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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Nanabhai Bhurabhai Meda - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No.7465 of 2019 With R/Special Civil Application No.7468 of 2019
Decided On : 05-05-2022
Pension Benefits - Calculation of Pension from Date of Initial Joining - Industrial Disputes Act, 1947, Section 25B - Government Resolution dated 17.10.1988 - Entire Past Services of Daily-Wager Liable to be Reckoned for Pensionary Benefits - Court Reiterates Position of Law and Directs Fixing of Pension from Date of Initial Joining by Counting Services from Initial Joining until Retirement and Considering Years with 240 Days for Recalculating Pension
Fact of the Case:
The petitioners sought a direction to fix their pension by considering their entire length of service from the date of initial joining until the date of retirement and to pay arrears of pension. The respondents had not accepted the pension case of the petitioners, contending that the petitioners were not entitled to pension for the initial 10 years of service.
Finding of the Court:
The court held that the petitioners were entitled to the pensionary benefits by reckoning the entire length of service from the date of initial joining for the purposes of pension and other terminal benefits. The respondents were directed to fix the pension of the petitioners by counting their services from the date of their initial joining until the date of their retirement and considering each year of service preceding the date of regularization in which the petitioners have completed 240 days for recalculating pension.
Issues: The issues revolved around the calculation of pension from the date of initial joining, the entitlement of the petitioners to pensionary benefits, and the consideration of entire past services of daily-wager for pensionary benefits.
Ratio Decidendi: The court reiterated the position of law established in previous decisions, emphasizing that the entire past services of daily-wager were liable to be reckoned for pensionary benefits. It directed the fixing of pension from the date of initial joining by counting services from initial joining until retirement and considering years with 240 days for recalculating pension.
Final Decision: The petitioners were granted pensionary benefits by reckoning the entire length of service from the date of initial joining for the purposes of pension and other terminal benefits. The respondents were directed to fix the pension of the petitioners accordingly.
JUDGMENT :
1. RULE returnable forthwith. Mr. Krutik Parikh learned AGP waives service of notice of Rule on behalf of the respondents – State and Mr. U.M. Shastri learned advocate waives service of notice of Rule on behalf of the respondent No.2.
2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. It is agreed between the parties that the issues raised in these petitions are covered by a decision of this Court dated 08.04.2022 rendered in Special Civil Application No.15794 of 2022 and allied matters.
4. The case of the petitioners is that a direction be issued to the respondents to fix pension of the petitioners after taking into consideration entire length of service right from date of joining till the date of retirement and pay arrears of pension. In Special Civil Application No.15794 of 2022 and allied matters, this Court held as under :
“1. Heard learned advocates for the parties.
2. The prayer of the petitioners is to direct the respondents to revise the pension as well as gratuity calculating the same from the date of initial appointment of the petitioners along with arrears. The second prayer of the petitioners is to direct the respondents to release the benefits of 300 days unavailed privilege leave in favour of the petitioners as envisaged in the Government Resolution dated 17.10.1988 with interest.
3. The facts in brief would indicate that the petitioners were working with the respondents herein for more than three decades. Pension payment orders have been annexed to the petition which would indicate that for the purposes of counting pension from the date of completion of ten years, the date of regularization has been taken into consideration for the purpose of pension.
4. Mr. Krishnan Ghavariya, learned advocate appearing for the petitioners would submit that the issue has now been decided by a Division Bench of this Court in the case of Executive Engineer, Panchayat (Maa & M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2014(4) GLR 2952. Mr. Ghavariya would also rely on a decision of the co-ordinate bench of this court dated 19.12.2018 rendered in Special Civil Application No. 9702 of 2018 and allied matters. Learned advocate would also draw the attention of the Court to an order dated 21.08.2019 rendered in Special Civil Application No. 11086 of 2019, wherein, the said decision has been considered.
5. Mr. H.S. Munshaw, learned advocate appearing for respondents no. 2 to 4 would submit that there is nothing on record to suggest that the petitioner has completed 240 days in each year of service from the initial date of appointment till they completed ten years of service and so as to get the benefits of the resolution dated 17.10.1988.
6. Para 5 of the order dated 21.08.2019 passed in Special Civil Application No. 11086 of 2019 reads as under:
“5. In Executive Engineer, Panchayat v. 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 Jyotibhai Phedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph 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 daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the sai
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