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2022 DIGILAW 1118 (GUJ)

Saburbhai Mansukhbhai Nayka v. State of Gujarat

2022-09-28

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE returnable forthwith. Learned AGP Mr.Soaham Joshi waives service of notice of Rule on behalf of the respondents. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India the petitioner has prayed to fix his pension and to pay him other retirement benefits by taking into consideration his entire length of service right from the date of his appointment i.e. 01.07.1994 till the date of his retirement on 31.03.2017. 4. Facts in brief would indicate that the petitioner was engaged as a daily wager from 01.07.1994 and retired from service on 31.03.2017 after completing 23 years of service. 5. From the record of this case as is evident from page 26 of the petition, the petitioner was appointed on 01.07.1994 and has completed more than 20 years of service in which he has completed 240 days. By order dated 23.01.2015 the petitioner was granted benefit of Government resolution dated 15.09.2014. However, while considering his service, the years in which he has not completed 240 days of service were excluded for calculation of pensionary benefits. According to learned AGP the petitioner was engaged as a daily wager and he cannot be granted benefits of pension as he has hardly worked for ten years prior to 2005. 6. Reliance was placed by learned advocate for the petitioner on the decision in case of EXECUTIVE ENGINEER PANCHAYAT (MAA & M) DEPARTMENT and Another Versus SAMUDABHAI JYOTIBHAI BHEDI & other reported in 2017 (4) GLR 2952 . 7. On the issue of grant of pension, reliance was placed by Mr.Dave on an order passed by this Court in Special Civil Application No.12350 of 2016 dated 22.12.2016. The Court therein was considering the rejection of the applications under Section 33(C)(2) of the I.D. Act, wherein, an identical prayer for pensionary benefits was made. 8. The Court in para 8 of the decision did consider the settled legal position under Section 33(C)(2) of the I.D. Act and after considering the decisions of this Court as well as the Supreme Court, held as under: “8. True that the settled legal position as regards Section 33C(2) of the Act is, as canvassed by learned AGP. 8. The Court in para 8 of the decision did consider the settled legal position under Section 33(C)(2) of the I.D. Act and after considering the decisions of this Court as well as the Supreme Court, held as under: “8. True that the settled legal position as regards Section 33C(2) of the Act is, as canvassed by learned AGP. Section 33C(2) of the Act cannot be applied for adjudicating the facts in dispute but the facts in dispute must be genuinely disputed and not for the sake of disputing them. The crucial expression used in Section 33C(2) of the Act is thus: “Where any workman is entitled to receive from the employer …. “The expression “entitlement” will have to be given its due and appropriate meaning. “Entitlement” may flow from statutorily recognised rights or recognised policy as may have been interpreted by the High Court or the Supreme Court or from some other legal source. If the legal position concerning the statute or the policy is made clear by interpretation by High Court or the Supreme Court, and if by virtue of such interpretation, the beneficiary is found to be entitled to certain benefits contemplated in the statute or the policy, such entitlement, in the opinion of this Court, would be the entitlement within the meaning of subsec.2 of Section 33(C) of the Act. If there are genuine reasons for disputing the entitlement, as contemplated in Section 33(C)(2) of the Act, of course, the court or the judicial authority exercising the power under Section 33(C)(2) of the Act would not have a jurisdiction to adjudicate upon disputed entitlement. If the issue of law has been raised in past and is settled by the court and is accepted and implemented, raising of such an issue once again to challenge the entitlement of the workman under Section 33(C)(2) of the Act would not, in the opinion of this Court, constitute a genuine dispute. When the Government or the public body is a litigant before the judicial authorities like Labour Court, it owes an extra duty and a fair approach for resolution of the claims genuinely raised by the lower strata of the society wherein the workman comprises. In stead of raising in-genuine dispute, constitutional obligation of the State would require it to place before the judicial authority the facts if any against and in favour of the workman. In stead of raising in-genuine dispute, constitutional obligation of the State would require it to place before the judicial authority the facts if any against and in favour of the workman. The fairness would require the State or its instrumentality the other public body to point out to the judicial authority, the legal position relating to the subject matter of the dispute irrespective of its adverse effect on its case for the object of the state or its instrumentality. If the scheme of some of the relevant provisions, namely, Sections 