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2024 DIGILAW 483 (GUJ)

Osman Mamad Kachha v. Gujarat Maritime Board

2024-03-11

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. The present petitioner has preferred this petition on the ground that the petitioner was serving as a daily-wager Khalsi in the Gujarat Maritime from the year 1980. Thereafter, his service came to be terminated by the respondent. Therefore, the petitioner has preferred Reference being No.LCD/3/1980 along with other petitioners seeking the benefits, which was decided by the learned Tribunal vide order dated 20.10.1981. The petitioner has also preferred a Civil Suit No.05 of 1987, wherein, the settlement came to be arrived at by and between the parties to the proceedings and the said Civil Suit came to be disposed of by recording the settlement on 11.09.1995, wherein, the petitioner was agreed to forgo his all right including the future benefits, on the basis that the petitioner was again recommended in 1995 and thereafter, the petitioner reached to the age of superannuation and he retired from the service. He prayed the retiral benefits on the basis of the Government Resolution dated 17.10.1988 and the same was denied by the respondents. Therefore, the present petition is filed with the following prayers: 7(A) direct the respondent authorities to recalculate the pension and other retirement dues considering the entire period of service rendered by the petitioner with the respondent authorities, and (B) further be pleased to direct the respondent authorities to pay arrears of pension and other retirement dues flowing from above payer clause with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (C) make of payment of gratuity, which is withheld by the authorities with interest, and (D) award the cost of petition, and (E) pending admission and final disposal of this petition, the Hon’ble Court may be pleased to direct the respondent – authorities to re-calculate the pension and other retirement dues of the petitioner considering the entire period of service rendered by the petitioner, and / or (F) grant my other relief or pass any other order, which the Honourable Court may consider as just and proepr, in the facts and circumstances of the cases. 2. While relying upon the G.R. dated 17.10.1988, it is contended on behalf of the petitioner that as the petitioner has completed more than 10 years of continuous service as required under the G.R. dated 17.10.1988, therefore, he is entitled to get the benefits. 2. While relying upon the G.R. dated 17.10.1988, it is contended on behalf of the petitioner that as the petitioner has completed more than 10 years of continuous service as required under the G.R. dated 17.10.1988, therefore, he is entitled to get the benefits. It is contended that the petitioner referred to and relied upon the clarification issued by the Government, more particularly, the Road and Building Department on 30.05.1989, wherein, more particularly, referring the clarification may be in clause-2, the petitioner has prayed to grant all the retiral benefits on the basis of G.R. dated 17.10.1988. 2.1 The petitioner referred to and relied upon the judgment of this Hon’ble Court in the case of Executive Engineer Panchayat (MAA & M.) Department & Anr. Vs. Samudabhai Jyotibhai Bhedi & Anr. reported in 2017 (4) GLR 2952 and also referred to and relied upon unreported decision of this Court rendered in Letters Patent Appeal No.1518 of 2017. Referring the observations made in Para-9 and 10 of the decision, they have urged before this Court, let the petition be allowed. 3. It is contended on behalf of the respondents that the service of the petitioner came to be terminated and on detriment in the form of undertaking, the petitioner was reinstated in service and re-appointed in service in 1995 and regularized in service and therefore, his service came to be regularized in 2005 for consideration of the retiral benefit, which fact is taken into consideration from 2005 onward and prior thereto, his service cannot be taken into consideration as he was reinstated in 1995. It is also contended on behalf of the respondents that the petitioner is not entitled to seek any benefits with regard to his retiral or any consequential relief as sought for in the present petition and hence, in view of the above, the petition being meritless deserves to be dismissed. 3.1 As against that, the respondent also referred to and relied upon the judgment of the Hon’ble Apex Court in the case of the State of Gujarat & Others Vs. PWD Employees Union & Others reported in (2013) 12 SCC 417 . Relying upon the observations made by the Hon’ble Apex Court in the Paragraph-3 of the decision fortified four clauses, more particularly, in clause nos.3 and 4. PWD Employees Union & Others reported in (2013) 12 SCC 417 . Relying upon the observations made by the Hon’ble Apex Court in the Paragraph-3 of the decision fortified four clauses, more particularly, in clause nos.3 and 4. The learned advocate for the respondent referred to and relied upon one another decision of the Hon’ble Apex Court in the case of Dhansal Sahu Vs. State of Chhattisgarh & Ors. more particularly, the observations made in Paragraph-6 and 7 and submits that the petitioner is not entitled to get any benefits as prayed for in the present petition as he was reinstated under the compromise decree. It is further stated that the suit was disposed of and on the basis of a compromise decree, the petitioner was reinstated in service in the year 1995. It is admitted fact that as per the tabular form, from 1995 onwards, the petitioner has completed 240 days from the next 13 years i.e. from 1995 to 2010 and thereafter, upto 2013, the petitioner has completed almost 240 days in every year or as many as 18 years from the date of his reinstatement and it construed the submission made on behalf of the respondent. 4. Relying upon the judgment of the Hon’ble Apex Court in the case of State of Gujarat & Others Vs. PWD Employees Union & Others [supra], the same is to be required to be considered from 2005 onwards as the petitioner has completed as many as 18 years in his service after reinstatement and he is entitled to get the benefit under the Government Resolution dated 17.10.1988. 5. I have considered the judgments of the Hon’ble Apex Court as well as this Court. As the petitioner has completed 240 days in service in last preceding 10 years as per the judgment of the Hon’ble Apex Court, therefore, the petitioner is entitled to get the benefits under the Government Resolution dated 17.10.1988. Hence, this Court is of the opinion that the present petition deserves consideration. 6. In the facts and circumstances of the case, the present petition stands allowed. The petitioner is hereby entitled to get the benefits as prayed for in the petition. The service of the petitioner shall be taken into consideration from the year 1995 onwards as he was reinstated in the year 1995. The respondents are directed to pay all the consequential benefits with retiral benefits. The petitioner is hereby entitled to get the benefits as prayed for in the petition. The service of the petitioner shall be taken into consideration from the year 1995 onwards as he was reinstated in the year 1995. The respondents are directed to pay all the consequential benefits with retiral benefits. The respondents shall calculate the same from 1995 onwards and the amount shall be paid to the petitioner within six months from the date of receipt of the order with all his dues which are due and payable to the petitioner for which he is entitled. In the last, learned advocate for the petitioner submits that the respondent authority has withheld an amount of Rs.27,591/- towards the gratuity, which may kindly be paid to the petitioner. In view of the above, the respondent – authority is directed to pay the amount of gratuity, which was withheld by them with the other requisite dues forthwith. Rule made absolute to the aforesaid extent. Direct service is permitted.