Pwd & Forest Employees'Union vs Poonam Chand Parmar on 14 June, 2018

[Cites 40, Cited by 1]

Gujarat High Court

Pwd & Forest Employees'Union vs Poonam Chand Parmar on 14 June, 2018

Author: S.R.Brahmbhatt

Bench: S.R.Brahmbhatt, A.Y. Kogje

       C/MCA/3021/2015                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 3021 of 2015
                                    In
              SPECIAL CIVIL APPLICATION NO. 9814 of 2014
                                  With
                    CIVIL APPLICATION NO. 1 of 2016
                                  With
               R/MISC. CIVIL APPLICATION NO. 1063 of 2016
                                   In
              SPECIAL CIVIL APPLICATION NO. 9814 of 2014
                                  With
               R/MISC. CIVIL APPLICATION NO. 3236 of 2015
                                   In
              SPECIAL CIVIL APPLICATION NO. 12322 of 2014

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

and

HONOURABLE MR.JUSTICE A.Y. KOGJE


================================================================

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 or any order made thereunder ?

================================================================ PWD & FOREST EMPLOYEES'UNION Versus POONAM CHAND PARMAR ================================================================ Page 1 of 170 C/MCA/3021/2015 CAV JUDGMENT Appearance:

MR SHALIN MEHTA, SR. ADVOCATE WITH MS VIDHI J BHATT, ADVOCATE for the Applicant MR PRAKASH JANI, LD. ADDITIONAL ADVOCATE GENERAL WITH MS. VACHA DESAI, LD AGP for the Opponents No. 1 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE A.Y. KOGJE Date : /06/2018 CAV COMMON JUDGMENT (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)

1. All these three main petitions have common factual backdrop and the relief prayed for being also similar in nature against common respondents, all these petitions were heard together and are being disposed of by this common judgment and order.

2. In order to appreciate the controversy in the matters, the prayers made in all the three petitions are reproduced hereunder:

The applicants of Misc. Civil Application No. 3021 of 2015, have approached this Court under the provisions of the Contempt of Courts Act, with following prayers:

"(A) Your Lordships may be pleased to initiate proceedings of Civil Contempt against the opponents herein for willful and deliberate noncompliance of the common oral order dated 11.06.2015 passed in Special Civil Application No. 9814 of 2014 and other cognate matters;

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(B) Your Lordships may be pleased to punish the opponents after framing the charge to that effect for committing Civil Contempt;

(C) Your Lordships may be pleased to direct the opponents to purge themselves of the Civil Contempt committed by them by not implementing the common oral order dated 11.06.2015 passed in Special Civil Application No. 9814 of 2014 and other cognate matters;

(D) Pending admission and final hearing of the present application, Your Lordships may be pleased to direct the opponents to comply with the directions contained in the common oral order dated 11.06.2015 passed in Special Civil Application No. 9814 of 2014 and other cognate matters; and (E) Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."

The petitioners of Misc. Civil Application No. 1063 of 2016, have approached this Court under the provisions of the Contempt of Courts Act, with following relief:

"(A) Initiate appropriate proceedings under the Contempt of Courts Act and take appropriate steps as may be deemed fit in accordance with law;

(B) Direct the opponents to purge themselves of the Civil Contempt committed by them by implementing the common order dated 11.06.2015 passed in Special Civil Application No. 9814 of 2014 and other allied matters;

(C) Pending admission and final hearing of the present application, Your Lordships may be please to direct the opponents to comply with the directions Page 3 of 170 C/MCA/3021/2015 CAV JUDGMENT contained in the common oral order dated 11.06.2015 passed in Special Civil Application No. 9814 of 2014 and other allied matters;

(D) Such other and further reliefs that is just, fit and expedient in the facts and circumstances of the case may be granted "

The petitioners of Misc. Civil Application No. 3236 of 2015, have approached this Court under the provisions of the Contempt of Courts Act, with following relief:

"(A) Your Lordships may be pleased to initiate proceedings of Civil Contempt against the opponents herein for willful and deliberate noncompliance of the oral judgment dated 10.12.2014 passed in Special Civil Application No. 12322 of 2014 by this Hon'ble Court;

(B) Your Lordships may be pleased to punish the opponents after framing the charge to that effect for committing Civil Contempt;

(C) Your Lordships may be pleased to direct the opponents to purge themselves of the Civil Contempt committed by them by not implementing the oral judgment dated 10.12.2014 passed in Special Civil Application No. 12322 of 2014 and other cognate matters;

(D) Pending admission and final hearing of the present application, Your Lordships may be pleased to direct the opponents to comply with the directions contained in the oral order judgment 10.12.2014 passed in Special Civil Application No. 12322 of 2014 by this Hon'ble Court; and other cognate matters; and Page 4 of 170 C/MCA/3021/2015 CAV JUDGMENT (E) Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."

3. The facts being by and large similar in all the matters, the facts of Misc. Civil Application No.3021 of 2015 are adverted to for avoiding repetition.

The petitioner being a Union of the employees of PWD and Forest Department of the State has approached this Court through its President alleging that the respondents mentioned therein being the State officers have committed civil contempt by not implementing the common oral order dated 11.06.2015 in SCA No.9814 of 2014 and other cognate matters.

3.1 The facts in brief as could be culled out from the memo of petition and documents annexed with the memo of petition, deserve to be set out as under in order to appreciate the controversy in the matter.

It appears that in the year 2008, the petitioner union along with its 214 daily wage employees had filed SCA No.8647 of 2008 praying for grant of benefit of Government Resolution dated 17.10.1988 including absorbing them in the services of the State. At that time, other similar petitions were also filed for similar prayers. By oral judgment dated 29.10.2010, directions were issued to the Forest Department for considering the case of the petitioners for regularization of their services and give them Page 5 of 170 C/MCA/3021/2015 CAV JUDGMENT benefits as was made available to the daily wage employees of other Department like R&B, Armada Water Resources, Water Supply and Kalpsar Department, etc. 3.2 The said petitions reached upto the Supreme Court, and Supreme Court vide its judgment dated 09.07.2013, reported in the case of State of Gujarat & Ors. Vs. PWD Employees Union & Ors, reported in 2013 (8) Scale, page No.579 gave finality to the controversy by directing the State Government to extend benefit to the daily wage workers of Forest and Environment Department. The Supreme Court also gave indication about the modalities to be adopted in extending the benefits.

3.3 Thereafter, the State Government filed review petitions seeking review of the decision dated 09.07.2013. However, the Supreme Court vide its order dated 29.01.2014 dismissed such review applications.

3.4 As the petitioners felt that the directions issued by the Supreme Court in its judgment in case of PWD Employees Union (supra) are not complied with within the stipulated time, they moved contempt petition before the Supreme Court. At the same time, it appears that, the State also moved an application seeking extension of time for complying with the directions contained in the judgment in the case of PWD Page 6 of 170 C/MCA/3021/2015 CAV JUDGMENT Employees Union (supra). It appears that the Supreme Court was pleased to extend the time for compliance for six weeks from the date of the order being 10.03.2014.

3.5 Thereafter letters were addressed by the petitioners requesting the authorities to consider the services of the concerned daily wage employees from the date of entry in service, to prepare pay fixation orders and also to open Provident Fund Account. It appears that it is the direction contained in paras25 and 26 in the judgment in the case of PWD Employees Union (supra) that the petitioners were seeking compliance of. Paras25 and 26 read as under: "25. As per scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:

"(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along Page 7 of 170 C/MCA/3021/2015 CAV JUDGMENT with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc.

leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and education of provident fund.

(iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.

They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two Page 8 of 170 C/MCA/3021/2015 CAV JUDGMENT increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

26. Considering, the facts and circumstances of the case, the finding of Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and connected matters and the fact that the said judgment is binding between the parties, we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17th October, 1988 to all the daily wage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at Paragraph 25 above. The appellants are directed accordingly. The judgment and order passed by the learned Single Judge dated 29th October, 2010 as affirmed by the Division Bench by its order dated 28th February, 2012 stands modified to the extent above. The benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order. The appeals stand disposed of with the aforesaid observation and directions to the appellant State and its Page 9 of 170 C/MCA/3021/2015 CAV JUDGMENT authorities. There shall be no separate orders as to costs."

3.6 It appears that the petitioners thereafter once again filed SCA No.9814 of 2014 seeking prayer for issuance of writ of mandamus commanding the respondents to comply with the judgment in the case of PWD Employees Union (supra) in letter and spirit and extend to the petitioners all the benefits of GR dated 17.10.1988 effective from the date of the judgment of the Supreme Court, i.e. 09.07.2013. This Court vide order dated 11.06.2015 was pleased to dispose of the said petition. It would be relevant and useful to refer to and reproduce relevant paras of this common oral order: "In the case of State of Gujarat and others v. PWD Employees Union and others, (2013)8 SCALE 579, the Supreme Court held that the daily wagers working in the Forest Department are to be granted the benefits according to the Government Resolution dated 17th October 1988 issued by the Government of Gujarat. According to the said Resolution, the daily wagers are entitled to the following benefits :

(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi skilled workers Page 10 of 170 C/MCA/3021/2015 CAV JUDGMENT who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays.

Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay Page 11 of 170 C/MCA/3021/2015 CAV JUDGMENT scale of skilled workers and their salary will be fixed accordingly.