3, 4, 5, 9C, 10(i) (a) and 12 of the Industrial Disputes Act is borne in mind, the legislative intent to ensure the resolution of the industrial dispute through mechanism like Works Committee, Conciliation Officers and Board of Conciliation before its reference to the adjudicating forum is eloquent and clear. Appropriate Government is required to play a crucial role in above referred provisions even as it is duty bound to ensure the constitution of the appropriate dispute resolution mechanism for resolution of the industrial disputes before its reference to the adjudicating forum. The very object of the constitution of the mechanism aforestated being resolution of the industrial disputes at the threshold, the obligation of the appropriate Government to ensure resolution of the industrial dispute by avoiding avoidable pleas in cases where it is one of the parties to the industrial dispute multiples manifold. In other words, when the appropriate Government is a party to industrial dispute, it owes extra responsibility to ensure the use of the said mechanism for settlement of the disputes by avoiding avoidable contest. Article 14 of the Constitution of India would prohibit it to conduct a case like a private litigant who can raise all sorts of hurdles to unnecessarily resist the claim of the workman. When such is the statutory and constitutional obligation of the appropriate Government, its disputant department or its instrumentality who may be summoned to aforestated mechanism for resolution of the industrial dispute would be constitutionally obliged to scrupulously follow the binding judicial pronouncements in a bid to resolve the dispute at the threshold rather than ensuring the mechanical or artificial reference of the disputes to adjudicatory forum; else they will be failing in observing the constitutional obligation. 9. 9. The interpretation of the G.R. dated 17.10.1988 so far made by this Court briefly stated is that, once the eligible daily wager is found to have rendered specified service within the meaning of Section 25B of the Act, entire such service from the date of his entry until retirement has to be reckoned for pensionary and other related benefits. If the reference is required on this count, this Court may refer to the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer [ 1998(2) GLH 1 ]. The Court had extensively discussed the issue similar to the one raised in these petitions thus: “1. The petition relates to travails of a person who has been in the employment of the State Government for almost 28 years and still awaiting for his retiral benefits in terms of the Government's order, revealing a pathetic insensitivity towards the fellow employees who has superannuated and look for a peaceful and quiet life at the twilight of his life banking upon the retiral benefits assured under the relevant rules and orders of the State authorities themselves. 2. The facts which are not in dispute are that the petitioner had been in service of the State Government mostly as a daily rated workman since 1966 until he was treated permanent in terms of Government Resolution dated 17.10.1988 and retired on completing sixty years on 31.1.1994. After laying the claim before the Assistant Labour Commissioner and Provident Fund Commissioner his retiral benefits in the form of gratuity and provident fund contributions were determined and paid by treating the period of service rendered by the petitioner from 1966 to 1994. However, the pension, the regular source of income to maintain a retired employee had not so far not been granted. In fact, an attempt has been made to show that the petitioner is not entitled to pensionary benefit because he has not completed qualifying service as per the award read in the light of Bombay Civil Services Rules governing the grant of pension. 3. Though initially the learned counsel for the respondent tentatively sought to urge that as on the date of retirement on 31.1.1994 the petitioner has not completed 10 years of service as daily rated employee and he cannot be treated as permanent in terms of resolution dated 17.10.1966. 3. Though initially the learned counsel for the respondent tentatively sought to urge that as on the date of retirement on 31.1.1994 the petitioner has not completed 10 years of service as daily rated employee and he cannot be treated as permanent in terms of resolution dated 17.10.1966. But when it was pointed out that in reply the respondents have admitted that the petitioner was a daily wager for the period of 1966 to 1987. It is further revealed from the reply that though department initially treated the petitioner in employment as daily rated workman on work charge establishment with effect from 16.4.1987 only, and paid gratuity for that period only, ultimately on a dispute having been raised in that regard the petitioner was held to be in service with effect from 1966 and gratuity was paid for the entire period from 1966 to 1994, the learned counsel candidly stated that the fact that petitioner was in service of respondents since 1966 cannot be disputed. This further makes it clear that as on date resolutions dated 17.10.1988 was made by the Government the petitioner had been in employment of State for more than ten years as daily rated employee, entitled to be treated as permanent. 