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Gujarat High Court · body

2006 DIGILAW 324 (GUJ)

PWD EMPLOYEES UNION v. STATE OF GUAJRAT

2006-06-14

D.H.WAGHELA

body2006
( 1 ) THE present petition under Article 226 of the Constitution has arisen from non-implementation of the earlier judgment and order dated 30. 1. 1996 of this Court in Special Civil Applications No. 422 and 423 of 1983. Those petitions i. e. SCA Nos. 422 and 423 of 1983, espousing the cause of the daily rated employees employed in the Roads and Building Division of the State of Gujarat were heard along with the other petition being Special Civil Application No. 3607 of 1982. The petitions were disposed with the direction that the benefits directed in the matter of Special Civil Application No. 3607 of 1982 would also be made available to the employees concerned in the aforesaid two petitions. The directions in SCA No. 3607 of 1982 to pay certain benefits to the workmen concerned therein were couched in the following terms:- ( 2 ) THE petition is filed on the footing that in view of rendering long service to the respondents, the petitioners are entitled to treatment on par with other regular Government employees and on that basis the aforesaid prayers as also claim for other benefits, if any, are made. Para 3 of the additional affidavit of Shri B B Chaudhary dated 12th December, 1995, clarifies the other claims by making reference to the benefits of (i) LTC, (ii) Leave Encashment, (iii) Public Holidays, (iv) Travel Allowance, (v) Group Insurance (vi) Medical Allowance and (vii) Provident Fund. The claim for leave encashment, public holidays and provident fund as permissible under the relevant rules and resolution has already been dealt with. Mr Master states that the remaining other benefits, namely, LTC, Travel Allowance, Group Insurance and Medical Allowance are being made available to the earlier mentioned group of 108 employees. He states that the remaining employees will be satisfied if these benefits are made available to them from 1st January, 1995 onwards. This submission is reasonable enough and since there is no reason to discriminate between the two group of employees, the respondents will take necessary steps to give these benefits to the second group of employees from 1st January, 1995 as may be permissible under the relevant rules and resolutions. This submission is reasonable enough and since there is no reason to discriminate between the two group of employees, the respondents will take necessary steps to give these benefits to the second group of employees from 1st January, 1995 as may be permissible under the relevant rules and resolutions. ( 3 ) THE aforesaid order in Special Civil Application No. 3607 of 1982 was carried in appeal being LPA No. 353 of 1997 and upon dismissal of the LPA, SLP was preferred in the Hon ble Supreme Court as Civil Appeal No. 2226/98 which was also dismissed on 9. 8. 2000. Thereafter Review Petition No. 622 of 2001 was filed by the State of Gujarat in the Hon ble Supreme Court for recalling the order dated 9. 8. 2000 which was also rejected on 25. 7. 2001. Even thereafter, the workmen concerned of the Irrigation Department in Original SCA No. 3607 of 1982 were required to file another petition being SCA No. 7703 of 2002 before this Court for the purpose of implementation of the directions in SCA No. 3607 of 1982. Similarly, the workmen of R and B department concerned in the present petition, had to file the present petition for the purpose of implementation of the aforesaid order made in SCA Nos. 422 and 423 of 1983. Before filing the present petition, the petitioners had also moved the Court for contempt, in MCA No. 413 and 414 of 2001. ( 4 ) THE present petition was disposed on 9. 4. 2004 as not surviving, recording observations as under:-"2. Learned AGP, Mr Pancholi states that Additional Secretary, Finance Department Mr Mahida is present following order of this Court dated 8. 3. 2004. 3. Learned AGP Mr Pancholi states on instructions that the finance department has already cleared the file in respect of 288 employees who were members of the petitioner Union at the relevant time and when the petition was filed and the file has travelled to the PWD department. Mr Pancholi also makes a statement that the payment would be made to these 288 employees as per earlier order of this Court passed in Special Civil Application No. 7703 of 2002 dated 7. 2. 2003, after making computation as required for the purpose within 4 weeks from today. 6. Mr Pancholi also makes a statement that the payment would be made to these 288 employees as per earlier order of this Court passed in Special Civil Application No. 7703 of 2002 dated 7. 2. 2003, after making computation as required for the purpose within 4 weeks from today. 6. Under the circumstances, petition cannot be entertained so far as those 121 petitioners, other than those whose names figure in the list prepared by the respondent authority for making the payment are concerned. 7. Now, situation emerges is that petition cannot be entertained for 121 employees and is rejected. So far as 288 employees are concerned, the dispute is redressed and the petition therefore does not survive and stands disposed of accordingly. Notice discharged. No order as to costs. " ( 5 ) EVEN after the above order, the payments having not been made to the workmen concerned, the petitioners made an application, being MCA No. 2014 of 2004, for recalling the above order dated 9. 4. 2004 and permitting the petitioners to prosecute the present petition on merits. That application was allowed by order dated 16. 3. 2005, the original order dated 9. 4. 