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Gujarat High Court · body

2022 DIGILAW 1116 (GUJ)

Ranjitsinh Raysinh Parmar v. State of Gujarat

2022-09-28

BIREN VAISHNAV

body2022
ORDER : 1. Heard learned advocates for the petitioners. 2. The prayer in the petition is to consider the services of the petitioners from the date of their initial appointment and grant gratuity and pension accordingly as per the order passed by this court in Special Civil Application No. 8281 of 2014 dated 14.07.2015. 3. It is the case of the petitioners that they were working as daily wagers with the respondent for more than 25 years and a copy of statement showing their date of appointment, date of retirement etc is annexed to the petition. 4. The petitioners filed a petition before this court being Special Civil Application No. 8281 of 2014 whereby the court observed on 14.07.2015 as under : “6. Ms. Pathak, the learned AGP vehemently submitted that the Government Resolution dated 17th October, 1988 does not provide for the benefit of the unavailed privilege leave. I am not impressed by such submission as this aspect has been well taken care of by the Division Bench decision of this Court referred to above. 6. In view of the aforesaid, this petition is allowed. The respondent is directed to calculate the amount towards the encashment of the unavailed privilege leave within a period of eight weeks from the date of the receipt of the order, and make the necessary payment to the petitioners while calculating the same the decision of the learned Single Judge referred to above in the case of Tribhuvanbahi Jairambhai shall be kept in mind. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 5. Against the aforesaid order, the respondent preferred an appeal being Letters Patent Appeal No. 126 of 2016 which was dismissed by the Division Bench of this court vide order dated 24.02.2016. SLP preferred against the same before the Apex Court was also dismissed. 6. It is the case of the petitioner that another employee being one Pradyuman Maganlal Badheka preferred Misc. Civil Application for modification of order dated 14.07.2015. This court vide order dated 12.04.2019 allowed the said application and directed to consider the period of ten years put in by the applicant as a daily wager for the purposes of grant of pension and gratuity. 7. Mr. Civil Application for modification of order dated 14.07.2015. This court vide order dated 12.04.2019 allowed the said application and directed to consider the period of ten years put in by the applicant as a daily wager for the purposes of grant of pension and gratuity. 7. Mr. Mishra, learned advocate for the petitioners would submit that in view of the order passed in the application for modification of order, the petitioners herein are also entitled to the said relief of considering the ten years of service as daily wagers to grant the benefit of pension and gratuity. He submitted that similarly situated employee named Pradyuman Maganlal Badheka approached this court for payment of gratuity from his initial date of appointment and therefore the petitioners are also entitled to the said benefit. 8. This court on 12.04.2019 passed the following order: “1. Rule returnable forthwith. Mr. K.P. Raval, the learned AGP waives service of notice of rule for and on behalf of the opponents. 2. By this application, the applicant – original petitioner has prayed for the following reliefs: 8(A) be pleased to allow the present application and be further pleased to direct the respondents to consider 10 years of service of the applicant which the applicant has spent as daily-wager, for the purpose of grant of pension and gratuity and modify the order dated 14/07/2015 passed in Special Civil Application No.8289 of 2014; (B) be further pleased to allow the original prayer (B) sought in the original SCA No.8289/2014; (C) be further pleased to condone the delay, if any, in filing the present application; (D) any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice;” 3. The case of the applicant in his own words as pleaded in his application is as under: 3.1 That the applicant is the citizen of India and has approached this Hon'ble Court filing above petition wherein the applicant has sought the following prayer in the original petition. The case of the applicant in his own words as pleaded in his application is as under: 3.1 That the applicant is the citizen of India and has approached this Hon'ble Court filing above petition wherein the applicant has sought the following prayer in the original petition. “(A) That Your Lordships be pleased to issue an order, direction or writ in the nature of mandamus and/or any other appropriate writ, order or direction to declare and hold that the petitioners are entitled for encashment of leave to the extent of 300 days at part with other permanent employees of the respondent and accordingly to please direct the respondents to credit the unavailed privilege leave in the Service Book of the petitioner; (B) Direct the respondent to consider the period which is more than 10 years spent as dailywager, for the purpose of granting pension and gratuity; (C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice;” 3.2 The above petition is heard by the Hon'ble Court and the petition was allowed vide order dated 14-7-2015. 