VINODBHAI LALLUBHAI KATARIA vs DEPARTMENT OF FOREST
- Court
- Gujarat High Court
C/SCA/12322/2024 JUDGMENT DATED: 22/10/2026
(GJHC240546292024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12322 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
✓
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VINODBHAI LALLUBHAI KATARIA & ORS.
Versus
DEPARTMENT OF FOREST & ORS.
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Appearance:
MR CHINTAN N DESAI(9940) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
MS NIRALI SARDA, 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 petitioners 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 may be pleased to Writ of
Mandamus and/or any other appropriate writ,
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order or direction to respondents to calculate
the days of working of the petitioner in view of
the ratio laid down by the Workmen of
American Express International Banking
Corporation Versus Management of American
Express International Banking Corporation
reported in 1985 4 SCC 71;
(B) This Hon’ble court may be pleased to issue a
Writ of Mandamus and/or any other
appropriate writ, order or direction to
respondents to grant the benefits of the
Government Resolution dated 17.10.1988 r/w.
Government resolution dated 15.09.2014;
(C) This Hon’ble court may be pleased to issue a
Writ of Mandamus and/or any other
appropriate writ, order or direction to
respondents to consider the work rendered by
the petitioners on piece rate while calculating
the years of service for grant of benefits of GR
dated 17.10.1988 r/w. 15.09.2014; (Ann. A &
B)
(D) 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
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petitioners joined as daily wager with the forest
department w.e.f 16.12.2003, 01.01.2010, 01.07.2007,
01.10.2018, 01.07.2006, 01.04.2007, 01.11.2008 &
01.04.2007 respectively. The petitioners were thereafter
placed on piece rate basis w.e.f the year 2017 and the
petitioners are 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 petitioners
have preferred the present petition
4. At this stage, it would be relevant to note that vide
order dated 30.09.2024, this Court has inter alia passed
the following direction:
“1.By order dated 23.8.2024, the respondents
were directed to calculate the attendance of the
petitioners taking into consideration the
Sundays and Public Holidays as enumerated in
the decision of the Hon’ble Apex Court in the
case of Workmen of American Express
International Banking Corporation v.
Management of American Express International
Banking Corporation, reported in (1985) 4 SCC
71 and place the same on record by way of
affidavit-in-reply.
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2. Today, when the matter is taken up for
hearing, learned AGP Mr. Aditya Davda
appearing for the respondents prays for some
more time to do the calculation and place the
same on record.
3. Learned counsel for the petitioners submits
that in the present case, the petitioners were
also working on piece-rate basis. He submits
that this Court in the case of Kulsamben Jina
Shah v. State of Gujarat reported in 2020 (4)
GLR 2886, has held that the respondent
authorities cannot neglect the actual working
days even on piece-rate basis.
4. In above view of the matter, the respondents
are directed to take into consideration the
above two judgments and recalculate the
working days of the petitioners and place the
same on record by way of affidavit-in-reply
before the next date of hearing.”
4.1. That in compliance of the order 30.09.2024 passed
by this Court, the respondent- state has filed affidavit-
in-reply producing attendance sheet of the petitioners
as per the ratio in case of Workmen of American
Express (supra) and Kulsamben Jina Shah (supra),
whereby the petitioner completes following number of
years of service:-
Sr.
NO.
Name of petitioner Years of 240 days of
service as per
Workmen of
American Express
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and Piece rate
1. Vinodbhai Lallubhai
Kataria
15
2. Abhesingbhai Janabhai
Bariya
13
3. Kanchanbhai Ambalal
Nayak
13
4. Vikrambha Jivanbhai
Bariya
04
5. Rameshbhai Vechanbhai
Bariya
13
6. Ramanbhai Fogatbhai
Tadvi
12
7. Jandubhai Lalsingbhai
Rathva
11
8. Navinbhai Narsinhbhai
Tadvi
Since deceased through
legal heir wife Manishaben
Navinbhai Tadvi
08
5. Learned Advocate Mr.Desai on behalf of the petitioner
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
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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
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
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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
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).
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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
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
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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
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
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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
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
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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,
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.
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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
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.”
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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) +
National Festival
Holidays
Rs.452/-
per month
Rs.4456/-
per month
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
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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
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
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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
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
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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
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
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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,
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
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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
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
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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
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
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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
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
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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.
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,
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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
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
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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.”
