RAMESHBHAI HIRABHAI TAVIYAD vs DEPARTMENT OF FOREST
- Court
- Gujarat High Court
C/SCA/575/2025 JUDGMENT DATED: 22/10/2026
(GJHC240862682024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 575 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
✓
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RAMESHBHAI HIRABHAI TAVIYAD
Versus
DEPARTMENT OF FOREST & ORS.
==========================================================
Appearance:
MR CHINTAN N DESAI(9940) for the Petitioner(s) No. 1
MS NIRALI SHARDA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 22/10/2026
ORAL JUDGMENT
1. Heard learned Advocate Mr.Chintan N. Desai appearing
on behalf of the petitioner and learned Assistant
Government Pleader Ms. Nirali Sarda appearing on behalf of
the respondent-State.
2. The present petition is preferred seeking for the
following reliefs :
(A) This Hon’ble Court be pleased to issue a writ of
Mandamus and/or any other appropriate writ,
direction and/or order directing the respondents to
extend the benefits of Government resolution dated
17.10.1988 vis-à-vis 15.09.2014 to the petitioner
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along-with 12% interest per annum; (Ann-B & D)
(B) This Hon’ble Court be pleased to direct the
respondent authority to calculate the number of
days worked by the petitioner in a year in view of
the ratio laid down 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 1985 4 SCC 71;
(C) This Hon’ble Court be pleased to issue a writ of
Mandamus and/or any other appropriate writ,
direction and/or order holding the action of the
respondent in transferring the petitioners to
outsourcing, contractual etc mode of service as
bad in law, capricious and in violation of article 14
& 16 of the Constitution of India;
(D) This Hon’ble Court be pleased to issue a writ of
Mandamus and/or any other appropriate writ,
direction and/or order directing the respondents to
th
grant benefits of 7 pay commission w.e.f
01.01.2016 in view of the GR dated 18.03.2023
r/w. 22.12.2023 (produced at Annexure-G)
(E) This Hon’ble Court may kindly be pleased to pass
such other and further order which deems to fit,
just and proper in the interest of justice.
3. Facts leading to the present petition are that the
petitioner joined as daily wager with the forest department
w.e.f the year 1988. The petitioner was thereafter placed on
outsourcing w.e.f the year 2014 and the petitioner is not
granted the benefits of GR dated 17.10.1988 r/w.
15.09.2014 as per the ratio of Hon’ble Supreme Court in
case of Workmen of American Express International Banking
Corporation Versus Management of American Express
International Banking Corporation reported in 1985 4 SCC
71 and therefore the petitioner has preferred the present
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petition.
4. At this stage, it would be relevant to note that vide
order dated 01.07.2025, this Court has inter alia passed the
following direction:
“3. Under such circumstances, let the Range
Forest Officer, Ditvas file an affidavit stating as to
whether the calculation is by adding Sundays and
Public Holidays as per the law laid down in
Workmen of American Express International
Banking Corporation (supra) or not, and whereas,
if the same is not as per the decision of the
Hon'ble Apex Court in Workmen of American
Express International Banking Corporation (supra),
then a fresh consolidated attendance-sheet shall
be produced, after adding Sundays and Public
Holidays in the number of days worked by the
present petitioner.”
4.1. That in compliance of the order dated 01.07.2025
passed by this Court, the respondent- state has filed
affidavit-in-reply producing attendance sheet of the
petitioner as per the ratio in case of Workmen of American
Express (supra), whereby the petitioner completes following
number of years of service:
Name of
petitioner
Years of 240 days
Present
of service as per
status
Workmen of
American Express
till the year 2014
Rameshbhai
14
Hirabhai Taviyad
Working on
outsourcing
w.e.f 2014
5. Learned Advocate Mr.Desai on behalf of the petitioner
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would submit that the respondents have committed a gross error
in not adding Sundays and Public Holidays to the number of
days actually put in by the petitioner, while considering the case
of the petitioner for entitlement as per Government Resolution
dated 17.10.1988. Learned Advocate would submit that as such,
the Industrial Disputes Act, more particularly Section 25-B read
with Section 25-F of the Act, as interpreted by the Hon’ble Apex
Court in case of Workmen of American Express International
Banking Corporation Vs. Management of American Express
International Banking Corporation, reported in (1985) 4 SCC 71,
inter alia lays down that the period of 240 days as found in
Section 25-B would include Sundays and Paid Holidays for the
purpose of computation. Learned Advocate would submit that
addition of the Sundays and Public Holidays to the actual
number of days put in by the petitioner, would lead to a
situation where the petitioner would be entitled to the benefit of
Government Resolution dated 17.10.1988 and subsequent
Resolutions. Learned Advocate would submit that the
methodology adopted by the respondents being bad in law, more
particularly against the settled principles of law, this Court may
intervene, set aside the order impugned dated 16.03.2020 and
direct the respondents to recalculate the number of days worked
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by the present petitioner and to ensure that the benefits are
available, as per the entitlement, as per the fresh calculation.
