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2022 DIGILAW 565 (GUJ)

Arvindbhai Keshavlal Chhag v. Executive Engineer

2022-04-22

VIPUL M.PANCHOLI

body2022
JUDGMENT : 1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed for following reliefs, “(A) xxx xxx xxx. (AA) Your Lordships may be pleased to quash and set aside the order dated 22.3.2011 at ANNEXURE : E to this petition qua not granting the pensionary benefits and other Retirement benefits and also not considered the period from 16.7.1993 to 30.4.2006 for continuity of service for the purpose of all retirement benefits in favour of the petitioner. (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in nature of mandamus directing the Respondents to implement the award passed by the learned Labour Court, Junagadh in Reference No.317 of 1993 dated 29.05.2000 and decision of this Hon’ble Court passed in Special Civil Application No.12880 of 2000 dated 26.07.2010 while considering the Government Resolution dated 17.10.1988 as well as considering the Clarification dated 30.05.1989 of the State Government and on that basis, whatever the retirement benefits including pension, which are available to the Petitioner, may be directed to the Respondents, to be paid after adjustment of the amount paid to the Petitioner, forthwith, in the interest of justice. (BB) This Honourable Court may be pleased to direct the present respondents to grant the benefits of retirement age of 60 years as per the paragraph 3 of the Government Resolution dated 17.10.1988 in favour of the petitioner, and be considered the retirement age of the petitioner is 30.4.2008. (C) During pendency of admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct the Respondents by way of interim order, to fix the monthly pension of the Petitioner and pay the Pensionary benefits to the Petitioner with immediate effect. (D) xxx xxx xxx.” 2. Heard learned advocate, Mr. M.H. Rathod for the petitioner, learned advocate, Mr. G.M. Amin for the respondent nos.1 to 3 and learned AGP Mr. Rohan Shah for the respondent no.4. 3. Learned advocate for the petitioner submitted that the petitioner was working as Driver being skilled daily wager employee with the respondent nos.1 to 3 w.e.f. October, 1982 and during his service period as a daily wager driver, he was driving Jeep and Tanker. Rohan Shah for the respondent no.4. 3. Learned advocate for the petitioner submitted that the petitioner was working as Driver being skilled daily wager employee with the respondent nos.1 to 3 w.e.f. October, 1982 and during his service period as a daily wager driver, he was driving Jeep and Tanker. It is submitted that however the service of the petitioner was terminated in May, 1984 without following due procedure as contemplated under the provision of the Industrial Disputes Act, 1947 (hereinafter referred to as “ID Act”) and, therefore, the petitioner raised industrial dispute, which was referred to the concerned Labour Court, Junagadh. It is submitted that the concerned Labour Court, after considering the oral as well as documentary evidence placed before it, passed an award dated 29.05.2000 and thereby the present respondent – Panchayat was directed to reinstate the petitioner with continuity of service and 50% backwages was also awarded. It is submitted that the present respondent – Panchayat challenged the said award by filing petition being Special Civil Application No.12880/2000 before this Court. It is further submitted that this Court, by an order dated 26.07.2010, partly allowed the said petition and thereby quashed and set aside the award of the learned Labour Court qua the backwages only. It is further submitted that in the meantime, the petitioner has retired from the service and, therefore, the order of reinstatement was not passed, however, this Court has specifically observed that the continuity of service of the present petitioner shall be granted from the date of Reference i.e. from the year 1993. It was also observed by this Court that since the present petitioner has retired, retirement dues pursuant to the said order shall be paid to the present petitioner. At this stage, it is submitted that the present respondent – District Panchayat has not challenged the said order passed by the learned Single Judge by filing Letters Patent Appeal and, therefore, the aforesaid order dated 26.07.2010 has attained finality. 4. Learned advocate, thereafter, submitted that the petitioner is entitled to get benefit of Government Resolution dated 17.10.1988 and, therefore, the petitioner made representation to grant benefit of said GR, however, the concerned respondent authority, by impugned office order dated 22.03.2011, granted benefit of gratuity only by considering the service of the petitioner from 01.04.2004 to 30.04.2006 and the period from 26.07.1993 to 26.07.2003 was considered as notional. It is submitted that though this Court has specifically observed that the continuity of service is to be granted to the petitioner from the year 1993 but the period from 1993 to 2003 is not considered for the grant of benefits under GR dated 17.10.1988. At this stage, learned advocate has referred to relevant portion of the GR dated 17.10.1988, copy of which is placed on record at Page No.29 of the compilation. Learned advocate submitted that the petitioner had completed more than 10 years of service and, therefore, he is