IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11355 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MALEK UMARKHAN ALIKHAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11355 of 2002 MR DA SURANI for Petitioner No. 1 Mr. P.D. Bhate, AGP for Respondent No. 1,4 MR HS MUNSHAW for Respondent No. 2/3. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 16/07/2003 ORAL JUDGEMENT In the matter of DS Nakara and Others versus Union of India, reported in 1983 SCC Lab & Service page 145, larger bench of the Hon'ble Apex Court has observed that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. The observations made by the larger Bench of the Hon'ble Apex Court in which are relevant for the purpose of present petition are reproduced as under: "(1) Pension is neither a bounty not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering socio economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. Pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The most practical raison d'etre for pension is the inability to provide for oneself due to old age. It creates a vested right and is governed by the statutory rules such as the Central Civil Services (Pension) rules which are enacted in exercise of power conferred by Articles 309 and 148(5) of the Constitution." The observations made by the Hon'ble Apex Court in para 26 of the said judgment are also relevant in the facts of the present petition. Same are, therefore, reproduced as under: "26. Let us therefore examine what are the goals that pension scheme seeks to subserve ? A pension scheme consistent with available resources must provide that the pensioner would be able to live; (i) free from want, with decency, independence and self respect and (ii) at a standard equivalent at the pre-retirement level. This approach may merit the criticism that if a developing country like India cannot provide an employee while rendering service aliving wage, how can one be assured of it in retirement ? This can be aptly illustrated by a small illustration.A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, 'that is funny, I could not before'. It appears that determining the minimum amount required for living decently is difficult, selecting the percentage representing the proper ratio between earnings and the retirement income is harder. But it is imperative to note that as self sufficiency declines the need for his attendance or institutional care grows. Many are literally surviving now than in the past. We owe to it them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly influences its social objectives. These objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby the social policies implemented and pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate when taken along with the benefits in kind provided by other social services (such as free medical aid) to ensure for him culturally acceptable minimum standard of living when the normal means of doing so failed. (See Social Security Law by Prof. Harry Calvert, p.1)." The observations made by the Hon'ble Apex Court in para 34 of the said judgment are also relevant in the facts of the present petition. Same are, therefore, reproduced as under: "34. To some extent this approach will find support in the judgment in Minerva Mills Ltd. v. Union of India [1981] 1 SCR 206 :(1980) 3 SCC 625 : AIR 1980 SC 1789]. Speaking for the majority, Chandrachud, CJ observed as under: (SCC p.654, para 57) 'This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallized in the preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice social, economic and political. We, therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved.' At a later stage, it was observed that the fundamental rights are not an end in themselves but are the means to an end, the end is specified in Part IV. Bhagwati, J. In his minority judgment after extracting a portion of the speech of the then Prime Minister Jawahar Lal Nehru, while participating in a discussion on the Constitution (First Amendment) Bill, observed that the directive principles are intended to bring about a socio economic revolution and to create a new socio economic order where there will be social and economic justice for all and everyone, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the fundamental rights. It, therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other." Heard learned advocate Mr. D.A. Surani for the petitioner; Mr. P.D. Bhate, learned AGP for respondents no.1/4 and Mr. H.S. Munshaw, learned advocate for respondents No.2 and 3. Rule. Learned AGP Mr. Bhate appearing for respondents no.1 and 4 as well as Mr. H.S. Munshaw appearing for the respondents no.2 and 3 have waived service of notice of rule on behalf of the said respondents. In the peculiar facts and circumstances of the case and with the consent of the learned advocates for the parties, the matter is taken up for final hearing today itself. Brief facts of the present petition are to the effect that on 25th February, 1978, the petitioner was appointed as class IV employee in the office of the respondent NO. 3. The petitioner continuously worked with respondent NO. 3 without any complaint upto 31st October, 1991 and the petitioner retired on 31st October, 1991 by reaching the age of superannuation. According to the petitioner, the amount of gratuity and leave encashment has been given to the petitioner but the petitioner has not been given the benefit of pension and for that, the petitioner made request but the same was not considered and, therefore, on 2.9.2000, an application in writing was given by the petitioner with a request to grant benefit of pension in accordance with the Government Resolution dated 17th October, 1988 because on the same basis, amount of gratuity and leave encashment has been paid to the petitioner but the respondent no.2 has not paid such benefit of pension to the petitioner and no reply has been given to the said application by the respondent. Thereafter, again, the petitioner made representation to the Collector on 5.1.2001 wherein it was requested by the petitioner before the collector to direct the respondents no.2/3 to give pensionary benefits as per the GR dated 17.10.1988. In view of the said representation made by the petitioner, the Collector Surendranagar by letter dated 15th January, 2001, directed the respondent no.2 to take appropriate