4. The short question which concerns the issue before me is whether the petitioner is entitled to pension or not. Primarily, the question of pension in pensionable service has been determined under Section III of the Bombay Civil Services Rules, 1959 commencing from Rule 230 onwards. It has been contended by the learned counsel for the respondents that the petitioner being on daily wages, was not holding a pensionable service under Section 230 nor he falls in the exception to the Rule provided thereunder, therefore, the services rendered on daily wages basis prior to his becoming permanent cannot be considered as qualifying service for the purpose of pension. 5. It was urged also that the service has been declared as pensionable by the resolution dated 17.10.1988 by the Government, which deems a daily rated workman on completion of ten years service as on 1.10.1988 or thereafter as deemed to be in permanent service and has been made entitled to pension. However, for the purpose of entitlement of pension under resolution the service on regular basis only has to be counted for determining qualifying service and entitled to pension. However, for the purpose of entitlement of pension under resolution the service on regular basis only has to be counted for determining qualifying service and entitled to pension. As the petitioner has not been on permanent basis after he can be deemed to have become permanent as on 1.10.1988, for the qualifying period of ten years he is not entitled to pension. 6. This plea, in my opinion, cannot be sustained being contrary to record and Government's own decision. 7. Rule 230 of Bombay Civil Services Rules says that unless in any case it is otherwise provided by or under the Rules a Government Servant is considered in pensionable service if he holds substantively a permanent post in Government service. The argument is that though the petitioner may be treated as permanent under Resolution dated 17.10.1988, he cannot be deemed to holding a permanent post. Without going into this contention it may be noticed that rule itself envisages that a person may be otherwise eligible to pension if so provided by or under the Rules. In this connection, attention has been drawn to Rule 248 of the Rules. 8. Rule 248 of the Bombay Civil Services Rules provide that Government may by general or special order permit service other than pensionable service for performing which a government servant is paid from State revenues or from a local fund to be treated as a duty counting for pension. In issuing such order the Government is to specify the method at which the amount of duty shall be calculated and may impose any condition which it thinks fit. Thus Government has necessary power to provide for pension even in cases where service other than pensionable service may become eligible for grant of pension. 9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularisation is taken into consideration for the purpose of computing pension or making pension available to such retired employee. 10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same. 11. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same. 11. In view of the aforesaid, I have no hesitation in coming to the conclusion that resolution dated 17.10.1988 read with resolution dated 30.5.1989 read with Rule 248, of the Bombay Civil Services Rules, the petitioner is entitled to pensionary benefits by counting the entire period of service from 1966 to 1994 until the date of his retirement which is to be counted continuous under Section 25B of the Industrial Disputes Act as qualifying service and determining the pension payable to the petitioner who has retired on 31.1.1994, on that basis. 12. Accordingly, this petition is allowed. The respondents are directed to compute the pension payable to the petitioner on the aforesaid basis within the period of months from today and release the arrears of pension payable to the petitioner on such determination within a further period of one month and start making regular payment of pension with effect from the date of such determination. The petitioner be paid the costs of this petition which is quantified at Rs.3000/-. Rule made absolute accordingly.” The ratio laid down in the said case which has subsequently been followed by this Court in several cases, relied upon by the learned counsel for the petitioners ought to have concluded the issue as regards entitlement to the pension and other related benefits or clubbing of two periods of service indicated above; and in all fairness, the respondent No.2 ought to have conceded to the fact that the benefits under G.R. dated 17.10.1988 were already conferred upon the eligible daily wagers, and that, in view of the ratio laid down by this Court in the above case, the petitioners are entitled to more benefits including pension and related terminal benefits. The entitlement of the workman under the circumstances