Gujarat High Court
Shakinaben Mamadbhai Hala vs State Of Gujarat on 4 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6357/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6357 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHAKINABEN MAMADBHAI HALA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MR ISHAN JOSHI, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04/02/2020
ORAL JUDGMENT
1. At the request of the parties, matter is taken up for final hearing. Rule. Mr. Ishan Joshi, learned Asst. Government Pleader waives service of notice of rule on behalf of respondent - State.
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2. In this petition under Article 226 of the Constitution of India, petitioner has prayed as under;
"8.
A. This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order, direction declaring that the action of the respondents in not paying the arrears of salary, family pension and other retirement benefits payable to the husband of the petitioner and after his death all arrears and family pension to the petitioner as illegal, unjust, arbitrary and violative of art 14 of the Constitution of India and be pleased to direct respondents to pay arrears of salary, family pension and other retirement benefits to the petitioner which are available to the husband of the petitioner with 12% interest.
B. This Honourable Court be pleased to declare that the arrears of salary, amount of family pension and other retirement benefits payable to the husband of the petitioner are illegally withheld by the respondents and hence be pleased to direct the respondent to pay the same to the petitioner with 12% interest."
3. Petitioner is a widow of a deceased daily wager who was employee under the Forest Range, Bhachau in the year 1985. He died on 27.02.2012. The deceased - husband had completed 27 years of service and, therefore, was entitled to the benefit of the Government Resolution dated 17.10.1988. The wife of the petitioner has came forward with the aforesaid prayer that had her husband been granted the benefit of the Government Resolution dated 17.10.1988, he would have earned pension and consequently petitioner would earn family pension.
4. Mr. P. H. Pathak, learned advocate for the petitioner rely upon the case in Special Civil Application No.13545 of 2015, wherein this Court considered the case similar to that of petitioner's husband where the employee had worked from the year 1978 - 1979 to 2003 - 2004. Based on this service record, Page 2 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT petitioner had prayed for pensionary benefits. This Court by an oral order dated 15.09.2015 allowed the petition and held as under;
"4. Having thus heard both the sides and having considered the stand taken by the respondent-State, for the reasons to following hereinafter, the present petition deserves to be allowed :
1. The husband of the petitioner continued to serve at Bori Range Patnagar Yojana Circle, Gandhinagar Division and he passed away on April 11, 2009, after his retirement, which came in September, 2004. He was neither paid the amount of gratuity nor retiral benefits at the relevant point of time. The petitioner, who is the widow of the said employee of the respondent No.2, needed to move the Controlling Authority under the Payment of Gratuity of Act, 1972 and the Controlling Authority after giving due opportunity to both the sides, in no uncertain terms, held that the husband of the petitioner worked for 22 years continuously. Following due procedure, he was ordered to be granted the amount of gratuity. According to the petitioner, such amount of gratuity is already paid to her pursuant to the said order.
2. The only question that now remains before this Court is as to whether the petitioner is entitled to family pension and other retiral benefits on the ground that her husband worked with the respondent No.2 for all these years and he retired without availing the retiral benefits. The stand taken by the respondents is that the husband of the petitioner was not in service on October 29, 2010. The said aspect is not being disputed. Those employees who were working with the respondent-
Department have been regularised in service by giving effect to the Government Resolution dated October 17, 1988, by virtue of the Government Resolution dated September 15, 2014. The said Government Resolution dated September 15, 2014 has slightly modified the earlier Government Resolution dated October 29, 2010. The only issue that has been raised is that the husband of the petitioner died in the year 2009 and, therefore, she would not be entitled to any pensionary benefits for her husband not being in service on October 29, 2010. Admittedly, as per the Government Resolution dated September 15, 2014, all those employees who have completed 10 years of service on October 29, 2010, would be covered by the CPF scheme. It is wholly an Page 3 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT acceptable contention on the part of the respondents that those employees who have completed 10 years of service on October 29, 2010 only would be covered by the CPF scheme and those employees who otherwise completed more than 10 years of service prior to October 29, 2010, could not be given pensionary and other retiral benefits even though the Government Resolution dated October 17, 1988 would be applicable in their case.
3. In the present case, the husband of the petitioner expired on April 12, 2009. He was working with the respondent No.2 admittedly since the year 1978 and worked continuously for 22 years and that entitled him for payment of gratuity. This entitlement of his to earn the pension, as in the case of rest of the employees who completed 10 years of service on October 29, 2010 and as per the Government Resolution dated September 15, 2014, cannot be taken away by such stand. This Government Resolution dated September 15, 2014 if is examined carefully, it concerns all those daily wagers who were working with the respondent-Forest and Environment Department. It avails benefits to all those employees have made a request to give them the benefit of the Government Resolution dated October 17, 1988.