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)
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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
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
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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
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
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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
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
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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
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
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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
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
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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
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
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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
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
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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
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
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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
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
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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
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 petitioners,
it would appear that vide order dated 23.08.2024, this
Court had directed the State to come out with an
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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 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. It would be pertinent in this regard to refer to
a decision of the learned Coordinate Bench in case of
Kalsumben Jina Shah vs. State of Gujarat, reported
in 2020 (4) GLR 2886 whereby the learned Coordinate
Bench referring to an earlier decision in case of
Executive Engineer (O & M) and Another vs. Hareshbhai
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Bhurabhai Vala, reported in 2016 (2) GLR 1064, again
in the context of Government Resolution dated
17.10.1988, had inter alia held that remuneration paid
to the workman at piece rate would fall within the
definition of term ‘wages’ as prescribed under the
Industrial Disputes Act and therefore, the workman
would be entitled to benefits of Government Resolution
dated 17.10.1988. Paragraphs no.8 and 9 of the said
decision being relevant for the present purpose, are
reproduced hereinbelow for benefit:-
“8. In the considered opinion of this Court,
the respondent-State authority cannot neglect
the actual days of working even of a piece
rated worker by totally ignoring their work for
which they are engaged. Thus, by adopting
such a modus operandi, the respondent State
authority have, in fact, snatched away the
status of the petitioner as a daily wager by
converting the services from daily wager from
2001 to piece rated worker, resulting into
denial of pension. It appears that the
respondents has altered the status from daily
wager to piece rated worker without informing
her. Being a model employer it is expected that
the respondent authority should inform their
employees about the repercussion of their
change of status from daily wager to piece
rated worker as such alteration affects their
future prospectus of pay, pension etc, which
arise out the resolution dated 17.10.1988. The
respondent State authority cannot totally
disregard his/her engagement as a piece rated
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worker by ignoring the days on which the work
is assigned. The Coordinate Bench of this Court
in the case of Hareshbhai Bhurabhai Vala
(supra), while considering the service of piece
rated worker basis has observed thus;
11.2 However, other documents, more
particularly the vouchers under which the
respondent workman was paid by the
petitioner board for period after July 1990
should be taken into account. It is noticed
that several vouchers were placed on
record before the learned Labour Court
and said vouchers demonstrate that the
petitioner board made payments to the
respondent workman under and by way of
hose vouchers. The amounts paid to the
respondent workman are of different
quantum. Certain documents purporting to
be the bills raised by the respondent
workman are placed on record. However,
on closer scrutiny, it comes out that any
link or connection corelation between the
said bills and vouchers is not established.
Besides this, mode of payment alone and
that too in absence of the contract or letter
of appointment/engagement cannot
determine status and character of
employment and the employee.
12. The petitioner board claims that
after 28.7.1990, the respondent workman
was engaged on contract basis and he
was working as contractor and was
executing the typing work on piece rate
basis.
12.1 The petitioner board claimed,
through its witness, that when earlier
existing contract came to an end, the
petitioner board had made an inquiry and
the rate quoted by the respondent
workman was found to be lower than the
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rate quoted under the existing contract
and that therefore, the decision to assign
typing work on contract basis to the
respondent workman was taken and
accordingly, he was engaged on contract
basis and thereafter, the respondent
rendered his service for typing work on
contract basis and he was paid on piece
rate basis.
15. At this stage, it is appropriate to
take into account the definition of the term
"workman" as defined under Section 2(s)
of the Act. The definition of said term
takes in its fold "any person who is
employed to do any manual, unskilled,
skilled, technical, operational, clerical or
supervisory work for hire or reward,
whether the terms of employment be
express or implied, ....". When the said
definition is taken into account, then, it
emerges that the respondent herein was
rendering skilled service as steno/typist
and he was engaged for executing skilled
work assigned to him by the petitioner.
His services were availed in lieu of
payment and remuneration for the service
rendered by the respondent was paid to
him by the petitioner. The definition also
includes engagement or employment of a
person even in case where the terms of
employment are implied. Thus, in view
case, more particularly in light of the fact
that the respondent was engaged for
"manual/skilled" work of similar nature
for which he was engaged before
28.7.1990 the petitioner's submission that
after 28.7.1990 the respondent herein
was not a workman of the petitioner
cannot be accepted and the learned
Labour Court has not committed any error
in rejecting the said defence or contention
of the petitioner.
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16. It would also be appropriate to
consider the said definition of the term
"workman" along with the definition of the
term "wages" as prescribed under Section
2(rr) of the Act. According to the said
definition, "wages means all remuneration
capable of being expressed in terms of
money which are paid on fulfilment of
terms of employment, expressed or implied
would be termed as "wages" but it would
not include any bonus or contribution to
provident fund or gratuity payable on
termination of service. Thus, the
amounts/remuneration paid to the
respondent for the period after 28.7.1990
for the work executed by him would fall
within the term "wages" and consequently,
it would be "wages" paid to a "workman".
Under the circumstances, the decision by
the learned Labour Court treating the
amount/remuneration paid to the
respondent as wages and the recipient of
the said wages as workman cannot be
faulted.
9. Thus, the remuneration of the petitioner
as a piece rated worker would fall within the
definition of term “wages" as prescribed under
of the Industrial Disputes Act, 1947 (for short
the ID, Act) and her remuneration as a piece
rated worker is covered under the definition of
wages as define under Section 2(rr) of the ID
Act. The impugned order dated 02.11.2015 is
hereby quashed and set aside and the
respondent authorities are directed to confer
the benefits of the Government Resolution
dated 17.10.1988 to the petitioner, as per the
law enunciated by the Supreme Court in the
case of PWD Employees' Union & Ors., reported
in (2013) 12 SCC 417 and subsequent judgment
in the case of PWD and Forest Union and Ors,
reported in 2019 (3) scale 462. Appropriate
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orders conferring the benefits arising out of the
Government Resolution dated 17.10.1988 shall
be passed within the period of two months from
the date of receipt of the writ of this Court.”
16.4. Having regard to such a position, it would
appear that the reliance placed by the State as regards
the petitioners having been employed at piece rate
would pale into insignificance and whereas, the period
of employment, even under piece rate, would have to be
counted for conferring the benefits as entitled to by the
workmen under Government Resolution dated
17.10.1988 r/w 15.09.2014.
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 are directed to grant the benefit
arising from Government Resolution dated 17.10.1988
r/w. 15.09.2014 including the period the petitioners
have worked on piece rate basis as per the attendance
produced by the respondent. While granting the benefit
th
the respondent shall also grant the benefit of 7 pay
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commission w.e.f 01.01.2016.
(ii) 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.
19. 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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