6. As against the same, learned AGP Ms.Sarda would submit
that as such, this Court may not rely upon the calculation made
by the respondents since according to learned AGP, the law laid
down by the Hon’ble Supreme Court in case of Workmen of
American Express International Banking Corporation (supra)
would not be applicable to the facts of the case. Learned AGP
would elaborate by relying upon a decision of the Hon’ble
Division Bench of this Court in case of Ranjit Natvarlal Chauhan
vs. Morbi Nagar Palika, reported in 2011 (2) GLR 1783 (Letters
Patent Appeal No.3042/2010) . Learned AGP would submit that
the Hon’ble Division Bench has in the said decision explained
that the decision in case of Workmen of American Express
International Banking Corporation (supra) would be applicable
to persons who were employed on temporary basis and whereas,
the said decision would not be applicable to persons engaged as
daily wagers.
6.1. According to learned AGP, the Hon’ble Division Bench has
inter alia observed that if the ratio were to be applied to a
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temporary worker then the distinction of person engaged on
temporary basis and person engaged as daily wager would be
lost per se. Learned AGP would submit that, under such
circumstances, this Court may not take into consideration the
calculation provided by the respondent authorities by adhering
to the law laid down by the Hon’ble Supreme Court in case of
Workmen of American Express International Banking
Corporation (supra).
6.2. Learned AGP would further submit that as such, the
interpretation of the Government Resolution dated 17.10.1988
as regards completion of 240 days is in violation of Clause-I of
the Government Resolution itself which inter alia lays down that
only upon completion of 240 days in the first year would the
employee be entitled for getting addition of Sundays and public
holidays in the total number of days which he had worked in a
year.
6.3. On the basis of the above submissions, learned AGP would
request this Court not to take into consideration the calculation
provided by the respondents themselves and whereas, it is
submitted that the present petition may be rejected by this
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Court.
7. Having heard learned the Counsels for the respective
parties and having perused the documents on record, the
following issues arise for consideration of this Court :-
(i) Whether the Government Resolution dated 17.10.1988
envisages that for entitlement of the benefits as per the said
Resolution, the workman, should first completed 240 days in
first year whereafter, he would be entitled for grant of
emoluments for Sundays, Medical Leave and for National
Holidays.
(ii) Whether the law laid down by the Hon’ble Apex Court in case
of Workmen of American Express International Banking
Corporation (supra), i.e. adding Sundays and Public Holidays for
the purpose of computing 240 days even in the first year of
employment, would be available to those employees claiming
benefit of Government Resolution dated 17.10.1988.
8. At the outset, it would be relevant to observe that the
objection taken by the State, is too late in the day inasmuch as,
the law insofar as the interpretation of Government Resolution
dated 17.10.1988 has been crystallized by the Hon’ble Apex
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Court in two leading decisions i.e. (i) in case of State of Gujarat
Vs. PWD Employees Union, reported in 2013 (12) SCC 417
(hereinafter refer to as “PWD-I judgment”) and (ii) in case of State
of Gujarat Vs. PWD and Forest Employees Union, reported in
2019 (15) SCC 248, (hereinafter refer to as “PWD-II judgment”)
9. Before analyzing the first issue in question from the
perspective of the above decisions, it would relevant to refer to
Clause (1) of Government Resolution dated 17.10.1988, which is
relied upon by the learned AGP. The Clause (1) , translated into
English would read as thus :
“Clause (1) - Daily wagers skilled workers, who have
completed less than five years of service as of 01/10/88,
shall be paid daily wages according to the prevailing
minimum wage rules. Upon completing more than 240 days
of attendance in the first year of service, Sunday leave,
medical facilities, and national holiday leaves shall be
admissible at an incremented scale of pay.”
9.1 Considering the above, it would appear that the above
Clause lays down that such skilled daily rated workmen, who
have not completed 05 years before 01.10.1988, are to be paid
wage per day, as per the minimum wages. The said Clause
further states that upon completion of 240 days or more, the
workmen would be entitled to paid Sunday, Medical
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Allowance/Facility and Holidays on occasions of National
Festivals. Judgment of the Hon’ble Apex Court in PWD-I at
Paragraph No. 25(i), states as much and is reproduced
hereinbelow for benefit :
“[“25(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days in
first year, daily wagers are eligible for paid Sunday, medical
allowance and national festivals holidays.]”
10. It appears that the judgment of PWD-II, had arisen from
the decisions of this Court, as regards interpretation of the
earlier decision of the Hon’ble Apex Court, which was the basis
for grant of benefits as per Government Resolution dated
17.10.1988. Both the parties were permitted by the Hon’ble Apex
Court to handover charts as regards implementation of the
Resolution and whereas the Hon’ble Apex Court had inter alia
enumerated five issues on which there had been a dispute
between the parties. Relevant for the present purpose is Para 12
(iv), which reads as thus :
“12 (iv) The worker is given benefit of past services
considering the earlier period on which he worked for more
than 240 days in a year.”