could not have been genuinely disputed inasmuch as, at the cost of repetition, it must be observed that the grant of benefit under G.R. dated 17.10.1988 implies an admission on the part of the respondents that they were so entitled and the relevant criteria including completion of the service as provided in Section 25B of the Act was satisfied inasmuch as, in absence of such satisfaction, the benefits under G. R. dated 17.10.1988 could not have been conferred upon the workmen. The matter is, therefore, squarely covered by the decision of this Court in Tribhovanbhai (supra) and could not have been reagitated. … … 11. Only question which ought to have been asked by the Labour Court was: whether the G.R. dated 17.10.1988 has been interpreted by this High Court, and if yes, whether the High Court has held that the past continuous service of the workman are required to be taken into consideration for extending the benefits under G.R. dated 17.10.1988. If the answer to the said question was in affirmative, there remained nothing to be adjudicated and thus recovery applications were maintainable. 12. Even otherwise, in the opinion of this Court, a writ petition under Article 226 of the Constitution of India for enforcing the G.R. dated 17.10.1988 would lie in absence of the serious dispute of the facts of the case. Concededly, G.R. dated 17.10.1988 has been applied to the petitioners and, therefore, its applicability is not in dispute. The only dispute raised by the State in its affidavit is with regard to the interpretation of the said G.R. which has already been interpreted in Tribhovanbhai (supra), and thus, applying the ratio laid down therein, in the opinion of this Court, the respondents are not right when they say that for the purpose of pensionary benefits, the services post regularisation only must be reckoned. 13. Reliance placed on G.R. dated 24.3.2006 in support of the above contention is also misconceived since the said issue has been set at rest in Nirubha Vajubhai Sarvaiya v. State of Gujarat and three others [2016 Lawsuit (Guj) 155]. The said case has been followed by this Court in Ranabhai Ajmalbhai Harijan, since deceased through legal heirs – petitioners v. Secretary, Road and Building, Sachivalaya, Gandhinagar and two others [Special Civil Application No. 18036 of 2013 decided on 19.10.2016. It is, however, stated by the learned AGP that the decision in Nirubha (supra) is pending consideration in Letters Patent Appeal. In the opinion of this Court, mere pendency of the appeal would not be sufficient to deter this Court from following the said case.” 9. The judgment of the coordinate bench was confirmed by the Division Bench in Letters Patent Appeal No.36 of 2018 and also upheld by the Supreme Court. 10. In the opinion of this Court, mere pendency of the appeal would not be sufficient to deter this Court from following the said case.” 9. The judgment of the coordinate bench was confirmed by the Division Bench in Letters Patent Appeal No.36 of 2018 and also upheld by the Supreme Court. 10. Learned AGP would also rely on the decision of the Division Bench of this Court in Letters Patent Appeal No.214 of 2021, which indicates that for only those period in which the workman had worked for 240 days in a year, the benefits would be available. 11. In light of the decision rendered in Special Civil Application No.15601 of 2020 dated 27.01.2022, this Court while considering the decision in Letters Patent Appeal No.1495 of 1997 which was extensively concluded in para 6 reads as under: “6 Considering the decision rendered in Letters Patent Appeal No. 1495 of 1997 decided on 06.08.1998, the Division Bench of this Court held as under: “This appeal is directed against judgment dated November 10, 1997 rendered by the learned Single Judge in Special Civil Application no. 7539/97 by which prayer claimed by the appellant to direct the respondents to pay pension to him has been rejected. The appellant worked as a daily wager under the respondent no.1 from September 24 to October 13, 1989. He retired from service on October 13, 1989. According to him, he was entitled to pension and, therefore, approached the Surat District Dalit Seva Sangh for taking-up his cause. The President of the Sangh wrote a letter dated November 8, 1994 to respondent no.3 requesting him to do needful in the matte of grant of pension to the appellant. The Sangh received a letter dated December 22, 1995 from respondent no.1 to the effect that the appellant was not entitled to pension in view of the Government resolution dated October 17, 1988. The Sangh received a letter dated December 22, 1995 from respondent no.1 to the effect that the appellant was not entitled to pension in view of the Government resolution dated October 17, 1988. From the letter dated January 7, 1997, which was addressed by respondent no.1 to the President of Sangh, it is evident that the benefit of pension was not granted to the appellant, as according to the respondents, the appellant had put in 8 years of continuous service, wherein he had worked for more than 240 days in every year and as the appellant had