IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1037 of 2004 in MISC.CIVIL APPLICATION No 2239 of 2003 with CIVIL APPLICATION No 2674 of 2004 Date of Decision: 14/10/2004 -------------------------------------------------------------- PWD EMPLOYEES' UNION VERSUS STATE OF GUJARAT (for full cause title, see next sheet) -------------------------------------------------------------- Coram: The Hon'ble Mr.Justice Bhawan The Hon'ble Mr.Justice H.K.Rathod, Judge Whether approved for reporting? For the Appellant Mr.Adv.Shalin N. Mehta For the Respondent-1 & 2 Mr.Adv.General S.N.Shelat with Mr.AGP L.B.Dabhi -------------------------------------------------------------- PER: H. K. RATHOD, JUDGE ( CAV ):- Heard learned advocate Mr.Shalin Mehta for the appellant. Learned Advocate General Mr.S.N.Shelat is appearing for the Respondents State of Gujarat. In this appeal, order made by the learned Single Judge (Coram : Jayant Patel,J.) in Miscellaneous Civil Application No. 2239 of 2003 in Special Civil Application No. 7703 of 2002 dated February 25, 2004 is under challenge. --------------------------------------------------------- Whether reporters of Local Papers may be allowed to see the Judgment?Lo al Papers may be allowed to see the Judgment?Local Papers may be allowed to s e the Judgment?Local Papers may be allowed to see the Judgment?Local Papers ay be allowed to see the Judgment?Local Papers may be allowed to see the Judg ent?Local Papers may be allowed to see the Judgment?Local Papers may be allo ed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see he Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgmen ?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Pa ers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judgment?Local Papers may be allowed to see the Judg 2. The learned Single Judge has modified his earlier order dated 7th February, 2003 in Special Civil Application No. 7703 of 2002 to the extent that in place of the amount of Rs.2,11,86,306.00, the amount which is required to be disbursed at this stage would be Rs.1,36,29,094.00. Alongwith aforesaid modification, the learned Single Judge has also issued further directions and has disposed of the application filed by the State of Gujarat and the rule was made absolute to that extent indicated in the said order. Said Misc. Civil Application No. 2239 of 2003 was filed by the State of Gujarat in December, 2003 with a prayer in terms of para 7(b) to modify the order dated 7.2.2003 to the extent of modifying the figure of Rs.2,11,86,306.00 to Rs.1,36,29,094.00 and consequently a direction given under para 3 of the order dated 7.2.2003. Except that, no other prayers were sought by the applicant State of Gujarat. Alongwith the Letters Patent Appeal, order in question dated February 25, 2004, oral judgment dated January 30, 1996 in Special Civil Application No. 3607 of 1982, Circular dated March 31, 1982, copy of the order dated November 7, 2003 in Misc. Civil Application No. 1615 of 2003, copy of the affidavit in reply against the review application filed by the appellant and other relevant orders have been annexed by the appellant. The respondent State of Gujarat has filed affidavit dated July 7, 2004 in this appeal which is made by Mr. A.G.Shaikh, Deputy Secretary, Narmada Water Resources Water Supply and Kalpasar Department, Sachivalaya, Gandhinagar on behalf of the State of Gujarat. 3. This appeal is having little long history and, therefore, factual back ground is necessary. Same is narrated as under, in short: In August, 1982, the appellant No.1 Union alongwith six daily wagers engaged in the maintenance works of the Ukai Dam Project filed special civil application no. 3607 of 1982 against the respondents herein in a representative capacity for and on behalf of 746 daily rated employees doing maintenance works at the Ukai Dam site. As per prayer (a), a mandamus was prayed for directing the respondents to give these 746 daily rated employees all the benefits viz. gratuity, pension, provident fund, casual leave, earned leave, sick leave and scales and grade etc. that were being given to the other permanent, temporary and work charged employees. As per para (b) of the prayer clause, a writ of mandamus was sought for directing the respondents to give to these 746 daily rated employees the benefits as per the Resolution dated 7.7.73 which is about Public Holidays and medical allowance to the daily rated workmen of nominal muster roll and as per the resolution dated 4.7.73 which is about work charge benefits and other incidental benefits at par