Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 1073 (GUJ)

Dharmiben Hajabhai Rajput v. State of Gujarat

2018-09-10

A.J.SHASTRI

body2018
JUDGMENT A.J. Shastri, J. Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the respondents. 2. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following relief’s:- "15. A. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorary or other appropriate writ, order or direction, declaring the impugned order passed by the respondents dated 13th October and 2014 at ANNEXURE-D by which the petitioner is denied the amount of leave encashment as illegal, unjust, arbitrary, non-application of mind, violative of article 14, 16 and 21 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to pay the amount of leave encashment to the petitioner which is payable to the husband of the petitioner with 12% interest. B. The Honourable court be pleased to declare that the action of the respondents in not calculating the entire service of the husband of petitioner, i.e. from the initial date of appointment of the husband of the petitioner for payment of amount of pension and other terminal benefits as illegal, unjust, arbitrary, non-application and violative of article 14, 16 and 21 of the constitution of India and be pleased to quashed and set aside the same by directing the respondents to calculate the services of the husband of the petitioner from initial date for payment of amount of pension and other terminal benefits. The Honourable court further be pleased to direct the respondents to pay the difference of amount of pension to the petitioner with interest. C. The Honourable court be pleased to declare that the action of the respondents in not deciding the application of the petitioner for grant of monetary compensation in lieu of compassionate appointment as per government resolution dated 5 July 2011 as illegal unjust arbitrary, violative of article 14, 16 and 21 of the constitution of India and be pleased to direct the respondents to decide the application of the petitioner forthwith. The honourable court further be pleased to direct the respondents to pay the monetary compensation to the petitioner with interest. The honourable court further be pleased to direct the respondents to pay the monetary compensation to the petitioner with interest. D. Pending admission and final hearing of the petition, the honourable court be pleased to direct the respondents to decide the application of the petitioner dated 21 February 2014 forthwith and grant monetary compensation in favour of the petitioner as per G.R. dated 5.7.2011. E. The honourable court be pleased to direct the respondents to pay all arrears of amount of pension, leave encashment and monetary compensation to the petitioner with 12% interest. F. Any other relief which this Hon'ble Court deems fit and proper in interest of justice." 3. The case of the petitioner is that the petitioner is a widow of late Rajabhai Rajput who was serving with respondent No.4 as a regular employee and died on 06.12.2013 while in service. The husband of the petitioner has served with the respondent from 1981 to 2013. As a result of this, by way of present petition, the petitioner is challenging the action of respondent authority in not paying the amount of leave encashment payable to the husband of the petitioner as well as the amount of difference of gratuity and not deciding the application of the petitioner for granting lump-sum compensation in lieu of compassionate appointment as per the government Resolution dated 05.07.2011. This claim is based upon by the petitioner on the basis of the decisions delivered by the Court in case of Special Civil Application No.5699 of 1987 as well as the Letters Patent Appeal No.958 of 2011 in which the Hon'ble Court has observed that employee is once considered as a permanent employee, he is entitled for the benefits which are available for a permanent employee. As a result of this, the benefits of leave encashment, gratuity, pension etc. are to be paid. It has further asserted in the petition that husband of the petitioner had joined the service originally in respondent No.4 as a daily rated labourer with effect from 27.07.1981 and was granted the benefits of government Resolution dated 17.10.1988 and after completion of 10 years' service, the petitioner's husband was treated as permanent unskilled labourer and was granted pay scale of Rs. 750-940 with all other benefits which are made available to the permanent employees vide order dated 04.06.1992. 750-940 with all other benefits which are made available to the permanent employees vide order dated 04.06.1992. It is further the case of the petitioner that on 06.12.2013 after completion of almost 32 years' service with the respondent, the husband of the petitioner had died and the petitioner was granted benefits of retirement including amount of gratuity and family pension. But, instead of calculating the entire service of husband of the petitioner, the respondent has calculated the service with effect from 1992 i.e. from the date on which the husband was made permanent, and therefore, instead of considering 32 years' service, only 22 years' service is considered, and therefore, actual due benefits legitimately payable have not been made available to the petitioner. Further the leave encashment has also not been paid to the petitioner's husband's tenure though requested on 22.08.2014. It was though specifically mentioned that the husband of the petitioner has completed 32 years of service and all due benefits must be made available. However, vide letter dated 13.10.2014, the respondent authority has replied and rejected the claim of leave enchament benefits. On the premise that there is no policy to extend such benefits to daily rated employee so far as second grievance with respect to lump-sum compensation in lieu of compassionate appointment by virtue of Resolution dated 05.07.2011, it has been stated that despite the fact that immediately on 21.02.2014, the request was made to grant such benefits till the filing of the petition, no