3.3 The applicant respectfully submits that thereafter the aforesaid order and judgment passed by the Hon'ble Single Judge, was challenged by the respondents before the Division Bench, by filing L.P.A. No.633/2016. The Hon'ble Division Bench, disposed off the said Appeal vide order dated 197 2016. Thereafter, the order was not complied with and therefore, applicant has approached the Hon'ble Division Bench by filing Contempt Petition, being M.C.A. No.1162/2017. The Hon'ble Division Bench disposed off the said Contempt Petition vide order dated 11-12-2017. 3.4 The present application for modification in the order dated 14-7-2015 passed by the Hon'ble Court is required to be filed because of the fact that though the Hon'ble Court has quoted the prayer sought in the petition but while passing the final order in para6, the Hon'ble Court has directed the respondents to calculate the amount towards encashment of unavailed Privilege Leave within a period of 8 weeks from the date of receipt of the order and make necessary payment to the applicants. While calculating the same, the decision of the learned Single Judge, referred to above in the case of Tribhuvanbhai Jakirbhai shall be kept in mind, was observed but the Hon'ble Court did not direct the respondents to consider the period which is more than of 10 years spent as dailywager for the purpose of grant of pension and gratuity. Therefore, the Hon'ble Division Bench has not considered the Contempt Petition since the Hon'ble Single Judge has not directed the Government to consider 10 years of service which applicant has spent as dailywager. 3.5 The applicant respectfully submits that the respondent department has issued a letter dated 15-5-2014 wherein they have decided to deduct 10 years of service while granting pensionary benefits. It is in this view of the matter the present application is required to be filed seeking modification in the order dated 14-7-2015 passed by this Hon'ble Court. 3.6 The applicant respectfully submits that the issue is squarely covered by the decision rendered by the Hon'ble Supreme Court of India, in the case of Madhukar Vs. State of Maharashtra and Ors. reported in 2014 (2) CLR 281 , wherein the Hon'ble Supreme Court of India has held that the employee who has spent 10 years of service as dailywager is also required to be counted for the purpose of pension. Therefore, the Hon'ble Court may be kind enough to appropriately modify the order dated 14-7-2015 and be pleased to direct the respondents to consider 10 years of service spent by the applicant as dailywager for the purpose of grant of pension and gratuity. 3.7 The applicant respectfully submits that the original order passed by the learned Single Judge on 14-7-2015 was challenged by the respondent before the division Bench by filing LPA No.633/2016 and the Division Bench has dismissed the Appeal on 19-7-2016 and thereafter the applicant has filed Contempt Petition, being M.C.A. No.1162/2017 and the Hon'ble Division Bench has disposed off the same on 11-12-2017 and thereafter immediately the applicant has moved this application and therefore, there is no delay according to the case of the applicant. 4. The main matter i.e. Special Civil Application No.8289 of 2014 was disposed of by this Court vide order dated 14/07/2015. The operative part of the order reads as under: 6. In view of the aforesaid, this petition is allowed. 4. The main matter i.e. Special Civil Application No.8289 of 2014 was disposed of by this Court vide order dated 14/07/2015. The operative part of the order reads as under: 6. In view of the aforesaid, this petition is allowed. The respondent is directed to calculate the amount towards the encashment of the unavailed privilege leave within a period of eight weeks from the date of the receipt of the order, and make the necessary payment to the petitioners while calculating the same the decision of the learned Single Judge referred to above in the case of Tribhuvanbahi Jairambhai shall be kept in mind. Rule is made absolute to the aforesaid extent. Direct service is permitted. 5. It appears that the judgment and order passed by this Court was questioned by the State Government by preferring the Letters Patent Appeal No.633 of 2016. The appeal came to be dismissed vide order dated 19/07/2016. The order reads thus: This appeal is filed against the order dated 14.07.2015 passed by the learned Single Judge in Special Civil Application No.8289 of 2014. When the matter is called for hearing it is brought to our notice by the learned counsel for the respondent that the subject matter of the appeal is covered to be dismissed in view of the order dated 24.02.2016 passed in Letters Patent Appeal No.126 of 2016. 2. The learned Single Judge has disposed of two petitions being Special Civil Applications 8281 of 2014 and 8289 of 2014 by a common order dated 14.07.2015. Earlier an appeal was preferred being Letters Patent Appeal No.126 of 2016 aggrieved by order dated 14.07.2015 passed by the learned Single Judge in Special Civil Application No.8281 of 2014. The said Letters Patent Appeal was dismissed by this Court by order dated 24.02.2016. A copy of such order passed in Letters Patent Appeal No.126 of 2016 is placed on record. Having regard to the common order passed in Special Civil Applications No.8281 of 2014 and 8289 of 2014 and the order passed in Letters Patent Appeal No.126 of 2016, we are of the view that the subject matter of this appeal is covered to be dismissed. Following the order dated 24.02.2016 passed in Letters Patent Appeal No.126 of 2016 and for the reasons recorded therein, this Letters Patent Appeal is dismissed. 