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Judgment
Biren Vaishnav, J
Rule returnable forthwith. Mr.Joshi, learned AGP waives service of notice of rule for the respondents.
With the consent of the learned advocates appearing for the respective parties, the matter was taken up for final hearing.
Heard learned counsels for the respective parties at length through video conferencing.
Mr.Dave, learned counsel for the petitioner has placed reliance on a decision of this Court dated 24.9.2020 passed in SCA No.11631/2020.
Even reliance is placed by Mr.Dave, learned counsel for the petitioners on a decision of the Division Bench of this Court rendered on 28.12.2018 in
LPA No.1567/2018. The relevant portion i.e. paragraph Nos.6 to 8 read as under:
“6. Next in line was the judgment in the case of Tribhovanbhai Jerambhai vs. Dy. Executive Engineer, Sub-Division, R&B Deptt & Anr., reported
in 1998 (2) GLH 1., wherein this Hon’ble Court in paras 9 and 10 observed as under:
“9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 01.10.1988 or thereafter completes ten years of
continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and
amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for
pensionary benefit. By yet another resolution dated 30.05.1989 (Annexure-E) in which a specific query was raised at item No.(6) with reference to
resolution dated 17.10.1988 about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the
pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was
specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as
continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension
has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves
no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in
consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general
or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a
local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty
shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily
rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension
and thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees
under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning
of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated
17.10.1988 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 for the purpose of computing pension or making pension available to such retired employee.
There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not
holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not
governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion
that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is
the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such
employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise
of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If
considered from this view, the conclusion will be the same.â€
By a decision rendered in Letters Patent Appeal No.1495 of 1997 dated 26.08.1998, the Division Bench of this Court once again observed that
keeping in mind Section 25(B) of the Industrial Disputes Act, the services rendered in the past must be treated as continuous. Relevant observation of
the Court is as under:
“As per the resolution dated October 17, 1988, daily wage worker who has put in service for more than 10 years as per section 25-B of
the Industrial Disputes Act, 1947, is entitled to retiral benefits. Section 25-B of the Industrial Disputes Act, 1947 defines 'continuous
service'. According to said provision, a workman shall be said to be in continuous service for a period if he is, for that period, in
uniterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike
which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman. Sub-section (2) of Section
25-B introduces a deeming fiction and provides that where a workman is not in continuous service within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to be in continuous service under the circumstances mentioned in the said sub- section.
From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years the
appellant had worked for more than 240 days. The Supreme Court in the case of Workmen of American Express International Banking
Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 45 8has ruled that continuous
service is to be counted by including sundays and other holidays, sickness or authorised leave and accident or strike which is not illegal or
a cessation which is not due to any fault on the part of workman. The respondents have failed to produce any material on record of the
case to indicate that in the year 1980-81 and 1981-82 there was a cessation of work due to any fault on the part of the appellant.
Therefore, the appellant had continuously served for a period of more than 10 years within the meaning of Resolution dated October 17,
1988. The submission made by the learned Counsel for the respondents that the appellant had completed 240 days' work in 8 years only,
which is less than 10 years and, therefore, the appellant is not entitled to pension, cannot be accepted. It is an admitted fact that while
denying the claim of the appellant, sundays and other holidays, sickness or authorised leave etc. were not taken into consideration by the
respondents, nor the question was considered whether there was any cessation of work which was not due to any fault on the part of the
appellant. It may be stated that the appellant served as a daily wager for about 21 years and retired from service on October 13, 1989.
Having regard to the facts of the case, even there were some small breaks in service of the appellant which had taken place in the years
1980-81 and 1981-82, they have been condoned by the respondents for the purpose of retiral benefits. On the facts and in the
circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he
had worked for more than 240 days, he is entitled to the benefit of pension. The learned Single Judge was not justified in rejecting the claim
of the appellant on the ground that the appellant had not worked for 240 days' continuously in 10 years and was, therefore, not entitled to
pension. The appeal, therefore, deserves to be accepted.â€
Once again in the case of Sultan Ibrahim Mansuri vs. State of Gujarat & Ors., the Court observed that in accordance with the
Government Resolution dated 17.10.1988, services of a daily wager must be counted as continuous for the purposes of pensionary
benefits.â€
The prayer of the petitioner is that she is widow of the deceased husband, who had got the benefits of a GR dated 17.10.1988 is not being given the
consequential benefits of family pension by treating the entire length of service from the date of joining till the date of retirement.
It is undisputed that the husband of the petitioner (since deceased) had got the benefits of the GR dated 17.10.1988 and therefore in accordance
with the decision rendered in the case of State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr. reported in 2011 (2) GLR 1290, the
petitioner's husband was entitled to the benefits such as public holidays, transport allowances, medical allowances etc. at par with the permanent
employees.
Accordingly, in view of the decision of the decision of this Court in Mahendrakumar Bhagvandas (Supra) and the decision of the Division Bench of
this Court rendered on 28.12.2018 in LPA No.1567/2018, the respondents are directed to extend the benefit of counting the services of the deceased
husband from the initial date of appointment till his retirement so as to entail the benefit of revised family pension and leave encashment to the
petitioner. Needless to say that it is not open for the respondents to dispute such a claim in view of the settled legal position referred hereinabove.
Revised pensionary benefits as aforesaid shall be extended to the petitioners within a period of 8 (eight) weeks from the date of receipt of copy of this
order.
However, so far as prayer of financial assistance is concerned, it will be open for the petitioner to agitate the grievance by way of separate petition.
The petition is partly allowed. Rule is made absolute with no order as to costs. The Registry to communicate the order through E-mail / Fax.