10.1. Paragraph No. 12(iv) being answered at Paragraph No. 15,
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is reproduced hereinbelow :
“15. Insofar as exception (iv) mentioned by the appellant is
concerned, there appears to be some merit therein. For
counting the number of years for giving benefit to the
workers in terms of judgment dated July 09, 2013, only
those years would be taken into consideration wherein these
workers had worked for 240 days or more in a year i.e. in
consonance with the GR dated October 17, 1988.
Furthermore, there is no direction in the judgment of this
Court to the effect that the period of service of 240 days in a
year should be only in the initial year and not thereafter. In
fact, when the learned senior counsel for the respondents
were confronted with the aforesaid position, they conceded
to this position.
10.2. Upon appreciating issue no.12(iv) and the observations of
the Hon’ble Supreme Court with regard to the same, while it
would appear that the Hon’ble Apex Court has inter alia
enumerated that for counting the number of years for the
purpose of grant of benefit under the Government Resolution
dated 17.10.1988 as per the decision of the Hon’ble Apex Court
dated 09.07.2003 (PWD-I), only those years would be taken into
consideration where the workman has worked for 240 days or
more in a year. The Hon’ble Apex Court has also observed that
the period of 240 days is to be counted for each of the year
which is to be taken into consideration and the direction in
decision of PWD-I could not be read to mean that the period of
240 days is to be counted only in the initial year. It would be
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apposite to observe in this regard that in the case of PWD-I , the
Hon’ble Apex Court at paragraph no.25(i) having interpreted the
Government Resolution dated 17.10.1988, had declared the
entitlement of the workmen and whereas, qua the issue in
question, it is observed as under:-
“(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days
in first year, daily wagers are eligible for paid Sunday,
medical allowance and national festival holidays.”
10.3. It would appear that in PWD-II, at paragraph no.10, a
chart had been submitted by the appellant – State as regards
implementation of Government Resolution dated 17.10.1988
read with Government Resolution dated 15.09.2014. The chart,
insofar as it touches upon the issue in question, is reproduced
hereinbelow for benefit:-
Sr.
No.
Number of
Benefits under GR
Prevailing
Entitlement
years
worked
dated 17.10.1988
Standard
on
29.10.2010
of Wages
under GR
dated
17.10.1988
1 Presence of
more than
240 days in
year
Entitled to daily
wages as per the
prevailing daily
wages + Paid
Sundays + Medical
Allowance (MA) +
Rs.452/-
per month
Rs.4456/-
per month
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National Festival
Holidays
11. Co-relating the observations of the Hon’ble Apex Court in
both the decisions, it would appear that while the first decision
inter alia stated as regards the entitlement of a daily wager for
paid Sundays, medical allowance and national festival holidays
upon completion of 240 days in the first year and whereas, in
the second decision, the Hon’ble Supreme Court had clarified
that the requirement of completing 240 days would not be
restricted to the initial year, rather, it would be incumbent /
mandatory for the workman to have completed 240 days in each
year for the said year to be counted towards granting of benefit
as available under Government Resolution dated 17.10.1988.
11.1. Again, what would be apposite to observe here is that the
Hon’ble Apex Court has not laid down as to how the 240 days
are to be calculated, more particularly, in context of Section
25(B) of the Industrial Disputes Act.
11.2. At this stage, this Court would refer to the decision of the
Hon’ble Apex Court in case of Workmen of American Express
International Banking Corporation (supra). A perusal of the
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said decision reveals that the Hon’ble Apex Court was concerned
as to the computation of number of number of days put in by a
workman for the purpose of Section 25(F) read with Section
25(B) of the Industrial Disputes Act. Detailed perusal of the
decision does not reveal that what had weighed with the Hon’ble
Supreme Court was a fact that the workman was employed in a
temporary capacity. Rather, the Hon’ble Supreme Court was
clearly concerned with the question as to how the 240 days as
appearing in Section 25(B) of the Industrial Disputes Act is
required to be calculated. As such, the observations of the
Hon’ble Supreme Court at para-4, 5 and 6 of the decision being
very relevant, are reproduced hereinbelow for benefit:-
“4. The principles of statutory construction are well
settled. Words occurring in statutes of liberal import such
as social welfare legislation and 'Human Rights'
legislation are not to be put in procrustean beds or
shrunk to Liliputian dimensions. In construing these
legislations the imposture of literal construction must be
avoided and the prodigality of its mis-application must be
recognised and reduced. Judges ought to be more
concerned with the 'colour', the 'content' and the 'context'
of such statutes. (We have borrowed the words from Lord
Wilbei force's opinion in Prenn v. Simmonds 1971 (3) AER
237). In the same opinion Lord Wilberforce pointed out
that law is not to be left behind some island of literal
interpretation but is to enquire beyond the language, un-
isolated from the matrix of facts in which they are set;
the law is not to be interpreted purely on internal
linguistic considerations. In one of the cases cited before
us, that is, Surendra Kumar Verma v. Central
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Government Industrial Tribunal cum-Labour Court, we
had occasion to say, "Semantic luxuries are misplaced in
the interpretation of 'bread and butter' statutes. Welfare
statutes must, of necessity, receive a broad
interpretation. Where legislation is designed to give relief
against certain kinds of mischief, the Court is, not to
make inroads by making etymological excursions".