not put in 10 years of continuous service, wherein he had worked for more than 240 days, the appellant was not entitled to pension benefit. The letter dated January 7, 1997 is produced by the appellant at Annexure-D. In his career, the appellant had worked for more than 240 days in 14 years and, therefore, according to him he was entitled to pension. Under the circumstances, the appellant instituted Special Civil Application no. 7539/97 and prayed to direct the respondents to pay pension to him. An affidavit-in-reply was filed on behalf of the respondents by Deputy Executive Engineer, Surat Canal Division No.IV, Kholwod, Surat controverting the averments made in the petition. In the reply affidavit, it was claimed that there were breaks in service of the appellant and as he had not worked for 10 years continuously in which he had worked for more than 240 days, he was not entitled to the relief claimed in the petition. After hearing the parties, the learned Single Judge has rejected the petition by order dated November 10, 1997, which has given rise to present appeal. Learned Counsel for the appellant submitted that the appellant had put in 10 years of continuous service within the meaning of Government Resolution dated October 17, 1988 as amended by Resolution dated November 29, 1994 and, therefore, the appellant should be granted benefit of pension; whereas the learned Counsel for the respondents pleaded that the appellant had not put in 10 years of continuous service as a daily wager in which he had worked for more than 240 days and, therefore, the decision rendered by the learned Single Judge should not be interfered with in present Appeal. We have heard the learned Counsel for the parties. We have heard the learned Counsel for the parties. The learned Counsel for the respondents has produced an abstract indicating the number of days during which the appellant had worked from 1968-69 to 1988-89. It is ordered to be taken on record of the appeal. The abstract reads as under :- Sr. No. Year October to Sept. Total No. presence 1. 1968-69 204 1/2 2. 1969-70 295 3. 1970-71 254 4. 1971-72 153 5. 1972-73 169 6. 1973-74 321 7. 1974-75 210 8. 1975-76 255 ½ 9. 1976-77 297 10. 1977-78 291 11. 1978-79 122 12. 1979-80 -- 13. 1980-81 128 14. 1981-82 242 15. 1982-83 252 16. 1983-84 273 17. 1984-85 322 18. 1985-86 269 19. 1986-87 316 20. 1987-88 299 21. 1988-89 246. Remarks: As seen from the statement that in the years 1969- 70, 1970-71, 1973-74, 1975-76, 1976-77 and 1977-78 the appellant had worked for more than 240 days, but his service is not continuous (marked ) and in the years 1981-82 to 1988-89 i.e. 8 years he had served continuously (marked ). As per resolution dated 17.10.88 and looking to the fact above, eight years service is not pensionable As per the resolution dated October 17, 1988, daily wage worker who has put in service for more than 10 years as per section 25-B of the Industrial Disputes Act, 1947, is entitled to retiral benefits. Section 25-B of the Industrial Disputes Act, 1947 defines 'continuous service'. According to said provision, a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman. Sub-section (2) of Section 25-B introduces a deeming fiction and provides that where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under the circumstances mentioned in the said sub-section. From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years the appellant had worked for more than 240 days. From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years the appellant had worked for more than 240 days. The Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 458 has ruled that continuous service is to be counted by including Sundays and other holidays, sickness or authorised leave and accident or strike which is not illegal or a cessation which is not due to any fault on the part of workman. The respondents have failed to produce any material on record of the case to indicate that in the year 1980-81 and 1981-82 there was a cessation of work due to any fault on the part of the appellant. Therefore, the appellant had continuously served for a period of more than 10 years within the meaning of Resolution dated October 17, 1988. The submission made by the learned Counsel for the respondents that the appellant had completed 240 days' work in 8 years only, which is less than 10 years and, therefore, the appellant is not entitled to pension, cannot be accepted. It is an admitted fact that while denying the claim of the appellant, Sundays and other holidays, sickness or authorised leave etc. were not taken into consideration by the respondents, nor the question was considered whether there was any cessation of work which was not due to any fault on the part of the appellant. It may be stated that the appellant served as a daily wager for about 21 years and retired from service on October 13, 1989. Having regard to the facts of the case, even there were some small breaks in service of the appellant which had taken place in the years 1980-81 and 1981-82, they have been condoned by the respondents for the purpose of retiral benefits. On the facts and