LPA/374/2007 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 374 of 2007 TO LETTERS PATENT APPEAL No. 495 of 2007 In SPECIAL CIVIL APPLICATION No. 21935 TO SPECIAL CIVIL APPLICATION No. 22056 of 2006 WITH CIVIL APPLICATION Nos. 4698 to 4819 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== LPA/374/2007 2/50 JUDGMENT STATE OF GUJARAT & 3 - Appellants Versus PWD EMPLOYEES UNION & 121 - Respondents =================================== Appearance : MR SUNIT SHAH, GOVERNMENT PLEADER with MR APURVA DAVE, AGP for Appellants. MR SHALIN N MEHTA for Respondents. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 09/05/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. This group of 122 Letters Patent Appeals are filed by the State of Gujarat and others against the judgment and order passed by the Learned Single Judge of this Court dated 13.10.2006 in Special Civil Applications No. 21935 of 2006 to 22056 of 2006 whereby the Learned Single Judge has directed the present appellants / original respondents to comply with the observations made by this Court in paragraph 9 of the judgment and order dated 14.06.2006 passed in Special Civil Application No. 5529 of 2003, in response to the details submitted by the present LPA/374/2007 3/50 JUDGMENT respondents – original petitioners on 30.06.2006 in respect to each petitioner and to grant similar benefits to them after examining their factual details as per the records of the present appellants and if details submitted by the original petitioners are found to be correct according to the records of the present appellants, then same benefits should have to be extended in their favour on the same line as granted by this Court in Special Civil Application No. 5529 of 2003, vide its order dated 14.06.2006 with additional benefit of notional period difference of wages within a period of two months from the date of receipt of the copy of the said order. 2. This Court has issued notice for final disposal on 17.04.2007. Mr. Sunit Shah, learned Government Pleader with Mr. Apurva Dave, learned Assistant Government Pleader appeared for the appellants and Mr. Shalin Mehta, learned advocate appeared for respondents in all these appeals. 3. Before the Court proceeds to hear Mr. Shah on LPA/374/2007 4/50 JUDGMENT merits, Mr. Shalin Mehta, learned advocate appearing for the respondents has raised certain preliminary objections against the maintainability of the appeals. He has submitted that the appellants have pointed out certain new facts in the memo of appeal which have not been stated on oath as these factual averments and allegations made by the appellants in the present appeals are not sworn by a proper affidavit accompanying the appeal. The same are required to be ignored. One principal allegation levelled by the appellants is that the Learned Single Judge has without calling upon them to show their stand, passed the impugned order in violation of the principles of natural justice. He has further submitted that this contention is in the nature of a factual averment or allegation which requires the support of a properly sworn affidavit of a competent Officer of the State Government who has personal knowledge of the said fact or who has obtained information of the said fact. This has not been done by the appellants in the present case and hence, the allegations levelled by the appellants against the LPA/374/2007 5/50 JUDGMENT Learned Single Judge are required to be quashed and set aside. Such allegations or averments made by the appellants are ex-facie inconsistent with the record of the appearances shown on the first page of the impugned order dated 13.10.2006. The record of appearances shows that learned Government Pleader with learned Assistant Government Pleader had appeared in the bunch of Special Civil Applications for respondent Nos. 1 to 4 who are appellant Nos. 1 to 4 respectively in the present appeals on the relevant day. Such averments and allegations are ex-facie incompatible with paragraph 1 of the impugned judgment and order which categorically records the following :- “Heard the learned advocate Mr. Shalin Mehta appearing on behalf of the petitioners and learned Government Pleader Mr. Sunit Shah with learned A.G.P. Mr. Dabhi appearing on behalf of the respondents.” 4. He has further submitted that the appellants could have approached the Learned Single Judge for a clarification on the said issue, which they have not LPA/374/2007 6/50 JUDGMENT done. The appellants have abused the process of law by making wild and patently false allegations against the Learned Single Judge. On the relevant day, when the bunch of Special Civil Applications were taken up for hearing, a fair audience had been accorded by the Learned Single Judge to the appellants' pleaders. At that time, the appellants had not raised any defence to the claim made in the petitions. The appellants had not even asked for time to file a counter affidavit. They had fairly admitted before the Learned Single Judge that respondent Nos. 2 to 122 in the present appeals were entitled to all benefits that were paid or were payable to 288 petitioners of Special Civil Application Nos. 422 & 423 of 1983. He has, therefore, submitted that the appellants are now estopped from raising a contention that they were accorded no opportunity by the Learned Single Judge to show-cause against the claim made by the respondents in the petitions. He has, therefore, submitted that since the appellants have falsely contended that they had not been allowed by the LPA/374/2007 7/50 JUDGMENT Learned Single Judge to show-cause before the impugned order was passed, the present appeals are required to be rejected in limine with heavy costs. 