Mahendrabhai Ziparbhai Vs State of Gujarat… — Pension and Retirement Benefits

1.The present petitions have been submitted under
Articles 226 and 227 of the Constitution of India,
for seeking benefit arising out of Government
Resolution dated 17.10.1988 essentially and since
common question of law and fact involve in the
present petitions, learned advocates appearing for
the respective parties have requested the Court to
deal with and decide the same by way of common order.
Accordingly, by treating SCA No.9302 of 2013, both
these petitions are decided by the present order.

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2.The petitioners of SCA No.9302 of 2013 have
submitted the petition on the premise that the
petitioners were originally appointed as daily rated
employees by respondent No.3 in Class-IV where they

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C/SCA/9302/2013 ORDER

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were working under the establishment right from 1981
from 8.00 a.m. to 5.00 p.m. and were being paid the
monthly wages. The respondent No.3 has not issued any
attendance card, wage slip nor any Earned Leave was
also given to the petitioners and in complete
defiance of principles of natural justice, in the
year 1983 the serves wee put to an end which has
constrained the petitioners to challenge the said
termination of petitioners by way of raising
industrial dispute before the Labour Court, Navsari
which was registered as Reference (LCN) No.681 of
1987 and allied matters. By that time, during the
pendency of that, on 17.10.1988 the State Government
has come out with a resolution by which the daily
rated employees were given the benefits of pay scale,
pension and gratuity etc. upon fulfilling certain
conditions.

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2.1Later on, on 15.10.1994, the Labour Court,
Navsari, was pleased to dismiss the Reference (LCN)
No.618 of 1987 and other allied references by way of
common award. However, while dismissing the
References, the Labour Court, Navsari had issued
direction to respondent No.3 that as and when new
work is available in the department, the preference
should be given to the petitioners, who were working
in the past.

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2.2This award was later on the subject matter of
SCA No.28418 of 2007 with allied group of petitions,
wherein the Court, after hearing the parties, was

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C/SCA/9302/2013 ORDER

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pleased to dispose of the petitions without
expressing any opinion on merit. Later on, on
21.10.2008 the respondent No.3 sought an opinion from
the office of the Government Pleader and thereafter
on 4.7.2009, the respondent No.3 had issued an office
order by which the petitioners were granted
appointment subject to the terms and conditions
specified therein. One of the conditions was that if
any of the workman is employed before 1989 then, such
workman would be entitled to the benefit of
Government Resolution dated 17.10.1988 as specified
in the very first paragraph. Accordingly, on
2.6.2010, the union representative had addressed a
letter to respondent No.2 requesting him to provide
the attendance details of 10 workmen and upon perusal
of the said information, it was noticed that
petitioner No.6 had completed 301 days in a year. The
union further addressed a letter on 2.8.2011 to
respondent No.3 requesting for attendance information
of 25 workers for the period commencing from 1.1.1980
to 31.12.1987. In response thereto, on 10.8.2011 the
respondent No.2 provided the information which was
sought by respective union on 2.8.2011. The
petitioners are in service and being paid a monthly
salary of Rs.5200/- and considering their length of
service by claiming similarity to that of other
employees, a request is made by way of claiming
reliefs which are prayed for in Para.20.

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3.These petitions have been entertained by this
Court by issuing notice on11.7.2013 and after

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C/SCA/9302/2013 ORDER

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completion of pleadings, they have come up for
consideration before this Court, in which both the
learned advocates have requested the Court to dispose
of the petitions in view of the fact that identical
issue contained in petition being SCA No.9300 of 2013
is decided by the coordinate bench of this Court vide
order dated 23.10.2018 and there is no dissimilarity
of any nature and, therefore, in the same terms
present both the petitions also may be disposed of,
as both the petitions are identical to that of SCA
No.9300 of 2013.

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4.A copy of the said judgment was given to the
learned Assistant Government Pleader for inquiry as
to whether there is any dissimilarity or not. But,
however, after considering and going through the
same, learned Assistant Government Pleader has
submitted before the Court that there is a similarity
in the said decision and the present two petitions
and the controversy is almost similar and, therefore,
upon such verification, learned advocates jointly
have submitted that these petitions also may be
allowed in terms of an order dated 23.10.2018 passed
in SCA No.9300 of 2013.

