LPA/1625/2006 1/83 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1625 of 2006 In SPECIAL CIVIL APPLICATION No. 5529 of 2003 with CIVIL APPLICATION No. 15045 of 2006 In LETTERS PATENT APPEAL No. 1625 of 2006 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 ? ================================================= STATE OF GUAJRAT & 3 - Appellant(s) Versus LPA/1625/2006 2/83 JUDGMENT PWD EMPLOYEES UNION & 6 - Respondent(s) ================================================= Appearance : MR MIHIR JOSHI, AAG with MR APURVA DAVE, Assistant Government Pleader for Appellant(s) : 1 - 3. MR SHALIN N MEHTA for Respondent(s) : 1 - 7. ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 09/05/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The appellant – State of Gujarat and others have filed this Letters Patent Appeal under Clause-15 of Letters Patent challenging the order passed by the learned Single Judge of this Court on 14.6.2006 in Special Civil Application No.5529 of 2003 filed by PWD Employees Union and 6 others, which came to be allowed and the learned Single Judge has directed that the petitioners in the said Special Civil Application are entitled for the payments as stated in paragraph-6 of the LPA/1625/2006 3/83 JUDGMENT judgment as follows:- “In the above facts and circumstances, the total amounts due under various heads, as calculated by joint exercise of the representatives of the parties and agreed to be correct, are as under and are required and directed to be paid latest by 30.9.2006.” Under the Head of Amounts (Rs.) L.T.C. 04,58,160/- Group Insurance 07,07,625/- Leave Encashment 12,27,002/- (To be retired / expired employees) Surrender Leave 02,96,332/- Transport Allowance 12,44,850/- Public Holidays 41,31,730/- Total 80,65,699/- It was further directed by learned Single Judge that, “accordingly the aforesaid amounts shall be paid with interest @ 9% per annum from 01.09.2000 to the date of payment or 01.09.2000, which ever may be earlier. The principal amount due is quantified in paragraph -1 hereinabove, shall thereafter carry be penal interest @ 12% and shall be paid LPA/1625/2006 4/83 JUDGMENT accordingly if the payment is delayed beyond 01.09.2006” 2. The brief facts as revealed from the case record, giving rise to the present Letters Patent Appeal are as under :- 3. Special Civil Application No.3607 of 1982 was filed in this Court by PWD Employees Union and 6 daily-wagers ( for and on behalf of 746 daily-wagers) belonging to the erstwhile Irrigation Department against the State of Gujarat, Superintending Engineer Incharge of the Ukai Civil Circle, etc, with a prayer to award benefits like Gratuity, Pension, Casual Leave, Earned Leave, Sick Leave, Scales and Grades, Public Holidays, Maternity Leave, Travel Allowances, Group Insurance etc, which were admissible to the other regular Government employees. 4. Special Civil Applications No.422 and 423 of 1983 were filed in this Court by PWD LPA/1625/2006 5/83 JUDGMENT Employees Union espousing the cause of the daily rated employees engaged in the Roads and Buildings Division of the State of Gujarat with a prayer to award benefits similar to the ones sought by the petitioners of Special Civil Application No.3607 of 1982. 5. Special Civil Application No.3607 of 1982 was disposed of by the learned Single Judge of this Court on 30.1.1996 giving a direction to pay certain benefits like; “(A) In para-7 of the judgment, the Learned Single Judge directed payment of arrears of annual earned leave to the 638 employees ( who were regularised as work charged by resolution dated 17.10.88 from the date on which they became regularized as work-charged. (B) In para-6 of the judgment, the Learned Single Judge directed payment of pension and gratuity to all 746 employees for the entire service from the date on which they initially joined under the respondents. (C) In the same para-6 of the judgment, the LPA/1625/2006 6/83 JUDGMENT Learned Single Judge directed payment of provident fund to all 746 work-charged employees as per G.R. Dated 30.5.89. (D) In para-9 of the judgment, the Learned Single Judge directed payment of leave travel concession, travel allowance, group allowance and medical allowance to 638 work-charged employees from 1.1.95 inasmuch as the said benefits were given to the first batch of 108 work-charged employees, from 1.1.95 who were regularised as work-charged prior to 17.10.88.” 6. Special Civil Applications No.422 and 423 of 1983 which were similar to Special Civil Application No.3607 of 1982, also came to be disposed of by the learned Single Judge with a direction to the State Government to make available the benefits directed in Special Civil Application No.3607 of 1982 to the employees concerned in Special Civil Applications No.422 and 423 of 1983. 