5. Section 25-F of the Industrial Disputes Act is
plainly intended to give relief to retrenched workmen.
The qualification for relief Under Section 25-F. is that he
should be a workman employed in an industry and has
been in continuous service for not less than one year
under an employer. What is continuous service has been
defined and explained in Section 25-B of the Industrial
Disputes Act. In the present case, the provision which is
of reliance is Section 25-B(2)(a)(ii) which to the extent that
it concerns us, provides that a workman who is not in
continuous service for a period of one year shall be
deemed to be in continuous service 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 240 days. The expression
which we are required to construe is 'actually worked
under the employer'. This expression, according to us,
cannot mean those days only when me workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The learned counsel for the Management would urge that
only those days which are mentioned in the Explanation
to Section 25-B(2) should be taken into account for the
purpose of calculating the number of days on which the
workmen had actually worked though he had not so
worked and no other days. We do not think that we are
entitled to so constrain the construction of the expression
'actually worked under the employer'. The explanation is
only clarificatory, as all explanations are, and cannot be
used to limit the expanse of the main provision. If the
expression 'actually worked under the employer' is
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capable of comprehending the days during which the
workman was in employment and was paid wages-and
we see no impediment to so construe the expression-
there is no reason why the expression should be limited
by the explanation. To give it any other meaning then
what we have done would bring the object of Section 25-
F very close to frustration. It is not necessary to give
examples of how 25 F may be frustrated as they are too
obvious to be stated.
6. The leading authority on which reliance was
placed by the learned counsel for the Management was
Lalappa Lingappa and Ors. v. Laxmi Vishnu Textile Mills
Ltd. We may straightaway say that the present question
whether Sundays and paid holidays should be taken
into account for the purpose of reckoning the number of
days on which an employee actually worked, never
arose there. The claim was under the Payment of
Gratuity Act. All permanent employees of the employer
claimed that they were entitled to payment of gratuity for
the entire period of their service, that is, in respect of
every year during which they were in permanent
employment irrespective of the fact whether they had
actually worked for 240 days in a year or not. The
question there was not how the 240 days were to be
reckoned ; the question was not whether Sundays and
paid holidays were to be included in reckoning the
number of days on which the workmen actually worked ;
but the question was whether a workman could be said
to have been actually employed for 240 days by the mere
fact that he was in service for the whole year whether or
not he actually worked for 240 days. On the language
employed in Section 2(c) of the Payment of Gratuity Act,
the court came to the conclusion that the expression
'actually employed' occurring in Explanation I meant the
same thing as the expression 'actually worked' occurring
in Explanation II and that as the workmen concerned
had not actually worked for 240 days or more in the year
they were not entitled to payment of gratuity for that
year. They further question as to what was meant by the
expression 'actually worked' was not considered as
apparently it did not arise for consideration. Therefore,
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the question whether Sundays and other paid holidays
should be taken into account for the purpose of reckoning
the total number of days on which the workmen could be
said to have actually worked was not considered in that
case. The other cases cited before us do not appear to
have any bearing on the question at issue before us. ”
11.3. At para-4 of the decision, the Hon’ble Supreme Court
explains the principle of statutory construction and whereas, it
is observed by the Hon’ble Supreme Court that welfare statutes
must receive a broad interpretation more particularly the Hon’ble
Supreme Court clearly observing that when a legislation is
designed to give relief against certain kinds of mischief, the
Courts are not required to make inroads by trying to interpret
the decision in a manner suitable.
11.4. At para-5, the Hon’ble Supreme Court explains the scope
and purport of Section 25(B) and Section 25(F) and whereas,
what would be relevant is to note that as far as calculating the
period of 240 days i.e. the number of days which a workman had
put in during the period of twelve calender months preceding the
date with reference to which the calculation is required to be
made, the Hon’ble Supreme Court observes that the days cannot
mean only those days where the workman ‘had worked with
hammer, sickle or pen’ but, must necessarily comprehend all
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those days during which he was in the employment of the
employer and for which he had been paid wages either under
express or implied contract of service or by compulsion of
statute, standing orders etc. The Hon’ble Supreme Court further
observes that the expression 'actually worked under the
employer' is capable of comprehending during the days when the
workman was in employment and whereas, the Hon’ble Supreme
Court has further observed that giving it any other meaning
would frustrate the very object of Section 25(F).
