Gujarat High Court
State Of Gujarat vs Madhuben Muljibhai Makwana Heirs Of ... on 9 August, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/10446/2020 ORDER DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10446 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11963 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14832 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14850 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14852 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14854 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14856 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14857 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14859 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14860 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14861 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14862 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12357 of 2020
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 12357 of 2020
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STATE OF GUJARAT
Versus
TAKHUBHA PRATAPSINH JADEJA
================================================================
Appearance:
Mr Dharmesh Devnani, AGP (1) for the Petitioner(s) No. 1 (in SCA
No.11963/2020, SCA No.12357/2020, SCA No.14832/2020 AND SCA
No.14850/2020)
Mr Sahil Trivedi, AGP (1) for the Petitioner(s) No. 1 (in SCA No.14852/2020,
SCA No.14854/2020, AND SCA No.14856 of 2020)
Mr Rohan Shah, AGP (1) for the Petitioner(s) No. 1 (in SCA No.14857/2020,
SCA No.14859/2020, SCA No.14860/2020 AND SCA No.10446 of 2021)
Ms Dhwani Tripathi, AGP (1) for the Petitioner(s) No. 1 (in SCA No.14861 of
2020, SCA No.14862 of 2020)
NABIL O BLOCH(7953) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/08/2021
COMMON ORAL ORDER
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C/SCA/10446/2020 ORDER DATED: 09/08/2021
1. In the captioned group of petitions, the petitioner-State has challenged the order passed by the Controlling Authority confirmed by the Appellate Authority granting gratuity to the respondent-workmen by counting their entire service from the dates of appointment till the retirement. It is the case of the petitioner-State that the respondent-workmen are not entitled to gratuity for the service which they have rendered prior to their having been made permanent.
2. The writ petition being Special Civil Application No.14860 of 2020 is considered to be the lead matter and accordingly the facts of the said matter are incorporated.
2.1 The respondent-workman was working since 01.10.1980 as a daily wager and he superannuated on 30.09.2008 on attaining age of superannuation.
3. Learned Assistant Government Pleader has contended that as per Government Resolution dated 24.03.2006, the workmen are entitled to the gratuity for a period after they have become permanent or their services are regularized. It is submitted that the said gratuity amount was paid to the workmen as per the Government Resolution dated 17.10.1988 and the Government Resolution dated 24.03.2006. However, the Controlling Authority, Rajkot, vide order dated 27.09.2019 has allowed the Page 2 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 application of the respondent-workman and further directed the petitioner-State to pay an amount of Rs.1,96,452/- for 11 years services rendered by the workman prior to his regularization. The appeal filed against the order dated 27.09.2019 was also dismissed by the Appellate Authority vide order dated 29.07.2020 passed in Gratuity Appeal No.55 of 2020. It is submitted by learned Assistant Government Pleader that the respondent-workmen will not be entitled to the gratuity under the payment of Gratuity Act, 1972 and also under Rules 81 and 82 of the Gujarat Civil Services (Pension) Rules, 2002 and hence, the gratuity, which was paid to the respondent-workman under the Pension Rules by counting his 27 years of service, was just and proper and the impugned orders may be set aside.
4. Per contra, Mr.Nabil O. Bloch, learned advocate for the respondent has submitted that the issue is squarely covered by the Division Bench decision dated 28.12.2017 passed in Letters Patent Appeal No.156 of 2017 and allied matters.
5. Heard the learned advocates appearing for the respective parties.
6. A perusal of the impugned order dated 27.09.2019 passed by the Controlling Authority in Gratuity Case No.75 of 2019 reveals that the Controlling Authority, while granting the entire Page 3 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 services of the respondent-workman prior to his claim, regularization has calculated the gratuity and has ordered the petitioner-State to pay the same under the Payment of Gratuity Act. It was the case of the petitioner before the Controlling Authority that the services rendered prior to the regularization of the respondent-workman, cannot be granted for the calculation of gratuity in view of the Government Resolution dated 24.03.2006. In the written statement filed before the Controlling Authority filed by the petitioner, a stand was taken that the respondent-workman is paid the amount of gratuity as per the provisions of the Gujarat Civil Services and Pension Rules, 2002. The petitioner has contended that the workman is not entitled to gratuity under two different provisions of law i.e. under the Payment of Gratuity Act and Gujarat Civil Services(Pension)Rules, 2002.