7. Letters Patent Appeal No.353 of 1997 was LPA/1625/2006 7/83 JUDGMENT filed by the State Government challenging the decision dated 30.1.1996 passed by this Court in Special Civil Application No.3607 of 1982. However, no Appeal was filed by the State Government against the decision dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983. Letters Patent Appeal No.353 of 1997 filed by the State Government against the judgment and order of the learned Single Judge in Special Civil Application No.3607 of 1982 was dismissed by Division Bench of this Court on 22.4.1997 on both counts, namely, refusal to condone delay as well as on merit. 8. Being aggrieved by the said order of the Division Bench, Special Leave Petition under Article-136 of the Constitution of India was filed by the State Government in the Hon'ble Supreme Court of India. Leave was granted and the judgment dated 22.4.1997 passed in Letters Patent Appeal No.353 of 1997 was LPA/1625/2006 8/83 JUDGMENT stayed. 9. Civil Appeal No.2226 of 1998 arising out of the Special Leave Petition filed by the State Government against the judgment dated 22.4.1997 passed by the Division Bench of this Court, was dismissed by the Hon'ble Supreme Court of India on 9.8.2000. The interim stay granted earlier was vacated. 10. A written notice was addressed by the PWD Employees Union to the State Government and other concerned officials of the Roads and Buildings Department, seeking compliance of the final judgment dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983. Misc. Civil Applications No.413 and 414 of 2001 in Special Civil Applications No.422 and 423 of 1983 respectively for contempt were filed in this Court by the PWD Employees Union. Notice was issued by this Court to the appellant on LPA/1625/2006 9/83 JUDGMENT 28.3.2001 in these applicatons calling upon them to explain as to why the final judgment dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983 was not being implemented. Review Petition No.622 of 2001 filed by the State Government for review of the order dated 9.8.2000 passed by the Hon'ble Supreme Court of India in Civil Appeal No.2226 of 1998 was dismissed on 25.7.2001. Affidavit-in-reply was filed by the appellant No.3 i.e. Executive Engineer, Roads and Buildings Circle, Surat in Misc. Civil Applications No.413 and 414 of 2001 (Contempt Petition) stating that the State Government needed a period of six months from February, 2002 to fully implement the final judgment dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983. 11. Special Civil Application No.7703 of 2002 was filed by PWD Employees Union for LPA/1625/2006 10/83 JUDGMENT implementation of the final judgment dated 30.1.1996 passed by this Court in Special Civil Application No.3607 of 1982. The said petition concerned the 746 work-charged employees of the erstwhile Irrigation Department. This Court has passed an order on 29.1.2003 in Special Civil Application No.7703 of 2002 recording the statement made by Mr.B.H.Chaudhari, Executive Engineer, Ukai Dam in para-5 of his affidavit-in-reply, that the arrears aggregating to Rs.2,11,86,306/- worked out by the department, had been forwarded further and was pending for the approval of the Secretary, Finance Department of the State Government. Special Civil Application No.7703 of 2002 was finally disposed of by the learned Single Judge in terms of the order dated 3.2.2003 passed by the Finance Department of the State Government whereby an amount of Rs.2,11,86,300/- was sanctioned by the State Government in compliance of the final LPA/1625/2006 11/83 JUDGMENT judgment dated 30.1.1996 passed by this Court in Special Civil Application No.3607 of 1982. Pursuant to the order dated 7.2.2003 passed by this Court in Special Civil Application No.7703 of 2002, the following amounts were paid by the State Government to the employees concerned in Special Civil Application No.3607 of 1982, of the erstwhile Irrigation Department, without any Caveat or objection. Sr. Head Amount No. ________________________________________ 1. Amount of leave Rs.04,63,891.00 surrender. 2. L.T.C. Rs.04,93,021.00 3. T.A/ Bills. Rs.01,15,930.00 4. Notional Period Rs.79,78,460.00 1996-96 5. Project Allowance Rs.15,03,484.00 6/98 to 7/2002 6. Transport allowance Rs.18,58,929.00 4/99 to 7/2002 7. Encashment of leave Rs.11,79,379.00 at the time of retirement & death. LPA/1625/2006 12/83 JUDGMENT _________________ Total Rs.1,36,29,094.00 12. The amount of Rs.75,57,212/- due under the head of 'Public Holidays' was not paid to the work-charged employees of the erstwhile Irrigation Department on the ground that the amount under the head of 'Public Holidays was included in the total calculation by mistake. Therefore, Misc. Civil Application No.2239 of 2003 was filed by the State Government for modification of the order dated 7.2.2003 passed by this Court in Special Civil Application No.7703 of 2002 to include the amount of Rs.75,57,212/- calculated under the head of 'Public Holidays'. Thus, barring 'Public Holidays', the admissibility of the other 7 benefits was not disputed by the State Government. 