IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 408 of 1997 in SPECIAL CIVIL APPLICATIONNo 54 of 1997 with LETTERS PATENT APPEAL No 409 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE C.K.THAKKER and MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1 and 2 - Yes 3 to 5 - No -------------------------------------------------------------- STATE OF GUJARAT Versus SENDHAJI S THAKOR -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 408 of 1997 MR DA BAMBHANIA for Appellants MR PH PATHAK for Respondent No. 2 2. LETTERS PATENT APPEALNo 409 of 1997 MR DA BAMBHANIA for Appellants MR BIPIN I MEHTA for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 453 of 1997 in SPECIAL CIVIL APPLICATIONNo 8590 of 1996 -------------------------------------------------------------- STATE OF GUJARAT Versus JAHIDBHAI H SERESIA -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MR RC PATHAK for Respondent No. 1, 2 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 494 of 1997 in SPECIAL CIVIL APPLICATIONNo 8589 of 1996 -------------------------------------------------------------- STATE OF GUJARAT Versus BODUBHAI BALUBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MR RC PATHAK for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 536 of 1997 IN SPECIAL CIVIL APPLICATION NO. 4575 OF 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus HEMUBHAI VELABHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MRS SANGEETA N PAHWA for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 537 of 1997 in SPECIAL CIVIL APPLICATIONNo 4567 of 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus GORDHANBHAI MAGANBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MRS SANGEETA N PAHWA for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 538 of 1997 in SPECIAL CIVIL APPLICATIONNo 4577 of 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus MANUBHAI MAVJIBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MRS SANGEETA N PAHWA for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 539 of 1997 in SPECIAL CIVIL APPLICATIONNo 4578 of 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus LABHUBHAI MOHANBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellant MRS SANGEETA N PAHWA for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 540 of 1997 in SPECIAL CIVIL APPLICATIONNo 4565 of 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus KANJIBHAI MAVJIBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 541 of 1997 in SPECIAL CIVIL APPLICATIONNo 4580 of 1995 -------------------------------------------------------------- STATE OF GUJARAT Versus VALJIBHAI MAGANBHAI -------------------------------------------------------------- Appearance: MR DA BAMBHANIA for Appellants MRS SANGEETA N PAHWA for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.THAKKER and MR.JUSTICE A.L.DAVE Date of decision: /12/98 CAV JUDGEMENT (PER C.K.THAKKER J.) 1. All these Letters Patent Appeals arise out of similr judgments and orders passed in several Special Civil Applications. They were placed for admission but in view of several contentions and lengthy arguments both the sides requested the court to treat the hearing as final hearing of the matters. We accordingly asked them to make submissions for final disposal of the appeals. We also granted sufficient time to the parties for completion of record by permitting filing of affidavit-in-reply as well as affidavit-in-rejoinder. The record was made complete and arguments were heard for final disposal. 2. For the purpose of appreciating controversy raised in the appeals, relevant facts in Letters Patent Appeal No. 540 of 1997 arising from Special Civil Application No. 4565 of 1995 may briefly be stated; 3. That petition was filed by the State of Gujarat for quashing and setting aside an award passed by the Presiding Officer of Labour Court, Surendranagar in Recovery Application No.657 of 1992 decided on 4th April 1994. The said application was filed by Manubhai Mavjibhai and others under Section 33C (2) of the Industrial Disputes Act, 1947. It was the case of the workmen that they were serving in Forest Department under the Deputy Conservator of Forest, Surendranagar; that they were entitled to certain payment in accordance with the resolution issued by the Roads & Buildings department of the State on October 17, 1988. According to them, since they were not paid their legal dues by the opponents, they were constrained to approach the Tribunal for getting the benefits from January 1, 1988 to December 31, 1992. They had produced a copy of the resolution as also the amount to which they were entitled. 4. A written statement was filed on behalf of the opponents in which it was denied that the applicants were serving with the opponents since 10 to 15 years. It was stated that the applicants were appointed as daily wagers by the Forest Department and they were called to do work as and when the work was available. It was further stated that they were not appointed for construction or maintenance of work and hence the provisions of the Resolution dt. October 17, 1988 issued by R & B Department did not apply. The applicants were, therefore, entitled only to minimum wages as prescribed by the Forest Department vide its letter dt. May 31, 1993. The application under Sec.33 C(2) was, therefore, liable to be dismissed. Other applications of similar nature were also filed by the applicants and contested by the opponents. 5. The Tribunal, by an award dt. April 4, 1994, allowed the applications filed by the applicants and directed the opponents to grant benefits as per prayer made by them in the applications. The applications were allowed with costs. 