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2020 DIGILAW 953 (GUJ)

LILABEN AARATSINH BARIA v. STATE OF GUJARAT

2020-12-10

ASHUTOSH J.SHASTRI

body2020
ORDER : Rule, returnable forthwith. Learned Assistant Government Pleader waives service of Notice of Rule on behalf of respondent State. Learned advocate Mr.Pradip J. Patel waives service of notice of Rule on behalf of respondent Nos.2 and 3. This petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs: “6. (A)This Hon'ble Court may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction (i) to hold and declare that action on part of the respondents in not making payment of pensionary benefits to the petitioner No.1 and 2 and husband of the petitioner No.3 by counting their entire length of service as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioner No.1 and 2 and husband of the petitioner No.3 by counting their service from 21.01.1984, 21.11.72 and 21.11.73 respectively until the date of their retirement, 1.e. 31.05.2016, 30.06.2016 and 30.09.2011, respectively and fix the pension accordingly; (ii) to hold and declare that petitioner No.1 & 2 and husband of the petitioner No.3 are entitled to all other retiral benefits including benefit of leave encashment and difference of gratuity and be pleased to further direct the respondents to pay amount of leave encashment of leave standing in the account of the petitioner No.1 & 2 and husband of the petitioner No.3; (iii) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due: (B) Pending the admission hearing and final disposal of this petition, this Hon’ble Court may be pleased to direct the respondents to immediately fix the pension of the petitioner No.1 & 2 and husband of the petitioner No.3 on the basis of their total length of service, i.e. from 21.01.84, 21.11.72 and 21.11.73 till 31.05.2016, 30.06.2016 and 300.09.2011 respectively; (C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted;” The case of the petitioner is that petitioner No.1 was appointed in the respondent Office as an initial Rozamdar on 21.01.1984 and had retired from the services on 31.05.2016. Similarly, petitioner No.2 was appointed on 21.11.1972 and came to be retired on 30.06.2016, whereas petitioner no.3 was engaged in the service of respondent authority on 21.11.1973 and retired on 30.09.2011 and during the passage of time, petitioner No. 3 passed away on 06.06.2019 and as such, qua him, the present petition is brought through his widow. The main grievance in the petition is that though there is a long length of service of all these petitioners, but the authority has not extended full pensionary benefits to them by considering their entire length of service. It has further been pointed out in the petition that similarly situated employees have been considered and have been extended the benefit, pursuant to the Government Resolution dated 17.10.1988 and as such, having aggrieved about discriminatory treatment meted out to the petitioners, they brought this petition under Article 226 of the Constitution of India. This petition was entertained by issuance of Notice on 24.09.2020 and after service of the writ of this Court, by exparte hearing took place and with the consent and request of both the learned advocates, the matter is taken up for hearing. Learned advocate Mr. Dipak R. Dave appearing for the petitioners has submitted that despite the fact that there is a full length of service of all these petitioners right from the day of their employment still have not been extended the benefit though have completed their services by putting more than 240 days in every year. It has further been contended that even leave encashment deserves to be paid as has been paid to several other similarly situated employees in addition to all benefits which are conferred by virtue of Government Resolution dated 17.10.1988. To substantiate this claim, the learned advocate Mr.Dave has pointed out that pensionary benefits must have been paid by the authority by extending this benefit of Government Resolution and accordingly, has submitted that a discriminatory treatment is meted out since other similarly situated employees are getting the same benefit and as such, the reliefs have been sought in the petition. To substantiate this claim, the learned advocate Mr.Dave has pointed out that pensionary benefits must have been paid by the authority by extending this benefit of Government Resolution and accordingly, has submitted that a discriminatory treatment is meted out since other similarly situated employees are getting the same benefit and as such, the reliefs have been sought in the petition. Learned advocate Mr.Dave has pointed out that exactly on a similar circumstance having the very same stand, the petitioners of Special Civil Application No.14504 of 2016 have been conferred this benefit by virtue of a decision dated 05.09.2018 passed by the coordinate Bench of this Court and the said decision is also passed on the basis of several other decisions delivered by this Court and therefore, and as such, dates of employment and the retirement date, every circumstance is similar of present petitioners. Hence, same order be passed in the interest of justice as has been submitted by the learned counsel. As against this, an affidavit in