In the aforesaid background, the petitioners have prayed for the following reliefs :

(A) Your Lordships may be pleased to issue a writ of mandamus commanding the respondents herein to comply with the judgment dated 9.7.2013 passed by the Honb1e Supreme Court of India in Civil Appeal nos.53215322 of 2013 arising out of Special Leave Petition (C) 1361913620 of 2012 in its true letter and spirit by extending to the petitioners all the benefits of Government Resolution dated 17.10.1988, effective from the date of judgment that is 9.7.2013;

(B) Your Lordships may be pleased to issue a writ of mandamus commanding the respondents herein to prepare service records of the petitioners, such as service book, etc. after getting each and every entry of service in the service book verified by the petitioners in accordance with the provisions contained in Chapter IV Maintenance of Records of Service of the Gujarat Civil Services (General Conditions of Services) Rules, 2002;

(C) Your Lordships may be pleased to declare inaction on the part of the respondent authorities in preparing service books of the petitioners no. 2 to 214 in accordance with rule, passing their pay fixation orders, opening their Provident Fund Accounts and rectifying the mistakes made by them in calculating number of years of service rendered by the petitioners no. 2 to 214 in the Forest and Environment Department as Page 12 of 170 C/MCA/3021/2015 CAV JUDGMENT violation of the directions issued by the Hon'b1e Supreme Court in its judgment dated 9.7.2013 passed in Civil Appeal nos. 5321 5322 of 2013 arising out of Special Leave Petition (C) 1361913620 of 2012 as reported in 2013 (8) Scale 579;

(D) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondents herein to take effective measures such as preparation of service records of the petitioners no. 2 to 214, pass their pay fixation orders, open their Provident Fund Accounts, in the direction of the final implementation of the judgment of the Hon'ble Supreme Court passed in Civil Appeals no. 53215322 of 2013; and (E) Your Lordships be pleased to pass any other appropriate order, as deemed fit in the interest of justice.

On 30th March 2015, the following order was passed :

Mr.Swapneshwar Goutam, learned Assistant Government Pleader states, upon instructions from Dr.S.Sasikumar, Deputy Conservator of Forester, that the preparation of the individual pay fixation order is underway in compliance of the judgment of the Supreme Court and they will be issued shortly.

List on 1342015, on which date it is hopped and expected that the needful is done.

Thus, it appears from the statement which was made by the learned AGP and recorded in the order referred to above, the preparation of Page 13 of 170 C/MCA/3021/2015 CAV JUDGMENT the individual pay fixation order is underway. Mr.Gautam, the learned AGP appearing for the State, upon telephonic instructions from the DFO Dr.Sasi, as well as the Law Officer Mr.Mukesh Chauhan, who is present in the Court, fairly submitted that all the necessary steps are being taken day and night to see that pay fixation orders are passed in the case of each of the petitioners and other identically situated daily wagers who are not before this Court. According to him, this exercise is likely to take some more time but the same will be surely completed within a period of two months from today.......

The authorities should bear in mind that here are the persons who are daily wagers working in the Forest Department past couple of years. This aspect needs to be considered at the earliest and the requisite salaries shall be paid to the petitioners at the earliest.

In any view of the matter, the authorities are directed to complete this entire process on or before three months from today."

This order was not complied with in its true spirit and letters and an attempt was made to put up a show as if there is compliance with the Supreme Court's order dated 09.07.2013 passed in case of PWD Employees Union (Supra). The petitioners being aggrieved and dissatisfied with the said inaction and omission on the part of the respondent preferred this petition seeking initiating for contempt proceedings for the reasons stated there under.

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4. Shri Mehta, learned counsel appearing for the petitioners contended that noncompliance of the directions issued by the Supreme Court and thereafter in the common oral order dated 11.06.2015 amounts to contempt of Court. It is contended that only to put up a show that the respondent authorities have complied with the order of the Supreme Court, a lump sum amount came to be deposited in the savings bank account of 214 daily wage employees and that too without pay fixation orders and approval from the Local Fund Office and this amount which came to be deposited in the accounts of 214 daily wage employees was the arrears for the period between October 2010 to March 2014. Such amount, according to him, was much less than what ought to have been paid by the respondent authorities.

4.1 Learned counsel appearing for the petitioner further contended that subsequently, the respondent authorities, on the ground that excessive amount has been deposited in the savings bank account of the daily wage employees, addressed letters to various branches where daily wage employees were having their savings bank account, informing such banks to freeze the accounts and reverse the entries with regards to so called excess amount.

This was done without following any procedure and hence, such conduct of the respondent authorities is also contemptuous.

4.2 Learned counsel for the petitioner also contended that on 18.06.2015, the petitioner Union wrote a letter to the Deputy Page 15 of 170 C/MCA/3021/2015 CAV JUDGMENT Conservator of Forest, Vyara Forest Division and Surat Forest Division requesting them to comply with the directions of the Court in its oral order dated 11.06.2015. In this letter, it was requested to the authorities to count the services of the daily wager from the date of joining, pass pay fixation orders, prepare service books and after getting the same approved by the Local Fund Office, pay daily wage employees their arrears of pay from 29.10.2010 onwards.

4.3 Learned counsel for the petitioner also contended that on 10.10.2015, once again letters were written to the same authorities informing that common oral order dated 11.06.2015 is not implemented in true letter and spirit. It is contended that this Court had specifically stipulated time to complete the entire process on or before three months from the date of the common oral order. The said period had expired on 11.09.2015, yet there was no compliance of the common oral order in its true perspective.

4.4 Shri Mehta, learned Counsel referring to the affidavit in rejoinder filed by the President of the Union, contended that in respect of complying with the directions contained in para25 of the PWD Employees Union (supra) case and extend benefits of the GR dated 17.10.1988, Government framed a separate GR dated 15.09.2014 to extend the benefits of GR dated 17.10.1988 to daily wagers working in the Forest and Environment Department. This itself is contempt of the Supreme Court's decision dated 09.07.2013 in the case of PWD Employees Union (supra) and consequently breach of the directions issued by this Court in common oral order dated 11.06.2015. Shri Mehta, learned counsel for petitioner Page 16 of 170 C/MCA/3021/2015 CAV JUDGMENT contended that according to para26 of PWD Employees Union (supra) case, the respondent authorities were required to grant benefits of GR dated 17.10.1988 notionally to all daily wagers working with the Forest and Environment Department from the date of accrual of benefits of 5/10/15 years of service till 28.10.2010 and thereafter, from 29.10.2010, these daily wagers are entitled to get all consequential benefits in cash. It is contended that no notional benefits are granted to these daily wagers from the date of accrual of benefits, i.e. respective daily wager having completed 5/10/15 years of service. It is also contended that daily wagers of Forest and Environment Department are not granted periodical increments as is being done in case of daily wagers of other departments. He also contended that individual cases of the daily wagers of Forest and Environment Department are full of discrepancies. There are discrepancies with regards to the period of service, number of days of service put in one year and therefore, the details given in the tabular form along with the affidavit in reply does not reflect the correct picture. It is further contended on behalf of petitioner that daily wagers who have retired or died have also not been extended the benefits of GR dated 17.10.1988, including the retirement benefits as per the judgment of the Supreme Court. The cumulative effect therefore, of the omissions amounts to contempt of Court.

4.5 Shri Mehta, learned counsel for the petitioners contended that the provisions of GR itself are wholly erroneous. The decision of the Supreme Court dated 09.07.2013 was simply directions to the State Government to apply GR dated 17.10.1988 Page 17 of 170 C/MCA/3021/2015 CAV JUDGMENT to all daily wagers of Forest and Environment Department, who were working for more than 5 years. The issuance of GR dated 15.09.2014 was never contemplated in the directions of the Supreme Court and the fact that the contempt petition before the Supreme Court had been withdrawn with liberty and the Supreme Court did not pronounce on the validity of such GR.

5. In support of aforesaid contentions, Shri Mehta, learned counsel for the petitioners cited several judgments, which may be referred to as under: I. Shri Mehta submitted that the union way back in the year 1996 agitated the issue of 746 employees, who had been engaged for maintenance work at dam site and were being treated as daily rated workers, but were not given the benefits which they were entitled to like other regular employees, by filing SCA No.3607 of 1982 and in the judgment pronounced on 30.01.1996, this Court, while referring to the GR dated 17.10.1988, held as under: "6. As stated above, our of the 746 concerned employees, 108 got regularized as work charge prior to 17.10.1988 and the remaining after the Government Resolution of 17.10.1988. Since they have all been regularized as workcharge employees, their major hurdle is over though the effects thereof have to be worked out, inasmuch as Mr.Master states that to some extent this regularization has remained only on paper. Now, reverting to the prayers of this Special Civil Page 18 of 170 C/MCA/3021/2015 CAV JUDGMENT Application, as far as gratuity, pension and provident fund are concerned, the Government Resolution of 17.10.1988 states that these regularized employees will be entitled to these benefits in accordance with the existing rules. Since there was an ambiguity in this statement, a clarification was sought by the concerned officers of the State Government and the same was made available and reduced to a further resolution of the State Government dated 30th May, 1989. In clause 6 thereof, it has been stated that as far as pensionable services are concerned, the same will be counted from the date on which the employees concerned initially joined in the service of the respondents. The same should also normally apply to gratuity. Thus, as far as pension and gratuity are concerned, this clarification in clause 6 should govern the field and all the employees whether they are in the group of 108 or otherwise will be entitled to receive pension and gratuity for the entire service from the date on which they initially joined under the respondents. Similarly, with respect to provident fund, clause 5 of the aforesaid clarification states that whatever system is prevalent with respect to provident fund for the workcharge employees will be made available to these employees also. Hence the present group of employees, whether they belong to the group of 108 or the remaining will also be entitled to provident fund on the same terms as provided in the resolution of 30th May 1989.

