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Dhanjibhai Nathabhai Dantani v. State of Gujarat through the Secretary

Gujarat HC27 Dec 2018SCA/4231/2018

Case brief

AI extract

What is this about?

The Court held that daily-rated workmen regularized under Government Resolution dated 17.10.1988 are entitled to pension calculated based on their entire continuous service from the date of initial joining, not merely from the date of regularization. It directed the respondents to fix pension accordingly and pay arrears with interest.

What did the court decide?

Directed to count pensionary benefits entire service from date of joining; fixed pension accordingly. Arrears to be paid within 10 weeks with 7% interest if delayed.

Dhanjibhai Nathabhai Dantani Vs State of… — Contract and Commercial Disputes | Gujarat HC (2018)

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C/SCA/4231/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4231 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE N.V.ANJARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2 To be referred to the Reporter or not ?	No
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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DHANJIBHAI NATHABHAI DANTANI

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Versus

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STATE OF GUJARAT THROUGH THE SECRETARY

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Appearance:

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MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1,2,3 MR KM ANTANI, AGP for the RESPONDENT(s) No. 1 NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3,4

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 27/12/2018

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CAV JUDGMENT

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Heard learned advocate Mr.Dipak R. Dave for

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the petitioners and learned Assistant Government
Pleader Mr.K.M. Antani for the respondent – State and
its authorities.

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Page 1 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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2.It is with the following prayers that the
present petition came to be filed by the petitioners.

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(i)to hold and declare that action on part of the
respondents in not making full payment of pensionary
benefits to the petitioners by counting their entire
length of service from date of joining till date of
retirement as illegal, unjustified, arbitrary and
further be pleased to direct the respondents to fix
the pension of the petitioners by counting their
service from date of joining until the date of
retirement and fix the pension accordingly;

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(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 petitioners;

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(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.

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3.The three petitioners, thus challenge the
action on part of the respondents in not paying the
full pensionary benefits to them. Petitioner Nos.1
and 3 had been serving as Rojamdars in the office of
respondent No.2 whereas petitioner No.2 had been
serving as Rojamdar in the office of respondent No.3.
Petitioner No.1 joined on 11th March, 1986 whereas
petitioner No.2 with effect from 20th December, 1980.
Petitioner No.2 served since 20th December, 1980. It
is the case of the petitioners that they rendered
their service continuously and uninterrupted.
Petitioner No.1 retired on 30th June, 2014 whereas
petitioner No.2 retired with effect from 30th June,
2015 having rendered 28 years and 35 years of service
respectively. Petitioner No.3 died on 09th September,
2013 after serving for more than 32 years.

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Page 2 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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3.1As the petitioners served continuously as
provided under Section 25-B of the Industrial
Disputes Act, 1947, they were extended the benefit of
Government Resolution dated 17th October, 1988 at the
completion of 10 years. Though this benefit was
extended, while counting the pensionary benefits,
their services came to be reckoned from the date they
were made permanent under the Resolution dated 17th
October, 1988 and not from the initial date of their
appointment as daily-rated workmen. 10 years of
service at the end of which they were granted
permanency benefit under the said Resolution, those
years came to be deducted from their pensionable
service. The gratuity was aslo paid to them on the
basis of such truncated period.

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3.2The petitioners were placed in the regular
pay-scale, their grievance is that in the matter of
pension and retirement benefits, services were not
counted for the entire period. It is their case that
though at the time of their retirement, 300 days
leave stood to their credit, the leave encashment
benefit was not paid to them. The petitioners have
alleged discrimination in treatment on this score
also.

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3.3In the background of aforesaid facts, the
petitioners have filed the petition for getting the
aforesaid prayer and for extension of beneficiary
provisions of Resolution dated 17th October, 1988. The
principal and primary contention of the petitioners
is that their retirement benefits ought to have been

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Page 3 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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calculated from the date of their initial joining.

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4.Severaldecisions were pressed into service
by learned advocate for the petitioner. By referring
to decision inTribhovanbhai Jerambhai v. Dy.
Executive Engineer, Sub Division, R&B Department
[1998(2) GLH 1] and confirmed in Letters Patent
Appeal No.696 of 1999, the principle was highlighted
that once a daily-rated workman is treated as
permanent under Resolution dated 17th October, 1988,
his entire continuous service from the date of entry
until he retires, including his services rendered
prior to the date of his regularisation is taken into
consideration. Decision in Karshanbhai Vastabhai
Bhasker v. State of Gujarat [1999(1) GCD 638] in
which Tribhovanbhai Jerambhai (supra) was relied on,
was pressed into service. Another decision in
Balvantbhai Sardarbhai Pagi v. Deputy Engineer [2017
(3) GLH 102] was relied on for similar submission.