7. The case of the petitioner is premised on the Government Resolution dated 24.03.2006 with regard to denying the benefit of gratuity to the respondent-workman. A perusal of the said resolution reveals that the same refers that the service of the workman, before he is granted the status of permanency, is required to be ignored for the purpose of calculation of his pension and retirement benefits.
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8. At this stage, I may with profit refer to the decision of the Division Bench in the case of State of Gujarat vs Ranabha Ajmalbhai Harijan, 2018 JX (Guj.) 829, judgement dated 10.04.2018 passed in Letters Patent Appeal No.1518 of 2017, after considering the Government Resolutions dated 17.10.1988 and dated 24.03.2006, has held thus:
"8. Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the pur- pose of bridging the gap for computation of ten years of service needs to be granted. As pointed out by Shri Dave, learned counsel for the respondent herein this is- sue had again arisen in the case of the Executive Engi- neer, Panchayat (MAA & M) Department and Another v. Samudabhai Jyotibhai Bhedi and Others reported in 2017 (4) GLR 2952. Considering the provisions of the Govern-
ment Resolution dated 17.10.1988, the Division Bench of this Court in the judgment of Samudabhai Bhedi (supra) held as under:-
"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regu- lar 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 Page 5 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 whether the pensionable service would be confined to the service put in by the employee after he is actually regu- larized. The answer to this query was that those employ- ees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the ben- efit of pension. For such purpose, those years during which the employee had fulfilled the provisions of sec- tion 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 regular- ization 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."
9. Thus, the Division Bench has held that the past continuous service cannot be wiped out for the purpose of pensionary benefits, and such stand of the authorities that only that service which the employee had put in after actual order of Page 6 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 regularization would count for pension is thus in conflict with the Government circulars itself. Hence, the contention raised by the petitioner by placing reliance on the Government Resolution dated 24.03.2006 for denying the gratuity is liable to be rejected.
10. The Supreme Court in the case of The State of Gujarat vs. PWD and Forest Employees Union and Ors., (2019) 3 SCALE 642, while examining the cases of the workmen, who are engaged on daily wagers, while clarifying the decision of the Apex Court in the case of State of Gujarat and Ors. vs. PWD and Forest Employees Union and Ors., (2013) 12 SCC 417, has held that the daily wagers are also entitled to the benefit of pay-scale as per the Gujarat Civil Services (Revision of Pay) Rules, 2009, as revised from time to time, however, it is clarified that such daily wagers though would not be entitled to the pay-scales of permanent employee, but they are entitled to pay-scales under those Rules as per their job description. It is specifically observed that on attaining the status of permanency/regular employees, they become at par with those employees who are appointed as permanent, after undergoing the proper selection procedure on proving their merit, however, such daily wagers cannot be given the pay-scales which are even better than the pay scales given to the regularly appointed employees.
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11. Thus, the order of the Controlling Authority directing the payment of gratuity to the respondent-workman by counting the service from the date of his appointment cannot be said to be tainted with any perversity or illegality. It is held by the Controlling Authority that the workman has rendered 38 years of service. Thus, the order of the Controlling Authority dated 27.09.2019 as well as the order dated 29.07.2020 passed by the Appellate Authority are in consonance with the law declared by this Court in the afore-noted judgments.
12. So far as the submissions with regard to the dis-entitlement of the gratuity under the Act and the Rules, 2002 is concerned, it will be apposite to incorporate the observations made by the Division bench in the judgment dated 28.12.2017 passed in Letters Patent Appeal No.156 of 2017. The Division Bench, after considering similar issue of conferring the benefit of gratuity under the Payment of Gratuity Act viz-a-viz the provisions of the Gujarat Civil Services and Pension Rules, 2002 has held thus:
"8. Taking into consideration the facts in all these aforesaid appeals the sole and the common question of law that arises before us is whether an employee is entitled to the benefit of his past service rendered as a daily wager, for the purposes of being granted the benefits of gratuity under the Payment Of Gratuity Act, 1972. This question should not hold us any longer in view of the fact that we have considered this question of law in similar circumstances in Letters Patent Appeal No. 1195 of 2017 decided on 16.11.2017 wherein we have held as under:Page 8 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021
C/SCA/10446/2020 ORDER DATED: 09/08/2021 "4.0. At the outset, it is required to be noted that the only question which calls for the consideration of this Court is whether the continuous of service rendered by concerned employee as a daily wager is required to be counted for the purpose of calculation of amount of gratuity under the provision of the Payment of Gratuity Act or not and / or whether the concerned employee is entitled to gratuity under the Payment of Gratuity Act for the period during which he worked as a daily wager or not.