2004 was recalled and the petition was restored. The petition was posted for hearing from time to time thereafter and disputes were raised about computation of the amounts due to the individual employees concerned and also about their eligibility for or applicability of particular allowance to the workmen concerned. Ultimately, it was suggested that representatives of the petitioner-Union and responsible officers of the respondents should seat together and prepare the tables of calculations of the amounts due and payable to the employees concerned or, in case of death of some of them, to their heirs; subject to the contentions of the respondents. According to the exercise of computation jointly undertaken by the representatives of the parties, the total amounts calculated to be due, subject to the contentions, came to Rs. 4,58,160/- under the head of L. T. C. , Rs. 7,07,625/- as Group Insurance, Rs. 12,27,002/- as leave encashment to retired/expired employees and Rs. 2,96,332/- under the head of surrender leave. The table of calculations jointly submitted by the learned counsel and the learned AGP, subject to the legal contentions of the parties, was placed and taken on record. 4,58,160/- under the head of L. T. C. , Rs. 7,07,625/- as Group Insurance, Rs. 12,27,002/- as leave encashment to retired/expired employees and Rs. 2,96,332/- under the head of surrender leave. The table of calculations jointly submitted by the learned counsel and the learned AGP, subject to the legal contentions of the parties, was placed and taken on record. Since there was no dispute about calculation of those amounts, and they are due under the earlier order in SCA Nos. 422 and 423 of 1983, they are required to be paid to the employees or to their heirs, as the case may be, according to their individual entitlements, latest by 30. 09. 2006 after undertaking the necessary administrative exercise. ( 6 ) THERE was some controversy about the amounts due on account of public holidays, travelling/transport allowance and tribal allowance. Since tribal allowance is not mentioned in the original order in SCA No. 3607 of 1982, the claim under that head was given up, though calculations were made for the amounts payable under that head. As for the amounts due towards transport allowance, it was submitted that the employees concerned were, at the relevant time, provided with transportation facility to reach the place of work but transport allowance on monthly basis was admissible for the employees at par with the employees concerned in SCA No. 3607 of 1982, who were actually paid such amounts. Therefore, and in view of the admitted position that the workmen concerned were, at the relevant time, required to work at sites which were bound to be far away from their place of residence, the amounts calculated under the head of transport allowance was required to be paid and the total amounts in the agreed list of computation came to Rs. 12,44,850/ -. ( 7 ) SIMILARLY, the amounts due under the head of public holidays were sought to be controverted on the grounds that factually and legally the employees working on daily wage basis could not be presumed to have either worked on public holidays or to be entitled to wages for public holidays. It was however, conceded that the similarly situated employees of the Irrigation Department were paid the amounts due under that head after the said controversy being set at rest by the Division Bench of this Court in LPA No. 1037 of 2004. It was however, conceded that the similarly situated employees of the Irrigation Department were paid the amounts due under that head after the said controversy being set at rest by the Division Bench of this Court in LPA No. 1037 of 2004. It was categorically held by the Division Bench of this Court (Coram: Hon ble Chief Justice Bhawani Singh and Hon ble Mr Justice H K Rathod) in the elaborate C. A. V. Judgment dated 14. 10. 2004, that the appellants therein were entitled to encashment of public holidays and the calculations made by the respondents therein in the statement produced on record was the correct calculation. Accordingly, the Registry was directed to make payment to the workmen of Rs. 75,57,212/- which amount was deposited in the Court and was earning interest. The petition for Special Leave to Appeal from that judgment was dismissed by the Supreme Court after condoning the delay. Thus, in short, the issue of entitlement to the amounts on account of encashment of public holidays was settled and sealed. Accordingly, the total amounts calculated under that head, i. e. Rs. 41,31,730/- is also payable to the employees or their heirs, as the case may be. ( 8 ) 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. 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 ( 9 ) IT was vehemently argued on behalf of the petitioners that the payment of the amounts due under the above orders were unduly delayed and even after rejection of the Special Leave Petition by the Hon ble Supreme Court, the Government, which is supposed to be a model employer, had compelled the petitioners to initiate one after the other proceedings just for the purpose of recovery of the amounts which were definitely due since the first order made in the year 1996. It was also submitted that many of the employees concerned had, during the pendency of the marathon litigation left for their heavenly abode without ever having the benefit of the money to which they were judicially held to be entitled. It was also submitted that even from a purely commercial point of view, the amounts payable to the individual employees, put in their own hands, could have, at least, earned them the interest, if the amounts were deposited in Fixed Deposit in any nationalised bank and the Government cannot be allowed to take the benefit of their own wrong in not making payment in time and withholding the amount to the detriment of a weaker section of society. It could not be gainsaid that the value and worth of money was constantly eroding on account of the high rate of inflation. Learned counsel Mr Mehta, relied upon the judgment of the Division Bench of this Court in the case of Saijpur Bogha Nagarpalika Karmachari Mandal v. Ahmedabad Municipal Corporation, reported in 1991 (2) GLH 186 and the judgment of the Supreme Court in Bal Kishore Mody v. Arunkumar Singh and ors. reported in 2001 (1) SCC 174, and claimed interest @ 15% from the date of the original order dated 30. 