5. In support of his submission regarding preliminary objection, Mr. Shalin Mehta has relied on the decision of the Hon'ble Supreme Court in the case of Bhavnagar University V/s. Palitana Sugar Mill (P) Limited and others, (2003) 2 S.C.C. 111 wherein the observations made by the Hon'ble Supreme Court in its earlier decision in the case of State of Maharashtra V/s. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 were reiterated and a passage is quoted there from which states that the principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is LPA/374/2007 8/50 JUDGMENT still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party must resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 6. Mr. Mehta further relied on the judgments of the Hon'ble Supreme Court reiterating the same principles. They are as under :- A) Roop Kumar V/s. Mohan Thedani, (2003) 6 S.C.C. 595; LPA/374/2007 9/50 JUDGMENT B) Central Bank of India V/s. Vrajlal Kapurchand Gandhi and Another, (2003) 6 S.C.C. 573; C)Guruvayoor Devaswom Managing Committee and Another V/s. C. K. Rajan and others, (2003) 7 S.C.C. 546; D)Shankar K. Mandal and others V/s. State of Bihar and others, (2003) 9 S.C.C. 519 E) Ram Bali V/s. State of U.P., (2004) 10 S.C.C. 598 F) Commissioner of Customs, Mumbai V/s. Bureau Veritas and others, (2005) 3 S.C.C. 265 7. Mr. Mehta has made it very clear that if on this preliminary issue the Court is not with him, he would not invite any order on merits and the matter may be remanded back to the Learned Single Judge to decide it on merits afresh. He, however, submitted that the appellants have raised several contentions on merits in the appeal memo and based on this, LPA/374/2007 10/50 JUDGMENT submissions were made by learned Government Pleader, Mr. Shah. He refers to the affidavit-in-reply filed in the present proceeding which deals with all the contentions raised by the appellants. 8. Before dealing with the preliminary contentions, it is necessary to have a close look at the factual matrix, the nature of controversy between the parties and pleadings as well as submissions made by their Counsels in this regard. 9. The respondent in Letters Patent Appeal No. 374 of 2007 is a Union known as PWD Employees Union duly registered Trade Union bearing No. G-2382. All other respondents in rest of the appeals are daily wagers of the Roads and Buildings Circle, Surat ('R & B' for short). Initially, Special Civil Application No. 5529 of 2003 had been filed by the Union in a representative capacity for and on behalf of 409 daily wagers of the R & B Circle, Surat which included the present respondents, for the following reliefs :- LPA/374/2007 11/50 JUDGMENT A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents herein to implement fully the final judgment and order dated 30.01.1996 rendered in Special Civil Applications No. 422 & 423 of 1983 within a time period of two months from the date of filing of the present petition; B) Your Lordship may be pleased to declare the action of the official respondents herein of not implementing and complying with the directions contained in the final judgment and order dated 30.01.1996 passed by this Hon'ble High Court in Special Civil Applications No. 422 & 423 of 1983, as illegal, unconstitutional, bad and violative of Articles 14, 16 & 21 of the Constitution of India; C)Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the official respondents herein to forthwith issue orders of “work-charged” to all 409 daily wagers of Roads & Buildings Circle, Surat whose names are mentioned in the list of Annexure- J, and further directing payment of arrears to all the 409 daily wagers of Roads & Buildings Circle, Surat as per the calculation of arrears made out in the list annexed at Annexure-J; D)Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondents herein to complete the process of issuing orders of “work-charged” to all the 409 daily wagers of Roads and Buildings Circle, Surat, whose names are mentioned in the list of Annexure-J, and to further verify the calculation of arrears payable to the present group of 409 daily wagers, made by the petitioner Union as shown in the list annexed at Annexure-J; E) Your Lordships may be pleased to pass any other appropriate order as deemed fit in the interest of justice; and LPA/374/2007 12/50 JUDGMENT F) Your Lordships may be pleased to award costs quantified at Rs.20,000/- to the petitioners.” 10.Really speaking, Special Civil Application No. 5529 of 2003 was filed for compliance of the final judgment and order dated 30.01.1996 passed by this Court in Special Civil Application Nos. 422 & 423 of 1983. Out of the group of 409 daily wagers on whose behalf the Union had filed Special Civil Application No. 5529 of 2003, 288 daily wagers were party in Special Civil Application Nos. 422 & 423 of 1983. The remaining 121 daily wagers who are now respondents in the present group of Letters Patent Appeals had not become members of the Union at the time when Special Civil Application Nos. 422 & 423 of 1983 had been filed in this Court. They became members of the Union subsequently. 