in the circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days, he is entitled to the benefit of pension. On the facts and in the circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days, he is entitled to the benefit of pension. The learned Single Judge was not justified in rejecting the claim of the appellant on the ground that the appellant had not worked for 240 days' continuously in 10 years and was, therefore, not entitled to pension. The appeal, therefore, deserves to be accepted. For the foregoing reasons, the appeal succeeds. The order dated November 10, 1997 rendered by the learned Single Judge in Special Civil Application no. 7539/97 is hereby set aside and quashed. Special Civil Application no. 7539/97 stands allowed. The letters dated January 7, 1997 and June 20, 1997 are hereby set aside and quashed. The respondents are directed to calculate pensionary benefits within two months and thereafter to pay the amount due to the appellant within one month after completing calculation. It is clarified that if the amount is not paid as directed above, the respondents shall pay the said amount to the appellant with 12% interest thereon from the date of expiry of one month of making calculation till the actual payment is made. The appeal is accordingly, allowed, with no order as to costs.” 7. Even in the decision of the Division Bench, rendered in Letters Patent Appeal No. 2047 of 2004 dated 29.03.2016, the Division Bench held as under : “6. That learned Single Judge after adverting to sub Section (1) of Section 25B of the I.D. Act, 1947 vis-a-vis Government Resolution dated 17.10.1988 held as under: Therefore, in view of the observations made by this Court as well as the Hon'ble apex court in aforesaid decisions and also in view of the definition of the term 'continuous service' given in section 25-B of the ID Act as interpreted by the apex court in case of American Express (supra), now, I am considering the effect of the Government Resolution dated 17.10.1988. Item 3 page 30 of the said Government Resolution dated 17.10.1988 provides that those daily wager who has completed the service of more than ten years as provided under section 25(B) shall be considered permanent and such permanent labour shall be placed in the pay scale of Rs.750-940 plus other allowances. Item 3 page 30 of the said Government Resolution dated 17.10.1988 provides that those daily wager who has completed the service of more than ten years as provided under section 25(B) shall be considered permanent and such permanent labour shall be placed in the pay scale of Rs.750-940 plus other allowances. As per the said item 3 of the said GR, it has been resolved that such daily wagers should be given the pension, gratuity, general provident fund in accordance with the existing rules and regulations and they would be entitled for Sunday leave and national holidays leave over and above two leave per year as well as 14 days casual leave, 30 days' earned leave and 20 days half pay leave. Thus, bare reading of item 3 of the said resolution would make it clear that if the daily wager is satisfies that he has completed ten years service as required under section 25-B of the ID Act, 1947, then, he is entitled to become permanent employee of the respondent establishment. This is the only condition incorporated in item 3 of the said resolution dated 17.10.88 entitling the daily wager for claiming benefit of pension. Even the clarification which has been brought to the notice of this court. First item No.2 is also making it clear that if the daily wager has remained in continuous service as defined under section 25B of the ID Act and similarly to consider the rest of the years, then, such workman is entitled for the benefit of the Government Resolution dated 17.10.88. Item 38 and 39 thereof also saying the same thing that if the daily wager has completed 240 days continuous service in each year as defined under section 25B of the ID Act, and if the workman has completed ten years of service on the basis of such calculation for every year, then, he is entitled for the benefit of pension from the respondent establishment. It is made clear in the said GR dated 17.10.88 as well as the clarification brought to the notice of this court that it has not been clarified that they are to consider section 25B(1) or 25B(2) but the State Government has mentioned 25B as a whole which includes both namely sub section (1) and (2). It is made clear in the said GR dated 17.10.88 as well as the clarification brought to the notice of this court that it has not been clarified that they are to consider section 25B(1) or 25B(2) but the State Government has mentioned 25B as a whole which includes both namely sub section (1) and (2). In view of that, it is the duty of the State Government to consider entire section 25B with sub section (1) and (2) of the ID Act while considering the entitlement of such workman for such benefits. In view of the above observations, the net effect of section 25-B sub section (1) is to the effect that if the daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned mentioned in