benefits were made available of payment of lump-sum compensation. [3.1.] It appears that for the aforesaid grievances that so far rejection of claim of leave encahsment benefits, not deciding of an application for monetary compensation in lieu compassionate appointment and non-granting of full pension of 32 years on 09.12.2014. The respondent authorities were called upon to make the payment by way of notice and though the notice has been served upon, the benefits have not been extended. It was also the case of the petitioner that in the notice also the case of Mahendrakumar Bhagwandas versus State of Gujarat was brought to the notice in which it has been held that employee on being made permanent after completion of 10 years of services, ceased to be daily rated employee and entitled for all the benefits. It was also the case of the petitioner that in the notice also the case of Mahendrakumar Bhagwandas versus State of Gujarat was brought to the notice in which it has been held that employee on being made permanent after completion of 10 years of services, ceased to be daily rated employee and entitled for all the benefits. Still by ignoring such ratio, the benefits have not been extended which has ultimately brought the petitioner before this Court by way of present petition under Article 226 of the Constitution of India. 4. This Court appears to have issued notice on 07.12.2015 and after completion of pleadings, it has come up for consideration before this Court with aforesaid backgrounds in which the learned advocates have requested the Court that now since the issue has been crystalized finally, the matter may be disposed of finally. As a result of this, the Court has heard the matter at length. 5. Mr. P.H. Pathak, learned advocate appearing for the petitioner has vehemently contended that issue with respect to grievance raised in the petition is already now set at rest by the decision, and therefore, the action on the part of respondent authority is not only unjust and arbitrary, but in defiance of law laid down by the decision as reflected in the petition. It has further been contended that the Division Bench in case of Special Civil Application No.2189 of 1991 decided on 31.07.1992 (Coram: S.B. Majumudar & S.D. Shah. JJ.) has specifically held that initial date of appointment has to be considered once the employee is completing 10 years services and here is the case in which the husband of the petitioner has already completed such tenure which would entitle the petitioner to seek the benefit. It has further been contended that so far as leave encashment benefit is concerned, there is no justification valid in nature to deprive the petitioner from the said benefit. It has further been contended that so far as leave encashment benefit is concerned, there is no justification valid in nature to deprive the petitioner from the said benefit. The issue has been almost covered by the decision in case of Mahendrakumar Bhagwandas versus State of Gujarat and also in similar set of circumstance in a decision delivered by the Division Bench of this Court and here is the case in which the husband has already been confirmed as a permanent employee by extending government resolution benefits, and therefore, has ceased to be merely a daily rated employee, and therefore, his original entry in the service is a relevant criteria for taking decision for extension of benefits to the petitioner. On the contrary, according to Mr.Pathak, learned advocate, this decision and inaction is contemptuous in nature. [5.1.] Mr. Pathak, learned advocate has further submitted that the petitioner has already been made permanent on 04.06.1992 and also granted pay scale of Rs. 750-940 after completion of 10 years' services as required under government Resolution dated 17.10.1988, and therefore, his permanent status of a very long tenure cannot be ignored. On the contrary, by virtue of accepting the petitioner as a permanent employee, his earlier tenure as a daily rated employee must be considered in view of the decision delivered by the this Court, and therefore, all due benefits like leave encashment, gratuity, pension etc. are to be paid keeping in view the length of service of 32 years and not 22 years. Mr. Pathak, learned advocate has further submitted that apart from this after completing 32 years' service, the husband had died during the tenure of the service, and therefore, the request of the petitioner squarely falls within the four-corners of policy framed by the government Resolution dated 05.07.2011 for seeking lump-sum compensation in lieu of reinstatement and the petitioner's application was very much made and petitioner has already made an application on 21.02.2014, but there is absolutely no reply of any nature with respect to said request, and therefore, the action is not only arbitrary and unjust but tainted with mala fide as well. By referring to the decision delivered by the co-ordinate bench of this Court as well as by referring to the decision delivered by the Division Bench of this Court, which are attached to the petition compilation, and ultimate, the request is made to see that the due benefits must be paid with immediate effect and has requested to grant the relief’s as prayed for in the petition. 