Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 228 (GUJ)

EXECUTIVE ENGINEER v. AMRABHAI VECHATBHAI KHANT

2023-02-02

N.V.ANJARIA, NIRAL R.MEHTA

body2023
JUDGMENT : N.V. ANJARIA, J. 1. Heard learned advocate Mr. U.M. Shastri for the appellant Executive Engineer, learned advocate Mr. Dipak Dave for respondents no. 1 and 2 and learned Assistant Government Pleader Ms. Shruti Dhruve for respondent no. 3. 2. In the present Letters Patent Appeal, the appellant seeks to challenge judgment and order dated 28.09.2022 of learned Single Judge. Thereby, learned Single Judge allowed the petition of the private respondents-original petitioners. It was held that the petitioners had completed more than 10 years of qualifying service completing 240 days in a year to be entitled for pensionary benefits. 2.1 The operative directions read as under: “The petitioner nos. 1 and 2 need to have completed 15 and 17 years of service respectively wherein they have rendered more than 240 days of service i.e. from the counting years 1976 to 2005 in case of petitioner no. 1 and 1981 to 2003 in case of petitioner no. 2 for the purposes of computing of pension. Based on this computation, the respondents are directed to compute the terminal benefits of the deceased-husband of the petitioners and consequentially grant benefits of family pension to the petitioners. In case of petitioner no. 1, the family pension shall be granted from the date of the death of the petitioner no. 1’s husband i.e. from 28.06.2004 and in case of petitioner no. 2 the pension shall be paid from 30.08.2003 till 04.02.2008 i.e. the date of death of her husband. After the said period she shall be granted family pension.” 3. Two petitioners by filing Special Civil Application, prayed as under: “(i) to hold and declare action respondents payment on part of that of the not making pensionary benefits to the petitioners by counting entire length of service from date of joining till date of retirement illegal, arbitrary pleased unjustified, further direct to fix be the the as and to respondents pension of the petitioners by counting entire length of service by adding Sundays and holidays. (ii) to hold and declare that petitioners are entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the respondents to pay amount of leave encashment of leave standing in the account of the husbands petitioners. (ii) to hold and declare that petitioners are entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the respondents to pay amount of leave encashment of leave standing in the account of the husbands petitioners. (iii) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due.” 3.1 Thus the petitioners prayed for granting of pensionary benefits by counting entire length of their service and further prayed for the benefit of leave encashment as also other pensionary benefits such as gratuity. 3.2 The case of the petitioners was that they served as Rojamdar in the office of respondent no. 2 Executive Engineer, Panchayat, Road & Building Division, Lunawada, Mahisagar. It was the case that their services were uninterrupted and continuous as declared under Section 25B of the Industrial Disputes Act, 1947. It was also their case that the benefits of State Government's Resolution dated 17.10.1988 were extended to them. However, it was the grievance that the pensionary benefits were not paid, though such benefits were available in the said Resolution dated 17.10.1988. 3.3 It was stated by the petitioners that they had earlier approached the Court by filing Special Civil Application No. 1574 of 2020. The petitioners succeeded and their Letters Patent Appeal was also dismissed by the Division Bench. It was the grievance that the petitioners were not paid the benefits. 3.4 It was contended that the employees who worked under the respondents were the deceased husbands of the petitioners. According to the petitioners, they worked right from 1977. The pensionary benefits appears to have been denied to them on the ground that they had not completed 240 days in a year and continuous service were not rendered by them. They were therefore not given the benefit of Resolution dated 17.10.1988. It was the case that while the husband of the petitioners had completed 240 days of continuous service, even otherwise the Sundays and holidays were required to be counted in completing the total number of days. 4. Learned Single Judge noted that petitioner no. 1 was engaged as daily wager from 21.07.1976, who died while on service no 28.06.2004. He completed 28 years of service. Similarly, petitioner no. 4. Learned Single Judge noted that petitioner no. 1 was engaged as daily wager from 21.07.1976, who died while on service no 28.06.2004. He completed 28 years of service. Similarly, petitioner no. 2 entered the service as daily wager from 21.10.1981 and stood superannuated with effect from 30.08.2003 having completed 22 years of service. He died on 04.02.2008. The widow of deceased employees approached the Court by filing the petition as above. 