Point of Law:
Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay.

ORDER :

1. Since all matters involve identical question of facts and law, they are being decided by this common oral order. The facts are drawn from Special Civil Application No. 1308 of 2020.

2. The petitioner – State seeks to challenge the legality and validity of the judgment and order dated 10.10.2018 passed in Recovery Application No. 115 of 2016 by the Labour Court, Dahod, by which the Court had directed the petitioner to pay the benefit of leave encashment of Rs. 1,67,390/- (Rupees One Lac Sixty Seven Thousand Three Hundred Ninety only) with cost of Rs. 1,000/- to the respondent – workman.

3. The respondent herein who was working with the respondent State filed an application under Section 33(c)(2) of the Industrial Disputes Act, 1947 (to be referred to herein after as the 'ID Act') for recovery of the leave encashment. This had been registered as Recovery Application No115 of 2016 before the Labour Court, Dahod. The husband of the present respondent - employee of the petitioner, joined the services as a labourer from 21.01.1978 and retired on 31.12.2013. He lastly received his salary of Rs. 8810/- per month.

4. It was the respondent's request to grant all the benefits as per the Resolution dated 17.10.1988. All benefits of Gratuity, General Provident Fund (GPF), Leave Encashment etc. were needed to be given to him. He though had been granted the rest of the benefits, he had not been paid the leave encashment. It is also not in dispute that the 5th and 6th Pay Commission benefits also had been made available to the respondent. The respondent herein made a request for recovery of Rs.1,67,390/- by way of leave encashment.

5. The reply came to be filed by the present petitioner before the Labour Court, wherein, it has objected to the same on the ground that the same has not been incorporated in the benefits which had been specifically made available in the Resolution dated 17.10.1988. The petitioner also has disputed the amount which has been claimed by the respondent. The Labour Court after allowing the adducement of evidences of both the parties, granted the benefit of leave encashment of Rs. 1,67,390/- along with the cost of Rs. 1,000/-.

6. This has aggrieved the petitioner who is before this Court and has urged that the daily wagers are not the government employees and therefore, are not entitled to the benefits under the Gujarat Civil Service (Revision) Pay Rules, 2009. There has to be a pre-existing benefit at the time of superannuation, otherwise all the benefits at that stage had been paid, therefore, the recovery application itself was erroneously entertained. The expression money due in its primary sense would not denote an existing debt. In the context of Section 33(C)(1) of the Industrial Disputes Act the liability since was not as yet ascertained, the Court below has failed to appreciate this vital aspect and has granted the amount.

7. It is also the say of the petitioner that the circular passed by the Narmada Irrigation and Kalpsar Department by the Gujarat Government dated 02.12.2005 made a clear distinction regarding the benefit given to the daily wagers and it is urged that the leave encashment is not contemplated therein. It is further the say of the petitioner that all these cumulatively would lead to quash and set aside the judgment and order and therefore, the following prayers are made:-

“(A) Your Lordship may be pleased to admit and allow this writ petition;

(B) Your Lordship may be pleased to issue a writ, order or direction in the nature of certiorari and/or any other writ in the nature of certiorari to quash and set aside the judgment and order dated 10.10.2018 passed in Recovery Application No.115 of 2016 passed by the learned Judge, Labour Court, Dahod;

(C) Pending admission, hearing and final disposal of the petition, Your Lordship may be pleased to stay, implementation, operation and execution of the judgment and order dated 10.10.2018 passed in Recovery Application No. 115 of 2016 passed by the learne