6. The said decision was challenged by the State on various grounds. It was contended on behalf of the State that the resolution on which reliance was placed by the applicants before the Labour Court was not issued by the Forest Department but was passed by the Roads & Buildings Department and the provisions thereof did not apply to the applicants who were working in the Forest Department. It was also contended that the minimum wages were prescribed for daily wagers working in the Forest Department and the applicants could claim only the said benefit from the opponents. It was also contended that the appointments were made from time to time on a forestory project sponsered by the World Bank. The project was for a particular duration and the assignment was of a casual nature. It was neither continuous nor regular and the employees engaged in such project were not entitled to regular pay scales. It was also the case of the State that the petitioners could not have approached the Tribunal by filing application under Sec.33 C(2) of the Act inasmuch as the benefits claimed by the applicants were neither adjudicated nor crystalised by virtue of an award passed or order made after proper adjudication and decision on merits. The applicants' claim was on the basis of the resolution dt. October 17, 1988 which was disputed by the authority. It was also alleged that only opponent no.2 was served who had filed his statement of defence on his behalf. 7. The proceedings were then fixed for argument on April 21, 1994, as per the endorsement dt. January 13, 1994 which was clear from Rojkam. It, however, appears from the Rojkam that application was moved for advancing the date of hearing on March 24, 1994 and in pursuance of a request by the applicants the matter was taken on Board. It was stated that the parties were not inclined to argue the case further and the case was adjourned for orders. Ultimately, the order was passed allowing the applications. 8. It was the case of the State Government in the petition that the Presiding Officer of the Labour Court transgressed his jurisdiction as if he was exercising jurisdiction under Sec.10 of the Act and in violation of statutory provisions as also various decisions of the Supreme Court, and award was passed which was null and void. A prayer was, therefore, made in the petition to set aside the award passed in Recovery Application. 9. The petition came up for hearing before a learned Single Judge and the learned Single Judge after hearing the parties, dismissed the petition. Operative part of the order in para 8 reads as under: "The upshot of the aforesaid discussion is thus: (i) The Special Civil Application No.4577 of 1995 filed against Manubhai Mavjibhai fails and the same is hereby dismissed and the Rule is hereby discharged with no order as to costs. (ii) The other five petitions i.e. Special Civil Applications Nos. 4565, 4567, 4575, 4578 and 4580 of 1995 are partly allowed to the extent that the impugned order dated 4.4.94 in the cases of Kanjibhai Mavjibhai, Gordhanbhai Maganbhai, Hemubhai Velabhai, Labhubhai Mohanbhai and Valjibhai Maganbhai shall stand modified to the extent of reducing the amount by 50% with reference to the benefits to be computed on the basis of the Government Resoution dated 17.10.88 for the period from 1.10.88 (the date from which the Resolution dated 17.10.88 was made effective) to 23.11.90. Rule is made absolute in these five petitions in the terms as aforesaid with no order as to costs." 10. Against the said order Letters Patent Appeal No. 540 of 1997 is filed. Other appeals also are preferred by the State of Gujarat and Deputy Conservator of Forests. 11. L.P.A.No.408/97 and other appeals are filed by the State authorities against the judgment and order passed by the learned Single Judge on March 11, 1997 and other similar orders passed by the learned Single Judge. Those petitions were filed by the petitioners workmen directly in this court by invoking Art.226 of the Constitution of India for an appropriate writ, direction, or order for a declaration that the action of the respondent authorities in not extending the benefit of Government Resolution dt. October 17, 1988, was unlawful, discriminatory, arbitrary, and violative of Arts.14,16,19 and 21 of the Constitution of India and by directing the authorities to extend the benefits of the said resolution to all the daily wagers appointed by the authorities and to grant all consequential benefits with interest. 12. When the petitions came up for hearing, the learned Single Judge observed that the question raised in the petitions was covered by a decision in Spl.C.A.No.4565 of 1995 and companion matters in which the provisions of the Government Resolution dt. October 17, 1988 came to be interpreted. The petitions were, therefore, disposed of. It was observed in the order as under: "Mr.Bambhania, learned AGP states that no Letters Patent Appeal was preferred against this judgment dt. 4.3.1996 and the judgment has become final." 13. The Court also recorded the statement of Mr.Pathak, learned counsel for the petitioners that the order passed in those matters was implemented and the benefits were given to the workmen. The Court, therefore, following earlier decision, directed the authorities to extend the benefits of the Government resolution dt. October 17, 1988 to the workmen with effect from January 1, 1988 and to pay them all benefits as per the said resolution. Rule was accordingly made absolute. Those orders have also been challenged in Letters Patent Appeals. 