with the Government servants. On January 30, 1996, said Special Civil application was disposed of by this Court with directions in favour of the daily rated employees for payment of various benefits like arrears of annual earned leave, pension , gratuity, provident fund, public holidays and weekly off, leave travel concession, travelling allowance, group insurance, medical allowance, etc. Directions to pay the aforesaid benefits are contained in paragraphs 6, 7, 8 and 9 of the judgment and order dated January 30, 1996 in Special Civil Application No. 3607 of 1982. Said judgment dated 30th January, 1996 was challenged by the present respondents before the Division Bench of this Court by filing Letters Patent Appeal No. 353 of 1997. On 22.4.1997, said Letters Patent Appeal No. 353 of 1997 was dismissed. While dismissing the said appeal, it was observed by the Division Bench of this court in para 8 of the judgment that in view of what is observed by the apex court, the learned Single Judge has rightly given the directions to the concerned respondents to grant benefit from 1st January, 1995 onwards as may be permissible under the relevant rules and resolutions. It was also observed that if it was a case that the benefit is required to be extended from retrospective effect i.e. from the date of their joining service, the matter would have been different. IN the instant case, the persons have been working for more than 14 years, and, therefore, they were only requesting that they may be extended the same benefit which are being extended to others. If the State had taken care by examining the records as observed by the apex court and thereafter, placed before the court, the necessary materials to indicate as to how may persons are entitled to the benefit and how many are not entitled to the benefit, the matter would have been different. Learned counsel for the State could not point out whether the State has carried out this exercise or not. After making the aforesaid observations as per para 8 of the oral judgment, said letters patent appeal against the oral judgment dated 30th January,1996 was dismissed by the Division bench of this Court. Thereafter, the said oral judgment dated January 30, 1996 as confirmed by the Division Bench of this Court in Letters Patent Appeal No. 353 of 1997 by order dated April 22, 1997 was challenged by the State of Gujarat before the Hon'ble Supreme Court by filing Civil Appeal No. 2226 of 1998 which came to be dismissed by the apex court on 9.8.2000. Initially apex court granted interim stay of the directions issued against the State in final judgment and order dated January 30, 1996. Thus, the judgment dated January 30, 1996 confirmed by the Division Bench of this Court in LPA No. 353 of 1997 was confirmed by the apex court on 9.8.2000. Review petition No. 622 of 2001 filed by the State of Gujarat before the apex court for recalling and/or review the order dated 9.8.2000 in Civil Appeal No. 2226 of 1998 came to be rejected by the apex court on 25.7.2001. Thereafter, since the judgment dated January 30, 1996 was not implemented by the State of Gujarat, the present appellants filed Miscellaneous Civil Application No. 168 of 2001 before this Court under Article 215 of the Constitution of India and under section 10 of the Contempt of Courts Act, 1971 for initiating contempt proceedings against the officers of the State of Gujarat for not implementing the final judgment and order dated January 30, 1996 wherein affidavit in reply was filed by the Executive Engineer, Ukai Division No.1. On July 20, 2002, one letter was addressed by the appellant Union to the respondent No.2 to comply with the directions issued by this Court by judgment dated January 30, 1996. Similar request was made by the appellant union by letter dated July 25, 2002 to the Deputy Secretary of the respondents. Thereafter, the appellant union filed Special Civil Application No. 7703 of 2002 with a prayer to implement the directions issued by this Court dated January 30, 1996 in Special Civil Application No. 3607 of 1982. Thereafter, on 3.2.2003, as a measure of compliance, an order was passed by the Finance Department of the State of Gujarat sanctioning an amount of Rs.2,11,86,306.00 for payment to the members of the appellant no.1 union and the said order was placed on record of special civil application no. 7703 of 2002. Thereafter, said special civil application no. 7703 of 2002 was disposed of by the learned Single Judge of this Court on 7.2.2003 with the following directions : "(i) The concerned officer of the State