action for giving pension to the petitioner. In view of the said letter dated 15.1.2001, the respondent no.2 directed the respondent no.3 to do needful in the matter by letter dated 24th January, 2001. According to the petitioner, ultimately, the result was nil of all these attempts and, therefore, the petitioner filed special civil application no. 9325 of 2001 wherein the respondents were directed by this court to consider the case of the petitioner for pensionary benefits by order dated 25th December, 2001 but thereafter also, the case of the petitioner was not considered by the respondents and, therefore, the petitioner filed review application being Misc. Civil Application No. 799 of 2002 before this court wherein this Court further directed the respondents to give pensionary benefits to the petitioner in accordance with the Government Resolution dated 17th October, 1988. Thereafter, the respondent authority namely Executive Engineer, Panchayat R & B Division, Surendranagar has, by his order dated 13.8.2002, ordered that the petitioner is not entitled for such benefits because he has not completed ten years of service and has completed only nine years of service and, therefore, he is not entitled for such benefits as per GR dated 17.10.1988 which is at page 29, Annexure-I. At page 33, working days of the petitioner have been certified by the Deputy Executive Engineer of the respondent Panchayat from year 1978 to 1991 have been mentioned while considering the date of joining 21st February, 1978 and the date of his retirement 31st October, 1991. Learned advocate Mr. Surani appearing for the petitioner has submitted that the petitioner has retired on 31.10.1991 on his having reached the age of superannuation and thereafter 12 years have gone but his case for pension has not been properly considered by the respondent authorities and that has deprived the petitioner from his legal right to receive pension for the services rendered by him. Not only that, he approached various authorities in-between with a request his case for pension as per the GR dated 17.10.1988 but ultimately, his claim has been refused by answer dated 13.8.2002, page 27. In the said letter, it has been written that as per the Resolution of the Government dated 17.10.88, the pensionary benefits have to be extended only in favour of those workmen who have completed 10 years service with full presence of 240 days each year during such ten years. As regards the case of the petitioner, it has been stated in the said letter that the petitioner has retired on 31.10.1991 on account of superannuation and during his service, presence of 240 days has been only for nine years and, therefore, his service is not pensionable service as per the GR dated 17.10.88 and, therefore, the petitioner is not entitled for the pensionary benefits as per the said Resolution. Learned advocate Mr. Surani appearing for the petitioner has submitted that such an interpretation of the GR dated 17.10.1988 made by the Panchayat authority is erroneous depriving the petitioner from his legitimate right to receive pension and, therefore, same is required to be quashed and set aside by directing the respondents to pay the pensionary benefits to the petitioner. He also submitted that item 3 page 30 of the said Government Resolution dated 17.10.1988 provides that those daily wager who has completed the service of more than ten years as provided under section 25(B) shall be considered permanent and such permanent labour shall be placed in the pay scale of Rs.750-940 plus other allowances. As per the said item 3 of the said GR, it has been resolved that such daily wagers should be given the pension, gratuity, general provident fund in accordance with the existing rules and regulations and they would be entitled for Sunday leave and national holidays leave over and above two leave per year as well as 14 days casual leave, 30 days' earned leave and 20 days half pay leave (medical leave). He, therefore, after reading item 3 of the said GR dated 17.10.88, submitted that for such daily wager, it is not necessary to establish that he has rendered continuous ten years service with 240 days work in each year and, therefore, the interpretation of the said GR dated 17.10.1988 made by the respondent authority is bad, illegal and against the spirit of the said resolution and, therefore, same is required tobe quashed and set aside. It was also submitted by him that the said GR dated 17.10.1988 specifies that those daily wagers who have completed the service of more than ten years as defined under section 25(B) shall be considered permanent and such permanent labour shall be given the pension, gratuity, general provident fund in accordance with the existing rules and regulations and, therefore, such an interpretation made by the respondents is contrary to the provisions of section 25(B). According to his submission, if section 25(B) as well as page 33 wherein working days of the petitioner have been specified and certified by the respondent authority both are construed properly, then, it would become clear that the interpretation put forth by the respondent Panchayat authority is erroneous and as such, the petitioner is entitled for such benefits. As against that, learned advocate Mr. Munshaw appearing for respondents no.2/3 has submitted that the GR dated 17.10.1988 is required to be interpreted in a way that on each year, 240 days must have to be completed by the daily wager and on that basis, ten years continuous service must have to be established otherwise, such daily wager is not entitled for such pensionary benefits as per the said GR dated 17.10.88. He also relied upon the clarification issued by the State Government on 30th May, 1989 issued by the Government in view of the objections and clarifications sought by various departments . First of all, learned advocate Mr. Munshaw has brought to the notice this court item no.2 of the said modification wherein the question was raised as to how many working days are required in each year for considering continuous service and in between, in any year, if the continuous service and the working days is not satisfied by such a daily wager, then, how many years is required to be deducted from the service; whether such type of service can be considered to be continuous or not and whether the earlier services rendered by such a daily