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9. The petition is filed on the footing that in view of rendering long services to the respondents, the petitioners are entitled to treatment on par with other regular Government employees and on that basis, the aforesaid prayer 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 claim 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 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."

II. To lay emphasis on the contention that the policy of the State of the daily wagers was envisaged in the resolution dated 17.10.1988 and the resolution provided for wholesome benefits to the daily wagers as would be available to the Government employees, he relied upon judgment of this Court in the case of Tribhovanbhai Jerambhai Vs. Dy.Executive Engineer, SubDivision, R & B Deptt. & Anr., Page 20 of 170 C/MCA/3021/2015 CAV JUDGMENT reported in 1998 (2) GLH, page No.1.

III. To emphasis this very point, learned counsel has also placed reliance upon unreported decision of the Division Bench of this Court in LPA No.1495 of 1997 dated 06.08.1998. Relevant observations made by this Court are as under: "As per the resolution dated October 17, 1988, daily wage worker who has put in service for more than 10 years as per section 25B of the Industrial Disputes Act, 1947, is entitled to retiral benefits. Section 25B of the Industrial Disputes Act, 1947 defines 'continuous service'. According to said provision, a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman. Subsection (2) of Section 25B introduces a deeming fiction and provides that where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under the circumstances mentioned in the said subsection.

From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years Page 21 of 170 C/MCA/3021/2015 CAV JUDGMENT the appellant had worked for more than 240 days. The Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 458 has ruled that continuous service is to be counted by including Sundays and other holidays, sickness or authorized leave and accident or strike which is not illegal or a cessation which is not due to any fault on the part of workman. The respondents have failed to produce any material on record of the case to indicate that in the year 198081 and 198182 there was a cessation of work due to any fault on the part of the appellant. Therefore, the appellant had continuously served for a period of more than 10 years within the meaning of Resolution dated October 17, 1988. The submission made by the learned Counsel for the respondents that the appellant had completed 240 days' work in 8 years only, which is less than 10 years and, therefore, the appellant is not entitled to pension, cannot be accepted. It is an admitted fact that while denying the claim of the appellant, Sundays and other holidays, sickness or authorized leave etc. were not taken into consideration by the respondents, nor the question was considered whether there was any cessation of work which was not due to any fault on the part of the appellant. It may be Page 22 of 170 C/MCA/3021/2015 CAV JUDGMENT stated that the appellant served as a daily wager for about 21 years and retired from service on October 13, 1989. Having regard to the facts of the case, even there were some small breaks in service of the appellant which had taken place in the years 198081 and 198182, they have been condoned by the respondents for the purpose of retiral benefits. On the facts and in the circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days, he is entitled to the benefit of pension. The learned Single Judge was not justified in rejecting the claim of the appellant on the ground that the appellant had not worked for 240 days' continuously in 10 years and was, therefore, not entitled to pension. The appeal, therefore, deserves to be accepted."

IV. Shri Mehta, contending that the judgment in the case of PWD Employees Union (supra) has been followed by this Court in various cases and has issued directions for complying with the directions of the Supreme Court, relied upon an unreported oral judgment of this Court in SCA No.12599 of 2008 and cognate matters dated 07.08.2015. He relied upon paras6 and 7, which read as under: "[6.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the respective petitioners Page 23 of 170 C/MCA/3021/2015 CAV JUDGMENT were serving as daily wagers on different post and in fact subsequently they are granted the benefit of the pay scale on completion of their 10 years and /or 15 years service as daily wagers as per Government Resolution dated 17/10/1988. It is not in dispute that as per the Government Resolution dated 17/10/1988 they are entitled to pension / pensionable service after 10 / 15 years service as the case may be, however the respective petitioners are denied the pension / pensionary benefits mainly on the ground that have not completed pensionable service. However, it is required to be noted that while considering the case of the respective petitioners their past services, which they have rendered as daily wagers, have not been considered / counted. As per the aforesaid decision relied upon by the learned advocate appearing on behalf of the respective petitioner and even as per the subsequent clarification made by the State Government dated 30/05/1989 their past services as daily wagers is required to be considered for pensionable service provided they have completed 240 days in a particular year. Meaning thereby, the year in which the concerned workmen had worked for not less than 240 days that year is required to be considered for the purpose of pensionable service. Under the circumstances, the action of the respondents in not granting the pension /pensionary benefits to the respective petitioners on the aforesaid Page 24 of 170 C/MCA/3021/2015 CAV JUDGMENT ground cannot be sustained.

[7.0] In view of the above and for the reasons stated hereinabove, the action of the concerned respondents denying the pension /pensionary benefits to the respective petitioners is hereby quashed and set aside. The concerned respondents are directed to consider the case of the respective petitioners for pension / pensionary benefits by counting / considering their past services rendered by this Court as daily wagers, however, subject to rider that the year for which they have worked for not less than 240 days as daily wagers is required to be considered for pensionable service. The aforesaid exercise shall be completed by the respondents within a period of 8 weeks from today and the arrears to be paid to the respective petitioners along with interest at the rate of 9% per annum after completion of three months from the date of their entitlement of pension / pensionary benefits. Rule is made absolute accordingly to the aforesaid extent in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs."

V. Shri Mehta, learned counsel for the petitioners contended that even if the action on the part of the respondent authorities in coming out with a scheme and landing their own interpretation to the directions issued by the Apex Court is presumed to be a bonafide act based on their misunderstanding, still the said plea of mistaken understanding would not come to the rescue of the Page 25 of 170 C/MCA/3021/2015 CAV JUDGMENT respondent authorities, who are facing contempt. For this purpose, learned counsel for petitioner relied upon judgment of the Apex Court in the case of All Bengal Excise Licensees' Association Vs. Raghabendra Singh & Ors., reported in (2007) 11 SCC, page No.374, more particularly paras27, 28 and 29. For ready perusal, the said paras are reproduced hereunder: "27. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by canceling the lottery wrongfully held by them. The learned Judge found that the respondentcontemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby.

Page 26 of 170 C/MCA/3021/2015 CAV JUDGMENT

28. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondentcontemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good.

29. The High Court has committed a grievous error of law in holding that failure to understand the implication and consequences of the order passed by the High Court by highly placed government officers cannot be construed as an act of contempt. The High Court has failed to understand that the highly educated and highly placed government officials have competent legal advisors and it was not open to them to allege and contend that the respondent contemnors did not understand the implication of the order dated 04.01.2005. In our opinion, such officers are required to be dealt with Page 27 of 170 C/MCA/3021/2015 CAV JUDGMENT effectively to uphold the dignity of the High Court and the efficiency of the system itself."

VI. Shri Mehta also relied upon judgment of the Apex Court in the case of Gurminder Singh Kang Vs. Shiv Prasad Singh & Ors., reported in (2013) 11 SCC, page No.332. He drew Court's attention to paras10, 11, 12 and 13, which read as under: "10. Having perused the order of the learned Single Judge who has considered the matter in extenso, we find that the conclusions of the learned Judge in having held that the stand of the appellant that he was not able to understand the spirit of the order in the proper perspective cannot be accepted, was well justified.

10.1 The appellant was a senior IAS officer and it was found that he had nearly 30 years of experience as an officer in the administrative service.


              10.2      When we peruse order dated 21.8.95,  
                        we  find   that   the   High   Court,   though  
                        was   conscious   of     the     conditions

contained in the reappointment order dated 28.2.80, took the view that irrespective of the said condition, namely, that the order of reappointment was subject to the condition that Shiv Prasad Singh would not be entitled for any promotions, however, found that having regard to the time bound Page 28 of 170 C/MCA/3021/2015 CAV JUDGMENT promotions provided for under separate schemes announced by the State Government, any such condition in the order dated 28.2.80 would not operate against the detriment of the said employee, namely, Shiv Prasad Singh.

10.3 That such conclusion has been clearly set out in the order which has been extracted by us in the earlier part of this order. It was with that specific observation the authority concerned, namely, the Commissioner, Food and Civil Supply of Government of Bihar was directed to dispose of the employee's representation by reasoned order by fixing a time limit. The order dated 21.8.95 had also become final and conclusive.


        10.4      Pursuant to the said order when   the  
                  then   Commissioner     Food     and   Civil

Supplies Government of Bihar passed orders, granting the first time bound promotion from 1.4.81 and second time bound promotion from 9.9.92 and by fixing the salary of the employee concerned in the proper scale, even assuming the appellant who was stated to have been subsequently posted as Commissioner of Food and Civil Supplies had any doubt as to the nature of the order passed on 21.8.95, he should have taken the Royal Road of approaching the High Court and sought for proper clarifications instead of taking his own decision to reverse the orders granting time bound promotions to Page 29 of 170 C/MCA/3021/2015 CAV JUDGMENT the peril of the employee and that too without even referring to the order dated 21.8.95.

10.5 Even thereafter when the said employee filed the present Writ Petition in CWJC No.9019 of 2003, the appellant ought to have rectified his mistake and restored the benefits of time bound promotions granted in favour of the employee concerned and thereby displayed his remorse conduct by complying with the directions of the High Court.

11. The order of the learned Single Judge impugned in this appeal discloses that instead of displaying such fair conduct before the Court, he appeared to have attempted to justify his action by resorting to an escape route and stated to have offered his regret and unconditional apology as a last resort to pardon him from being punished for any contempt action.