4.1. That the concerned employees were not paid the gratuity under the Payment of Gratuity Act, 1972 for the period, they worked as a daily wager. They were also not paid the gratuity under the Gujarat Civil Services (Pension) Rules, 2002 for the aforesaid period, during which, they worked as a daily wager. Therefore, the concerned employee approached the Controlling Authority under the provisions of the Payment of Gratuity Act claiming the gratuity under the Payment of Gratuity Act for the period they worked as a daily wager i.e. in the case of Special Civil Application No. 214 of 2016for the period from 24.06.1983 to 22.06.1997 and in the case of Special Civil Application No.213 of 2016 for the period between 16.07.1985 to 14.07.1997. The Controlling Authority rejected the claim. The Appellate Authority confirmed the same.
That after considering the provisions of the Payment of Gratuity Act, 1972 and also provisions of Gujarat Civil Service (Pension) Rules, 2002, under which, the concerned employees were not paid the amount of gratuity during the period for which they worked as a daily wager and after considering the decision of the Hon'ble Supreme Court in the case of Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer reported in AIR 2004 SC 1426, decision of the Himachal Pradesh High Court in the case of State of H.P. vs. Lashkari Ram reported in 2008 I LLJ 137 and relying upon the other decisions of this Court referred to in para 13.1 to 13.2 of the impugned order, the learned Single Judge by impugned judgment and order has held that the concerned employees shall be entitled to gratuity under the Payment of Gratuity Act also for the period they worked as a daily wager, the period for which they were not paid the gratuity either under the Payment of Gratuity Act or under the provisions of the Gujarat Civil Service (Pension) Rules, 2002.
5.0. Having heard the learned advocates for the respective parties and considering the provisions Page 9 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 of Payment of Gratuity Act, under which there is no distinction between the regular employee and daily wager and there is no specific provision that daily wagers are not entitled to payment of gratuity and on the contrary considering the provisions of the Payment of Gratuity Act, more particularly, Section 3 to 5 of the Act, any employee who has worked for not less than 5 years shall be entitled to the amount of gratuity and considering the proviso to Section 4 of the Payment of Gratuity Act, daily rated worker and even seasonal workers are entitled to gratuity under the Payment of Gratuity Act, it cannot be said that the learned Single Judge has committed any error in holding that the concerned employees are entitled to the gratuity under the Payment of Gratuity Act for the period, for which, they worked as daily wager. At this stage, it is required to be noted that it is not the case on behalf of the State that for the aforesaid period, during which they worked as daily wagers, the concerned employees were paid the gratuity under the provisions of the Gujarat Civil Service (Pension) Rules, 2002."
9. Having considered the judgement rendered in Letters Patent Appeal No. 1195 of 2017, relevant portion of which is reproduced hereinabove, we are of the opinion that the view taken by the Controlling Authority and confirmed by the Appellate Authority as well as the learned Single Judge do not require interference. The provisions of the Payment Of Gratuity Act make no distinction between a regular employee and a daily wager. There is no specific provision that daily wagers are not entitled to the payment of gratuity. Considering the provisions of the Payment Of Gratuity Act, 1972 particularly Sections 3 to 5 and 14, it can very well be seen that the provisions of the Act shall have effect notwithstanding anything in consistent with any other enactments. The submission therefore made by learned counsel for the respective appellants that once having earned the gratuity under the relevant provisions of Gujarat Civil Service (Pension) Rules, 2002, the period rendered prior to such regularization and claimed under such rules would disentitle such employee from claiming gratuity under the Gratuity Act as a daily wager cannot be sustained."
13. The Division Bench, has held that an employee is entitled to claim the gratuity under the Gratuity Act and Pension Rules, 2002. Thus, the submission advanced by the petitioner with regard Page 10 of 11 Downloaded on : Mon Sep 06 10:55:35 IST 2021 C/SCA/10446/2020 ORDER DATED: 09/08/2021 to dis-entitlement of the gratuity under different provisions of Rules, stands rejected in light of the observations made by the Division Bench.
14. Thus, both the issues raised by the petitioner are decided by the decisions of the Division Benches of this Court hence, it cannot be said that the impugned award passed by the Controlling Authority are absolute perverse or illegal.
15. Thus, the present writ petitions fail. The same stands rejected.
16. Consequently, the connected civil application also stands rejected.
17. Registry to place a copy of this order in all connected matters.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]
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