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2022 DIGILAW 480 (GUJ)

Sukhiben Ramabhai Meda v. State of Gujarat

2022-04-07

BIREN VAISHNAV

body2022
JUDGMENT : 1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of Rule for the respondent – State as well as Mr. U.M. Shastri, learned counsel waives service of notice of Rule for respondent No.2. 2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today. 3. Heard Mr. Brahmbhatt, learned counsel for the petitioners, Mr. U.M. Shastri, learned advocate for respondent No.2 and Mr. Kurven Desai, learned Assistant Government Pleader for the respondent-State. Perused the record. 4. By way of this petition, under Article 226 of the Constitution of India, the case of the petitioners is that they are legal heirs of the deceased Ramabhai Nathabhai Meda, who served as Class-IV employee under the respondent No.2 and died while discharging duties in the year 2007. He rendered services with the respondent No.2 from 21.10.1973 to 21.4.2007 continuously. Despite having rendered 34 years of service, on the death of Shri Ramabhai Nathabhai Meda, neither the family received any terminal benefits or family pension. 5. Mr. Brahmbhatt, learned counsel for the petitioners would rely on a decision of the Division Bench in Letters Patent Appeal No.958 of 2001 dated 18.3.2011 in the case of State of Gujarat and another v. Mahendrakumar Bhagvandas and another and submit that once the petitioner was granted the benefit of the GR dated 17.10.1988 on completion of ten years of service with effect from 1.4.2005, his past services could not have been ignored for the purposes of computing pension. He would rely on paragraph Nos.4 to 6 of the decision which read as under : “4. Bare reading of above stipulations contained in the G.R. dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees. Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government. 5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as “daily wager” (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best “permanent daily wage employees”, is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder. 6. Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms: “.................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of...............” 6. Mr. Brahmbhatt, learned advocate for the petitioners has relied on the decision in the case of Nirubha Vajubha Sarvaiya v. State of Gujarat of the Coordinate Bench of this Court dated 27.12.2018 passed in SCA Nos.16904 of 2015, wherein, the Court considering various decisions held that for the purposes of reckoning service and granting the benefits of 17.10.1988, the date of initial appointment has to be taken. The relevant portion of order dated 27.12.2018 reads as under : “4. Several decisions were pressed into service by learned advocate for the petitioner. By referring to decision in Tribhovanbhai Jerambhai v. Dy. The relevant portion of order dated 27.12.2018 reads as under : “4. Several decisions were pressed into service by learned advocate for the petitioner. By referring to decision in Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R&B Department [ 1998 (2) GLH 1 ] and confirmed in Letters Patent Appeal No.696 of 1999, the principle was highlighted that once a daily-rated workman is treated as permanent under Resolution dated 17th October, 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. Decision in Karshanbhai Vastabhai Bhasker v. State of Gujarat [ 1999 (1) GCD 638 ] in which Tribhovanbhai Jerambhai (supra) was relied on, was pressed into service. Another decision in Balvantbhai Sardarbhai Pagi v. Deputy Engineer [ 2017 (3) GLH 102 ] was relied on for similar submission. 4.1 Next pressed into service was decision of Division Bench of this Court in Executive Engineer, Panchayat v. Samudabhai Jyotibhai Bhedi [ 2017 (4) GLR 2952 ]. Yet another judgment of Division Bench relied on was in State of Gujarat v. Govindbhai Ukabhai Parmar being Letters Patent Appeal No.174 of 2017 decided on 11th July, 2018 wherein Samudabhai Jyotibhai Bhedi (supra) was relied on. On the basis of all the abovesaid judgment, petitioner contended that for the purpose of pension, his services ought to have been counted from the date of initial appointment whereas the respondents committed error and illegality in not counting accordingly but reckoning from the date of reinstatement. 4.2 Learned Assistant Government Pleader on the other hand submitted that even though the benefits under Resolution dated 17th October, 1988 may flow for the petitioner, as far as pensionable period of service is concerned, it could be reckoned only from the date since the petitioner was treated as permanent under the said Resolution. Thus it is not the date of initial appointment but the date of absorption as permanent as per policy under Resolution dated 17th October, 1988, which would hold good for pensionability and would count for pensionable service. Learned Assistant Government Pleader relied on decision of this Court in Govindbhai Madhabhai Vaghela v. Director, Pension & Provident Fund decided on 24th September, 2003. 5. Learned Assistant Government Pleader relied on decision of this Court in Govindbhai Madhabhai Vaghela v. Director, Pension & Provident Fund decided on 24th September, 2003. 