Orders and judgments of the Court are meant to be obeyed and not to be disobeyed, with impunity. Of late, we come across several such instances, where high level officers of the Administration display scant regard for the orders of the Court and always come forward with lame excuses. The case on hand is one such instance where the appellant who was a senior level I.A.S. Officer with not less than 30 years of experience in the State Administration came forward with a lame and flippant statement that he did not understand the Page 30 of 170 C/MCA/3021/2015 CAV JUDGMENT implication of the order of the High Court which led him to pass such orders in total derogation of the directions contained in the orders of the High Court.

12. In the light of the above conclusion of ours, on going through the orders impugned in this appeal, we do not find any scope to interfere with the order of the learned Single Judge.

Before us the learned counsel stated that the appellant has retired from service and while appearing before us the learned counsel submitted that the appellant expresses his deep regrets and sincere apologies without any reservation for whatever conduct displayed by him in the matter of non compliance of the orders of the High Court dated 21.8.95.

13. We, therefore, hold that the orders impugned in this appeal in having concluded that the appellant committed contempt of its order dated 21.08.95 does not call for interference.

We, however, take into account the age of the appellant as well as the remorse conduct now displayed before us, as submitted by learned counsel appearing for the appellant, we are of the view that the simple imprisonment of two months alone need not be retained. We, however, impose a "stern warning" to be recorded as against the appellant apart from confirming the imposition of fine of Rs.2000/ to be paid as per the order of the learned Judge Page 31 of 170 C/MCA/3021/2015 CAV JUDGMENT impugned in this appeal. We further direct that the said fine amount of Rs.2000/ shall be paid, as directed by the learned Judge, within four weeks from the date of receipt of copy of this order. Failing compliance of the said condition, the sentence of simple imprisonment of two months shall stand revived. With the above directions, this appeal stands disposed of.

VII. Shri Mehta, learned Senior Counsel, then relied upon decision of the Apex Court in the case of Anil Ratan Sarkar & Ors. Vs. Hirak Ghosh & Ors., reported in (2002) 4 SCC, page No.21 to contend that the directions contained in the judgment of the Supreme Court dated 09.07.2013 were clear and unambiguous, which were straightaway required to be complied with by the respondent authorities and the respondent authorities were left with no scope of applying its own interpretation and the attempt on the part of the respondent authorities in applying its own understanding cannot act as a defence, but would exhibit that the authorities have acted in defiance. He relied upon paras21, 22 and 23, which read as under: "21. This matter is pending in Courts since more than last 15 years, but unfortunately the litigatious spirit of the Staterespondent have not minimized even to the slightest extent the spirit continues and so is the deprivation. The defence of Page 32 of 170 C/MCA/3021/2015 CAV JUDGMENT understanding is not only moonshine but a deliberate attempt to overreach this Court's order and as such willfulness in the matter of disregard of this Court's order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and willful disregard of an order of Court. We find that the actions on the part of the respondentauthorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason.

22. In the contextual facts there cannot be any laxity as otherwise the Law Courts would render itself useless and its order to utter mockery. Feeling of confidence and proper administration of justice cannot but the hallmark of Indian Jurisprudence and contra action by Courts will lose its efficacy. Tolerance of Law Courts there is, but not without limits and only upto a certain point and not beyond the same.

23. In the wake of the aforesaid, we do find that the respondents have willfully and deliberately violated the orders of this Court in the guise of a totally non acceptable and sham defence of understanding and thus rendered Page 33 of 170 C/MCA/3021/2015 CAV JUDGMENT themselves punishable under the provisions of Article 142 of the Constitution and also under the Act of 1971."

VIII. In addition to aforesaid decisions, learned counsel appearing for the petitioner has relied upon the decisions reported in

(i) 2004 (12) 645, (ii) (2009) 3 SCC 458, in support of aforesaid submissions.

MCA No.3236 of 2015:

6. Insofar as this petition is concerned, it is contended that the respondent authorities are in breach of the directions issued in oral judgment dated 10.12.2014 in Special Civil Application No.12322 of 2014. This was a petition by PWD Employees Union representing case of two of its deceased members, who were prosecuting the petition as the legal representatives of the deceased members of its union. This case was also for receiving the benefits flowing from the GR dated 17.10.1988 to the legal representatives of the deceased daily wage employees of the Forest Department. The ultimate directions issued in this judgment are recorded in para9, which reads as under: "9. In view of the above, the following order is passed:

The respondents shall examine the cases of the deceased petitioner Nos.2 and 3 individually and, if found eligible, shall extend the benefits of the Government Resolution dated 17.10.1988 to their legal Page 34 of 170 C/MCA/3021/2015 CAV JUDGMENT heirs as per the directions of the Supreme Court. The needful be done within a period of four months from the date of receipt of copy of this order."

6.1 On the basis of the common grounds contended in the previous petition, Shri Mehta submitted that in this case also, the respondent authorities are guilty of willful and deliberate breach of the oral judgment dated 10.12.2014 as the respondent authorities have failed to act as per the directions within the stipulated period of four months.

MCA No.1063 of 2016:

7. This is a petition filed by 13 petitioners claimed to be covered under the common oral order dated 11.06.2015 in SCA No.9814 of 2014 and therefore, contentions on behalf of the petitioners are identical to the one raised in lead matter.

8. In the alternative, Shri Mehta, learned counsel appearing for the petitioners submitted that though he is urging for proceedings under the Contempt of Courts Act, still even if the action under the Contempt of Courts Act is not contemplated, this Court will have full powers to direct the respondent authorities to correct their mistakes by directing the authorities in complying with the directions, which according to him are unambiguous and categoric.

Page 35 of 170 C/MCA/3021/2015 CAV JUDGMENT

9. In response to the notice issued by this Court, the respondents in their individual capacity have filed their reply affidavits. Learned Additional Advocate General referred to the affidavit filed by respondent No.4, in which, while tendering unconditional apology, has contended in his affidavit dated 29.10.2015 that pursuant to the order dated 11.06.2015 of this Court, the cases of all 214 petitioners were individually considered for the purpose of assessing their eligibility with regards to the criteria as prescribed in the judgment of the Supreme Court in the matter to grant benefits to the eligible daily wagers working in the Forest Department on the line of provisions contained in the GR dated 17.10.1988 of the State Government. It is contended that the State Government come out GR dated 15.09.2014 to bring out the current policy while taking into consideration the directions issued by the Supreme Court in the judgment in the case of PWD Employees Union (supra). Learned Additional Advocate General contended that while considering cases of these 214 daily wage employees, it is found that 182 amongst them were eligible for availing benefits as they were fulfilling the requisite criteria of the policy framed after taking into consideration the directions in the judgment of the Supreme Court, while remaining were found to be lacking in requisite criteria.

9.1 Learned Additional Advocate General also contended that all eligible daily wagers' pay fixation has been ordered, service roll were opened, online pay fixation was done and new pension scheme application concerning these daily wagers was sent to Local Fund Office and referred to AnnexureR2, which consists of details Page 36 of 170 C/MCA/3021/2015 CAV JUDGMENT of 201 daily wagers in tabular form.

9.2 Learned Additional Advocate General, referring to the affidavit in reply on behalf of respondent No.5, contended that pursuant to the orders of this Court, cases of 214 individual daily wagers were considered for the purpose of assessing their eligibility in consonance with the criteria prescribed in PWD Employees Union (supra) case and as per the records available, the eligible daily wagers, who had completed 240 days in 5 years, benefits are given as per the directions of the Supreme Court and the GR dated 15.09.2014. Learned AAG therefore submitted that the action on the part of the respondents be treated compliance of the directions in letter and spirit. Learned Additional Advocate General also contended that a daily wager in the Forest Department would be engaged for seasonal and casual work like weeding, cutting, watering, maintenance and protection of plantation, etc. and therefore, where the casual work is not available, such daily wagers would not be engaged in casual work and consequently, would not have completed 240 days and hence, in such cases benefits were not given. Even the forestry work is seasonal work and therefore, as per the records available, the daily wagers who have completed 5 years and more than 240 days in a year have been given consequential benefits. It is further contended on behalf of respondent that in cases of petitioner Nos.84, 86, 107, 117, 119, 153, 170 and 201, service book and pay fixation orders have been completed as these petitioners are belonging to the category of 5 to 9 years. Their online pay fixation orders and CPF account will be opened on their completion of 10 years of service, which is in Page 37 of 170 C/MCA/3021/2015 CAV JUDGMENT consonance with the directions of the Supreme Court. Similarly, the daily wagers, who have completed 10 years of service, their on line pay fixation has been done on 13.08.2015. He referred to such pay fixation orders which are annexed with the reply. It is further contended, by referring to the additional affidavit in reply of the respondent No.2 that for the purpose of implementing the directions of the oral order dated 11.06.2015, a specific procedure has been followed wherein: I. Forest Department verified the record from past more than 30 years and adjudged admissibility of benefits of daily wagers qualifying for the benefits.

II. Based on the analysis of the record, 182 daily wagers were found to be qualified for the benefits and these daily wagers are paid arrears due to them.

III. Depending on the service record and the length of service, the daily wagers were categorized as per the directions of the Supreme Court.

IV. Categorywise admissibility of the benefits to the daily wagers was carried out and pay fixation along with details of the benefits accrued to them were calculated.

V. Accordingly pay fixation orders and arrears bills of each of the daily wager were prepared.

VI. Payment of difference of amount /arrears was made to daily wagers through bank account.

9.3 Learned Additional Advocate General contended that the aforementioned task being of substantial magnitude, consumed Page 38 of 170 C/MCA/3021/2015 CAV JUDGMENT some time.