4. Before this Court, Special Civil Application Nos.8647 and 8751 of 2008 were adjudicated upon and on October 29, 2010, this Court issued directions in the said petitions for availing equal benefits to all those Class-IV employees. Pursuant thereto, a scheme was to be framed for availing all these benefits, which had aggrieved the respondent-State and it preferred Special Leave Petition(C)Nos.13619-13620 of 2012. This Special Leave Petition came to be disposed of vide order dated July 09, 2013, whereby the Apex Court modified the order dated October 29, 2010, rendered by this Court and granted benefits as prayed for to the employees working under the respondent-Forest and Environment Department. Even Review Petitions were also filed bearing Nos.2826-2827 of 2013, which ultimately came to be dismissed by the Apex Court vide order dated January 29, 2014.
5. It is pertinent to note that the Government Resolution dated October 17, 1988, addresses the demands of long pending questions of various daily wagers working in different departments of the State Government raised by the Gujarat State Employees Federation and Gujarat P.W.D. Employees Union and other different unions. They cumulatively represented to the Government to Page 4 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT consider the policy relating to the demands and the problems of the labour union for making suitable recommendations. A committee came to be constituted under the Chairmanship of Shri Dolatbhai Parmar, the then Minister of Roads and Buildings Department vide Government Resolution dated March 24, 1988. On examining and considering the questions of wages and other service related benefits, the Committee gave its report in respect of the daily wage labourers and workmen working in the Roads and Buildings Department, Water Resources Department, Forest Department, Water Supply Department, Panchayat and Rural Housing Department, etc.
6. The Government after taking into consideration the recommendations made by the Committee, accepted all the recommendations and pursuant thereto decided that the daily wage labourers who have put in five years of service as on October 17, 1988 and upon achieving 240 days of presence in the first year, will be entitled to get the benefit of various leaves, seniority and medical facilities.
Those daily wager labourers who have put in more than five years and less than 10 years of service as on October 01, 1988, in accordance with the provisions of section 25B of the Industrial Disputes Act, were to be placed in the fixed pay of Rs.750/- and their daily wage may be calculated including dearness allowance in proportion to the number of days for which he has remained present. They were also, in addition, to be given optional leave, leave on Sundays and other National Festivals with pay and the benefits of facilities and deduction towards General Provident Fund.
The daily wager labourers who have put in more than 10 years of service as on October 01, 1988 in accordance with the provisions of section 25B of the Act, would be known as permanent daily wage labourers and they would be placed in the pay-scale of Rs.750-940 and they were to be paid dearness allowance, House Rent Allowance, CCA, etc. They were also to be granted the benefit of retirement, gratuity, GPF, etc. as per existing policy. They were also found eligible to get two days' optional leave and 14 days' casual leave as well as 30 days' medical leave, Sundays and other holidays on National Festivals. The retirement age of such labourers was to be 60 years. The period of service shall be considered for pensionary benefits.
Page 5 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020C/SCA/6357/2017 JUDGMENT The daily wage labourers who have competed 15 years of service as on October 01, 1988 under the provisions of section 25B of the Industrial Disputes Act, shall have to be placed in pay-scale of Rs.750-940 with one increment and those who have completed 20 years of service were to be given two increments and those who have completed 25 years of service, they were to be given three increments. It further provides for complete ban on recruitment of daily wagers by any officer.
7. The Government decided to implement these recommendations of the said Shri Dolatbhai Parmar Committee with effect from October 01, 1988. This had a stamp of approval by this Court, which vide order dated October 29, 2010, also directed to frame a scheme, which was then approved by the Apex Court. Those employees working under the Roads and Buildings Department were directed to be given equal benefit. The Review Petition against the decision rendered in the aforesaid Special Leave Petitions, also came to be dismissed vide order dated January 29, 2014. Therefore, by virtue of the Government Resolution dated September 15, 2014, the Government came out with a resolution (in Gujarati language), which enumerates the policy (in the English translation form) reads as under :
As per the judgment of the Hon'ble Supreme Court in Civil Appeal No. 5321-22/2013 in S.L.P.(C) No. 13619- 20/2012, dated 9/7/2013, it has been held to give following benefits to the daily wagers of Forests and Environment Department under the resolution of Roads and Buildings Department dated 17/10/1988, subject to the following conditions.
1. Daily wagers having service of more than 5 (five) years but less than 10 (ten) years as on 29/10/2010 or thereafter as per provision of Sec. 25(B) of Industrial Dispute Act, will be paid salary of their attended days and leaves of Sundays considering it on daily basis after calculating their monthly salary from the total of Rs. 4440/- monthly fix salary + Rs.
1300/- grade pay and admissible dearness allowance on the same as per prevailing rates. In addition to this, every year 2 optional leaves, 12 casual leaves, holidays on Sundays and holidays of national festivals will be admissible to them with salary. Moreover, medical facility and benefit of Contributory Pension Scheme of 2005 will be admissible to them as per rules.
