1. The original petitioner Shri Dahyabhai Parmar, had filed this petition praying to direct the respondents to pay arrears of pension from September, 1996. The original petitioner expired in 2006 and therefore the legal heirs are brought on record.
2. It is the case of the original petitioner that he had joined the service as unskilled daily rated employee on 20.10.1977 in the office of Deputy Executive Engineer, R & B Department, Dhoraji. Thereafter, the petitioner was transferred from Dhoraji to Jetpur vide order dated 10.01.1989. The original petitioner worked continuously in the service of the respondents till the date of retirement on 31.08.1996. It is the case of the petitioners that the petitioners are being deprived of the pension payable to them by the respondents.
2.1 The original petitioner filed Special Civil Application No. 12266 of 2001 before this Court whereby this Court vide order dated 26.12.2001 directed the respondents to consider the case of the original petitioner for pension. The respondents did not pay the pension to the petitioners and therefore being aggrieved by the same, the present petition is preferred.
3. Mr. Kishor Paul, learned advocate appearing for the petitioner submitted that the respondents ought to have fixed the pension of the original petitioner as per Circulars at Annexures 'D' & 'E'. He submitted that the petitioners are being illegaly and deliberately deprived of the legal dues. He has placed reliance upon an unreported decision of this Court dated 12.07.2004 passed in Special Civil Application No. 848 of 2003 and another decision in the case of Karshanbhai Vastabhai Bhasker vs. State of Gujarat and Another reported in 1999(1) GCD 638 (Guj) and in the case of Tribhovanbhai Jerambhai Vs. Dy. Executive Engineer, Sub-Division, R & B Dept. & Another reported in 1998(2) GLH 1.
3.1 Mr. Paul submitted that the retiral benefits were denied to the original petitioner due to the fault on the part of the respondents and therefore the petitioner is entitled to get interest on the arrears of the amount to be paid to the petitioner. In this regard he has relied upon a decision of the Apex Court in the case of Baiji Nath Gupta vs. State of Bihar and others reported in 1996(10) SCC 297.
4. Mr. J.K. Shah, learned AGP appearing for the respondents supported the stand of the respondents and submitted that the original petitioner had not worked as a daily wage labourer for more than 10 years. He submitted that the original petitioner had worked from 1977-78 to 1988- 89 and during the said period he had not completed 240 days in one calendar year and therefore this period cannot be treated as service period for the pension benefit as per Section 25-B of the Industrial Dispute Act. He submitted that the gratuity has already been paid to the original petitioner.
5. Heard learned advocates for both the sides. Perused the papers on record. The issue involved in this petition is squarely covered by the decisions of this Court. This Court in the case of Tribhovanbhai (supra) has held that once a daily rated 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 regularization is taken into consideration for the purpose of computing pension or making pension available to such retired employee. Therefore, the plea of the respondents that the services rendered by the petitioner prior to his confirmation in service cannot be taken into consideration has no merit inasmuch as the petitioner has also relied upon the same Resolution. In the resolution dated 17.10.1988 it has been envisaged that those workmen who as on 01.10.1988 or thereafter compete ten years of continuous service to be counted in accordance with provisions of Section 25 B of the I.D. 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 and they were made entitled for pensionary benefits. The same view is reiterated in the case of Karshanbhai (supra) and the unreported decision of this Court.
6. The continuous service for the original petitioner is to be counted from the date of entry in service until he retired including his services rendered prior to the date of his regularisation for the purpose of computing pension. Therefore the petitioners are entitled to pensionary benefits and the arrears thereupon.
7. In the case of Baiji Nath Gupta(supra), the Apex Court has held that if the pension was not determined in accordance with the rules on account of any laches or grounds on the part of the appellant, the appellant obviously would not be entitled to payment of interest for the delayed payment of pension and if the Government was responsible for the delay, necessarily the appellant would be entitled to the payment of interest on the delayed payment. similar view has been taken by the Apex Court in the case of (1) Uma Agrawal Vs. State of UP, reported in AIR 1999 SC 1212 (199) 3 SCC 438: 1999 SCC (L&S) 742: (1999)2 CLR 156: (1999) 2 SLR 22: (1999)1 LLJ 1335), (2) Vijay L. Mehrotra Vs. State of U.P. and others, reported in (2001) 9 SCC 687 (=2000 Lab IC 2663:
(2000)2 LLJ 253: (2000)3 LLN 1: (2000) 2 SLR 686) and (3) Gangahanume Gowda Vs.Karnataka Agro Industries Corpn. Ltd., reported in AIR 2003 SC 1526. Learned counsel for the respondent is unable to dispute the aforesaid proposition.
8. In the premises, petition is allowed. The respondents are directed to compute the pensionary benefits payable to the legal heirs of the original petitioner-workman Shri Dahyabhai Parmar from the date of his retirement till the date of his death i.e. from 31.08.1996 to 21.02.2006 and make payment within a period of three months from the date of receipt of the writ of the order of this Court.
8.1 The respondents are also directed to start making regular payment of family pension to the petitioner no. 1 who is the wife of the original petitioner, if applicable under the rules, with effect from the date of death of the original petitioner. On the facts and circumstances of the case, the respondents are directed to pay interest at the rate of 9% on the arrears in question from retirement till the date the payment is made. Rule is made absolute to the aforesaid extent. No costs.
(K.S. JHAVERI, J.) Divya//