9.4 It is contended by the respondent that for the same grievance, petitioners had approached the Supreme Court by filing Contempt Petition No.493 of 2013 and before the Supreme Court also, compliance report has been filed, which included the details and the actions taken by the respondents including the scheme framed under GR dated 15.09.2014. This compliance report was produced before the Supreme Court in the contempt proceedings on 03.02.2015 and thereafter on 27.07.2015, the Supreme Court was pleased to dismiss the contempt petition. It is further contended that the State had issued GR dated 15.09.2014 in consonance with the directions of the Supreme Court in case of PWD Employees Union (supra) case and it is specifically mentioned that the daily wagers are entitled to the benefits from 29.10.2010 or the subsequent date on which such daily wager would get eligibility.

9.5 Learned Additional Advocate General contended that the GR dated 17.10.1988 was issued by Roads & Buildings Department and the cutoff date of giving benefits in the said GR was 01.10.1988 and it was applicable to the daily wagers who were inducted before 01.10.1988. Similarly, for daily wagers in Forest and Environment Department, GR dated 15.09.2014 was issued, which was in consonance with the directions of the Supreme Court for giving benefits to the daily wagers of Forest and Environment Department wherein cut off date prescribed was 29.10.2010. This GR dated 15.09.2014 was uniformly applied to all daily wagers in Page 39 of 170 C/MCA/3021/2015 CAV JUDGMENT the Forest Department and was also scrutinized by the Supreme Court in the contempt proceedings.

9.6 Learned Additional Advocate General Shri Jani submitted that no willfulness can be attributed to the respondent authorities when they have taken up this massive task of carrying out the paper work to regularize large number of daily wagers and that too after carrying out the procedure, which procedure is in consonance with the directions contained in the judgment of the Apex Court and that of the common oral order dated 11.06.2015. In support of his contentions, learned Additional Advocate General relied upon following judgments: I. To contend that the error must be a willful error proceeding from improper or corrupt motives in order that he may be punished for contempt of Court and at the most, the respondent authorities may have acted without proper care and caution, but there is nothing to suggest of any willful culpability, he relied upon decision of the Apex Court in the case of S.S.Roy Vs. State of Orissa, reported in AIR 1960 SC, 190.

II. In the case of K.D.Gupta Vs. Union of India, reported in 1989 (3) SCC, page No.566. He referred to paras4 and 6, which read as under: Page 40 of 170 C/MCA/3021/2015 CAV JUDGMENT "4. We see no justification to initiate any contempt proceeding against the respondents for withholding a sum of Rs.1,20,000.00 out of the sum of Rs.4 lakhs directed to be paid to the petitioner. Rs.1,20,000.00 has been withheld on the plea that under Chapter XVII of the Incometax Act of 1961, the Union of India has the obligation to deduct income tax at source. The intention of the payer in the facts of the case for withholding the amount cannot be held to be either mala fide or is there any scope to impute that the respondents intended to violate the direction of this Court.

6. In the facts of the case, however, we would like to direct the respondents to release the sum of Rs.1,20,000.00 to the petitioner and the petitioner is directed to put the said amount into a fixed deposit with a nationalized bank for a minimum period of two years from the date of its receipt, though he is free to keep the amount for a longer time. The petitioner shall make a return to the Incometax Officer for the assessment year 198990 as and when due and within six months of the return being filed, the incometax Officer concerned shall complete the assessment. He shall be free to examine the question as to whether the amount of Rs.4 lakhs paid to the petitioner under order dated 31.03.1989 made by this Court constituted income so as to make the petitioner liable to tax. In case the said amount is assessed the Incometax Officer shall be free to collect the money out of the fixed deposit amount. Payment made under order of this Court shall, in the circumstances Page 41 of 170 C/MCA/3021/2015 CAV JUDGMENT indicated above, not constitute a violation of the mandatory requirement of Chapter XVII of the IncomeTax Act, 1961."

III. In the case of V.G.Nigam & Ors. Vs. Kedar Nath Gupta & Anr., reported in AIR 1992 SC, page No.2153. He referred to paras4 and 6, which read as under: "4. Since there was delay in summoning the DPC and even the recommendations did not appear to be in compliance with the order of the Tribunal the respondent invoked contempt jurisdiction of the Tribunal which found that the department was not justified in delaying the summoning of DPC merely because it had filed the Special Leave Petition in this Court specially when the advice of the learned Advocate General was to the contrary. The Tribunal further held that once directions were issued by it to consider the claim of respondent for promotion in July 1984 any further proceeding against him after that date could not stand in his way. Nor was there any justification on part of the department, according to the Tribunal, to refer the recommendation of the DPC to the DAG of the Government. And pendency of any departmental inquiry could not operate as a bar to the issuance of the promotion order as observed by the Tribunal in its main order. On these findings the Tribunal was of opinion that the appellants were guilty of contempt but it did not take any action and instead of imposing any punishment it directed.

Page 42 of 170 C/MCA/3021/2015 CAV JUDGMENT

"However, before taking any decision we would still give one more opportunity to the respondents to comply with the Tribunal's order timely, faithfully and sincerely in all letters and spirit within a period of one month from today and report compliance on 3181991."

6. Since the respondent has approached the Tribunal against his appointment to an alleged equivalent post, we do not propose to express any opinion on it. As regards the order of the Tribunal sentencing the appellants for not complying with the order in 'letter and spirit' while depreciating the practice or any attempt to ignore or bypass the order passed by courts or Tribunals it would be too hazardous to sentence in exercise of contempt jurisdiction on mere probabilities. The willful conduct is the primary and basic ingredient of such an offence. We do not propose to express any opinion on the effect of filing of Special Leave Petition in this Court. Nor we express any opinion if the appellants were guilty in contempt for non summoning of DPC for promoting to the post of Joint Director or Additional Director. But we are satisfied that the Tribunal having not taken any action on earlier occasion and granted one more opportunity to the appellants to implement the order and that having been done the facts and circumstances did not ,justify the sentence awarded to the appellants. We hasten to clarify that we may not be understood as saying that if the DPC has not followed the directions of the Court or the Tribunal Page 43 of 170 C/MCA/3021/2015 CAV JUDGMENT its orders are not liable to scrutiny. Since we are not laying down or declaring any law and deciding the validity of the order on facts of case we do not consider it necessary to say any further."

IV. In the case of Niaz Mohammad & Ors.

Vs. State of Haryana & Ors., reported in (1994) 6 SCC, page No.332. He referred to paras9, 10 and 11, which read as under:

"9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as 'the Act') defines "Civil contempt" to mean "willful disobedience to any judgment, decree, direction, order writ or other process of a court...". Where the contempt consists in failure to comply with or carry out an order of a Court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The Party in whose favour an order has been passed, is entitled to the benefit of such order. The court while considering the issue as to whether the alleged contemner should be punished for not having complied and carried out the direction of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the Page 44 of 170 C/MCA/3021/2015 CAV JUDGMENT framers of the act while defining civil contempt, have said that it must be willful disobedience to any judgment, decree, direction, order, writ or other process of a court, Before a contemner is punished for non compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was willful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional. If from the circumstances of a particular case, brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner.

10. In the present case, there is no specific direction in the aforesaid judgment of this Court dated 261988 (reported in AIR 1988 SC 1504) in the connected writ petition, to pay any particular amount to Page 45 of 170 C/MCA/3021/2015 CAV JUDGMENT the Instructors. This Court has simply decided the question as to whether they are entitled to the scale of pay which has been given to squad teachers. Having decided that question in favour of the instructors, this Court directed that arrears be paid to the instructors w.e.f. their respective dates of appointments, treating them at par with the squad teachers. This direction will involve payment of about 28 crores of rupees was neither known to the Court nor to the parties to that proceeding. As such, this Court is now entitled to examine the question as to whether in the special facts and circumstances of the present case, the respondents should be punished for having committed contempt of this Court. In the case of Dushyant Somal v. Sushma Somal, AIR 1981 SC 1026 : (1981) 2 SCC 277 this Court said (at p.1028 para 3 of AIR):

"Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court, will not be justified in punishing the alleged contemner."

In Halsbury's Laws of England, 4th Edition, Volume 9, para 53 page 34, it has been said:

"Although contempt may be committed in Page 46 of 170 C/MCA/3021/2015 CAV JUDGMENT the absence of willful disobedience on the part of the contest, committal or sequestration will not be ordered unless the contempt involves a degree of fault or misconduct."

It has been further stated :

"In circumstances involving misconduct, civil contempt bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest."

11. Taking all facts and circumstances into consideration, we are satisfied that in the facts and circumstances of the present case, there is no willful disobedience on the part of the respondents in complying with the direction given by this Court in the aforesaid judgment. It cannot be disputed that when the aforesaid direction was given, this Court was not conscious that the direction had created a liability for payment of about 28 crores of rupees, as arrears to the instructors in the Adult and Nonformal Education Scheme under the Education Department in the State of Haryana. Out of that amount about 20 crores of rupees have already been disbursed for different periods to the instructors. In this background, it is not possible to hold that respondents have committed contempt of this Court, for which they ought to be punished by this Court. Accordingly, all the petitions Page 47 of 170 C/MCA/3021/2015 CAV JUDGMENT including W.P. (c) Nos. 401 and 784 of 1989 are dismissed."

V. In the case of Kapildeo Prasad Sah & Ors.

Vs. State of Bihar, reported in AIR 1999 SC, page No.3215(1). He referred to paras9 and 10 which read as under: "9. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been willful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of willful disobedience of the court's order has been made out. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the court's orders and its implication. Disobedience of court's order strikes at the very root of rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

10. In his famous passage, Lord Diplock in Attorney General vs. Times Newspapers Ltd. [(1973) 3 All.E.R. 54] said that Page 48 of 170 C/MCA/3021/2015 CAV JUDGMENT there is also "an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity". Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.

