As a result of the above discussion, the prayers made in the petition deserves to be granted. It is held and declared that the action on part of the respondents in not making payment of pensionary benefits to the petitioner by reckoning the entire length of service from the date of initial joining of the petitioner, is illegal. The respondents are directed to fix the pension of the petitioner by counting his services from the date of his initial joining until the date of retirement. All other retirement benefits shall be paid including the leave encashment benefit. The amounts payable by virtue of this order, shall be paid to the petitioner within a period of six weeks from the date of receipt of this order. If the amounts are not paid within the stipulated time, it is directed that the due amount shall carry interest at the rate of 6% from the date of filling of the petition, that is from 26th June, 2019.
The petition stands allowed accordingly. Direct service is permitted."
9. Having regard to the law as discussed by the learned Coordinate Bench, in the considered opinion of this Court, the petition deserves consideration and the following directions are accordingly passed :-
9.1. The respondents shall forthwith i.e. within a period of six weeks from the date of receipt of this order, calculate the entire length of service of the petitioners, more particularly the period of qualifying service rendered by the petitioners herein before the petitioners were made permanent shall be added to the service rendered by the Page 6 of 7 Downloaded on : Wed Dec 06 20:44:22 IST 2023 NEUTRAL CITATION C/SCA/3920/2023 ORDER DATED: 05/12/2023 undefined petitioners for the purpose of computing pension and other retiral benefits. Upon such computation being done, an appropriate proposal shall be forwarded by the respondents No.2 to 7 to respondents No.1 and 8, who shall, after examining the same, shall make payment of pension and other retiral benefits as per the calculation done by other respondents, within a period of four weeks from the date of receipt of the proposal;
9.2. It is clarified that in case the petitioners are aggrieved by any part or entire decision taken by the respondents, they it would be open for the petitioners to challenge the same before appropriate forum in accordance with law.
10. With the above observations and directions, the present petition stands disposed of allowed to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 7 of 7 Downloaded on : Wed Dec 06 20:44:22 IST 2023