13. Misc. Civil Application No.2239 of 2003 filed by the State Government was allowed by the learned Single Judge on 25.2.2004 and the LPA/1625/2006 13/83 JUDGMENT order dated 7.2.2003 passed by this Court in Special Civil Application No.7703 of 2002 was modified to the extent that in place of amount of Rs.2,11,86,306/- an amount of Rs.1,36,29,094/- was required to be disbursed in compliance of the final judgment dated 30.1.1996 passed by this Court in Special Civil Application No.3607 of 1982. For the 'Public Holidays' benefit, the PWD Employees Union was asked to make a representation to the State Government for encashment of the said benefit. The State Government was directed to consider such representation made to it in accordance with law. 14. Letters Patent Appeal No.1037 of 2004 was filed by the PWD Employees Union against the judgment dated 25.2.2004 passed by the learned Single Judge of this Court in Misc. Civil Application No.2239 of 2003 by which the encashment of 'Public Holidays' benefit to the tune of Rs.75,57,212/- was denied. A LPA/1625/2006 14/83 JUDGMENT Division Bench of this Court allowed the Letters Patent Appeal No.1037 of 2004 filed by the PWD Employees Union on 14.10.2004 and the judgment dated 25.2.2004 passed by the learned Single Judge in Misc. Civil Application No.2239 of 2003 was quashed and set aside. The members of the PWD Employees Union who are work-charged employees of the erstwhile Irrigation Department, were held entitled to encashment of 'Public Holidays' benefit to the tune of Rs.75,57,212/-. 15. Special Leave Petition No.3719 of 2005 was filed by the State Government against the decision dated 14.10.2004 passed by a Division Bench of this Court in Letters Patent Appeal No.1037 of 2004. The said Special Leave Petition was dismissed by the Hon'ble Supreme Court of India on 8.4.2005. As a result thereof sum of Rs.72,46,000/- was disbursed by the State Government to the work-charged employees of the erstwhile LPA/1625/2006 15/83 JUDGMENT Irrigation Department towards the 'Public Holidays' benefit. 16. So far as Special Civil Application No.5529 of 2003 filed in this Court on 25.4.2003 by the PWD Employees Union is concerned, it is filed for and on behalf of the 409 daily-wagers of the Roads and Buildings Department for implementation of the final judgment dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983. These 409 daily- wagers comprised of two groups, first group of 288 employees who were party to Special Civil Applications No.422 and 423 of 1983, and second group of 121 employees who were not party to Special Civil Applications No.422 and 423 of 1983. The said Special Civil Application No.5529 of 2003 had to be filed by the PWD Employees Union as the State Government had not fulfilled its commitments made in the proceedings of Misc. Civil LPA/1625/2006 16/83 JUDGMENT Applications No.413 and 414 of 2001 that the judgment dated 30.1.1996 passed by this Court in Special Civil Applications No.422 and 423 of 1983 would be fully implemented within a period of six months from February, 2002. Special Civil Application No.5529 of 2003 was finally disposed of in view of the statement made by the learned Assistant Government Pleader Mr.Pancholi on 9.4.2004. In view of the statement made by Mr.Pancholi that 'payment would be made to 288 employees of the Roads and Buildings Circle, Surat, as per the earlier order of this Court in Special Civil Application No.7703 of 2002 dated 7.2.2003, after making computation as required for the purpose within 4 weeks from the date of the order. A sum of Rs.44,44,380/- was paid to the first group of 288 employees of the Roads and Buildings Department under the head of 'Notional period for the year 1996-97'. Barring this, payment under the remaining 7 heads was not made. Two LPA/1625/2006 17/83 JUDGMENT letters dated 12.7.2004 and 20.8.2004 were sent by the PWD Employees Union to the State Government seeking compliance of the statement made on their behalf in the proceeding of Special Civil Application No.5529 of 2003 and which was recorded in the oral order dated 9.4.2004 passed by this Court in Special Civil Application No.5529 of 2003. Despite these two letters, nothing more was paid by the State Government to the 288 employees of the Roads and Buildings Department and hence the PWD Employees Union filed Misc. Civil Application No.2014 of 2004 seeking recall of the order dated 9.4.2004 by which Special Civil Application No.5529 of 2003 was disposed of. The said Misc. Civil Application No.2014 of 2004 