VI. In the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited & Ors. Vs. M.George Ravishekaran & Ors., reported in (2014) 3 SCC, page No.373. He referred to para19, which reads as under: "19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt.

The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, Page 49 of 170 C/MCA/3021/2015 CAV JUDGMENT therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[3], V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[5] and Union of India and Others vs. Subedar Devassy PV[6]."

VII. In the case of Ram Kishan Vs. Sh.

Tarun Bajaj, reported in 2014 (16) SC, Page 50 of 170 C/MCA/3021/2015 CAV JUDGMENT page No.204. He referred to paras10 and 13, which read as under: "10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is 'willful'. The word 'willful' introduces a mental element and hence, requires looking into the mind of person/contemnor by gouging his actions, which is an indication of one's state of mind. 'Willful' means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Willful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". Willful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct". (Vide: S. Sundaram Pillai, Page 51 of 170 C/MCA/3021/2015 CAV JUDGMENT etc. v. V.R. Pattabiraman; AIR 1985 SC 582; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880; M/s.

Ashok Paper Kamgar Union & Ors. v.

Dharam Godha & Ors., AIR 2004 SC 105;

State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753).

13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. (See:

Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735)."

VIII. In response to the contention of Shri Mehta that the action on the part of the respondent authorities is in fact contempt of not only this Court but also of the Apex Court, Shri Jani, relied upon decision of the Apex Court in the case of Rajureshwar and Associates Vs. State of Maharashtra, reported in 2013 (7) Scale, page No.77, Page 52 of 170 C/MCA/3021/2015 CAV JUDGMENT more particularly para5, which reads as under: "5. Having perused the reasons in the light of the submission of the counsel for the petitioner, we find no infirmity in the view taken by the High Court as it cannot be disputed that the judgment and order passed by a particular Court, especially the Supreme Court if alleged not to have been complied, will have to be taken care of and addressed by the Court which passed the order sought to be complied. The petitioner, therefore, wrongly approached the High Court for initiating contempt proceedings and the same has rightly not been entertained. Challenge to the said order by this special leave petition, therefore, is not fit to be entertained; hence the special leave petition is dismissed."

IX. In his efforts to convince this Court that this Court may not take upon itself and address contention of Shri Mehta that the action of the respondent authorities is contempt of the Supreme Court, Shri Jani took us through the judgment of the High Court of Judicature of Bombay Bench at Aurangabad, which was the subject matter of scrutiny before the Supreme Court in 2013 (7) Scale page No.77 and while referring to the order of Aurangabad Bench in Contempt Petition No.175 of 2005, he Page 53 of 170 C/MCA/3021/2015 CAV JUDGMENT referred to paras8, 9, 10, 11 and 12. X. In additional to aforesaid decisions, learned Additional Advocate General has relied on decisions reported in (i) AIR 1992 SC 407,

(ii) AIR 1999 SC 880, (iii) (2014) 13 SCC 249, in support of his arguments.

10. We have heard learned counsels for the parties and perused the documents on record.

11. The petitioners have placed on record List of Dates and Events in tabular form for ready reference which deserves to be reproduced herein below to indicate the development of events and stand of the parties thereon.

DATE Events 29.10.2010 In Special Civil Application no.8647 of 2008 and other cognate matters, this Court directed Forest & Environment Department, State of Gujarat, to consider the case of the petitioners (dailywagers working with it) for regularization/conferring permanent status, afresh and also to consider the scope of framing a scheme for giving quasi permanent status to the petitioners dailywagers at par with the scheme for dailywagers in other Government Departments, like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., contained Page 54 of 170 C/MCA/3021/2015 CAV JUDGMENT in Government Resolution dated 17.10.19898. 25.08.2011 In Miscellaneous Civil Application no.129 of 2011 (For Direction) in Special Civil Application no.8751 of 2008 filed by the applicants therein, this Court directed the respondents therein to frame a scheme for giving quasi permanent status to the dailywagers in compliance of the High Court's oral judgment dated 29.10.2010 passed in Special Civil Application no.8751 of 2008 and cognate matters. The respondents were directed to comply with these directions by not later than 15.11.2011.

28.02.2012 The Division Bench of this Hon'ble Court dismissed the Letters Patent Appeal no.1754 of 2011 and other cognate appeals filed by the respondent authorities therein challenging the oral order dated 25.08.2011 passed in Miscellaneous Civil Application no.129 of 2011 and other cognate applications.

09.07.2013. The Supreme Court in State of Gujarat & Ors. vs. PWD Employees' Union & Ors. [Civil Appeal nos.53215322 of 2013] reported in 2013 (8) SCALE 579 held that the benefits under the Government Resolution dated 17.10.1988 should be granted to the eligible dailywagers of the Forest & Environment Department working for more than five years, but they will be entitled to consequential benefits with effect from Page 55 of 170 C/MCA/3021/2015 CAV JUDGMENT 29.10.2010 or subsequent date from which they become eligible. The said benefits were to be granted to the dailywagers working in Forest & Environment Department within four months from the date of receipt or production of the copy of the said order.

22.08.2013 The respondent authorities filed review petition under Article 137 of the Constitution of India read with rule XL of the Supreme Court Rules, 1966 being numbered as Review Petition (C) no.2826 2827 of 2013 in Civil Appeal nos.53215322 of 2013 seeking review of the judgment dated 09.07.2013 passed by the Supreme Court in PWD Employees' Union matter (supra).

09.07.2013. The four months' time given by the Supreme Court for complying with the directions issued in its judgment dated 09.07.2013 expired. 02.12.2013. The applicant Union along with the dailywagers filed Contempt Petition (Civil) no.493 of 2013 before the Supreme Court against the respondent authorities for willfully violating the directions passed by the Supreme Court in its judgment dated 09.07.2013.

29.01.2014. Review Petition (C) no.28262827 of 2013 in Civil Appeal nos.53215322 of 2013 filed by the respondent authorities against the judgment dtd 09.07.2013 came to be dismissed by the Supreme Court.

Page 56 of 170 C/MCA/3021/2015 CAV JUDGMENT

The respondent authorities filed an application for extension of time being numbered as I.A. no.(s) 1314 before the Supreme Court seeking six months' time to comply with the directions issued by the Supreme Court in paras 25 and 26 of the judgment dated 09.07.2013 passed in PWD Employees Union matter (supra).

10.03.2014. The Supreme Court disposed of the I.A. no.(s) 13 14 of 2013 by extending the time for complying with the directions issued in paras 25 and 26 of the judgment dated 09.07.2013 by six weeks from the date of the said order.

21.04.2014. Further extension of six weeks was provided by the Supreme Court in I.A. no.(s) 1314 of 2013 in Civil Appeal nos.53215322 of 2013 expired. April 2014. To be in compliance with the directions issued by the Supreme Court, the opponent authorities deposited arrears of pay from 29.10.2010 to 31.3.2014 in the bank accounts of the daily wagers who were party respondents in the Supreme Court. The said amount came to be deposited into the bank accounts of the daily wagers without passing pay fixation orders. 15.05.2014 The opponent authorities on the plea that that and excess amount has been deposited by them in the 16.05.2014 Savings Bank accounts of the original petitioners no.2 to 214 addressed a letter to various branches (Vyara, Ukai, Songadh, Uchal and Nirjar) of the Page 57 of 170 C/MCA/3021/2015 CAV JUDGMENT State Bank of India stating that the excess amount has been deposited in the Savings Bank accounts of the original petitioners no.2 to 214 and directed them to freeze the accounts of the original petitioners no.2 to 214.

19.05.2014 The alleged excess amount came to be taken out directly from the original petitioners no.2 to 214's Bank accounts by making reverse entries without following the procedure prescribed under the law. 10.07.2014. The advance copy of the Memo of the Special Civil Application no.9814 of 2014 was served upon the respondent authorities by the petitioners. 14.07.2014. Notice was issued by the Court in Special Civil Application no.9814 of 2014.

15.09.2014. The Government of Gujarat in Forests and Environment Department passed a separate Government Resolution on the lines of Government Resolution dated 17.10.1988 for granting the benefits contained in Government Resolution dated 17.10.1988 to the dailywagers in the Forests and Environment Department. Although the Supreme Court's judgment envisages the application of the Government Resolution dated 17.10.1988 to dailywagers work in Forests and Environment Department also.

03.02.2015. The respondent authorities filed Affidavitinreply in Contempt Petition (Civil) no.493 of 2013. 30.03.2015. The following order was passed by the High Court Page 58 of 170 C/MCA/3021/2015 CAV JUDGMENT in Special Civil Application no.9814 of 2014 :

"Mr.Swapneshwar Goutam, learned Assistant Government Pleader states, upon instructions from Dr.S. Sasikumar, Deputy Conservator of Forests, that the preparation of the individual pay fixation order is underway in compliance of the judgment of the Supreme Court and they will be issued shortly. List on 1342015, on which date it is hopped and expected that the needful is done."

11.06.2015. The High Court passed the final order in Special Civil Application no.9814 of 2014 directing the respondent authorities to complete the entire process of granting the benefits of the Government Resolution dated 17.10.1988 to the petitioners therein on or before three months from today.

The process which the respondent authorities were required to complete is mentioned in the said order.