entitled to get pension and other retirement benefits including gratuity as per the aforesaid GR, inspite of that, the respondent authority has granted gratuity for considering the service of the petitioner from 2004 to 2006. Learned advocate, therefore, urged that appropriate direction be issued to the respondent authority for the grant of benefits as per GR dated 17.10.1988 to the petitioner by considering his service from 1993 to 2003 also. 5. On the other hand, learned advocate, Mr. Amin has vehemently opposed this petition. Learned advocate has referred to the affidavit-in-reply filed on behalf of the respondent no.1, copy of which is placed on record at Page No.75 of the compilation. Learned advocate has mainly contended that the petitioner was employed as Casual Labour/ Daily Wager and he has worked only for a period of 19 months. It is also submitted that the petitioner was not legally appointed after following due procedure of law and, therefore he is not entitled to claim the benefits as prayed for him in the present petition. Learned advocate has referred to the observations made by the Labour Court while passing award dated 29.05.2000. Thereafter, learned advocate has referred to relevant observations made by this Court in the order dated 26.07.2010 passed in Special Civil Application No.12880/2000. It is submitted that before this Court, the present petitioner has not made any submission in the aforesaid petition filed by the present respondents that he is entitled to get benefit as per GR dated 17.10.1988, therefore, it is not open for the present petitioner to claim benefit of the said GR in the present petition. 6. It is submitted that before this Court, the present petitioner has not made any submission in the aforesaid petition filed by the present respondents that he is entitled to get benefit as per GR dated 17.10.1988, therefore, it is not open for the present petitioner to claim benefit of the said GR in the present petition. 6. Learned advocate has, thereafter, referred to Rule 230 of Bombay Civil Services Rules, 1959 (hereinafter referred to as “BCSR” for short) and contended that when the petitioner was appointed on fixed pay basis and he has rendered his services as daily wager in the establishment of the respondent – Panchayat, he is not entitled to get pension and, therefore, this petition may not be entertained. 7. Learned advocate, thereafter, contended that the provision of GR dated 17.10.1988 would not be applicable to the respondent – Panchayat as the said Resolution is applicable to the daily wagers, who were employed by the R&B Department, State of Gujarat and thus when the said GR is not applicable, the petitioner is not entitled to get pensionary benefits and other benefits as prayed for in the present petition. Learned advocate, therefore, urged that this petition be dismissed. 8. Learned AGP Mr. Shah has supported the submissions canvassed by learned advocate, Mr. Amin and requested that this petition be dismissed. 9. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also perused the material placed on record. It emerges from the record that the petitioner was appointed in October, 1982 and was working as daily wager driver with the respondent – Panchayat and he has worked till May, 1984. It is the case of the petitioner that his services were terminated by the respondent – Panchayat without following mandatory provision contained under the provision of the ID Act, therefore, the petitioner raised industrial dispute, which was referred to the concerned Labour Court and the concerned Labour Court, after considering the evidence led before it by the parties, passed an award on 29.05.2000, whereby the direction was given to the respondent – Panchayat to reinstate the petitioner with continuity of service and 50% backwages were also granted to the petitioner. The respondent – Panchayat challenged the said award by filing Special Civil Application No.12800/2000 and this Court, vide order dated 26.07.2010, partly allowed the said petition and in Paragraph No.8 of the said order, it has been observed as under, “8.0 In the premises aforesaid, the judgment and order of the Labour Court qua backwages is quashed and set aside. The continuity of service of the respondent shall be granted from the date of the reference i.e. from the year 1993. Since, the respondent has retired, the retirement dues pursuant to this order will be paid to the respondent. The petition is partly allowed. Rule is made absolute to the aforesaid extent with nor order as to costs.” 10. Thus from the aforesaid observations made by this Court, it would be clear that this Court has quashed and set aside the award of the Labour Court qua backwages only, however, so far as the continuity of service of the present petitioner is concerned, this Court has specifically observed that the continuity of service shall be granted from the date of Reference i.e. from 1993. It was also observed by this Court that since the petitioner has retired, the retirement dues pursuant to the said order shall be paid to the present petitioner. It is not in dispute that the present respondent – Panchayat has accepted the said order passed by the learned Single Judge of this Court and the said order has attained finality. Thus from the aforesaid observations made by this Court, it is clear that the continuity of service is granted to the petitioner from the year 1993. 