14. Extensive arguments have been advanced by Mr.S.N.Shelat, Additional Advocate General, instructed by Mr.D.A.Bambhania, Additional Government Pleader on behalf of the appellants. It was inter alia, contended; (1) The orders passed by the Labour Court in purported exercise of the powers under Section 33C(2) of the Act were illegal, erroneous and without jurisdiction as in absence of any order, decision, award or adjudication , no application for recovery under the said provision would lie. (2) Resolution dt. October 17, 1988 was not issued by the Forest Department but was issued by the Roads & Buildings Department. The provisions of a resolution issued by one Department does not apply to other Departments. The effect of the resolution issued by the Roads & Buildings Department has limited application to the employees working in the said Department. (3) Under the Gujarat Government Rules of Business, 1984 framed under Art.166 of the Constitution of India, appropriate Department is General Administration Department ("GAD" for short). It is only GAD which issues circulars and resolutions regarding service conditions of employees. As resolution dt. October 17, 1988 was not issued by GAD, the provisions thereof could not be invoked by the applicants and it was an error committed by the Tribunal as well as by the learned Single Judge in extending the benefits of that G.R. to applicants. (4) Assuming without admitting that the resolution dt. October 17, 1988 would apply to employees working in the Forest Department, the applicants were not entitled to claim benefit of the said resolution. Various clauses of the resolution make it abundantly clear that the scope of the resolution was limited to the employees working in connection with construction and maintenance work. The applicants were neither engaged in construction nor in maintenance work and, hence, they were not entitled to the benefit of the said Resolution. (5) Even if it is held that the applicants were entitled to the benefits of G.R. dt. October 17, 1988, the learned Single Judge has committed grave error in granting benefits with effect from January 1, 1988. Some petitions were filed in 1996 and some in 1997. The petitioners, who approached this court in 1996/1997, could not have granted benefits from January 1, 1988. Even if the learned Single Judge was of the view that the petitions could not be dismissed on the ground of delay, while granting monetary benefits, the fact that the petitioners approached this court after a long time ought to have been taken into account. By not doing so, an error of law was committed which requires interference. (6) Doctrine of "equal pay for equal work" does not apply in vaccum. Before the said doctrine is applied, the Court/Tribunal must consider the nature of work, the project for which such appointments were made, terms and conditions of appointment, status of employees, such as regular, temporary work charge, daily wager, stop-gap, etc. and only on the basis of those facts, take an appropriate decision in accordance with law. None of the above relevant considerations had been kept in mind by the Tribunal or by the learned Single Judge. The orders are, therefore, vulnerable. 15. On behalf of the respondents, we have heard M/s Girish Patel and H.M.Mehta, Senior Advocate for Mr.P.H.Pathak, Mr.J.R.Nanavat, Dr. Mukul Sinha and Mrs. S.N.Pahawa. The learned counsel supported the decision of the learned Single Judge on various grounds. (1) According to them, Letters Patent Appeals against the decision of the learned Single Judge are not maintainable in view of the statement made on behalf of the State in Special Civil Application No. 8539 of 1996 and companion matters. In the judgment of the learned Single Judge, it was mentioned that Mr.Bambhania stated that no Letters Patent Appeal was preferred against the judgment and order passed in Special Civil Application No. 4565 of 1995 and companion matters and decision had become final. (2) No new contention can be permitted to be raised in Letters Patent Appeal regarding power of one Department of the Government to issue circular/resolution concerning the other Department. Such contention was never advanced before the learned Single Judge when the petitions were heard. (3) Issuance of resolutions / circulars is executive function of the Government. Such resolutions and circulars are issued by the order and in the name of the Governor of Gujarat and it does not lie in the mouth of the Government that the application of the provisions of such resolutions / circulars are limited to a particular Department. (4) Even on interpretation, the Tribunal and the learned Single Judge were right in holding that the provisions of the resolution, dt. October 17, 1988 were applicable to employees of all departments. The decision was taken after inviting not only representatives of the Roads & Buildings Department but of various other Departments. If the intention of the Government was to extend the benefits of the resolution only to one Department, it was not at all necssary to call representatives of other Departments. (5) Assuming without admitting that the resolution dt. October 17, 1988 on its face value does not take within its sweep employees of Forest Department, the action of not extending benefits to the employees of that department must be held to be arbitrary, discriminatory, unreasonable and violative of Art.14, 16, 19 and 21 of the Constitution of India. It is not open to the State authority to deny equal benefits to all employees similarly situated. (6) The orders passed by the learned Single Judge are otherwise just, proper and equitable. In exercise of appellate power, this court may not disturb them in the larger interest of justice. 