Government shall disburse 60% of the sanctioned amount within a period of one month from today by distributing the amount as may be payable to the concerned workman by individual account payee cheque. (ii) The balance amount of 40 % shall be disbursed by the concerned officer of the State Government within a period of three months thereafter and the said balance amount shall also be paid by account payee cheque only to the each concerned workman. (iii) After the payment is realized if there is any short fall in calculation or otherwise, it will be open to the petitioners to make representation to the concerned authority for ventilating the grievance in respect thereof in accordance with law." 4. The State of Gujarat has worked out the details of arrears for payment to 524 daily wagers in view of the judgment of this Court in Special Civil Application No. 3607 of 1982 as under: --------------------------------------------------------- Sr. Details Amount No. Rs. --------------------------------------------------------- 1. Amount of leave surrender 4,63,891.00 2 LTC 4,93,021.00 3 TA Bills 1,51,950.00 4 Notional period,96-97 79,78,460.00 5 Project Allowance 6/98 to 7/2002 15,03,484.00 6 Transport Allowance 4/99 to 7/2000 18,58,929.00 7 Encashment of leave at the time of retirement and death 11,79,379.00 8 Public Holiday 75,57,212.00 -------------- 2,11,86,306.00 -------------------------------------------------------- 5. Thereafter, since the directions as per para (ii) issued by this court on 7th February, 2003 in Special Civil Application No. 7703 of 2002 were not complied with by the State of Gujarat, the appellant union filed Miscellaneous Civil Application No. 1321 of 2003 for revival of the Special Civil Application No. 7703 of 2002 on 15th July, 2003 which was withdrawn on 18th July, 2003 by the appellant union with a view to file appropriate application under the Contempt of the Courts Act, 1971. In July 2003, for non compliance of the directions, in view of the nonpayment of the balance 40 per cent of the amount, legal notice was served upon the respondents. On 2nd August, 2003, Misc. Civil Application No. 1615 of 2003 was filed by the appellant union under the provisions of the Contempt of the courts Act, 1971. On 19th August, 2003, Division Bench of this Court issued notice to the respondents, thereafter, on 16th September, 2003, order was passed by the Division Bench of this Court wherein it was clearly recorded that it was too late for the respondents herein to put up the defence that the sanctioned amount of Rs.2,11,86,306.00, calculation was wrong. This was recorded by the Division Bench of this Court in the Contempt Proceedings in view of the contention orally raised by the counsel for the respondents that there was a mistake in the calculation of the sanctioned amount as a result of which the remaining 40 per cent of the sanctioned amount was not payable. Thereafter, on 7.11.2000, during the course of hearing of the Misc. Civil Application No. 1615 of 2003, time was sought by the Counsel for the Government for the purpose of verifying whether the members of the appellant union had already been released the benefit of public holidays in past or not and with a view to avoid double payment,the respondents herein were asked to verify as to whether the benefit of public holidays had already been released or not to the members of the appellant union in past.The respondents were directed by the Division Bench of this Court on 7.11.2003 to release the remaining amount in favour of the appellants on verification by their counsel meaning thereby, it was directed to release Rs.13,09,761.00 and the remaining amount of Rs.75,57,212/- invested in the name of the Registrar of this Court for a period of two months so that the interest accruing becomes payable to the parties held entitled for it. 6. Thereafter, on 2nd December, 2003, Misc. Civil Application NO. 2239 of 2003 was filed for modification/variation of the order dated 7th February,2003 passed in Special Civil Application No. 7703 of 2002 which review application came to be decided by the learned Single Judge of this Court on 25th February,2004 and by the said order dated 7th February, 2003 was modified to the extent indicated hereinabove i.e. in place of Rs.2,11,86,306.00, amount which is required to be disbursed at the said stage would be Rs.1,36,29,094.00. Learned Single Judge has,while modifying the said order, issued further directions under the same order dated 25th February, 2004 in Misc. Civil Application No. 2239 of 2003 which is under challenge in this letters patent appeal. 