(2) The daily wager who has completed service of more than Page 6 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT 10 (ten) years as on 29/10/2010 or thereafter as per provision of Sec. 25(B) of Industrial Dispute Act, will be considered permanent. Placing such permanent daily wager in pay scale of Rs.4,440-7440, he will be admissible to salary, grade pay of Rs. 1300/-, dearness allowance on the same and local compensatory allowance. It is held to give them benefits as per prevailing norms for pension, gratuity and Contributory Pension Scheme of 2005, etc. In addition to this, every year 2 optional leaves, 12 casual leaves, 30 earned leaves, 20 half pay leaves, weekly holiday on Sunday and holidays on national festivals will be admissible to them. Superannuation retirement age of permanent daily wagers will be 60 years. Service tenure for the permanent employment shall have to be considered pensionable as per Contributory Pension Scheme of the year 2005.
(3) As per provision of section 25 (B) of the Industrial Disputes Act, after placing the daily wagers, who have completed 15 (fifteen) years on 29/10/2010 or thereafter, in the prevailing pay scale of Rs. 4440-7440, they will be entitled to draw pay, grade pay Rs. 1300 and dearness allowance and local compensatory allowance on them. It is held to give them benefits such as retirement pay, gratuity and Contributory Pension Scheme, 2005, etc. as per prevailing rules. In addition to this, they will be entitled to avail 2 Optional Leaves, 12 Casual Leaves, 30 Earned Leaves and 20 Half Pay Leaves per year. They will also be entitled to avail holiday on Sunday as well as on national festival. It is held to give 1 (one) increment to those daily wagers, who have completed 15 (fifteen) years on 29/10/2010, in the prevailing pay scale of Rs. 4440-7440 (Grade pay Rs. 1300), 2 (two) increments to those daily wagers, who have completed 20 years and 3 (three) increments to those daily wagers, who have completed more than 25 (twenty-five) years and accordingly, their pay will have to be fixed on 29/10/2010. (4) In the case of each daily wager, who is entitled to get aforesaid benefit, details of service rendered by him or her, musters maintained for the respective work, payment vouchers in connection with the said work and other ancillary record will have to be verified. The Chief Forest Conservator/Forest Conservator of the respective circle will have to verify the same personally, and he will have to issue verification certificate bearing his signature to each individual daily wager.
(5) As this resolution is regarding giving benefits to daily wagers under Forests and Environment Department only as per Roads and Buildings Department' resolution dated 17/10/1988 in pursuance of Hon'ble Supreme Court order, the same will be applicable to daily wagers performing their duties under Forests and Environment Department only, and Page 7 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT therefore, daily wagers belonging to any other department of state government will not be entitled to avail benefit of this resolution.
(6) Now, new recruitment of daily wagers is completely banned. If recruitment of any new daily wager is made by any officer, such officer shall be responsible for the same, and recovery of salary paid to such daily wager will be made from the salary of such officer.
(7) Now, as recruitment of new daily wagers is completely banned, if necessity of any work arises under Forests and Environment Department, the said work will have to be got done through out sourcing method.
These orders are issued with the concurrence of the General Administration Department dated 02/08/2014 and the Finance Department dated 02/09/2014 on this department file of even number.
7. Going by the Government Resolution dated September 15, 2014, the petitioner had already completed 20 years of service on October 29, 2010. Even the order passed by the Competent Authority under the Payment of Gratuity Act, 1972, has been accepted by the Government and thereby, the amount of gratuity has been disbursed in favour of the husband of the petitioner. There being no dispute with regard to number of years of service rendered by the husband of the petitioner as a daily wager, the matter is decided by this Court as no disputed question of law arises and as mentioned hereinabove, the only defence that has been raised is of his not being in service on October 29, 2010 as he had retired in April, 2004. That hardly can be said to be a defence, much less a sustainable defence. In view of the same, the present petition deserves to be allowed.
10.For the foregoing reasons, the present petition succeeds and the same is, accordingly, allowed. The respondent-authority shall calculate and pay the pensionary benefits and other consequential benefits qua the husband of the petitioner with interest at the rate of 9% per annum to the petitioner at par with those employees who have completed 20 years of service. Such benefits be granted in favour of the petitioner within a period of 12 (twelve) weeks from the date of receipt of a copy of this order, failing which it shall carry interest at the rate of 12% per annum from the date of her entitlement."
5. Having considered the issue on hand there are certain undisputed facts which go to show that admittedly the petitioner's husband had completed services of more thane 20 years having Page 8 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020 C/SCA/6357/2017 JUDGMENT worked from 1985 to 2012.
6. Even from affidavit in reply of the State Government it is not denied that petitioner is entitled to the benefit of judgment rendered in the case of PWD Employees Union vs. State of Gujarat reported in 2013 (12) SCC 417.
7. Having thus considered the issues, judgment referred by the Apex Court in PWD (supra) and the decision of this Court rendered in Special Civil Application No.13545 of 2015, the petitioner is entitled to the reliefs as prayed for. Accordingly, the petition is allowed. The respondents are directed to calculate and pay family pension to the petitioner on the basis of her husband having rendered pensionable services and was entitled to the benefit of the Government Resolution dated 17.10.1988. Rule is made absolute to that extent.
(BIREN VAISHNAV, J) DRASHTI K. SHUKLA Page 9 of 9 Downloaded on : Thu Feb 06 21:35:58 IST 2020