11.The said Special Civil Application No. 5529 of 2003 was admitted by this Court on 17.08.2005 and ultimately on 14.06.2006, it was finally heard and oral judgment was pronounced by this Court LPA/374/2007 13/50 JUDGMENT whereby directions were issued to the present appellants to make payment to the group of 288 employees as follows :- Under the Head of Amounts (Rs.) L.T.C. 4,58,160 Group Insurance 7,07,625 Leave Encashment (To Retired / Expired employees) 12,27,002 Surrender Leave 2,96,332 Transport Allowance 12,44,850 Public Holidays 41,31,730 _____________ Total 80,65,699 12.This Court has further directed that the aforesaid amounts shall be paid with interest @ 9% p.a. for the period from 01.09.2000 to the date of payment or upto 01.09.2006, whichever may be earlier. It was further directed that the principal amount so quantified shall thereafter carry penal interest @ 12% p.a. if the payment is delayed beyond 01.09.2006. LPA/374/2007 14/50 JUDGMENT 13.In so far as the present respondents – daily wagers are concerned who were not party to the original proceedings i.e. Special Civil Applications No. 422 & 423 of 1983 but were similarly situated and employed in the same department during the same period on the same terms and conditions as the erstwhile 288 daily wagers, this Court directed that the present appellants would look into the claims of such daily wagers for payment at par with the 288 daily wagers and members of the Union who were party to the original proceedings i.e. Special Civil Application Nos. 422 & 423 of 1983. It was also observed by the Court that the case of the present respondents and members of the Union would not be rejected by the present appellants only on the ground that they were not parties to the original proceedings i.e. Special Civil Application Nos. 422 & 423 of 1983. 14.Pursuant to the said judgment and order dated 14.06.2006 passed by this Court in Special Civil LPA/374/2007 15/50 JUDGMENT Application No. 5529 of 2003, the Union sent a list of the names and particulars of 121 daily wagers and members of the Union who are covered under paragraph 9 of the judgment and order dated 14.06.2006. Since nothing was done by the present appellants in response to the Union's letter dated 30.06.2006, the Union has filed Misc. Civil Application (Stamp No.) No. 2371 of 2006 in Special Civil Application No. 5529 of 2003 for restoration so as to prosecute the same on merits. The same was disposed of as withdrawn on 06.10.2006. Since the Court was of the view that review is not the proper remedy for the aggrieved parties and they have to file substantive petition on the basis of the observations made in the earlier judgment and order passed in Special Civil Application No. 5529 of 2003, the present respondents have filed Special Civil Application Nos.21935 to 22056 of 2006 which came to be disposed of by the Learned Single Judge of this Court on 13.10.2006. 15.It is this order which is under challenge in the LPA/374/2007 16/50 JUDGMENT present group of Letters Patent Appeals. 16.Mr. Sunit Shah, learned Government Pleader has submitted that the impugned judgment and order passed by the Learned Single Judge is bad in law, unwarranted of facts, contrary to the correct legal position and in violation of the principles of natural justice. He has submitted that the Learned Single Judge has, without calling upon the original respondents to show their stand, has passed an order in violation of principles of natural justice. The Learned Single Judge, upon hearing the representation made by the respondents that they are similarly situated with the petitioners of Special Civil Application No. 5529 of 2003 wherein the judgment dated 14.06.2006 is passed by this Court directed the present appellants to examine the details furnished by them and to extend the benefits in their favour on the same line as granted by this Court in Special Civil Application No. 5529 of 2003. Mr. Shah has further submitted that at the time when the said matter was heard and disposed of, LPA/374/2007 17/50 JUDGMENT learned Government Pleader with Assistant Government Pleader obviously were not aware of the Government decision as to whether Letters Patent Appeal is preferred against the judgment and order passed in Special Civil Application No. 5529 of 2003 and hence, they could not point out the decision of the Government to the Learned Single Judge of this Court. If the decision to prefer Letters Patent Appeal against the said judgment was pointed out, the Learned Single Judge might not have issued such directions. The Government has already preferred Letters Patent Appeal No. 1625 of 2006 against the judgment and order dated 14.06.2006 passed in Special Civil Application No. 5529 of 2003 which is being heard by this Court along with the present group of appeals. 17.Mr. Shah has further submitted that the State Government was deprived of an opportunity to place necessary material on record. For want of an adequate opportunity, the State Government could not point out that present respondents are not LPA/374/2007 18/50 JUDGMENT similarly situated in law and not at par with the petitioners of Special Civil Application No. 5529 of 2003. The State Government could not have pointed out that the judgment of Special Civil Application No. 5529 of 2003 dated 14.06.2006 was passed on the basis of judgment in Special Civil Application No. 3607 of 1982 and Special Civil Application Nos. 422 & 423 of 1983 which in turn was based on the Government Resolution dated 17.10.1988. The said GR extends certain benefits to the daily wagers and from the said G.R., it could not have been concluded that they were to be made work charged employees. Mr. Shah has further submitted that in absence of proper and adequate opportunity, the State Government could not have pointed out that if the benefits given in Special Civil Application Nos. 3607 of 1982 & 422 & 423 of 1983 are extended to all daily