11.5. Having carefully considered the decision of the Hon’ble
Supreme Court in case of Workmen of American Express
International Banking Corporation (supra), this Court could not
find any observation of the Hon’ble Supreme Court as to the
decision of Hon’ble Supreme Court being based on a fact that the
appellant before the Hon’ble Supreme Court was a workman who
was employed on temporary basis. This Court has also noted the
fact that in the entire judgment, except for observing that the
appellant before the Hon’ble Apex Court had joined the services
of the respondent ‘as a Typist – Clerk in a temporary capacity’
the Hon’ble Supreme Court has, in the entire judgment, used the
word workman and has not qualified the word workman either
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through the word temporary or through the word daily wages.
The Hon’ble Supreme Court has only gone by the normal
colloquial meaning of the term ‘workman’ and nothing else.
12. As against the same, it would appear that learned AGP
Ms.Nirali Sarda had relied upon decision of the Hon’ble Division
Bench of this Court in case of Ranjit Natvarlal Chauhan (supra)
to contend that the Hon’ble Division Bench in the said decision
had inter alia observed that a daily waged employee would not be
entitled to the benefit of the decision of the Hon’ble Apex Court
in case of Workmen of American Express International Banking
Corporation (supra). Observations of the Hon’ble Division Bench
in case of Ranjit Natvarlal Chauhan (supra), relied upon by
learned AGP, is referred to hereinbelow for benefit:-
“7. We may first consider the decision of the Apex
Court in the case of Workmen of American Express
International Banking Corporation (supra). In the facts of
the said case, at para 2, it has been specifically
mentioned that the workman had joined the service of
the American Express International Banking Corporation
as Typist in temporary capacity and was employed as
such with a number of short breaks till his services were
terminated. The pertinent aspect is that the person had
joined service as Typist-Clerk in temporary capacity and
it was not the case of engagement of and any person as
daily wager like in the present case. It is in those facts
and circumstances of the case that the person had
worked in service in temporary capacity, the
observations were made by the Apex Court. Thereby, it
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cannot be said that even if a person is engaged as daily
wager, and he had worked for a particular number of
days, while counting the total actual working, the weekly
holidays are to be added. If such is considered, the very
distinction of a person engaged on temporary basis and
a person engaged as daily wager would be lost. In the
case of an engagement of a person as daily wager, the
person is to be paid calculating his wage on daily basis
whereas in case of a person who is engaged on
temporary post, he can be considered as an employee on
monthly basis and his engagement can also be
considered as on monthly basis.”
12.1. Perusal of the said observations reveal as noted
hereinabove that the Hon’ble Division Bench had distinguished
the decision of the Hon’ble Apex Court by holding that the
workman before the Hon’ble Supreme Court was in service in
temporary capacity and whereas, the said observations would
not be available in case if the person is engaged as a daily wager
and he had worked for a particular number of days. The Hon’ble
Division Bench had further observed that there is distinction
between a person who is engaged in temporary basis and who is
engaged as a daily wager and calculating the number of days as
per the law laid down by the Hon’ble Apex Court in case of
Workmen of American Express International Banking
Corporation (supra), would only be relevant for temporary
workers and not for daily wage workers.
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13. As against the same, it would appear to this Court that
applicability of decision of the Hon’ble Supreme Court in case of
Workmen of American Express International Banking
Corporation (supra) to daily wage employees for the purpose of
grant of benefit under the Government Resolution dated
17.10.1988 had been considered by the Hon’ble Division Bench
as far as back on 06.08.1998 i.e. much prior to the decision of
the Hon’ble Division Bench in case of Ranjit Natvarlal Chauhan
(supra) which was the decision of the year 2011. Observations of
the Hon’ble Division Bench in case of Chhaganbhai
Ranchhodbhai Rathod vs. Deputy Executive Engineer,
rendered in Letters Patent Appeal No.1495/1997 dated
06.09.1998, relevant for the present purpose, are reproduced
hereinbelow for benefit:-
“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
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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. 458 has 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
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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.”
13.1. From a perusal of the above decision, it could be clearly
seen that in an identical situation where workmen were claiming
benefit of Government Resolution dated 17.10.1988 and the
question arose as to how the period of 240 days in a year was to
be calculated, the Hon’ble Division Bench had relied upon the
decision of the Hon’ble Apex Court in case of Workmen of
American Express International Banking Corporation (supra)
and held that ‘continuous service is to be counted by including
Sundays and other holidays, sickness or authorized leave and
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.’ Having observed as thus, the Hon’ble Division Bench
had upheld the entitlement of the workman for counting of 240
days per year as per the formula explained by the Hon’ble
Division Bench relying upon the decision of the Hon’ble Supreme
Court and declared the workman entitled for pension. It would
appear that the aforesaid decision of the Hon’ble Supreme Court
had not been noticed by the Hon’ble Division Bench in case of
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Ranjit Natvarlal Chauhan (supra).