1. 1996. The judgment of the Apex Court in South Eastern Coalfields Ltd. v. State of M. P. and others ( 2003 (8) SCC 648 ) was also relied upon to claim interest by way of relief of restitution. "it was submitted in reply by the learned AGP that the Government had not deliberately withheld the monies due to the employees concerned and there were genuine litigations carried on up to the Supreme Court which ended on 9. 8. 2000. Therefore, the public exchequer ought not to be burdened with additional payment of interest at least for the period during which the entitlement of the employees was the subject matter of controversy and litigation. He further submitted that even thereafter, there were genuine disputes and requirement of data for the purpose of making necessary computations of all the dues of individual workmen. He, therefore, submitted that, in the peculiar facts and circumstances, no amount, by way of interest, may be awarded over and above the amounts held to be due as above. He further submitted that even thereafter, there were genuine disputes and requirement of data for the purpose of making necessary computations of all the dues of individual workmen. He, therefore, submitted that, in the peculiar facts and circumstances, no amount, by way of interest, may be awarded over and above the amounts held to be due as above. " ( 10 ) IN view of the facts that the petitioners have been required to file the present petition just for execution of the order of the High Court, and prosecute it even after its disposal on the basis of the statement made on the authority of and in presence of the Finance Secretary of the State Government, and no payments were as yet made, the approach of the Government has to be viewed rather seriously. It is a fact on record that the petition was required to be revived because of the inaction and callous delay in the matter of payment of even the amounts admittedly due. Therefore, and in view of the obvious withholding of the due amounts for a very long period, award of interest would be justified in the facts of the case. However, since the controversy amongst the parties was finally resolved only after the rejection of the SLP of the respondent on 9. 8. 2000, the interest should accrue from that date on the total amounts due as aforesaid. Accordingly, the aforesaid amounts shall be paid with interest @ 9% per annum for the period from 1. 9. 2000 to the date of payment or 1. 9. 2006, whichever may be earlier. The principal amount due as quantified in para 6 hereinabove shall thereafter carry penal interest @ 12% and shall be paid accordingly, if the payment is delayed beyond 1. 9. 2006. The payments shall, as far as may be, made to the individual claimants by Account Payee cheques in their names after verifying their identity and in presence of the representative of the petitioner-Union. 9. 2006. The payments shall, as far as may be, made to the individual claimants by Account Payee cheques in their names after verifying their identity and in presence of the representative of the petitioner-Union. ( 11 ) IT was also submitted by the learned counsel Mr Mehta, appearing for the petitioners, that, besides the 288 employees for whom the above calculations were made, there were 121 other workmen who were similarly situated, employed in the same department during the same period on the same terms and conditions, who were left out from the calculation of dues only on account of the fact that they were not considered to be parties to the original petitions, as they were not, at the relevant time, members of the petitioner-Union. He submitted that such other similarly situated employees or their legal heirs should not be required to file separate petitions for the purpose of the same relief and the respondent ought to be directed to also calculate and pay the amounts due to them so as to avoid unnecessary litigation and additional burden on the public exchequer. The learned AGP submitted in response that details of such workmen were not available at present and he was not in a position to make any statement at this stage regarding payment to such workmen. However, it is expected that, if the department concerned of the respondent finds the case of similarly situated employees or if claims for or on behalf of such employees were made, suitable action shall be taken after appropriate enquiry into the record. Therefore, it can be hoped that if there are other genuine cases which are at par with the employees for payment to whom the present order is made, they shall not be required to approach the Court for orders for payment on the same line. Obviously, the respondent shall not reject such claims only on the ground that such employee were not parties to the original proceedings, i. e. SCAs No. 422 and 423 of 1983. It may be apposite to quote as under the guiding principle laid down by the Hon ble Supreme Court in the case of K. T. Veerappa and Ors. v. State of Karnataka and Ors. reported in 2006 (4) Scale page 293. It may be apposite to quote as under the guiding principle laid down by the Hon ble Supreme Court in the case of K. T. Veerappa and Ors. v. State of Karnataka and Ors. reported in 2006 (4) Scale page 293. "the defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent-University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21. 6. 1989 recorded by the learned Single Judge in W. P. Nos. 21487-21506/1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time. "it is clarified that such left out employees or their legal representatives shall have the liberty to approach the Court in case of necessity. ( 12 ) WITH the above observations and directions, the petition is partly allowed and rule is made absolute accordingly with no order as to costs.