3. Consequently, no order on Civil Application No.6409 of 2016. Following the order dated 24.02.2016 passed in Letters Patent Appeal No.126 of 2016 and for the reasons recorded therein, this Letters Patent Appeal is dismissed. 3. Consequently, no order on Civil Application No.6409 of 2016. The Civil Application stands disposed of accordingly. 6. Thereafter, the applicant herein preferred a Contempt Application No.1162 of 2017. The said Contempt Application came to be disposed of by the Division Bench vide order dated 11/12/2017. The order reads thus: 1. This Miscellaneous Civil Application is filed under the provisions of the Contempt of Courts Act, 1971 with the prayers which read as under: 12(A) That Your Lordships be pleased to punish Shri P.V.Gajera, the Executive Engineer, Road & Building Department, Paan Vadi, Bhavnagar for not complying with the Order dated 19-7-2016 (ANN.C) passed by Division Bench of this Hon'ble Court in LPA No.633/2016; (B) That Your Lordships be pleased to direct the respondents to purge the contempt by fully complying with the order passed by this Hon'ble Court on 19-7-2016 in LPA No.633/2016; (C) Any other and further relief as may be deemed fit just and proper may be granted in the interest of justice. 2. The applicant herein who is working as daily wager with the respondents has invoked the jurisdiction of this Court under Article 226 of the Constitution of India by filing Special Civil Application No.8289 of 2014 with the prayers which read as under: (A) That Your Lordship be pleased to issue and order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, to declare and hold that the petitioners are entitled for encashment of leave to the extent of 300 days at par with other permanent employee of the respondent and accordingly to please direct the respondent to credit the unavailed privilege leave in the service book of the petitioner; (B) Direct the respondents to consider the period which is more than 10 years spent as Dailywager for the purpose of grant of pension and gratuity; (C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice. 3. Affidavit-in-reply is filed on behalf of the respondents. 3. Affidavit-in-reply is filed on behalf of the respondents. In the said affidavit-in-reply, while denying the various allegations made by the applicant herein, in paragaphs 5 and 6 of the reply, it is categorically stated that an amount of Rs.2,02,790/- is paid to the applicant towards leave encashment for maximum unavailed privilege leave of 300 leaves and the applicant in fact has received the entire amount. 4. In this application, it is contended by Shri Mishra, learned counsel for the applicant that while calculating the pension, services rendered by the applicant as a daily wager was not calculated. It is submitted that inspite of specific direction to decide the claim of the applicant by keeping in mind the judgment in the case of Tribhovanbhai Jerambhai V/s Deputy Executive Engineer reported in 1998 (2) GLH 1 , the respondents have not complied with the directions. Reliance is also placed on the judgment in the case of Madhukar V/s State of Maharashtra & Ors., reported in (2014) II CLR 281, wherein the Hon'ble Supreme Court has ordered that services rendered on daily wage basis be considered for the purpose of calculating pension. 5. On the other hand, learned Assistant Government Pleader Shri Antani appearing for the respondents submitted that the only direction issued is for payment of leave encashment which benefit is already extended to the applicant. 6. It is true that the applicant has prayed for the reliefs for grant of direction for payment of leave encashment to the extent of 300 days at par with other permanent employee and also to consider the period of more than 10 years which is spent as daily wager for the purpose of grant of pension and gratuity. 7. In absence of any specific direction for the grant of relief to reckon the period of daily wage service for the purpose of calculation of pension and gratuity, it cannot be said that the respondents have willfully and deliberately violated the directions issued by the learned Single Judge attracting the provisions of the Contempt of Courts Act, 1971. In that view of the matter, we do not find any merit in this application for grant of reliefs as prayed for. Accordingly, this application is dismissed. In that view of the matter, we do not find any merit in this application for grant of reliefs as prayed for. Accordingly, this application is dismissed. However, we make it clear that if any directions which are sought are not considered by the learned Single Judge, this will not preclude the applicant to seek appropriate remedy before the learned Single Judge or any other remedy available under the law. 7. It is the case of the applicant that in the main matter, there were two prayers; one with regard to the encashment of leave to the extent of 300 days at par with other permanent employees and the second prayer was with regard to the grant of pension and gratuity. 