11. Now when the petitioner has requested to the respondent – Panchayat to grant benefit of GR dated 17.10.1988 as he had completed more than 10 years of continuous service as daily wager with the respondent – Panchayat, the respondent – Panchayat passed impugned office order dated 22.03.2011. If the said office order is carefully seen, it is revealed that the respondent – Panchayat while placing reliance upon the GR dated 17.10.2011 granted benefit of gratuity of service for the period between 01.04.2004 to 30.04.2006 i.e. for a period of two years. If the said office order is carefully seen, it is revealed that the respondent – Panchayat while placing reliance upon the GR dated 17.10.2011 granted benefit of gratuity of service for the period between 01.04.2004 to 30.04.2006 i.e. for a period of two years. It has been observed by the respondent – Panchayat in the said office order that as per the order dated 26.07.2010 passed by this Court in the aforesaid petition, period between 26.07.1993 to 26.07.2003 i.e. ten years’ period is required to be considered as notional period and the petitioner is not entitled to get benefit for the said notional period because he has not worked during the said period. Thus on one hand, the respondent – Panchayat has placed reliance upon the GR dated 17.10.1988 and on the other hand, learned advocate has suggested before this Court that the aforesaid GR is not applicable to the respondent – Panchayat. Thus, the contention raised by learned advocate for the respondent is misconceived. At this stage, it is also pertinent to note that in the order dated 26.04.2011 passed by the respondent – Panchayat, copy of which is placed on record at Page No.81 of the compilation, once again reference is made with regard to GR dated 17.10.1988 and, thereafter, it was observed that the proposal was sent by the concerned office to grant gratuity to the petitioner for a period between 01.04.2004 to 30.04.2006 and total amount of Rs.47,760/- for the aforesaid period of two years was given to the petitioner. Thus, it is clear that the benefit is given to the petitioner under GR dated 17.10.1988. 12. It is further clear from the aforesaid office order dated 22.03.2011 that the respondent – Panchayat has considered the period of ten years as notional period and not granted benefit of pension to the petitioner as he has not worked during the said period and, therefore while denying the pensionary benefits to the petitioner, the respondent – Panchayat has not placed reliance upon any of the provision of the BCSR/GCSR and, therefore, it is not open for learned advocate for the respondent to place reliance upon the said provision for denying the pensionary benefits to the petitioner in the present proceeding. Therefore, the aforesaid contention raised by learned advocate for the respondent on Rule 230 and 25 of the BCSR is misconceived. 13. Therefore, the aforesaid contention raised by learned advocate for the respondent on Rule 230 and 25 of the BCSR is misconceived. 13. Thus in the facts of the present case, only issue which is required to be considered by this Court is whether the period between 1993 to 2006 can be considered for the purpose of granting benefit of GR dated 17.10.1988 or not. For deciding the aforesaid issue, once again it is pertinent to note that this Court, in the petition filed by the respondent – District Panchayat challenging the award passed by the Labour Court, has specifically observed in the order dated 26.07.2010 that the said award is quashed and set aside qua backwages only. This Court has specifically granted continuity of service from the date of Reference i.e. from 1993. It was also observed that the retirement dues pursuant to the said order shall be paid to the present petitioner. Thus, when the continuity of service is granted to the petitioner by this Court from 1993 and the said order has attained finality, it is not open for the respondent authority to contend that the aforesaid period of 1993 to 2003 should be considered as notional only. This Court is of the view that the petitioner is entitled to get pensionary benefit as per GR dated 17.10.1988 as he has completed more than ten years’ of service. Thus, the respondents are required to grant pensionary benefits and other retiral benefits by considering the service of the petitioner as more than ten years. However, it is to be noted at this stage that as the petitioner has not worked during the period between 1993 to 2003, the petitioner is not entitled to get wages for the said period. 14. In view of the aforesaid discussions, this petition is partly allowed. It is held that the petitioner is entitled to get benefits of Government Resolution dated 17.10.1988 as he has completed more than ten years’ of service and, therefore, the respondents shall grant pensionary benefits including gratuity and other retiral benefits considering the continuous service of the petitioner from 1993 to 2006. However, the petitioner is not entitled to claim arrears for the period between 1993 to 2006. However, the petitioner is not entitled to claim arrears for the period between 1993 to 2006. The respondent – Panchayat shall give the aforesaid benefits as per this order to the legal heirs of the petitioner within a period of three months from the date of receipt of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.