5. The issue and the controversy of the kind and nature involved here was considered by the Division Bench of this Court in State of Gujarat v. Ranabhai Ajmalbhai Harijan, since deced. Through legal heirs being Letters Patent Appeal NO.1518 of 2017 decided on 10th April, 2018. The learned Single Judge while deciding the Special Civil Application No.18036 of 2013 held that pension to the original petitioner – respondent was liable to be granted taking into consideration the entire service the petitioner rendered including those years of service when he worked as a Rojamdar from the date of his initial appointment as Rojamdar. The contention on behalf of the State was that since the original petitioner – respondent was granted benefit of regular pay-scale with effect from 01st April, 1998, and he had retired with effect from 30th September, 2007, he did not complete the requisite qualifying service of 10 years to be eligible for pension. It was the contention that since regular pay-scale was granted with effect from 01st April, 1998, the pensionable period will have to be counted from the said date. 5.1 The Division Bench considered the decision in Tribhovanbhai Jerambhai (supra) and after quoting paragraphs 9 and 10 from the said judgment, it was observed in paragraph 6 as under. “6. Reading of the judgment categorically suggests that there is no room for doubt that Government Resolution dated 17.10.1988 when read in the context of meaning of continuous service as defined under Section 25B of the Industrial Disputes Act suggests that while conferring benefits, viz. Pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits. (from the date of initial appointment as a daily wager).” 5.2 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) followed the decision of Division Bench of this Court in Samudabhai Jyotibhai Bhedi (supra). (from the date of initial appointment as a daily wager).” 5.2 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) followed the decision of Division Bench of this Court in Samudabhai Jyotibhai Bhedi (supra). The observation of the learned Single Judge that “Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the purpose of bridging the gap for computation of ten years of service needs to be granted.” In Samudabhai Jyotibhai Bhedi (supra) the Court observed as under, which observations were quoted by the Division Bench in Ranabhai Ajmalbhai Harijan (supra) to read 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. That the period of regular service shall be pensionable. 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. 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. 8. 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. 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. 9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself. 10. The issue can be looked from slightly different angle. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself. 10. The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of continuous service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in the negative. 11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1 , held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division Bench was not inclined to take a different view. 12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had sought pensionary benefits having worked from the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits.” 5.3 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) finally held as under. “9. … … … it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for the purpose of extending pensionary benefits. The stand of the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to.” 6. In light of the above legal position, reverting now to the facts of the present case, the Industrial Tribunal, Bhavnagar allowed Reference and passed award, which award was modified by virtue of directions passed by this Court in Special Civil Application No.7725 of 2002, which are quoted in paragraph 3.1 above. It can be noticed that pursuant to the said developments, office order was passed whereby decision of this Court in the aforementioned Special Civil Application was resolved to be accepted and all the workmen including the petitioner, who are shown in the Schedule at Serial Nos.1 to 20 wherein the petitioner figured at Serial No.1, were treated permanent from the date of their first appointment and it was further resolved to extend the benefits of Resolution dated 17th October, 1988 and Circular dated 15th September, 2011. Thus, the respondent themselves treated as per the award of the Industrial Tribunal as well as directions of this Court in the petition, services of the petitioner to be reckonable from the initiate date of appointment granting the benefits from the said date.” 7. Accordingly, the petition is allowed. Thus, the respondent themselves treated as per the award of the Industrial Tribunal as well as directions of this Court in the petition, services of the petitioner to be reckonable from the initiate date of appointment granting the benefits from the said date.” 7. Accordingly, the petition is allowed. The respondents are directed to extend the pensionary benefits to the petitioners on the basis of the deceased Ramabhai Nathabhai Meda having rendered pensionary services from 21.10.1973 to 21.4.2007 continuously. Revised pensionary benefits including the terminal benefits except leave encashment shall be computed and arrears of pension together with the family pension to the petitioner No.1 shall be paid within a period of 12 (twelve) weeks from the date of receipt of copy of this order. 8. Learned advocate for the petitioners would concede that the issue regarding leave encashment can be dealt with at a later point of time depending on the outcome of the SLP, if occasion arises and liberty to file fresh petition with regard to leave encashment if need arises pursuant to the final decision of the Apex Court in the pending SLP be granted. Liberty to file fresh petition with regard to leave encashment if need arises pursuant to the final decision of the Apex Court in the pending SLP. 9. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No costs.