7. Learned advocate Mr.Shalin Mehta appearing for the appellant union has raised contention that the judgment given by the learned Single Judge of this Court in Special Civil Application No. 3607 of 1982 dated January 30, 1996 has attained finality between the parties as it was confirmed by the Division Bench of this Court in Letters Patent Appeal and then by the apex court in the civil appeal and the subsequent review petition filed by the State of Gujarat was also rejected by the apex court and, therefore, the learned Single Judge was not justified in examining the judgment dated 30th January, 1996 while entertaining Misc. Civil Application No. 2239 of 2003. He submits that in reality, order dated 25th February, 2004 in Miscellaneous Civil Application NO. 2239 of 2003 which is under challenge is review order or modifying the order dated 30th January, 1996 in Special Civil Application No. 3607 of 1982 and, therefore, learned Single Judge was not justified in passing the order in question. He also submits that new material was placed on record by the respondents in the review application being MCA No. 2239 of 2003 which ought to have been ignored by the learned Single Judge while considering the application for modification of the order passed in Special Civil Application No. 7703 of 2002. He submits that review application was filed by the respondent State on the basis of Government Resolution dated 31st March, 1982 which was not produced by the respondents either before the learned Single Judge in Special Civil Application No. 3607 of 1982, Letters Patent Appeal No. 353 of 1997 and then before the apex court in the civil appeal against the judgment dated 30th January, 1996 as confirmed by the Division Bench of this Court. In Review Petition before the apex court also, said GR dated 31.3.82 was not produced by the State of Gujarat and in view of that, learned Single Judge of this Court ought not to have taken into consideration the said GR dated 31.3.82 while examining the MCA No. 2239 of 2003. He also submitted that the GR dated 31st March, 1982 is not applicable to the present appellants but it applies to the permanent Government employees who were regularly selected under the recruitment rules whereas the appellants were the daily wagers entitled for the benefits flowing from the GR dated 4.7.1973 and 7.7.1973 which were granted by the Court in favour of the appellants as per the judgment dated 30th January, 1996. He also submits that after the rejection of the civil appeal and the review petition in 2000-2001, present review application was filed by the respondents on 2nd December, 2003 after a period of more than two years on the basis of the new material which was never relied and produced by the respondents in earlier proceedings upto the apex court. He also raised the contention that the MCA No. 2239 of 2003 was filed by the State of Gujarat against the order dated 7.2.2003 in SPECIAL CIVIL APPLICATION No. 7703 of 2003 and except that, no other prayer was made by the State of Gujarat and, therefore, the learned Single Judge was not having the jurisdiction or power to review and/or modify the order passed in Special Civil Application No. 3607 of 1982 dated 30th January, 1996. He made a reference to certain observations made by the learned Single Judge before us to high light the submission about consideration of the merits of the earlier judgment in special civil application no. 3607 of 1982 while entertaining and examining the MCA No. 2239 of 2003. He submits that the review application was filed by the respondents beyond the period of limitation. He raised the contention that under the guise of review by producing new material, the judgment dated 30th January, 1996 has been re-examined by the learned Single Judge as if he has been acting as an appellate authority over the judgment in SPECIAL CIVIL APPLICATION No. 3607 of 1982. He submits that the learned Single Judge was not justified in adopting such a course while considering the MCA No. 2239 of 2003 for review of the order in SPECIAL CIVIL APPLICATION No. 7703 of 2002. He also submits that because of the operation of interim order passed by the apex court, benefits which were payable to the appellants w.e.f. 1st January, 1995 to 2000 have not been made available to the appellants by the respondents. Said benefits were paid to the appellants for a period upto 31st December, 1994. He also submits that the respondents are not challenging the entitlement of the appellants in respect of the benefits which have been worked