reply is filed by the respondent Nos.2 and 3 through the learned advocate Mr.Pradip J. Patel and has broadly submitted that these petitioners have not completed 240 days in every year and therefore, they are not entitled to receive the benefit and furthermore, has submitted that in a group of petition in Special Civil Application No.19372 of 2018 decided on 28.10.2020, those petitioners have tendered an undertaking to the effect that in the event, they are held not entitled to leave encashment as one of the benefits in Government Resolution dated 17.10.1988 by judgment in group of Letters Patent Appeal they shall have to adjust the amount against the pension which may be paid and therefore, the learned advocate has opposed this, but later on after perusal of several decisions and the decision of Coordinate Bench of this Court has left it to the discretion of the Court and has candidly submitted that present grievance is covered by the said decision. Hence, with two riders that the petitioners shall file an undertaking and are entitled to the benefit for those years only in which the petitioners have completed 240 days and then has submitted to pass similar order. Hence, with two riders that the petitioners shall file an undertaking and are entitled to the benefit for those years only in which the petitioners have completed 240 days and then has submitted to pass similar order. Having heard learned advocates appearing for the parties and having gone through the materials on record, the aforesaid length of service of the petitioners cannot be given a go bye in view of the decisions delivered by the coordinate Bench of this Court dated 05.09.2018 passed in Special Civil Application No. 14504 of 2016. In categorical terms after considering the several decisions, the Coordinate Bench of this Court has clearly opined that action on the part of respondent authorities in not making payment of pensionary benefit and not counting the entire length of service is arbitrary and illegal and therefore, issued necessary direction. Since this Court is relying upon the said decision in view of the judicial discipline and in view of similar set of circumstance as has been contended undisputedly the relevant action from the said decision deserves to be quoted hereunder: “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. “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. 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. 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.” 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. 6. The only reason putforth 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). 6.1 The decision on part of the authorities reflected in communication dated 18th July, 2016 that the petitioner had not completed 10 years of service since the date of becoming regular from 01st December, 1999 cannot stand in eye of law to deny the pensionary benefits to the petitioner. The entire service period right from the date of joining till the petitioner retired on 30th September, 2012, is liable to be counted and the pension is required to be paid accordingly. The present petition has to succeed. 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 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 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.” In the circumstance stated hereinabove, the respondents are directed to fix the pension of the petitioners by counting their entire length of services from the initial date of employment mentioned above in the service till the date of their respective retirement. The petitioners are also held entitled to all other retirement benefits including leave encashment and difference of gratuity as may be payable the total amount payable towards the pension to be calculated as above and the arrears arising thereby and other retirement benefits including those mentioned hereinbefore shall be paid to the petitioners within a period of six weeks from the date of receipt of this order. It is further provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry the interest at the rate of 6.5% from the date of filing of this petition and respondents are further directed to continue to pay the pension to the petitioners duly calculated as above. It is further provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry the interest at the rate of 6.5% from the date of filing of this petition and respondents are further directed to continue to pay the pension to the petitioners duly calculated as above. While parting with this order, it is made clear that petitioners are entitled for all these benefits for the year in which they have completed 240 days and accordingly, the amount shall have to be paid and further, the petitioners are also required to file an undertaking within a period of three weeks from today to the effect that in the event they are held not entitled to leave encashment as one of the benefits in Government Resolution dated 17.10.1988 by judgment in the group of letters patent appeal the amount so paid to the petitioners for that benefit shall be adjusted against the pension. Upon such filing of undertaking, due benefits be paid as per the aforesaid directions. With these observations and directions, the petition stands allowed. Rule is made absolute.