subsection (1), whatever kind of cessation of work which is not due to the fault of the daily wager, then, his service must have to be considered continuous for a period of one year irrespective of the fact whether such daily wager has completed 240 days actual work or not during this one year. Reason is that during the one year, though the daily wager has not completed 240 days continuous service, but during that period also, the services of such daily wager has not been terminated by the employer and in-between the relationship of the employer and employee was remaining in force which makes continuous service of one year and that period must be taken into consideration irrespective of the fact that 240 days actual work has been completed or not by such daily wager but such daily wager has remained in service with the employer on permanent employment and pensionable service. Similarly, in respect of sub section (2) of section 25B of the ID Act, if the daily wager is not remaining in service for a period of 12 calendar months but even less number of months but he completes 240 days working, then also, that less number of months may be considered for one year continuous service. Similarly, in respect of sub section (2) of section 25B of the ID Act, if the daily wager is not remaining in service for a period of 12 calendar months but even less number of months but he completes 240 days working, then also, that less number of months may be considered for one year continuous service. This being two distinct and different situation incorporated by the legislature in sub section (1) and (2) of section 25B of the ID Act, if the daily wager is satisfying either of the one, then his services must have to be considered continuous for a period of one year within the meaning of section 25B of the Industrial Disputes Act, 1947.” 7. Having heard learned advocates appearing for the parties and perusal of the record and the order under challenge, we find no error on law much less on facts appears in the judgement under challenge. Learned Single Judge having adverted to nature of right of an employee to receive pension upon completion of 10 years of continuous service in the context of definition of Section 25B of I.D.Act, 1947 read with Government Resolution dated 17.10.1988 of State of Gujarat, and relying on decisions of the Apex Court for the expression 'actually worked under the employer' would mean number of days namely, Sundays and other paid holidays on which the workman had actually performed the duties. By applying the above parameter in the light of decision of the Apex Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and even as appeared from the record of the case namely, certificate issued by Dy. Executive Engineer, Panchayat Department, Road and Building Patadi at Annexure J to the petition reveal that in the year 1981, 1984 to 1991 for all these 9 years workman had completed more than 240 days and in the year 1983 workman-petitioner had actually worked even as per the above certificate for 235 days, in which, public and paid holidays are included would exceed 240 days and thus continuous service for 10 years of the petitioner surfaces on record. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. So on facts and on law as a whole the case of the petitioner is squarely covered and there is not an iota of doubt of completion of 10 years of continuous service by the workman having served for 240 days in a year during such period, we find no error in the judgement under challenge passed by the learned Single Judge. 8. Since the subject petition is pertaining to entitlement of pension to be released in favour of the original petitioner (now deceased) so as the wife of the deceased employee who was brought on record as respondent No.1/1 also died during pendency of this appeal remaining legal heirs respondent Nos. 1/2, 1/3, 1/4 and 1/5 shall be entitled to receive the pension as ordered by learned Single Judge. The amount of pension as ordered by learned Single Judge shall be released within eight weeks from the date of receipt of order/ writ of this Court.” 12. Learned AGP on the other hand would rely on the order passed by this Court in Letters Patent Appeal No.485 of 2017, where, the issue of continuity of service was held in favour of the employee which is a subject matter of SLP No.2116 of 2022 pending before the Supreme Court, wherein, the order of the Division Bench in Letters Patent Appeal No.485 of 2017 has been stayed. 