wager , looking to his working days, can be considered for considering claim of pension of such a daily wager. Against such questions, opposite column of the said modification is the answers that the daily wager when he joined the service and if he completes the service as defined under section 25(B) of the ID Act and completes 240 days service within 12 months period, that may be considered to be one year's continuous service and accordingly, if ten years have been completed by the workman, then, such workman is entitled for such benefits under the Govt. Resolution dated 17.10.88 and the rest of the years are required to be excluded from the calculation wherein such workman is not completing 240 days within 12 months period. Learned advocate Mr. Munshaw has brought to this Court's notice item no. 38 and 39. As per item 38, it is clarified that according to section 25(B) of the ID Act, within 12 months period, on each year, if the workman is completing 240 days, that can be considered to be one year service and accordingly, such year is required to be calculated and if the daily wager has completed five years, ten years or fifteen years, same may be taken into account. Item 39 further clarifies that earlier clarification in the year 1973 is now not applicable to the facts of the case because after ten years or five years, daily wager need not to be taken on the work charge establishment and, therefore, the period of five years, ten years or fifteen years is required to be calculated as per item 38. In short, the sum and substance of the submissions made by the learned advocate Mr. Munshaw is to the effect that the petitioner has not completed 240 days continuous service as defined under section 25(B) of the ID Act in each year and therefore, in view of the modification as aforesaid pointed out by him, the years wherein the petitioner is not completing 240 days continuous service are required to be excluded while considering year of service and in view of such consideration based on the clarification made by the Government in 1989, the petitioner is not entitled for such pensionary benefits as per the GR dated 17.10.88 and the authority was right in rejecting the claim of the petitioner on that ground. Save and except these submissions, no other submissions were made by the learned advocate Mr. Munshaw on behalf of the Panchayat authority. Learned AGP Mr. Bhate appearing for the State Authorities has relied upon the answer given by the Panchayat authority and has pointed out that the authority was right in rejecting the claim of the petitioner as the petitioner has not completed 240 days continuous service in each year as per section 25(B) of the Act and, therefore, his claim was rightly rejected by the Panchayat authority and the petitioner is not entitled for such pensionary benefits. Except these submissions, no other submissions were made by the learned AGP Mr. Bhate on behalf of the State Authority. Considering the entire facts and circumstances of the present case, according to my opinion, the controversy involved in the present petition is the controversy created by the respondents themselves without considering the provisions of section 25(B) of the I.D. Act, 1947. It is surprising to the court that both the learned advocates representing the present respondents have made their submissions and interpreted the Government Resolution dated 17.10.1988 in their own manner, described from the reply given by the respondent authorities but none of the advocates for the respondent authorities have brought to the notice of this court relevant provisions of section 25(B) of the ID Act and have also not read the same before this Court. This Court is of the view that the provisions contained in section 25(B) of the ID Act,1947 itself is the answer to the controversy raised or created by the respondents. This Court is also of the view that while considering the case of the petitioner, the respondents have not taken into consideration the provisions contained in section 25(B) of the ID Act. Since the said provisions are relevant and material for the purpose of resolution of the controversy involved in the present petition, reproduced as under: "25-B. Definition of continuous service. - For the purpose of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of Cl.(1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred forty days in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) ninety five days in the case of a workman employed below ground in a mine and (ii) one hundred and twenty days, in any other case. (2) 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 employer - (a) for a period of one year if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in mine and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) ninety five days in the case of a workman employed below ground in a mine and (ii) one hundred and twenty days in any other case. Thus, this section is having two facets defining the term 'continuous service' for the purpose of Chapter VA. Sub section (1) of section 25B of the ID Act provides that a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman and sub section (2) of section 25B of the ID Act 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 employer -(a) for a period of one year if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in mine and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) ninety five days in the case of a workman employed below ground in a mine and (ii) one hundred and twenty days in any other case. These two sub sections (1) and (2) of section 25-B of the ID Act, 1947 have been interpreted by the Hon'ble Supreme Court in case of Workmen of American Express International Banking Corporation versus Management of American Express International Banking Corporation reported in AIR 1986 SC 458 and has observed that while calculating the actual working of 240 days in a year in respect of the workman, days of holiday and other festival holidays are required to be included and after including such holidays and festival holidays, if the workman has completed 240 days, then, he is entitled for the benefit of section 25-F of the I.D. Act, 1947. This aspect has been considered in paragraph 5 of the judgment by the Hon'ble apex court are to the effect that; " the expression 'actually worked under the employer' cannot mean those days only when the workman