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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Salambhai Mangalbhai Khant - Appellant
Vs.
State of Gujarat - Respondent
Special Civil Application No. 18719 of 2021
Decided On : 09-03-2022
Industrial Disputes Act, 1947 - Section 25B - Continuous service - Superannuation - Prayer in this petition is to direct respondents to make payment of pension by counting his entire service from date of joining – Held, "Two things immediately emerge from this clarification - First is that query raised was precisely what is dispute before us and second is that clarification of Government was unambiguous and provided that every year during which employee even prior to his regularization had put in continuous service by fulfilling requirement of having worked for not less than 240 days as provided under section 25B of Industrial Disputes Act, would count towards qualifying service for pension - In view of clarification by government itself, there is no scope for any further debate - Petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in past, he had a right to receive pension upon superannuation - This is precisely what learned Single Judge has directed, further enabling employer to verify as to in how many years he had put in such service and then to compute his pension" - It is a clear position of law emerging from decision that entire past services of daily-wager which was continuous is liable to be reckoned for purpose of pensionary benefits and for purpose of granting pension - In facts of case of petitioner, factum is not controverted and it is undisputed that petitioner has throughout worked since his joining, to make his services continuous - Decision on part of authorities reflected in communication that petitioner had not completed 10 years of service since date of becoming regular cannot stand in eye of law to deny pensionary benefits to petitioner - Entire service period right from date of joining till petitioner retired on 30th September, 2012, is liable to be counted and pension is required to be paid accordingly - Petition is allowed.
JUDGMENT/ORDER :
1. Heard Mr.Paresh Brahmbhatt, learned advocate for the petitioner and Ms.Surbhi Bhati, learned Assistant Government Pleader for the respondents - State.
2. Rule returnable forthwith. Ms. Bhati, learned AGP, waives service of rule on behalf of the State-respondents.
3. The prayer in this petition is to direct the respondents to make payment of pension by counting his entire service from the date of joining. Facts in brief would indicate that the petitioner has retired from service on 31.05.2015 after serving the respondent No.2 for 37 years. It is his case that he has not been paid retirement benefits and leave encashment.
4. At the outset, as far as the benefits of leave encashment is concerned, since the issue is pending at large before the Hon'ble Supreme Court, for the present, reserving the liberty for the petitioner to claim such benefits subject to the outcome of the special leave to petition, the same is not decided.
4.1 Facts otherwise would indicate that the petitioner was serving as a rojamdar with effect from 21.01.1978. He had served continuously and uninterruptedly and was extended the benefits of the Resolution dated 17.10.1988. It is his case that initial service of 11 years has been not taken into consideration for the purposes of granting the benefits of pension. Reliance is placed on the decision in the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer., reported in 1998 (2) GLH 1.
5. Ms. Surbhi Bhati, learned Assistant Government Pleader, relying on the reply filed on behalf of the respondents submitted that as per the communication dated 12.08.1991, the daily wager employee is only entitled to the benefits as mentioned in the government resolution and not the benefits of leave encashment.
6. Considering the issue which was decided by this Court in a group of petitions, namely, Special Civil Application No.5988 of 2021 and allied matters vide order dated 04.02.2022, by which, the Court had followed the earlier orders, the petition is required to be allowed and the respondents be directed to consider the case of the petitioner and grant pensionary benefits from the initial date of appointment in accordance with the decisions of this Court in the case of Executive Engineer Panchayat (Maa and M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2017 (4) GLR 2952, which has been considered by the aforesaid order dated 04.02.2022. Paras 13 and 14 of the order reads as under:
"4.1 Learned advocate for the petitioner could also successfully rely on decision of this Court in Balvantbhai Sardarbhai Pagi vs. Deputy Engineer being Special Civil Application No.12350 of 2016 and allied petitions decided on 22nd May, 2016 taking the similar view.
5. In Executive Engineer, Panchayat vs. Samudabhai Jyotibhai Phedi [2017 (4) GLR 2952], the Division Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the daily wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.
5.1 The Division Bench in Samudabhai JyotibhaiPhedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph No.6 of the judgment stating 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 d
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