wagers of the State Government, it could have far-reaching financial implications and administrative consequences, as there are about 14,000 daily wagers in the R & B and other departments like Irrigation, Forest etc. In absence of LPA/374/2007 19/50 JUDGMENT proper opportunity, the State Government could not have pointed out that Special Civil Application No. 3607 of 1982 pertains to daily wagers of irrigation department, whereas Special Civil Application Nos. 422 & 423 of 1983 pertains to R & B. Therefore, these daily wagers of both the departments cannot be treated at par. The benefits like Leave Travel Concession, Leave Encashment, Public Holidays, Travel Allowance, Group Insurance, Medical Allowances and Provident Fund are required to be given to the employees in accordance with the rules and regulations as decided vide judgment in Special Civil Application No. 3607 of 1982 meaning thereby, it has to be first decided whether regular employees of Government are entitled for the benefits in cash and what is the extent of such benefits according to Rules and Resolution in this regard. He has further submitted that in absence of proper opportunity, the State Government could not have pointed out that the present respondents were not entitled to such payments as were directed by the Learned Single Judge. The present respondents have never LPA/374/2007 20/50 JUDGMENT approached to this Court until year 2003. Earlier, petitions being Special Civil Application Nos. 422 & 423 of 1983 were filed in the year 1983 and, therefore, the present respondents could not have been treated at par with the daily wagers of earlier two petitions. Their claim was never adjudicated about the admissibility or parity with the daily wagers covered under Special Civil Application Nos. 422 & 423 of 1983. 18.With regard to benefit of the leave travel concession, Mr. Shah has submitted that the conversion of the said benefit into money was permissible only for a period between 1992 to 1995. Even certain class of daily wagers of R & B Department were made first time work charged employees on or about 22.04.2003 on the basis of judgment in Special Civil Application No. 3607 of 1982 on 30.01.1996 with effect from 01.01.1995, meaning thereby they would not be even otherwise entitled for benefits of Leave Travel Concession because they have not performed work as work LPA/374/2007 21/50 JUDGMENT charged employees for three years as on 01.01.1995. Relevant rules of work charged employees are framed by the Government on 12.12.1989. Paragraph 92.13 clearly provides that Leave Encashment and Leave Travel Concession is permissible to the employee only if he has continuously served as work-charged employee for three years. With regard to the respondents' claim regarding public holidays in cash, he has submitted that even the regular employees of the Government are not entitled to encashment of leave on account of discharging duties on public holidays. Regular employees are given compensatory leave for discharging their duties on public holidays and, therefore, encashment of said benefit is not permissible under the G.R. With regard to travel allowance, he has submitted that it is admissible only in cases where Government employees or workman are not provided transport facility for going to work. This claim cannot be adjudicated unless evidence to that effect is led before the Court about the actual traveling expenses incurred by the employees out of LPA/374/2007 22/50 JUDGMENT his pocket or government has not provided transport facility at any point of time. It would be a question of disputed facts and could not have been granted in omnibus fashion. He has further submitted that Rojamdars who are required to be taken to outside the beat, they are shifted through trucks of R & B and, therefore also, question of traveling allowance does not arise. The transport allowance was never a part of the judgment rendered in Special Civil Application No. 3607 of 1982. The Group Insurance is not required to be paid because all employees in Special Civil Application Nos. 422 & 423 of 1983 have never contributed towards their premium. However, from 1998 onwards, the said amount is being deducted from the wages of concerned work- charged employees and, therefore, all those who are contributors of the said group insurance scheme, are only entitled for the said benefit and they will be accordingly given benefits as and when said eventuality occurs. There is no mention regarding surrender leave in the judgment rendered in Special Civil Application No.3607 of 1982. He has, LPA/374/2007 23/50 JUDGMENT therefore, submitted that the claims made by the present respondents are not otherwise admissible at par with regular employees. In such a situation, awarding of interest, without adjudicating the admissibility of the amount under respective heads is not at all just and proper. 19.Mr. Shah in support of his submission has relied on the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others V/s. Uma Devi (3) and others, (2006) 4 SCC 1 wherein the claim of parity in the matter of allowance is negatived by the Hon'ble Supreme Court. Individualization of justice is strongly deprecated on the ground that the same is de-horse the constitutional scheme. In paragraph 14 of the said judgment, the Hon'ble Supreme Court has clearly held that the concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on adhoc basis, temporary basis or based on no process LPA/374/2007 24/50 JUDGMENT of selection as envisaged by the rules. The Court further observed that acceptance of principle