13. In light of the judgement rendered in Special Civil Application No.15601 of 2020 which has been passed on the basis of two Division Bench judgements of this Court passed in LPA No.1495 of 1997 and LPA No.2047 of 2004, it becomes very clear that as per the Government Resolution dated 17.10.1988, once daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned in Subsection (1), whatever kind of cessession of work which is not due to the fault of daily wager then, his service must have to be considered continuous for a period of one year, irrespective of the fact that whether such daily wager has completed 240 days actual work or not during that year. The judgements relied upon by learned AGP would not be helpful to the present case inasmuch as in the said cases, there was no controversy as to how 240 days in a year shall have to be calculated. On the other hand, the above said judgments in LPA No.1495 of 1997 and LPA No.2047 of 2004 is to the point which would clearly indicate as to how calculation of 240 working days for the purpose of entitlement under Government Resolution dated 17.10.1988 is to be done. 14. There is yet another decision of the coordinate bench of this Court which would clinch the issue. In Special Civil Application No.5319 of 2019, the coordinate bench has held as under: “5.3 It may be stated that in PWD & Forest Employees' Union (Formerly PWD Employees' Union) v. State of Gujarat being Special Civil Application No.16084 of 2018 and group of petitions, additional aspect and submission was advanced which was recorded as under. “6.2 It may be mentioned herein that the group of petition which has been disposed of by the present order contained similar facts to group of petitions in Vasava Manilal Moyalabhai & other v. State of Gujarat being Special Civil Application No.18661 of 2017 and allied matters. The present order is in similar lines, however it was additionally submitted by learned senior advocate for the petitioners that a dailywager, in this case, forest employees, getting benefit under Resolution dated 17th October, 1988 and Resolution dated 15th September, 2014 as applied by the Supreme Court as per the direction in PWD and Forest Employees' Union (supra) would also be entitled to the benefits of Sunday Leave, National Holidays Leave, etc., in addition to other benefits as contemplated under Section 25B of the Industrial Disputes Act, 1947. This aspect was considered and confirmed by the Division Bench of this Court in Surendranagar District Panchayat v. Umarkhan Alikhan Malek being Letters Patent Appeal No.2047 of 2004 decided on 29th March, 2016, in which the Division Bench relied on the decision of the Apex Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation [ (1985) 4 SCC 71 ]. It could be rightly submitted that while counting 240 days in a year, the benefit of provision of Section 25B of the Industrial Disputes Act would be available to the workmen.” 5.4 The above observations and directions shall also be applied while considering the case of the petitioner. 6. In the aforesaid view, it is held that the petitioner would be entitled to the benefits under Resolution dated 17th October, 1988 read with Resolution dated 15th September, 2014 as interpreted and provided for by the Apex Court in PWD & Forest Employees Union (supra). In all procedural and substantive decisions which may be taken by the competent authority of the State Government, the law laid down by the Supreme Court in PWD & Forest Employees' Union (supra) shall hold the field and the benefits under the Resolution concerned shall be extended. 6.1 It is also directed that while taking decision as per the above observations, the law laid down in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation [ (1985) 4 SCC 71 ] as well as decision of the Division Bench in Surendranagar District Panchayat v. Umarkhan Alikhan Malek being Letters Patent Appeal No.2047 of 2004 decided on 29th March, 2016 shall be taken into account.” 15. The said decision has been confirmed in Letters Patent Appeal No.93 of 2021 by order dated 18.01.2021 and in turn has been confirmed by the Hon’ble Apex Court in Special Leave to Appeal No.13048 of 2021 by order dated 31.08.2021. 16. In light of the law laid down by this Court as confirmed by the Hon’ble Supreme Court in the facts of the present case if seen, admittedly, as per the service record produced on record of this case by the respondents, the petitioner has completed prior to cut off date of 01.04.2005, the 10 years of service with 240 days working, if Sundays and holidays are to be included in the said working days. Thus, the petitioner would become entitled to the pensionary benefits as per the service record produced on record. 17. Based on the above decisions, the petitioner need to have completed 23 years of service wherein he has rendered more than 240 days of service i.e. from the counting years 1994 to 2017 for the purposes of computing of pension. Thus, the petitioner would become entitled to the pensionary benefits as per the service record produced on record. 17. Based on the above decisions, the petitioner need to have completed 23 years of service wherein he has rendered more than 240 days of service i.e. from the counting years 1994 to 2017 for the purposes of computing of pension. Based on this computation, the respondents are directed to compute the terminal benefits of the petitioner and consequentially grant benefits of pension to the petitioner from the date of retirement i.e. from 31.03.2017, within a period of two months from the date of receipt of copy of this order. The petitioner is also held entitled to the benefits of leave encashment. 18. The petition is allowed, accordingly. Rule is made absolute to the above extent.