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5.Since, at the outset, it was submitted and the
issue is squarely covered as has been contended, no
contest was generated between the parties to the
proceedings. As a result of this, without much
entering into detail as has been requested, this
Court is also inclined to dispose of the petitions in

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C/SCA/9302/2013 ORDER

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the line on which the coordinate bench has taken up
the decision.

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6.The decision which has been taken by the
coordinate bench on 23.10.2018 is after examining the
material and the submissions made by both the sides
and, therefore, some of the relevant extract from the
said decision deserve to be reproduced hereinafter.

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“2.1 It is the case of the petitioners that the
petitioners were appointed as daily wagers by
the respondent no.3 from the year 1981 onwards.
It is their case that they were paid monthly
wages at the rate of Rs.342.50/- per month.
Their services came to be terminated in the
year 1987. The petitioners raised an industrial
dispute. The Labour Court, Navsari, in
Reference (LCB) No.662/87 rejected the
reference of the petitioners. However, the
Labour Court observed that as and when new work
is available in the department, the petitioners
be given work preference.

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2.3.Admittedly, on work availability, the
petitioners were reengaged as daily wagers by
the respondents. Orders of their re-engagement
dated 04.07.2009 are on record.

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3. Learned Counsel, Mr. Hemang Shah for the
petitioners has invited attention of this Court
to the conditions of the appointment order
dated 04.07.2009. Specific attention is drawn
to condition no.3 of the appointment order
which states that since the recruitment is
prior to the year 1989, in accordance with the
resolution dated 17.10.1988, specifically
looking to the condition no.1 thereof, the
petitioners would be paid minimum wages
applicable from time to time. Mr. Shah raised
the contention that the order in the conditions
stipulate that on completion of five years from
the date of such appointment i.e. 04.07.2009,

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C/SCA/9302/2013 ORDER

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which will be i.e. 04.07.2014, the petitioners
would be entitled to the benefits of condition
no.2 of the resolution dated 17.10.1988. The
condition no.2 of the resolution dated
17.10.1988 reads as under:

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“(2) As per the provisions of Section 25B of
the Industrial Disputes Act, daily wagers and
semi skilled workers who has service of more
than five years but less than 10 years as on
1.10.1988, will get Rs.750/- as fixed monthly
salary alongwith dearness allowances as per
prevailing standard, for his working days.
Moreover, he/she will get two optional leave
in addition to 14 misc. leave, Sunday leave
and national festival holidays. He/She will
be eligible for getting medical allowance and
deduction of provident fund.”

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5.Having considered submissions of the
learned counsels for the parties, in my
opinion, submissions of learned counsel for the
petitioner that the benefit of condition no.2
of the resolution dated 17.10.1988 be granted
or atleast be considered by the respondents on
completion of five years i.e on 04.07.2014 is
just and proper. Once the order dated
04.07.2009 makes it clear that the GR dated
17.10.1988 is applicable, the petitioners are
entitled to get the benefit as per the clause 2
of the GR dated 17.10.1988.

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6. Accordingly, in view of the fact that the
petitioners have been re-engaged as daily wager
with effect from 04.07.2009 and when one of the
condition of the appointment order stipulates
that resolution dated 17.10.1988 is applicable
to him, as equivocally thereof, condition no.2
should be made applicable to the petitioners
and their cases are to be considered for
extending benefit in accordance with clause 2
of the resolution dated 17.10.1988 with effect
from 04.07.2014.”

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7. In view of the aforesaid circumstances and in

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C/SCA/9302/2013 ORDER

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view of the submissions made by both the learned
advocates, the Court is persuaded to allow the
petitions on aforesaid terms and the conclusion.
Accordingly, both these petitions stand allowed in
part and the respondents authorities are directed to
consider and grant the benefit to the petitioners of
Condition No.2 of Government Resolution dated
17.10.1988 within a period of six weeks from the date
of receipt of writ of this Court.

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8. Direct service is permitted.

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V.J. SATWARA

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Mahendrabhai Ziparbhai v. State of Gujarat - through Secretary

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Mahendrabhai Ziparbhai v. State of Gujarat - through Secretary

Case brief

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