8. This application has been opposed by Mr. K.P. Raval, the learned AGP appearing for the State. Mr. Raval has drawn attention of the Court to the affidavit-in-reply filed on behalf of the State. The affidavit reads thus: 3. With regard to averments made in paragraph 4 of this Misc. Civil Apln. I say and submit that the learned Labour Court in LCB Case No.444/1989 vide order dtd.21.4.1992, reinstated the petitioner into service as a dailywager from 17.9.1981 and his service was considered as continuous from 17.9.1981. After completion of ten years of service of the applicant as a daily wager, he was absorbed in regular scale as permanent daily wager. The Road and Bldg. Department, vide Circular dtd.24.3.2006 passed resolution which provides for service of daily wager are eligible for pension from the date of absorbing as daily wager in regular scale. 4. I say and submit that on retirement of the applicant on 30.9.2012, as a work charge clerk, the applicant has been granted benefit as per Government Circular dtd. 24.3.2006 and 18.7.1994. I say and submit that applicant petitioner draws his pension considering continuous service from 8.10.1986 as per the order passed by the Labour Court. 5. I say and submit that as per circular of R & B dtd.24.3.2006, (Annexure-A1) on absorption of the applicant in the work charge establishment on 1.10.1988, the service of the applicant has been considered as continuous as per order of Labour Court dtd.8.10.1986 and accordingly pension is being paid. The applicant however, has demanded for revision of pension and his revised pension case was submitted to the Directorate of Pension and Provident Fund, Gandhinagar (present opponent no.1) for approval. The applicant however, has demanded for revision of pension and his revised pension case was submitted to the Directorate of Pension and Provident Fund, Gandhinagar (present opponent no.1) for approval. The opponent no.1 thereafter, vide letter dtd.4.4.2014 (Inward Date 15.4.2014) has informed to the office of the present deponent to deduct service of ten years. 6. I say and submit that Dy. Director, Office of Pension and Provident Fund has informed to the office of the present deponent, vide letter dtd. 5.7.2014, AnneuxreA3 that there was a period of 26 years of service of the applicant and there was a authorisation of pension for payment of gratuity and pension of Rs.5,895/- as per the last pay drawn by the applicant. The resolution of Finance Department, dtd.13.4.2009 provides that in case of superannuation of employees who retired on 1.1.2006 or thereafter who has rendered the pensionable service of ten years or more, pension is required to be pay as per 50% of last pay and as the pension of the petitioner has been authorized as per 50% of the last pay and even if the service as per demand of the applicant is ordered to be considered, there will not be any increase in the pension. It is further submitted that as per resolution dtd.24.3.2006 of R & B Department, the service of the dailywager, requires to be considered for pension only upto retirement from the date of becoming permanent and the service prior to becoming permanent requires to be deducted from the pensionable service. Therefore, while as on date of entering into service being 17.9.1981, the pensionable service requires to be considered from 1.10.1991. 7. I say and submit that the order dtd.14.7.2015 which has been passed in Special Civil Apln. No.8289 of 2014, where the order dtd.4.4.2014 issued by office of Director of Pension and Provident Fund, has not been quashed and at the same time, order dtd.4.4.2014 was not under challenge before this Hon'ble Court in the Special Civil Apln. No.8289/2014. 8. I say and submit that order dtd.14.7.2015, passed in Special Civil Apln. No.8289 of 2014, where the order dtd.4.4.2014 issued by office of Director of Pension and Provident Fund, has not been quashed and at the same time, order dtd.4.4.2014 was not under challenge before this Hon'ble Court in the Special Civil Apln. No.8289/2014. 8. I say and submit that order dtd.14.7.2015, passed in Special Civil Apln. No.8289/2014, along with 8281/2014 has been passed directing to calculate the amount towards encashment of the unavailed previlage leave within a period of eight weeks from the date of receipt of the order and make necessary payment to the petitioner and did not consider the prayer para (b) for considering the period which is more than ten years spent as a daily wager for the purpose of grant of pension and gratuity. 9. I say and submit that deponent i.e. present respondent no.2 has granted all eligible benefits to the applicant, gratuity, pension, leave encashment, insurance and GPF etc. by calculating service of the petitioner from 1986 as observed and directed by Labour Court, Bhavnagar and by this Hon'ble Court. The respondent no.2 has already complied with order passed in SCA no.8289/2014. 10. I say and submit that the direction has not been given rightly in considering the period of more than ten years as a daily wager for the purpose of grant of pension and gratuity and therefore, LPA bench as well as it has not been considered in the contempt petition. 