16. First let us consider a preliminary objection raised on behalf of the respondents. It was contended on their behalf that the point was decided on 4th March, 1996 in Special Civil Application Nos.4565 of 1995 and companion matters. After considering the relevant provisions of the Government Circular dt. October 17, 1988, it was held that the workmen were entitled to all benefits available to other employees similarly situated. So far as Special Civil Application Nos. 8589 of 1996 and companion matters are concerned, the learned Single Judge merely followed a common order passed in Special Civil Application No. 4565 of 1995 and companion matters stating therein that it was stated by the learned AGP that the point was decided by a judgment dt. 4th March, 1996; that no Letters Patent Appeal was filed and the judgment had become final. In view of the above circumstance, Letters Patent Appeals are not maintainable and are liable to be dismissed. 17. We are not impressed by the said argument. It may be stated at the outset that Letters Patent Appeals are also filed against the decision rendered by the learned Single Judge in Special Civil Application No.4565 of 1995 and companion matters decided on 4th March, 1996. It appears that when the State Government realised that there were several such matters and that the judgment would apply to a large number of employees though they were not covered by the Circular and were not entitled to the benefits in accordance with the above circular and several cases were also pending in various Tribunals and/or in courts , the State filed Letters Patent Appeals. There was delay in filing appeals. We have condoned delay and those appeals are heard alongwith other appeals. It, therefore, cannot be said that the decision in Spl.C.A.No.4565 of 1995 dt. 4th March, 1996 has become final and all other matters must be decided following the said decision and the State cannot prefer appeals against the subsequent judgments. 18. The matter, however, can be looked at from another angle also. Even on principle, non-filing of appeals in some cases will not necessarily debar the authorities in filing appeals subsequently in other cases if the circumstances so warrant. Sometimes it may happen that either due to default or delay or laches, or considering small claim or other such consideration, the authority may not challenge the order passed aginst it. But subsequently, the authority may realise when similar question is raised or difficulties arise in other cases while implementing the directions in an isolated case that it should challenge legality and validity of the order. It may also happen that by that time, the judgment which might have been rendered earlier would have become final and conclusive and could not be reopened as "judgment in personam". But a superior court may not dismiss subsequent appeals merely on the ground that in an earlier matter, no appeal was preferred by the authority and that the decision had become final. It can decide the matter on its own merits. 19. In State of Maharashtra vs. Digambar, 1995(4) SCC 683, a petition was filed by the petitioner in 1991 complaining against an act of the Government of taking away his land in the year 1971-72. A contention was raised on behalf of the Government that the petition was liable to be dismissed as there was laches and delay of about 20 years. The contention was, however, negatived by the High Court and the compensation was awarded. Subsequently the said judgment was followed by the High Court in several other writ petitions. The State approached the Supreme Court. It was contended on behalf of the claimants that when the State did not prefer the appeals to the Supreme Court against some of the earlier judgments rendered in similar matters filed before the High Court and in some other matters, SLPs were rejected in limine by the Supreme Court, there was no justification on the part of the State to challenge the subsequent judgments in which earlier judgment was followed. 20. Negativing the contention and allowing the appeals, the Apex Courrt observed; " We are unable to appreciate the objection raised against the prosecution of this appeal by the appellant or other SLPs filed in similar matters. Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter/s where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest. In any event, in our considered view, the non-filing of appeals before this Court by the State in similar matters or rejection of SLPs by this Court in limine or otherwise in similar matters, by themselves cannot operate as a bar or a fetter for this Court in entertaining SLPs subsequently filed even if they are considered to relate to similar matters where it finds, as in this case, that the High Court was wholly wrong in granting relief of compensation to a writ petitioner by the judgment under appeal by not considering his entitlement for such relief under Article 226 of the Constitution on account of laches or undue delay on his part or where such wrong judgment is followed for granting similar relief by rendering 191 judgments, which are the subject of SLPs in this Court and where there is every possibility of the High Court granting similar relief at the instance of persons who may go before it with similar complaints, which ultimately may result in the estimated loss of Rs.400 crores to