13.2. It requires to be observed in this regard that the law on
the issue of binding precedence inter alia holds that judgment of
a co-equal Bench is binding and the only option for a co-equal
Bench to take a different view would be to refer the issue to a
larger Bench. Again, if a learned Single Judge is confronted with
two different decisions on the same proposition of law, then the
earlier decision would take precedence over the later decision,
irrespective of whether the prior decision was brought to the
notice of the later Bench or not. In the instant case, to this
Court, it would appear that while the Hon’ble Division Bench in
case of Chhaganbhai Ranchhodbhai Rathod (supra) vide decision
dated 06.08.1998 had upheld the applicability of the proposition
of law as laid down by the Hon’ble Apex Court in case of
Workmen of American Express International Banking
Corporation (supra) to daily waged employees who were entitled
to the benefit under Government Resolution dated 17.10.1988
and whereas, learned AGP has relied upon a decision of a co-
equal Bench in case of Ranjit Natvarlal Chauhan (supra) where
the Hon’ble Division Bench has inter alia held that decision of
proposition of law laid down by the Hon’ble Supreme Court in
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case of Workmen of American Express International Banking
Corporation (supra) would not be applicable to daily wage
employee. While prima facie, one could observe that the same
may have been passed without taking into consideration the
decision of the Hon’ble Division Bench in case of Chhaganbhai
Ranchhodbhai Rathod (supra), yet, another view of looking at the
said issue would be that the issue in question as regards
applicability of the proposition of law as laid down by the Hon’ble
Apex Court to daily wage employees entitled to benefit under
Government Resolution dated 17.10.1988 was not an issue in
question before the Hon’ble Division Bench in case of Ranjit
Natvarlal Chauhan (supra).
13.3. Hence, either way, from the perspective of an earlier
precedent which would be binding and from the perspective of
similarity of fact, decision of Chhaganbhai Ranchhodbhai
Rathod (supra) would be applicable to the facts of the case. It
also appears that the decision of the Hon’ble Division Bench in
case of Chhaganbhai Ranchhodbhai Rathod (supra) has been
followed in various decisions and whereas, as of now, it is a well
settled position that daily waged employees are entitled to the
benefit of Sundays, public/national holidays etc. to be counted
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for the purpose of 240 days in service and whereas, though the
issue has been under consideration of this Court for last around
three decades, it is only very recently that the State has started
taking objections with regard to applicability of the proposition of
law laid down in case of Workmen of American Express
International Banking Corporation (supra) to beneficiaries of
Government Resolution dated 17.10.1988. As observed by this
Court, while it is too late in the day for the State to contend as
such, and whereas, it would appear that apart from delay, even
on merits, the decision in case of Ranjit Natvarlal Chauhan
(supra) would not advance the cause agitated by the State any
further.
14. At this stage, it would be apposite to refer to decision of
the Hon’ble Division Bench in case of Executive Engineer vs.
Dhirabhai Bhurabhai Pagi Since Decd. Through Shantaben
WD/O Dhirabhai Pagi , rendered in Letters Patent Appeal No.
159/2023 , dated 28.02.2023. Paragraphs no.6.5, 6.5.1, 6.6,
6.7, 6.7.1, 6.7.2 and 6.8 being relevant for the present purpose,
are reproduced hereinbelow for benefit:-
“6.5 Now, so far as the contention raised by learned
Advocate, Mr. Munshaw, by relying on the chart
produced at Page-45 of the compilation, that the late
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worker, i.e. the husband of the opponent-wife, completed
the 240 days work only in six years is concerned, if, the
document produced at Page-45 of the compilation is seen,
it has to be decided, as to whether, while calculating 240
days, Sundays and official / public holidays are to be
counted in the same or not.
6.5.1 Aforesaid aspect has already been considered and
decided by this Court vide order dated 06.08.1998,
passed in Letters Patent Appeal No. 1495 of 1997,
wherein, the Division Bench of this Court observed 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. 458 has 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
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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
ofthe 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.”
6.6 The Division Bench of this Court considered the very
issue in Letters Patent Appeal No. 2047 of 2004, Dated:
29.03.2016, and observed at Paragraph-7 thus;
“7. Having heard learned advocates appearing for
the parties and perusal of the record and the order
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under challenge, we find no error on law much less
on facts appears in the judgement under challenge.
Learned Single Judge having adverted to nature of
right of an employee to receive pension upon
completion of 10 years of continuous service in the
context of definition of Section 25B of I.D.Act, 1947
read with Government Resolution dated 17.10.1988
of State of Gujarat, and relying on decisions of the
Apex Court for the expression 'actually worked
under the employer' would mean number of days
namely, Sundays and other paid holidays on which
the workman had actually performed the duties. By
applying the above parameter in the light of decision
of the Apex Court in Workmen of American Express
International Banking Corporation vs. Management
of American Express International Banking
Corporation and even as appeared from the record of
the case namely, certificate issued by Dy. Executive
Engineer, Panchayat Department, Road and
Building Patadi at Annexure J to the petition reveal
that in the year 1981, 1984 to 1991 for all these 9
years workman had completed more than 240 days
and in the year 1983 workman-petitioner had
actually worked even as per the above certificate for
235 days, in which, public and paid holidays are
included would exceed 240 days and thus
continuous service for 10 years of the petitioner
surfaces on record. Likewise, in the year 1982
actual days of working are 198 days and upon
inclusion of Sundays and paid holidays on which,
the petitioner-workman had performed the duties
would be more than 240 days. So on facts and on
law as a whole the case of the petitioner is squarely
covered and there is not an iota of doubt of
completion of 10 years of continuous service by the
workman having served for 240 days in a year
during such period, we find no error in the judgment
under challenge passed by the learned Single
Judge.”