out by the respondents including the encashment of public holidays but the respondents are now, impliedly challenging the entitlement of the appellants for encashment of public holidays by placing reliance on G.R. dated 31st March, 1982 which was admittedly not produced by them in the earlier proceedings. As regards the contention of the respondents that they are prepared to give extra leave with wages for the work done by the appellants on public holidays, it was submitted that the work was undertaken by the respondents from the appellants on each and every public holidays between 1995 to 2000 and for that, there is no dispute or challenge. In short, it is his submission that the appellants are entitled for the benefit of public holidays in cash as per the judgment dated 30th January, 1996 which has attained finality upto the apex court and, therefore, the learned Single Judge was not justified in examining that aspect while considering the MCA No. 2239 of 2003. He also submits that the appellants are entitled for such benefits as per the right of restitution and, therefore, the respondents are bound to restore the original position by making payment in cash for the public holidays during which period the appellants had actually worked. Therefore, he submitted that the learned Single Judge has committed grave error in examining the merits of the judgment and order dated 30th January, 1996 by considering the GR dated 31st March, 1982 which was never produced by the State in the earlier proceedings. Learned advocate Mr. Mehta has placed reliance on the following decisions : [1] M.K.Shah Engineers & Contractors v. State of M.P. [1999] 2 SCC 594; [2] State of Orrissa and others v. Mangalam Timber Products, [2004] 1 SCC 139; [3] South Eastern Coalfields Ltd. Vs. State of M.P. and others, [2003] 8 SCC 648; [4] Karnataka Rare Earth and another vs. Senior Geologist, Department of Mines & Geology and another, [2004] 2 SCC 783. 8. On the other hand, Mr. S.N. Shelat, learned Advocate General appearing for the State of Gujarat has clearly submitted that it was a mistake committed by the respondents in granting cash benefits of public holidays. He submitted that mistake can be corrected at a later stage also if it will be unjust for the Government and other similarly situated employees. He also submitted that cash benefit of public holidays was not given to any other employees in the State of Gujarat. He also emphasized that learned Single Judge has not committed any error in examining the merits of the judgment dated 30th January, 1996. He also clarified that the entitlement of the appellants for public holidays with wages is not in dispute. According to his submission, the learned Single Judge has simply rectified the mistake committed by the respondents and in doing so, no error has been committed by him. According to the learned A.G. Mr. Shelat, it was the case of the respondents before the learned Single Judge in Review Application No. 2239 of 2003 that it was their mistake in calculating the amounts payable to the appellants in view of the order of this Court dated 30.1.1996 and on that basis, said MCA was filed for review and modification of the order passed in SPECIAL CIVIL APPLICATION No. 7703 of 2002 and the prayer was made to correct the figure of the amount by placing reliance on the GR dated 31.3.82. Learned Advocate General has emphasized this point that this was their mistake in calculation since the GR dated 31.3.82 was subsequently brought to the notice of the officers concerned. According to him, as per the GR dated 31.3.82, the appellants are not entitled for the encashment of public holidays because the said GR is not permitting for such encashment. It is his submission that in entire State of Gujarat, no employee is entitled for such benefit of encashment of public holidays if he was required to work on public holidays. In such circumstances, such employee is entitled only for compensatory leave in lieu of the work done by him on public holidays. Thus, it is his submission that the mistake committed by the respondents in calculation of the amount has rightly been rectified by the learned Single Judge by considering the GR dated 31.3.82. He relied upon the decision of Apex Court in case of S. Nagraj and others versus State of Karnataka, JT 1993 (4) SC page 27 and submitted that the Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. He relied upon para 18 and 19 of the said judgment which are reproduced as under: "18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice, then, it cannot on any