18.06.2015. The applicant Union addressed a letter to the respondents no.4 and 5 requesting them to comply with the directions issued by the High Court in Special Civil Application no.9814 of 2014 on 11.06.2015.

23.06.2015 The applicant Union wrote to the Accounts Officer, Accounts and Treasury Director's Office requesting him to do the needful as per the Page 59 of 170 C/MCA/3021/2015 CAV JUDGMENT directions issued by the High Court in Special Civil Application no.9814 of 2014 on 11.06.2015. 27.07.2015 The Contempt Petition (Civil) no.493 of 2013 filed by the applicant Union along with the daily wagers filed before the Supreme Court came to be dismissed as withdrawn with the liberty to the petitioners therein to approach the High Court under Article 226 of the Constitution of India for grant of further reliefs and directions. 11.09.2015. The three months' time granted by the High Court in its oral order dated 11.06.2015 passed in Special Civil Application no.9814 of 2014 expired. 10.10.2015. The applicant Union wrote to the Deputy Conservator of Forest, Vyara Forest Division stating that the oral order dated 11/06.2015 passed in Special Civil Application no.9814 of 2014 by the High Court is not complied with. 17.10.2015 The captioned Misc. Civil Application (For Contempt) no.3021 of 2015 in Special Civil Application no.9814 of 2014 came to be filed before the Court.

20.10.2015 This Court while issuing notice in Misc. Civil Application no.3021 of 2015 directed the opponent authorities to file separate affidavits explaining omission on their part, if there is non compliance of the oral order dated 11.06.2015. Further, directed the opponent authorities to remain present before the Court, if they do not file Page 60 of 170 C/MCA/3021/2015 CAV JUDGMENT separate affidavits.

29.10.2015 The opponent no.4 filed Affidavitinreply in the captioned application for contempt stating that they are in compliance of the oral order dated 11.06.2015 passed by the High Court in Special Civil Application no.9814 of 2014.

05.12.2015. The applicant Union filed Affidavitinrejoinder to the Affidavitinreply filed on behalf of the opponent no.4.

19.12.2015 The opponent no.5 filed Affidavitinreply in Misc.

Civil application no.3021 of 2015.

07.01.2016. The applicant Union filed Affidavitinrejoinder to the Affidavitinreply filed on behalf of the opponent no.5.

08.01.2016. Pay fixation orders came to be issued in favour of some of the daily wagers.

19.01.2016 At the request of the learned AGP this Court adjourned MCA no.3021 of 2015.

13.02.2016 The opponent no.4 filed further affidavit in Misc.

Civil Application no.3021 of 2015.

05.03.2016. The applicant Union filed Affidavitinrejoinder to the further affidavit filed on behalf of the opponent no.4.

16.03.2016 This Court passed the following order in Misc.

Civil Application no.3021 of 2015 :

"Shri Rutvij Oza, learned AGP, under the instruction of Officer of Deputy Conservative of Page 61 of 170 C/MCA/3021/2015 CAV JUDGMENT Forest makes a statement that the necessary amendment will be made in the orders for refixing the emoluments admissible to the claimants petitioners and the same will be strictly in accordance with the provision of Government Resolution dated 17/10/1988 as directed by the Supreme Court in the judgment dated 9/7/2013, which will take care of grievance of the petitioners that they have been given benefit only from the year 2010 instead of the date, on which, they would have been given benefit otherwise as per resolution dated 17/10/1988. The entire exercise will be completed and the pay would be fixed and the Pay Fixation statement will be placed on record on or before 31/3/2013. The payment, on that basis, would be made in light of the decision of the Supreme Court on or before 7/4/2016.

Put up on 11th April, 2016.

It goes without saying that in case if this exercise is not completed and the payment is not made, then respondents no.1 to 5 shall personally remain present before this Court as unfortunately there is noncompliance of the order and the subsequent order passed in this matter."

04.04.2016. The applicant Union filed further affidavit in Misc.

Civil Application no.3021 of 2015.

Page 62 of 170 C/MCA/3021/2015 CAV JUDGMENT

07.04.2016. The opponent no.2 filed additional Affidavitin reply in Misc. Civil Application no.3021 of 2015. 11.04.2016. This Court passed the following order in Misc.

Civil Application no.3021 of 2015:

"Ms. Manisha L. Shah, learned GP seeks time to answer the submissions canvassed on behalf of the petitioner that the affidavit which has come after the order of 16th March 2016 does not in any manner indicate any compliance. At her request, the matter is adjourned to 13th April 2016. It is observed that no further time shall be granted."

13.04.2016 The opponent no.2 filed Affidavitinreply in Misc.

Civil Application no.3021 of 2015.

13.04.2016 This Court passed the following order in Misc.

Civil Application no.3021 of 2015 :

"Ms. Manisha Lavkumar, learned Government Pleader submits that during the course of day, affidavit would be filed in the Registry and copy thereof would be served upon the other side itself and it is submitted that now in this matter, learned Additional Advocate General will appear and in view of that it is requested that matter be adjourned to 21.04.2016.

Page 63 of 170 C/MCA/3021/2015 CAV JUDGMENT

In view of this, matter is adjourned to 21.04.2016. The concerned officers are present in the Court and shall also remain present on the next date of hearing i.e. on 21.04.2016."

18.04.2016 The applicant Union filed Affidavitinrejoinder to the Affidavitinreply filed on behalf of the opponent no.2.

20.04.2016 The opponent no.3 filed Affidavitinreply in Misc.

Civil Application no.3021 of 2015.

21.04.2016 The opponent no.1 filed Affidavitinreply in Misc.

Civil Application no.3021 of 2015.

21.04.2016 The opponent no.4 filed Affidavitinreply in Misc.

Civil Application no.3021 of 2015.

12. Before adverting to the rival submissions of the counsels for the parties this Court is of the view that it would be most appropriate to set out herein below few indisputable aspects emerging from the pleadings and the rival submission of the counsels.

a. The State of Gujarat on account of various demands for regularization of the dailywagers working in public works department and other departments constituted a committee popularly known as Dolatbhai Parmar Committee on 24th March 1988 for examining the aspect of regularization and offering appropriate service condition to such dailywagers. The Committee's deliberations ultimately culminated into issuance of Government Resolution dated 17.10.1988. This Resolution has Page 64 of 170 C/MCA/3021/2015 CAV JUDGMENT been subjected to scrutiny at various stages by the High Court as well as Supreme Court and one can safely say that the correct interpretation thereof now no more remains in the realm of further scrutiny. The judicial pronouncement and the directions issued by the Court on the correct interpretation and implementation thus should have guided the implementing agency throughout. The gist of the said Resolution as could be seen from the decision of the Supreme Court in the State of Gujarat Vs. PWD Employees' Union reported in 2013 (8) SCALE deserve to be set out as under : "RESOLUTION The Government has taken into consideration the recommendations submitted by committee and so, it is decided to accept all recommendations of the Committee.

Accordingly, it is resolved to provide following wages and services to daily wagers and semi skilled workers working in different departments of the State.

1. It is decided to pay daily wages as per the prevailing Daily Wages Rules to daily wagers and semi skilled workers who has less than five years service as on 01.10.1988. If there is presence of more than 240 days in first year, he is eligible for paid Sunday, medical allowance and national festival holidays.

Page 65 of 170 C/MCA/3021/2015 CAV JUDGMENT

(2) As per provisions of Section 25B of the Industrial disputes act, daily wagers and semi skilled workers who has service of more than five years but less than 10 years as on 01.10.1988, will get Rs.750/ as fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Moreover, he/she will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.

(3) As per provisions of Section 25B of the Industrial disputes act, daily wagers and semi skilled workers who has service of more than ten years but less than 15 years as on 01.10.1988, will get minimum pay scale at par with skilled work along with dearness allowance as per prevailing standard, for his working days. Moreover, he/she will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/She will be eligible for getting medical allowance and deduction of provident fund.

(4) As per provisions of Section 25B of the Industrial Disputes Act, daily wagers and semi Page 66 of 170 C/MCA/3021/2015 CAV JUDGMENT skilled workers who has service of more than fifteen years as on 01.10.1988 will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowances, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The retirement age of such semi skilled workers will be 60 years and their services will be rendered for pensionable period. As per provisions of Section 25B of the Industrial Disputes Act, daily wagers and semi skilled workers who have completed more than fifteen years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled worker and their salary will be fixed accordingly on 01.10.1988."

b. The learned counsel appearing for the Union had placed heavy reliance on the observations of this Court on 17.10.1988 Resolution and the relevant paragraphs have been abstracted hereinabove as could be seen from paragraph no.5 of this Page 67 of 170 C/MCA/3021/2015 CAV JUDGMENT judgment. The reliance was placed upon the observation of this Court in the judgment dated 30.01.1996 in SCA no.3607 of 1982 to indicate that the said resolution inures for regularization of daily wagers.

c. The reliance was also placed upon the observations of this Court in case of Tribhovanbhai Jerambhai Vs. Deputy Executive Engineer, SubDivision R. & B. Dept. & Anr., reported in 1998 (2) GLH Page1. The para no.9 of the said judgment deserve to be set out as under : "9. In the resolution dated 17101988, it has been envisaged that those workman who as on 01101988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30 051989 (AnnexureE), in which a specific query was raised at item No.(6) with reference to resolution dated 17101988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary Page 68 of 170 C/MCA/3021/2015 CAV JUDGMENT benefits made available to those daily wagers who are deemed to be permanent on completion of ten years service and it was specifically made clear that within the meaning of resolution dated 17101988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17101988 along with clarification issued on the various aspects of it vide resolution dated 30051989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of Page 69 of 170 C/MCA/3021/2015 CAV JUDGMENT duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30051989 that the continuous service for the purposes of pension, made available to employees under resolution dated 1710 1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17 101988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularization is taken into consideration for the purpose of computing pension or making pension available to such retired employee.