6.7 the learned single judge of this court also followed
the decision of the apex court in ‘State Of Gujarat’ (supra)
and vide order dated 29.11.2019, rendered in special
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civil application no. 5319 of 2019, observed as under at
Paragraph-6.1 thereof;
“6.1 It is also directed that while taking decision as
per the above observations, the law laid down in
Workmen of American Express International
Banking Corporation v. Management of American
Express International Banking Corporation [(1985) 4
SCC 71] as well as decision of the Division Bench in
Surendranagar District Panchayat v. Umarkhan
Alikhan Malek being Letters Patent Appeal No.2047
th
of 2004 decided on 29 March, 2016 shall be taken
into account.”
6.7.1 Here, it is pertinent to note that the order dated
29.11.2019 was challenged by way of Letters Patent
Appeal No. 93 of 2021, which came to be dismissed by
the Division Bench of this Court on 18.01.2021.
6.7.2 At this stage, it may be noted that against the order
dated 18.01.2021, the State had preferred Special Leave
to Appeal (Civil) No. 13048 of 2021 before the Apex Court
and the Apex Court without entertaining the same,
dismissed it on 31.08.2021 and thereby, the order
passed by the learned Single Judge, Dated: 29.11.2019,
is confirmed by the Apex Court.
6.8 Thus, in view of the discussion and the observations
made herein above, we are of the considered opinion that
for calculating 240 days, Sundays and the official /
public holidays are required to be included in the
workdays.”
14.1. Perusing the above decision, it would be clear beyond
doubt that the Hon’ble Division Bench in the said decision had
relied upon decision of the Hon’ble Division Bench dated
06.08.1998 (in case of Chhaganbhai Ranchhodbhai Rathod
(supra)) to come to a conclusion that for calculating 240 days for
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the purpose of Government Resolution dated 17.10.1988,
Sundays and official/public holidays are required to be included
in work days. It also requires to be observed here that the
Hon’ble Division Bench had also referred to observations of a
later Hon’ble Division Bench in Letters Patent Appeal
No.2047/2004 in decision dated 29.03.2016 where the issue of
counting Sundays and public holidays for the purpose of 240
days had been upheld. The Hon’ble Division Bench had also
relied upon a decision of the learned Single Judge dated
29.11.2019 rendered in Special Civil Application No.5319/2019
where the above proposition was followed. The Hon’ble Division
Bench had noted that decision of the learned Single Judge had
been challenged in Letters Patent Appeal No.93/2021 which was
dismissed by the Hon’ble Division Bench of this Court on
18.01.2021. The Hon’ble Division Bench had also noted that
order dated 18.01.2021 of the Hon’ble Division Bench had been
assailed before the Hon’ble Supreme Court and vide decision
dated 31.08.2021 in Special Leave to Appeal (Civil)
No.13048/2021, the Hon’ble Apex Court had confirmed the
decision of this Court.
14.2. Thus, it would appear that the issue of counting Sundays
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and public holidays for the purpose of calculating 240 days for
deciding the entitlement of the benefits under Government
Resolution dated 17.10.1988 is a settled issue and whereas,
reliance placed by the State on the decision of the Ranjit
Natvarlal Chauhan (supra) would be of no avail.
15. Having regard to the above discussion, to this Court, it
would appear that the questions framed hereinabove (quoted
here for ready reference) are answered as below:-
(i) Government Resolution dated 17.10.1988 envisages that for
entitlement of the benefits as per the said Resolution, the
workman, should first complete 240 days in first year
whereafter, he would be entitled for grant of emoluments for
Sundays, Medical Leave and for National Holidays, yet, since the
Government Resolution does not prescribe the methodology of
calculating 240 days which would be as per the decision of the
Hon’ble Apex Court in case of Workmen of American Express
International Banking Corporation (supra).
(ii) The law laid down by the Hon’ble Apex Court in case of
Workmen of American Express International Banking
Corporation (supra), i.e. adding Sundays and Public
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Holidays for the purpose of computing 240 days even in the
first year of employment, would be available to those
employees claiming benefit under Government Resolution
dated 17.10.1988.
16. Having answered the questions as above, this Court will
now consider the case on its own merits.
16.1. Insofar as the entitlement of the petitioner, it would
appear that vide order dated 01.07.2025, this Court had
directed the State to come out with an appropriate
calculation and whereas, it would appear that having
produced the calculation as required by this Court, the
State had turned around and questioned the methodology
based upon decision of Ranjit Natvarlal Chauhan (supra)
and whereas, this Court has not countenanced such
submissions.