6. To meet with the stand taken by the learned advocate for the petitioner, Ms.Megha Chitaliya, learned AGP appearing on behalf of the respondent authority has submitted that original entry of the petitioner was as a daily rated employee, and therefore, till the petitioner completes his tenure of 10 years and till he has been made permanent, the benefits of leave encashment as per the policy is not available to the petitioner. So far as pension and other benefits are concerned, it has been stated that whatever has been paid in accordance with law after considering the tenure of 22 years. As a result of this, the petitioner is not entitled for any other benefits otherwise than what has been actually paid. [6.1.] So far as the request of petitioner with respect to the benefit of lump-sum compensation in lieu of compassionate appointment, the application has been made by the petitioner at a belated stage and further yet no decision is taken which would permit the petitioner to approach this Court by way of present petition. Learned AGP has further submitted that qualifying the services, only to be considered for the purpose of grant of benefit and leave encahsment is guided by government Resolution dated 12.08.1991, there is no irregularity of any nature, and therefore, request for benefit of leave encashment is rightly discarded. The husband of the petitioner was entitled only to those benefits and emoluments which are mentioned in government Resolution dated 17.10.1988. As a result of this, the Resolution dated 12.08.1991 is a guiding factor for the authority which the respondent authority has followed. It has further been pointed out that government resolution and its prescriptions have been confirmed by the decision of this Court in case of Special Civil Application No. 11071 of 1993 and this judgment has been confirmed by the Division Bench in Letters Patent Appeal No.1134 of 1997. It has further been pointed out that government resolution and its prescriptions have been confirmed by the decision of this Court in case of Special Civil Application No. 11071 of 1993 and this judgment has been confirmed by the Division Bench in Letters Patent Appeal No.1134 of 1997. [6.2.] It has further been pointed out that the decision delivered by the Division Bench in case of Letters Patent Appeal No.958 of 2011, it has not been confirmed and even disposed of by the Hon'ble Supreme Court, and therefore, to rely upon such decision is nothing but a misnomer on the part of petitioner. On the contrary, this Letters Patent Appeal decision cannot be considered as a law of the land, as the Hon'ble Supreme Court has disposed of by a reasoned order and the case of the petitioner therefore, would be governed by Letters Patent Appeal No. 1134 of 1997 and not by the decision of Letters Patent Appeal No.958 of 2011 in respect of claim with respect to monetary compensation as per the government Resolution dated 05.07.2011, as has been said that since the petitioner is already getting family pension and has secured retiral dues payable to the same, such benefit is not possible to be granted particularly the request has been made even after the lapse of 3 years from the date of death. As a result of this, the petition being merit-less, the same may be dismissed. No other submissions have been made. 7. Having heard the learned advocates appearing for the parties and having gone through the contents of the petition as well as the reply affidavit, following circumstances are not possible to be unnoticed: [7.1.] Firstly, so far as relief clauses are concerned, the main relief’s are three folds; (i) with respect to setting aside of an order dated 13.10.2014 whereby leave encashment benefit was not been made available and claim is with 12% interest. So far as second part is concerned, it is with respect to non-consideration of the period of service prior to confirmation which has been made on 04.06.1992, and on that basis, the difference of retiral dues appears to have been claimed and third relief is with respect to a request for grant of monetary compensation in lieu of compassionate appointment as per the government Resolution dated 05.07.2011 which application was made to the authority on 21.02.2014, the death has taken place on 06.12.2013 and application appears to be well within three months. [7.2.] It further appears from the record that the substantive grievance is that though the husband of the petitioner was made permanent on 04.06.1992, but his initial period of daily rated employee is not considered for the purpose of retiral benefits nor for paying any leave encashment and for the purpose of such grievance, it appears that there is some force in the submissions of learned advocate for the petitioner, in this regard, in relying upon the decision delivered by the co-ordinate bench of this Court as well as the view confirmed by the Division Bench in case of Letters Patent Appeal No.958 of 2011 decided on 18.03.2011. The learned Single Judge has categorically held that such employees who have been extended the benefits of government Resolution dated 17.10.1988 to be treated as permanent employees and should be given due benefits as are made available to the permanent employees. Now this decision of the learned Single Judge is assailed by way of Letters Patent Appeal No.958 of 2011 in which when the Letters Patent Appeal came up for consideration in the year 2011, the Division bench has dealt with this aspect in no uncertain terms as is reflecting from the relevant observations contained in the said decision. Now this decision of the learned Single Judge is assailed by way of Letters Patent Appeal No.958 of 2011 in which when the Letters Patent Appeal came up for consideration in the year 2011, the Division bench has dealt with this aspect in no uncertain terms as is reflecting from the relevant observations contained in the said decision. Since the question was dealt with in the background of fact that in that case there was no controversy about the fact that all the petitioners who entered services as a daily rated employees and then regularized by virtue of government Resolution dated 17.10.1988 and most of the benefits were paid barring few and for that controversy the Division Bench has allowed the Letters Patent Appeal, confirmed the decision delivered by the learned Single Judge and held specifically to treat all such workmen as a permanent employees and to treat them at par with other employees and grant all such benefits by interpreting the relevant resolutions as reflecting in the order. Since the issue is relevant, the observations made in paragraph Nos.4, 5 and 8 are reproduced hereinafter: "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. 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 re-branded 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. 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. 