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4.1Next pressed into service was decision of
Division Bench of this Court in Executive Engineer,
Panchayat v. Samudabhai Jyotibhai Bhedi [2017 (4) GLR
2952]. Yet another judgment of Division Bench relied
on was in State of Gujarat v. Govindbhai Ukabhai
Parmar being Letters Patent Appeal No.174 of 2017
decided on 11thJuly, 2018 whereinSamudabhai
Jyotibhai Bhedi (supra) was relied on. On the basis
of all the abovesaid judgment, petitioner contended
that for the purpose of pension, his services ought
to have been counted from the date of initial
appointment whereas the respondents committed error

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Page 4 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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and illegality in not counting accordingly but
reckoning from the date of reinstatement.

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4.2Learned Assistant Government Pleader on the
other hand submitted that even though the benefits
under Resolution dated 17th October, 1988 may flow for
the petitioner, as far as pensionable period of
service is concerned, it could be reckoned only from
the date since the petitioner was treated as
permanent under the said Resolution. Thus it is not
the date of initial appointment but the date of
absorption as permanent as per policy under
Resolution dated 17th October, 1988, which would hold
good for pensionability and would count for
pensionable service. Learned Assistant Government
Pleader relied on decision of this Court in
Govindbhai Madhabhai Vaghela v. Director, Pension &
Provident Fund decided on 24th September, 2003.

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5.The issue and the controversy of the kind
and nature involved here was considered by the
Division Bench of this Court in State of Gujarat v.
Ranabhai Ajmalbhai Harijan, since deced. Through

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legal heirs being Letters Patent Appeal NO.1518 of
2017 decided on 10th April, 2018. The learned Single
Judge while deciding the Special Civil Application
No.18036 of 2013 held that pension to the original
petitioner – respondent was liable to be granted
taking into consideration the entire service the
petitioner rendered including those years of service
when he worked as a Rojamdar from the date of his
initial appointment as Rojamdar. The contention on

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Page 5 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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behalf of the State was that since the original
petitioner – respondent was granted benefit of
regular pay-scale with effect from 01st April, 1998,
and he had retired with effect from 30th September,
2007, he did not complete the requisite qualifying
service of 10 years to be eligible for pension. It
was the contention that since regular pay-scale was
granted with effect from 01st April, 1998, the
pensionable period will have to be counted from the
said date.

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5.1The Division Bench considered the decision
in Tribhovanbhai Jerambhai (supra) and after quoting
paragraphs 9 and 10 from the said judgment, it was
observed in paragraph 6 as under.

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“6. Reading of the judgment categorically
suggests that there is no room for doubt that
Government Resolution dated 17.10.1988 when read in
the context of meaning of continuous service as
defined under Section 25B of the Industrial Disputes
Act suggests that while conferring benefits, viz.
Pensionary benefits, calculation of the entire
service rendered even prior to the benefit of the
regular pay scale being conferred needs to be
considered for the purpose of awarding pensionary
benefits. (from the date of initial appointment as a
daily wager).”

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5.2The Division Bench in Ranabhai Ajmalbhai
Harijan (supra) followed the decision of Division
Bench of this Court in Samudabhai Jyotibhai Bhedi
(supra). The observation of the learned Single Judge
that “Even otherwise while considering Sub-rule (3)
of Rule 80 of the Pension Rules, learned Single Judge
in the context of Government Resolution dated
24.3.2006, has observed that the benefit of the Rule
for the purpose of bridging the gap for computation

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Page 6 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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of ten years of service needs to be granted.” In
Samudabhai Jyotibhai Bhedi (supra) the Court observed
as under, which observations were quoted by the
Division Bench in Ranabhai Ajmalbhai Harijan (supra)
to read as under.

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“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 said
Government Resolution was that the benefit of
regularization would be available to those workmen
who had completed more than 10 years of service
considering the provisions of section 25B of the
Industrial Disputes Act. They would get benefits of
regular pay scale and other allowances, pension,
gratuity, regular leaves etc. They would retire on
crossing age of 60 years. That the period of regular
service shall be pensionable.

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7. This Government Resolution led to several doubts.
The Government itself therefore came up with a
clarificatory circular dated 30.05.1989, in which,
several queries which were likely to arise were
clarified and answered. Clause 6 of this circular is
crucial for our purpose. The question raised was that
an employee who had put in more than 10 years of
service as on 01.10.1988, would be granted the
benefit of Government Resolution dated 17.10.1988. In
that context, the doubt was whether for the purpose
of pension, the past service of completed years prior
to regularization would be considered or whether the
pensionable service would be confined to the service
put in by the employee after he is actually
regularized. The answer to this query was that those
employees who had put in more than 10 years of
service as per Government Resolution dated 17.10.1988
would get the benefit of pension. For such purpose,
those years during which the employee had fulfilled
the provisions of section 25B of Industrial Disputes
Act, such years would qualify for pensionary benefit.

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8. Two things immediately emerge from this
clarification. First is that the query raised was
precisely what is the dispute before us and second is
that the clarification of the Government was
unambiguous and provided that every year during which
the employee even prior to his regularization had put
in continuous service by fulfilling the requirement
of having worked for not less than 240 days as

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Page 7 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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provided under section 25B of the Industrial Disputes
Act, would count towards qualifying service for
pension. In view of the clarification by the
government itself, there is no scope for any further
debate. The petitioner was correct in contending that
having put in more than 10 years of continuous
service as a labourer in the past, he had a right to
receive pension upon superannuation. This is
precisely what the learned Single Judge has directed,
further enabling the employer to verify as to in how
many years he had put in such service and then to
compute his pension.