16.2. It would further appear that Government Resolutions
dated 17.10.1988 read with 15.09.2014 inter alia confer
certain benefits upon daily waged employees upon
completing certain number of years, in each year the
workman having completed 240 days. This Court has
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declared that Sundays and public holidays are required to
be added to the total number of work days put in by the
daily wager for the purpose of counting 240 days.
16.3. In the considered opinion of this Court, the issue with
respect to extending benefit of the Government Resolutions
dated 17.10.1988 and 15.09.2014 to the outsourced
employee after completion of 10 years of service as daily
wager, is no more res-integra, by virtue of the decision
dated 07.03.2024 in the case of Balvantbhai Motibhai
Khant & Ors. v. State of Gujarat Ors., in Special Civil
Application No. 480 of 2019 . The relevant paragraphs of
the judgment are reproduced as under:
“3.While in the considered opinion of this Court,
nothing further requires to be done based upon the
attendance sheets except directing the
respondents to grant the benefit of Government
Resolutions dated 17.10.1988 and 15.09.2014 and
to grant the benefit of continuity of service for
such period when the petitioner was not taken in
service and to grant the benefit of difference of
salary for such period when the petitioner was
taken on employment through outsourcing agency,
yet, such a proposition is strongly objected by
learned AGP Ms. Sarda for the respondent – State.
4. In the considered opinion of this Court, as per
the Government Resolution dated 17.10.1988 as
explained by various decisions of this Court and
the decision in case of Workmen of American
Express International Banking Corporation Versus
Management of American Express International
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Banking Corporation reported in 1985 4 SCC 71 by
the Hon’ble Supreme Court, upon completing ten
years of service where in each year an employee
puts in more than 240 days, the employee would
be entitled to be granted the benefit of
permanency.
4.1….In the considered opinion of this Court, if the
petitioners had been granted permanency as and
when it fell due i.e. as and when the petitioners
completed ten years of service as above, then it
would not have been open for the respondents to
either have not taken the petitioners on work or
have taken the work of the petitioners through an
outsourcing agency. Thus, if the contention of
learned AGP Ms. Vyas is accepted then, in the
considered opinion of this Court, it would amount
to the respondents taking benefit of their own
wrong inasmuch as having not granted the benefit
of permanency under the Government Resolution
dated 17.10.1988 upon completion of ten years
and later having not taken work from the
petitioners treating them as daily wagers or
having taken work from the petitioners through
outsourcing agency, it would be now not open for
the respondents to contend that though they
committed a mistake in not granting permanency
to the petitioners, yet, the fall out of such mistake
should be borne by the petitioner.
4.2 Thus, in the considered opinion of this Court,
for such period when the petitioner was not taken
in service after he had completed ten years as
above, while the petitioner may not be entitled for
any back-wages, yet, for such period, the
petitioner would be entitled to be granted
continuity of service more particularly, for the
purpose of computation of retiral benefits.
Furthermore, insofar as the period when the
petitioner had been working through an
outsourcing agency, for such period when the
petitioner had actually worked, they would be
entitled to difference of salary i.e. the difference of
the amount which the petitioner had got through
the outsourcing agency as against the amount
which the petitioner would have got if he had been
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made permanent upon completion of ten years. The
petitioner would also be entitled to claim that the
period when the petitioner had served through any
other mode i.e. through outsourcing agency etc. be
treated as period in continuous service.”
17. Having regard to such observations, in the considered
opinion of this Court, the present petition requires
consideration and whereas the petition stands allowed with
the following directions:-
(i) The respondents to grant benefits under Government
Resolutions dated 17.10.1988 and 15.09.2014 as available
to the petitioner, keeping in view the attendance of the
petitioner as per the revised attendance sheet produced in
the reply.
(ii) In case the petitioner has completed ten years upon
the benefit of permanency being granted to him, in case
there is any period where the petitioner was not employed
by the respondents, the said period shall be treated a
continuous service and whereas, the petitioner would not be
entitled to any other benefits on counting the said period as
continuous except retiral benefits.
(iii) In case the petitioner has completed ten years and
later employed through outsource basis or through piece
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C/SCA/575/2025 JUDGMENT DATED: 22/10/2026
(GJHC240862682024)
rate etc., such period as the petitioner has worked, shall be
counted as period in service and whereas, the difference of
salary i.e. difference between the amount given through
outsourcing agency or the amount given on piece rate basis
and the salary which the petitioner would be entitled to for
the said period had the petitioner been appointed on regular
basis during such time.
(iv) The above exercise including calculating the
entitlement and disbursement of benefits including arrears,
shall be taken by the respondent authorities within a period
of 60 days from the date of the present decision being
uploaded on the web portal of the Gujarat High Court.
18. In view of the above, the petition stands disposed of as
allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J)
Bhoomi
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