4.1 Learned Single Judge noticed the undisputed fact that petitioners were appointed in the year 1976 and 1981 respectively and they had completed more than 10 years of service with completion of 240 days, if Sundays and holidays were to be included in the working days to earn qualifying service to be entitled to pension. 4.2 The decision of the Division Bench of this Court in Executive Engineer Panchayat (MAA & M) Department and Another vs. Samudabhai Jyotibhai Bhedi and Others, 2017 (4) GLR 2952 , was relied on by learned Single Judge to hold that total services from date of initial appointment were liable to be reckoned for the petitioners. 4.3 In Samudabhai Jyotibhai Bhedi (supra), the contention was raised by the authorities that for the purpose of entitlement of pension under the Resolution, the services rendered on regular basis only have to be counted to determine the qualifying service and entitlement of pension. The stand that the petitioners in the said case became permanent on 01.10.1988 and therefore qualifying service was not rendered, counted from 1988, was negatived by learned Single Judge to hold that the date of entering into service was to be applied to count the entire service at such length. 4.4 Learned Single Judge relied on the decision in Special Civil Application No. 15601 of 2020 dated 27.01.2022, as also decision of the Division Bench Chhaganbhai Ranchhodbhai Rathod vs. Deputy Executive Engineer in Letters Patent Appeal No. 1495 of 1997 decided on 06.08.1998, in which, similar facts and issue was involved about the qualifying service vis-a-vis the completion of 240 days of continuous service in terms of Section 25B of the Industrial Disputes Act. 4.5 It was observed thus in paragraph 13: “In light of the judgment rendered in Special Civil Application No. 15601 of 2020 which has been passed on the basis of two Division Bench judgments 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 sub-section (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 judgments relied upon by learned advocate Mr. Shastri 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.” 4.6 Also referred by Learned Single Judge, was the decision in Special Civil Application No. 5319 of 2019, which was confirmed in the Letters Patent Appeal No. 93 of 2021 and further confirmed by the Supreme Court in Special Leave to Appeal No. 13048 of 2021 as per order dated 31.08.2021 of the Supreme Court. 5. By virtue of all the above decisions in which the decision of the Supreme Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, (1985) 4 SCC 71 was relied on for the purpose of applying the principle that computation of Sundays and leave holidays as well as other public holidays were to be added to the benefit of the employees while counting 240 days of continuous service. 5.1 It may be stated that in Executive Engineer vs. State of Gujarat in Letters Patent Appeal No. 326 of 2022 decided as per judgment dated 16.01.2023, similar issue was addressed in respect of the similarly situated daily-rated petitioners. 5.2 In Workmen of American Express International Banking Corporation (supra), the Supreme Court held thus: “...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 in sub-section (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 calender 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 calender 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.” 5.3 The service details of the two petitioners and the number of years put in by them would go to show that they had completed 240 days in 10 years of have the qualifying service to their credit for the purpose of getting pension. They became entitled to pension by virtue of their length of service and continuous service. 5.4 Looking to the above decisions in American Express International Banking Corporation (supra) of the Supreme Court as well as the decision of this Court in Chhaganbhai Ranchhodbhai Rathod (supra), the petitioner could be said to have rendered long years of service completing 240 days. The continuous service of the petitioner has to be treated in light of Section 25B of the Industrial Disputes Act as interpreted by the Supreme Court and complied by this Court in the decisions relied on above. 6. The reasons given by the learned Single Judge and the decision relied on to allow the petition of the petitioners could be said to be eminently just and proper. This Court is in complete agreement with the reasons supplied in the final order passed. The challenge to judgment and order of learned Single Judge does not book any merit. 7. This Letters Patent Appeal is liable to be dismissed and accordingly is dismissed. 8. In view of the dismissal of the main Letters Patent Appeal, the Civil Application will not survive for any orders.