11. I say and submit that with regard to averments made in para 5(A) & (B) of the application are concerned, same has been replied earlier and therefore, it does not required to be dealt with again. 12. I say and submit that in view of the aforesaid premises, prayer made by the applicant petitioner does not required to be granted in the interest of justice. 13. I say and submit that with regard to para 7 made in the application, the same does not required to be dealt with in the interest of justice. 14. I say and submit that with regard to averments made in para 8 of the application, the applicant may not be entitled to claim any relief as none of the prayer may be granted in the interest of justice. In view of the aforesaid facts and circumstances of the case, the petition deserves to be dismissed. 9. 14. I say and submit that with regard to averments made in para 8 of the application, the applicant may not be entitled to claim any relief as none of the prayer may be granted in the interest of justice. In view of the aforesaid facts and circumstances of the case, the petition deserves to be dismissed. 9. Thus, it appears from the stance of the State Government that the period of 10 years as a dailywager is not being counted for the purpose of grant of pension and gratuity. It appears from the materials on record that the period between 1981 and 1991 is sought to be excluded on the premise that the applicant came to be regularized in the service in the year 1991. All benefits have been granted to the applicant, but from 1991 onwards excluding the period of 10 years as a dailywager. 10. My attention has been drawn to a decision of the Division Bench of this Court delivered in the Letters Patent Appeal No.156 of 2017 in the case of State of Gujarat And Another Vs. Kititsinh Dhirybha Jadeja and Others, decided on 28/12/2017. 11. It appears that the very same stance was taken before the Division Bench as regards the period of work put in by the employee as a dailywager. In Paragraph3.1 of the judgment, a Division Bench has recorded the stance of the controlling authority. Paragraph3.1 reads thus: 3.1 Before the Controlling Authority the employer resisted the claim of the employee on the ground that for the period from 25.04.1985 to 24.04.1995, the employee was working as a daily wager and such period was to be excluded from the total period of service for the purposes of payment of gratuity in accordance with the resolution dated 24.03.2006 and that the gratuity entitlement was only for the period from 25.04.1995 to 30.06.2010, one of the period during which the employee had worked on permanent establishment after having been granted the benefit of Government Resolution dated 17.10.1988. The Appellate Authority by its order dated 02.12.2014 rejected the appeal on the ground of being beyond the prescribed period of limitation and confirmed the order of the Controlling Authority. Hence, the petition before the learned Single Judge. 12. Ultimately, in paragraph 9, the Division Bench concluded as under: 9. The Appellate Authority by its order dated 02.12.2014 rejected the appeal on the ground of being beyond the prescribed period of limitation and confirmed the order of the Controlling Authority. Hence, the petition before the learned Single Judge. 12. Ultimately, in paragraph 9, the Division Bench concluded as under: 9. Having considered the judgment rendered in Letters Patent Appeal No. 1195 of 2017, relevant portion of which is reproduced herein above, 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. Thus, the position of law is clear. In view of the above, the applicant is entitled to the relief as prayed for in terms of Paragraph 8(B) in the main petition. The respondents shall consider the period of 10 years put in by the applicant as a dailywager for the purpose of grant of pension and gratuity. Let the pension and gratuity are fixed keeping in mind the period of 10 years also as a dailywager. Let this exercise be undertaken at the earliest and shall be completed within a period of two months from the date of receipt of this order. 14. With the above, this application is disposed of. Rule made absolute to the aforesaid extent. Direct service is permitted.” 9. In view of the above, the petition is required to be allowed. Let this exercise be undertaken at the earliest and shall be completed within a period of two months from the date of receipt of this order. 14. With the above, this application is disposed of. Rule made absolute to the aforesaid extent. Direct service is permitted.” 9. In view of the above, the petition is required to be allowed. Accordingly, it is directed that the respondents shall consider the period of ten years put in by the petitioners as daily wagers of the purpose of grant of pension and gratuity. Similarly, the respondents shall also consider the services of the petitioners from their initial date of appointment and grant the gratuity and pension. The entire exercise shall be completed within a period of eight weeks from the date of receipt of the writ of the order of this court. Petition is accordingly allowed. No costs. Direct service is permitted.