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." [7.3.] As a result of this, it appears that here is also a case of the petitioner that husband's initial entry in the employment was a daily rated employee and then regularized by virtue of Government Resolution dated 17.10.1988 and claiming benefits which appears to be justified in view of the aforesaid observations. As a result of this, the petitioner is entitled to seek the benefits as prayed for in the petition in respect of first issue and the second issue which are raised in the petition. [7.4.] So far as the controversy with regard to the stand taken by the learned AGP that in fact the case is required to be dealt with by subsequent decision delivered by the learned Single Judge on 09.05.1997 and dealt with by Division Bench on 25.03.2014, but on close reading of the said decisions, it appears that the substantive relief was with regard to claim of employees i.e. petitioners to treat all daily wagers who have completed 240 days should be regularized from their date of appointment. In that context, certain observations have been made, hence, there is a distinction between the claim raised in the present petition and the petitioners of that petition and further the Division Bench in Letters Patent Appeal No.1134 of 1997 decided on 25.03.2014 has also examined from the said context of the decision of learned Single Judge and again if a perusal is made of the said decision, it appears that in no clear uncertain terms, a specific decision has taken place on the issues which are entangled in the present petition, and therefore, to place reliance by the learned AGP of those decisions is of no avail to the authority, as it appears from the background of the said fact may be the stray observations have been made by learned Single Judge that daily rated employees are not entitled for leave encashment and other benefits as made available to the permanent employees. But, here is the case where the petitioners have been made permanent by extending benefit of government Resolution dated 17.10.1988, and therefore, the case is altogether on a different context and the controversy. As a result of this, in considered opinion of this Court, the ratio laid down by subsequent decisions cannot be applied as a straitjacket formula. [7.5.] It is settled position of law that if there is a slight change of the fact even one additional fact would make a world of difference in applying the precedent. Hence, the stand taken by the authority is not justified in the opinion of this Court. [7.6.] Yet another circumstance which cannot be unnoticed by the Court is that the decision which has been relied upon by the learned advocate for the petitioner dated 02.05.2000 passed in group of petitions headed by Special Civil Application No.5699 of 1987 has been not only confirmed by the Division Bench in Letter Patent Appeal No.958 of 2011 decided on 18.03.2011 but has been amply clarified in no uncertain terms resultantly, there is a justifiable claim appears to have been raised by the petitioner. Additionally, this order of Division Bench was taken up before the Hon'ble Supreme Court, and undisputedly, the Hon'ble Supreme Court has also not disturbed the order which has been passed by the Division Bench which has been relied upon by the petitioner. Additionally, this order of Division Bench was taken up before the Hon'ble Supreme Court, and undisputedly, the Hon'ble Supreme Court has also not disturbed the order which has been passed by the Division Bench which has been relied upon by the petitioner. As a result of this, the case is made out by the petitioner which requires to be considered positively. [7.7.] Yet another decision which has been taken note of by this Court a decision which has been delivered by the Division Bench of this Court dated 28.06.2018 in Letters Patent Appeal No.1134 of 2017 and further decision which has been pressed into service a decision dated 08.07.2015 passed in Special Civil Application No.1945 of 2014, it has been categorically held that petition has been allowed by directing the amount to be paid to the concerned petitioner even on the issue of leave encashment. Yet another decision which has been relied upon is a decision of the Division Bench decided in Letters Patent Appeal No.1310 of 2015 wherein the learned Single Judge's judgment is confirmed which again carried before the Hon'ble Supreme Court which also has been affirmed and yet another decision dated 07.10.2016 passed in Special Civil Application No.1795 of 2013 which has also got some relevance. As a result of this, the present petition is specifically allowed with respect to the relief which is prayed for in paragraph 15 A and B and the authorities are directed to recalculate in the light of present order and extend the benefit lawfully payable to the petitioner within a period of three month from the date of receipt of this order with 6% interest till realization. [7.8.] So far as relief with respect to a claim for monetary compensation in lieu of compassionate appointment is concerned, since the application has not been yet decided, the authorities are directed to take suitable decision on merit in accordance with law and decided the said application dated 21.02.2014 in the light of the settled position of law as discussed in aforesaid cases which have been cited and after considering the relevant terms of the Resolution dated 05.07.2011 on its own merit. This application is directed to be decided within a period of 8 weeks from the date of receipt of writ of this Court. 8. The aforesaid time schedule is directed to be observed strictly by the authority upon receipt of the writ. This application is directed to be decided within a period of 8 weeks from the date of receipt of writ of this Court. 8. The aforesaid time schedule is directed to be observed strictly by the authority upon receipt of the writ. With these observations, the petition stands partly allowed in aforesaid terms with no order as to costs. Rule is made absolute to the aforesaid extent.