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Gujarat High Court · body

2022 DIGILAW 1387 (GUJ)

Bhaijibhai Hamirbhai Bamaniya v. State of Gujarat

2022-10-13

BIREN VAISHNAV

body2022
ORDER : 1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned AGP waives service of notice of rule on behalf of respondent State. 2. The prayers in these petitions are to hold and declare the action of the respondents in not making payment of pensionary benefits to the petitioners/legal heirs of the deceased employee by counting the employees’ entire length of service as illegal, unjustified and arbitrary and to direct the respondents to fix the pension of the petitioners by counting the service of the employees from the date of their joining till the date of retirement/death. Second relief that the petitioners have prayed for is the benefits of leave encashment, public holidays, transport allowance, medical allowance, group insurance at par with the permanent employees. 3. The case of the petitioners is that having retired from service they are not being paid full pensionary benefits by counting their initial date of appointment for the purposes of pensionary benefits. It is the case of the petitioners that their initial date of appointment for the purposes of pension is taken on completion of ten years. 4. Mr. Paresh Brahmbhatt, learned advocate for the petitioners would rely on a decision of this court rendered in Executive Engineer Panchayat (MAA & M.) Department & Another vs. Samudabhai Jyotibhai Bhedi [ 2017(4) GLR 2952 ] and submit that the employee’s services rendered from the initial date of appointment be counted for the purposes of pension. 4.1 Learned advocate appearing for the petitioners would rely on a decision rendered by the Division Bench in Letters Patent Appeal No. 36 of 2018 and connected matters dated 10.01.2018 and submit that even if the stand of the respondent is accepted, the Division Bench interpreting the decision in the case of Samudabhai Bhedi (supra) has held as under: “4.00. 4.1 Learned advocate appearing for the petitioners would rely on a decision rendered by the Division Bench in Letters Patent Appeal No. 36 of 2018 and connected matters dated 10.01.2018 and submit that even if the stand of the respondent is accepted, the Division Bench interpreting the decision in the case of Samudabhai Bhedi (supra) has held as under: “4.00. Having heard the learned advocates appearing on behalf of the respective parties, it is not in dispute that as such the dispute in the present Letters Patent Appeals, namely, whether the services rendered by the daily wager is required to be counted / considered for the purpose of pensionable service or not, is now not res-integra in view of decision of the Division Bench of this Court in the case of Executive Engineer Panchayat (MAA & M) Department and another Versus Samudabhai Jyotibhai Bhedi and others, reported in 2017(4) GLR 2952 as well as recent decision of the Division Bench of this Court dated 16/11/2017 rendered in Letters Patent Appeal No. 1215 of 2017, by which it is specifically observed and held that all those years in which the concerned workman has worked for more than 240 days as a daily wager is required to be considered while counting / considering the pensionable services of the daily wager. Under the circumstances, as such the issue involved in the present Letters Patent Appeals is now not res-integra in view of the aforesaid two decisions of the Division Bench of this Court. 4.01. In view of the above, more particularly aforesaid two decisions of the Division Bench of this Court, it cannot be said that the learned Single Judge has committed any error in directing to count/consider the services rendered by the concerned workmen as daily wager for the purpose of counting / considering pensionable service. However, it is observed and even as agreed by Mr.Dave, learned advocate appearing on behalf of the original petitioners that only those years in which the concerned workmen / employees – original petitioners have worked for more than 240 days as a daily wager are required to be considered / counted for the purpose of counting / considering pensionable service.” 5. Mr. Sharma, learned AGP for the respondent State has supported the stand of the respondents. 6. Mr. Sharma, learned AGP for the respondent State has supported the stand of the respondents. 6. Considering the decision of the Division Bench in Letters Patent Appeal No. 36 of 2018 and allied matters as also in the case of Samudabhai Bhedi (supra), it is clear that in all those years in which the concerned workman has worked for more than 240 days as daily wager is required to be considered while counting/considering the pensionable services of the daily wager. 6.1 A co-ordinate bench of this court in Special Civil Application No. 14137 of 2019 has taken a similar view and held as under on 18.09.2019 : “5.2 Thus, it is a clear position of law emerging from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of dailywager 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 petitioners, the factum is not controverted and it is undisputed that petitioner Nos.1 and 2 have throughout worked since their joining, to make their services continuous. 6. In view of the above, action on part of the respondents in not recognising the services of the petitioners herein from the date of their initial joining as daily rated workman cannot stand valid in eye of law. The respondents were not justified in counting the services for the purpose of pension from the date when the petitioners were made permanent at the completion of 10 years. The entire prior service ought to have been recognised and the pension should have been calculated and fixed accordingly. 7. Petitioner No.1 would be accordingly entitled to receive the pension by counting the pensionable service from the date of initial entry, that is 23.9.1989. Similarly, petitioner No.2 would be entitled to family pension by counting the pensionable service from the date of initial entry, that is 21.3.1982. The respondents are directed to fix the pension for the petitioners accordingly. The petitioners are also entitled to other benefits such as leave encashment, gratuity etc. as may be payable. 7.1 The total amount of pension and other benefits as above, becoming payable and the arrears thereof, shall be paid to the petitioners within a period of six weeks from the date of receipt of this order. 8. The petitioners are also entitled to other benefits such as leave encashment, gratuity etc. as may be payable. 7.1 The total amount of pension and other benefits as above, becoming payable and the arrears thereof, shall be paid to the petitioners 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 petitioners duly calculated as above. 9. The petition stands allowed as above.” 6.2 For the purposes of pension therefore as well as gratuity, the employees’ services rendered from their initial date of appointment has to be taken into consideration for the purposes of pension and gratuity. The apex court in the decision rendered in SLP No. 7229 of 2022 on 01.09.2022 has also directed payment of gratuity, leave encashment, public holidays, transport allowance, medical allowance, group insurance etc to such employees. 7. Accordingly, the petitions are allowed. The respondents are directed to consider the case of the petitioners – employees and grant pensionary benefits, gratuity as well as other terminal benefits counting the year of service from their initial date of appointment admittedly being more than ten years of service. The family pension may be fixed accordingly. The other benefits including gratuity, leave encashment, public holidays, transport allowance, medical allowance, group insurance shall also be recomputed and paid to the petitioners within a period of fifteen weeks from the date of receipt of the writ of the order of this court. Rule is made absolute. Direct service is permitted.