was allowed by an order dated 16.3.2005 and the order dated 9.4.2004 was recalled and Special Civil Application No.5529 of 2003 was restored to its original number. LPA/1625/2006 18/83 JUDGMENT 17. After hearing the rival parties, Special Civil Application No.5529 of 2003 was admitted by the learned Single Judge and by an order dated 14.6.2006 the said petition was partly allowed. The following amounts were directed to be paid by the learned Single Judge under order and judgment dated 14.6.2006. Under the Head of Amount (Rs.) L.T.C. 4,58,160/- Group Insurance 7,07,625/- Leave Encashment 12,27,002/- (To Retired/Expired Employees) Surrender Leave 2,96,332/- Transport Allowance 12,44,850/- Public Holidays 41,31,730/- ____________ Total 80,65,699/- ============ 18. In addition to the above, the Learned Single Judge awarded interest at the rate of 9% p.a for the period commencing from 1.9.2000 till the date of payment, on the LPA/1625/2006 19/83 JUDGMENT aforesaid amount of Rs.80,655,699/-. It was further directed that if the payment as directed was delayed beyond 1.9.2006, the State Government shall pay penal interest at the rate of 12% p.a. Separate direction was issued with regard to the claim of the second group of 121 employees of the Roads and Buildings Department. 19. In Misc. Civil Application No.2880 of 2006 (for contempt) filed by the PWD Employees Union in Special Civil Application No.5529 of 2003, the learned Government Pleader, on instructions, has stated that the undisputed amount of Rs.25 lacs that is deposited by the State Government in the Registry of this Court, be paid over to the PWD Employees Union in pursuance of the oral judgment dated 14.6.2006 passed by the learned Single Judge in Special Civil Application No.5529 of 2003. LPA/1625/2006 20/83 JUDGMENT 20. It is in the above background of facts, events and various proceedings, the present Letters Patent Appeal is filed by the State Government and others. 21. Mr.Mihir Joshi, learned AAG appearing with Mr.Apurva Dave, learned Assistant Government Pleader, for the appellants has submitted that the learned Single Judge has erred in issuing direction for making the payment of quantified amount under various heads overlooking the fact that the members of the petitioner Union were not entitled to such payment at all under the relevant rules and regulations and such computation was subject to contention of the appellant State as recorded in the judgment itself. It is further submitted that the learned Single Judge has gravely erred in directing payment of interest on the amounts directed to be paid under the judgment. He has further submitted that the learned Single Judge has LPA/1625/2006 21/83 JUDGMENT completely overlooked the fact that the direction for payment of specific amounts ought not to have been issued on account of serious disputes of entitlement and quantification. He has further submitted that the learned Single Judge should not have entertained the petition which is purportedly for execution of earlier order in Special Civil Application No.3607 of 1982 and Special Civil Applications No.422 and 423 of of 1983 and has further erred in overlooking the fact that the said earlier directions were for payments to be made as may be admissible under law and, therefore, ought not to have considered the matter as having been concluded or enforceable by way of execution thereof. He has further submitted that the learned Single Judge has erred in allowing the petition qua those employees, who were held, earlier, not entitled for benefits at par with the employees of Special Civil Application No.3607 of 1982 and LPA/1625/2006 22/83 JUDGMENT Special Civil Applications No.422 and 423 of of 1983. 22. Mr.Joshi has further submitted that 121 employees have been treated at par with the employees mentioned in Special Civil Applications No.422 and 423 of 1983 have never approached before this Court until year 2003 and, therefore, they cannot be treated at par with the employees before the Court. Their claim was never adjudicated about the admissibility or parity with employees covered under Special Civil Applications No.422 and 423 of of 1983. He has further submitted that the claim of 121 employees at par with the petitioners in Special Civil Applications No.422 and 423 of 1983 suffers from gross delay and latches and hence he ought not to have granted the same, vide impugned judgment. 