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9. Learned counsel Shri Munshaw for the Panchayat
however drew our attention to some other clauses of
the said clarificatory circular dated 30.05.1989.
None of these clauses have a direct bearing on the
controversy at hand. These clauses merely refer to
from which point of time such benefits may be
available. It may be that benefits of regular
services such as regular pay scale, leave, gratuity
and pensionary benefits may be available only after
regularization of an employee. However, this does not
mean that his past continuous service would be wiped
out for the purpose of pensionary benefits. The stand
of the authorities that only that service which the
employee had put in after actual order of
regularization would count for pension is thus in
conflict with the Government circulars itself.

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10. The issue can be looked from slightly different
angle. As it likely to happen in many cases and
appears to have happened in the present case, actual
order of regularization may not be passed immediately
upon an employee having put in 10 years of continuous
service for variety of reasons such as inaction on
the part of the employee to press for such benefits,
verification needed at the hands of the
administration and sometimes, sheer inertia may delay
actual regularization. Would that mean, the benefit
of pension would be denied to an employee because
after the belated regularization he did not have
sufficient time to render 10 years of qualifying
service? The answer has to be in the negative.

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11. In the past, same or similar issues have traveled
to the Division Benches in Letters Patent Appeals.
Learned Single Judge in case of Tribhovanbhai
Jerambhai v. Dy. Executive Engineer, Sub Division, R
& B Deptt. & Anr. reported in 1998 (2) GLH 1, held
that once a daily rated workman is treated to be
permanent in terms of resolution dated 17.10.1988,
his entire continuous service from the date of entry
till retirement including his services rendered prior
to the date of his regularization has to be taken
into consideration for the purpose of computing

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Page 8 of 10

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C/SCA/4231/2018 CAV JUDGMENT

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pension or for making pension available to the
employee. This decision was carried in appeal by the
employer before the Division Bench. The Division
Bench by order dated 04.04.2003 noted that the appeal
had become time barred. Even on merits, the Division
Bench was not inclined to take a different view.

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12. In case of Surendranagar Dist. Panchayat and Anr.
v. Umarkhan Alikhan Malek and ors., Division Bench of
this Court in its judgment dated 29.03.2016 rendered
in Letters Patent Appeal No.2047 of 2004, considered
the issue where the employee had sought pensionary
benefits having worked from the years 1978 to 1991.
The learned Single Judge applying the formula of
section 25B of the Industrial Disputes Act held that
the employee had put in continuous service for more
than 10 years as a daily wager. He was entitled to
benefit of Government Resolution dated 17.10.1988
including the benefits of pension. The administration
had merely contended that the workman had not put in
actual 10 years of service after regularization
before he can seek pensionary benefits.”

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5.3 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) finally held as under.

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“9.… … … it leaves no manner of doubt that after
repeated reiteration of position of law as rendered
by this Court in the judgment referred to herein
above, the directions are given by learned Single
Judge that entire period of service rendered by him,
including those years of service as 'Rojmadar' where
he has rendered continuous service of 240 days a year
has to be considered for the purpose of extending
pensionary benefits. The stand of the Government,
therefore that the respondent herein had not
completed the stipulated period of qualifying service
is, undisputedly a stand, which is contrary to the
settled position of law, in view of the judgments
referred to.”

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6.As a result of above discussion, prayer with
regard to calculation of pensionary benefits and
paying them accordingly deserves to be granted.
Respondents are directed to count the pensionary
benefits to the petitioners by reckoning entire
service from the date of joining by respective
petitioner. Pension of all the petitioners shall be

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Page 9 of 10

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fixed accordingly by counting period of service from
the initial date of joining. They are declared to be
entitled to pension and other retirement benefits
accordingly.

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6.1Arrears of pension payable which may arise
by virtue of the present order shall be paid to the
petitioners within a period of 10 weeks from the date
of receipt of writ of this order by the authority. It
is provided that if the arrears are not paid within
the aforesaid stipulated time, it shall carry
interest at the rate of 7% from the date of filing of
petition, that is 17th March, 2018.

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6.2As far as the prayer regarding leave
encashment is concerned, it is directed that the
petitioners shall make a representation-cum-
application to the competent authority of the
respondents who shall decide within 10 weeks from the
date of receipt of writ of this order, about the said
claim of the petitioners in accordance with law and
the policy.

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7.The petition stands allowed in the aforesaid

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terms.

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(N.V.ANJARIA, J)

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Anup

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Page 10 of 10

Dhanjibhai Nathabhai Dantani v. State of Gujarat through the Secretary

Case brief

What is this about?

What did the court decide?

Dhanjibhai Nathabhai Dantani v. State of Gujarat through the Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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