23. Mr.Joshi has further submitted that the LPA/1625/2006 23/83 JUDGMENT benefits like Leave Travel Concession, Leave Encashment, Public Holidays, Travel Allowance, Group Insurance, Medical Allowance and Provident Fund are required to be given to the employees in accordance with rules and resolutions as decided vide judgment in Special Civil Application No.3607 of 1982. Meaning thereby, it has to be first decided that whether regular employees of Government, who are entitled for the benefits in cash and what is extent of admissibility of benefits according to rules and resolution. In para-9 itself, the learned Single Judge has held that so far as “claim of Leave Encashment, Public Holidays, Provident Fund are permissible under relevant rules and resolutions have already been dealt.” The learned Single Judge has further observed that Mr.Master states that remaining other benefits, namely, Leave Travel Concession, Travel Allowance, Group Insurance and Medical Allowance are being made available to the LPA/1625/2006 24/83 JUDGMENT group of 108 employees. The learned Single Judge recorded the statement of Mr.Master that the remaining employees will be satisfied if these benefits are made available to them from 1.1.1995 onwards. This submission is reasonable enough and hence the learned Single Judge has observed that since there is no reason to discriminate between the two group of employees, the present appellant – original respondent would take necessary steps to give these benefits to the second group of employees from 1.1.1995 as may be permissible under the relevant rules and resolutions. 24. Mr.Joshi has further submitted that the benefit like Leave Travel Concession is concerned, conversion of the said benefits into money was permissible only for a period between 1992 to 1995. Even employees, who are governed under Special Civil Application No.3607 of 1982 were made first time work LPA/1625/2006 25/83 JUDGMENT charged employees vide judgment and order dated 30.1.1996 with effect from 1.1.1995. Meaning thereby, they would not be even otherwise entitled for benefits of Leave Travel Concession because they have not performed work as work charged employees for three years as on 1.1.1995. He has further submitted that relevant rules of work-charged employees are framed by 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. 25. So far as the claim of Leave Encashment is concerned, Mr.Joshi has submitted that there is no dispute and the same is already paid and amount of Rs.3,27,186/- which was unpaid was already paid. He has further submitted that as per present Government Policy, Leave Encashment is required to be given and there LPA/1625/2006 26/83 JUDGMENT is no dispute on this ground. 26. So far as claim of Public Holidays in cash is concerned, Mr.Joshi has submitted that regular employees of the Government are not entitled for Encashment of Leave on account of discharging duties on public holidays is concerned. Regular employees are given compensatory leave for discharging their duties on public holidays and, therefore, benefit of encashment of leave is not permissible under the Government Resolution dated 31.3.1982. 27. So far as claim of Travel Allowance is concerned, Mr.Joshi has submitted that the same is admissible only in cases where Government employees or workmen are not provided transport facility for going to work. This claim cannot be adjudicated unless evidence to the effect is led before the Court about actual traveling and LPA/1625/2006 27/83 JUDGMENT employees one spending out of their pocket or government has not provided transport facility at any point of time. Therefore, it would be a question of disputed facts and could not have been granted in omnibus fashion. 28. Even in the affidavit in reply it is clearly stated that Rojamdar who are required to be taken to outside the field, they are shifted through trucks of Road and Building Department and, therefore also question of travelling allowance does not arise. In paragraph-5 of the impugned judgment, the learned Single Judge has modified the original order stating interalia Travel / Transport Allowance. In this regard, the Transport Allowance was never a part of judgment rendered in Special Civil Application No.3607 of 1982. 29. So far as amount payable under the head of LPA/1625/2006 28/83 JUDGMENT Group Insurance is concerned, the same is not required to be paid because all employees in Special Civil Applications No.422 and 423 of of 1983 have never contributed towards their premium of Group Insurance and in this set of circumstances, the same is not payable under the said head. He has further submitted that from 1998 onwards the same amount is 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. 30. So far as the payment under the head of Surrender Leave is concerned, there is no mention about the said head in the judgment rendered in Special Civil Application No.3607 of 1982. 31. Mr.Joshi has further submitted that the LPA/1625/2006 29/83 JUDGMENT Government Pleader as well as Officers, who were present at the hearing of the application, have agreed so far as calculation part of the benefit is concerned but so far as entitlement is concerned, all the time it