d. The learned counsel appearing for the petitioner's employees' union placed reliance upon the decision of the Division Bench of this Court in LPA no.1495 of 1997 decided on 06.08.1998 Page 70 of 170 C/MCA/3021/2015 CAV JUDGMENT and the relevant paragraphs have already been extracted hereinabove in this judgment in para no.5III. The Division Bench therein observed that the resolution dated 17.10.1988 provided for daily wager's entitlement to retire benefits who had put in more than 10 years of service as per Section 25B of the Industrial Disputes Act, 1947. The Division bench adverted to the provision of 25B of the I.D.Act, 1947 and indicated that 'continuous services is to be counted as provided there under'. The division Bench also adverted to the decision of the Supreme Court in case of Workman of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation reported in AIR 1986 SC 458 to reject the contention of the respondent employer that workman had not completed 240 days' work continuously in 10 years. The relevant portion of the judgment at the cost of repetition is required to be set out as under : 'On the facts and circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days he is entitled to the benefit of pension. The learned single judge was not justified in rejecting the claim of the appellant on the ground that the appellant had not worked for 240 days continuously in 10 years and was therefore, not entitled to pension. The appeal therefore, deserves to be accepted.' Page 71 of 170 C/MCA/3021/2015 CAV JUDGMENT e. The Division Bench of this Court in case of State of Gujarat & Anr. Vs. Mahendrakumar Bhagvandas and Anr. reported in 2011 (2) GLR 1290 while examining the purport and purview of G.R. dated 17.10.1988 made following observations.

"7. Apparently, the aforesaid Resolution dated 1871994 was not pressed into service when the impugned judgment dated 642000 was delivered. It is observed by learned Single Judge as under :

"...It appears that the Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay. When these employees are treated as permanent employees with regular scale of pay, I do not find any reasons that they will be deprived of the benefits given to other Government employees of same category. There cannot be any confusion about the Government Page 72 of 170 C/MCA/3021/2015 CAV JUDGMENT Resolution and it is obligatory on the part of the Government to extend all the benefits to these petitioners, who have been regularized on regular posts with regular scale of pay......"

8. Letters Patent Appeal no.962 of 2001 is preferred from oral judgment dated 2310 1999 of learned Single Judge in Special Civil Application No.5757 of 1988. In that impugned judgment also, the petition was allowed with the direction to treat all the workmen concerned as permanent employees and to treat them at par with other employees and to grant all the benefits as such. Thus, common issue of interpretation and application of relevant clause of Government Resolution dated 17101988 is involved in all the appeals and it is decided as aforesaid against the appellant, in the facts and circumstances of each case.

9. The appeals are accordingly dismissed."

As it is submitted, this judgment of the Division Bench was subject matter of challenge in the Supreme Court by State by Page 73 of 170 C/MCA/3021/2015 CAV JUDGMENT way of SLP (Civil) No. 3504335048 of 2012 and the same was rejected by the Supreme Court vide order dated 9th November 2012.

f. Thus, the law on the subject matter so far as the GR dated 17.10.1988 is concerned had been crystallized in which this Court time and again has unequivocally held that the benefit of the resolution is to inure in favour of the daily wagers as observed by the Court in various judgments.

g. The Supreme Court has also in the case of PWD Employees' Union (Supra) made the following observations which deserves to be set out as under : "3. In spite of the Resolution of the State Government dated 17th October, 1988 the benefit was not provided to the daily wage workers of the Forest Department of the State. Aggrieved by the same, some of the daily wage workers of Forest Department filed a Special Civil Application No.3500 of 1992 before the High Court of Gujarat. The learned Single Judge by the judgment dated 21st March, 1997 relying on a common judgment dated 4th March, 1996, passed by the same Court in a group of similar cases, held that Resolution dated 17th October, 1988 is applicable to the Page 74 of 170 C/MCA/3021/2015 CAV JUDGMENT employees of the Forest Department as well.

4. Against the aforesaid decision an LPA No.1642 of 1999 was filed by the State Government which was dismissed by the Division Bench of the Gujarat High Court by its order dated 29th April, 2003. On being aggrieved by the same, the State Government moved before this Court by filing SLP(C)....of 2004 (CC No.10763/2004) which also got dismissed by the order dated 29th November, 2004. Thereby the finding that the Resolution dated 17th October, 1988 is applicable to the daily wage workers of the Forest Department reached finality. In another case when some of the daily wage workers of Forest Department moved before the High Court of Gujarat, the matter was referred to a larger Bench. A threeJudge Bench by its judgment in Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat, (2004) 2 GLH 302: (2004) 2 GLR 568, held that the Government Resolution dated 17th October, 1988 is applicable only to the daily wage workers of the Forest and Environment Department engaged in the work of maintenance and Page 75 of 170 C/MCA/3021/2015 CAV JUDGMENT repairing of constructions in that Department, and not to the daily wage workers engaged in other type of work in that Department. (emphasis supplied)

5. In the meantime, the State Government took up the matter in its Forest and Environment Department. Referring to the Resolution dated 17th October, 1988 it was observed that the said resolution was passed by accepting the recommendations of the Committee appointed for studying wages, service oriented and other facilities giving to the daily wagers, labourers and workers employed for preservation and repairing constructions in various departments of the State viz., Roads & Building Department, Water Resources Department, Forest Department, Agricultural Department, Narmada Development Department, Water Supply Department and Panchayat & Rural Home Development and other departments, and it has been decided to give wages and service oriented facilities to such daily wagers, labourers and workers vide Resolution dated 17th October, 1988, of the Roads and Building Department and the then ancillary Page 76 of 170 C/MCA/3021/2015 CAV JUDGMENT resolutions. With the aforesaid observation, the following decision was taken by the Resolution dated 22nd December, 1999:

"RESOLUTION In connection with aforesaid preface regarding daily wagers working in the Forest Department under the control of the Forest & Environment Department and resolution of Hon'ble Shri Daulatbhai Parmar Committee, it is resolved that,

1. On the basis of report of Hon'ble Shri Daulatbhai Parmar Committee, the Resolution dated 17/10/1988 of the Roads & Building Department, which is passed regarding wages, services & other facilities to be applied to the daily wagers, labourers and workers of Forest Department under the control of Forest & Environment Department, cannot be applied in view of work of dailywagers of the Forest Department and in view of nature of work and financial arrangement and their temporary/ seasonal & limited work, because on applying the said resolution, after completion of work, such dailywagers cannot be employed continuously for long time where Page 77 of 170 C/MCA/3021/2015 CAV JUDGMENT there is no work. But they are supposed to be removed. In view of the said circumstances, on the basis of report of Hon'ble Shri Daulatbhai Parmar Committee, there is no intention of applying Resolution dated 17/10/1998 of the Roads & Building Department to the dailywagers of the Forest Department of t he State Government.

2. In the Notification issued from time to time regarding minimum wages also, minimum wages for the dailywagers of the Forest Department is indicated separately and in view of the burden of their work, in comparison with daily wagers of construction wages is indicated at less rate, which falls under heading of reasonable classification, therefore, the Resolution dated 17/10/1988 of the Roads & Building, Department cannot be applied for the said reasons.

3. These orders have been passed in view of opinion/consent, vide entry dated 05/11/1999 of the Legal Department, entry dated 18/11/1999 of the Finance Department and entry dated 25/11/1999 of the Roads & Building Department."

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On bare perusal of the Resolution dated 22nd December, 1999, we find that by such Resolution the State Government (Forest and Environment Department) wrongly interpreted the Resolution dated 17th October, 1988 that the said Resolution passed on the opinion of the Legal Department runs contrary to the Resolution of the State dated 17th October, 1988, and decision of the High Court of Gujarat dated 21st March, 1997 in Special Civil Application No.3500 of 1992, which was upheld by the Division Bench vide letter dated 29th April, 2003 and against which the SLP was dismissed by this Court on 29th November, 2004. (emphasis supplied)

6. The present case pertains to daily wage workers of the Forest Department, who have been in service for about 530 years as on 29th October, 2010, of more than 240 days for large number of years, doing full time work of a perennial nature as stated by the High Court of Gujarat in its judgment dated 29th October, 2010. In the said judgment, the High Court directed the authority to consider the Page 79 of 170 C/MCA/3021/2015 CAV JUDGMENT above stated factors while deciding the individual cases for regularization.

7. The Unions of the employees and individual workmen employed by the Forest Department approached the High Court of Gujarat in Special Civil Application No.6913 of 2006, inter alia, seeking directions to the State authorities for framing of a scheme for the purpose of giving permanent or quasi permanent status to the daily wagers of Forest Department in the light of their long services in the Forest Department on daily wage basis. By order dated 12th October, 2006, the High Court disposed of the aforesaid SCA permitting the petitioner Union (1st respondent in present matter) to make a detailed representation to the State authorities and directing the State authorities to consider the representation within a specified period. Pursuant to the aforesaid direction of the Court the Union (1st respondent herein) made a representation dated 30th October, 2006 to the Secretary, Forest and Environment Department, the Secretary, Finance Department, the Principal Chief Conservator of Forests and the Chief Page 80 of 170 C/MCA/3021/2015 CAV JUDGMENT Conservator of Forests. After more than a year, the Deputy Conservator of Forests, Rajpipla West Division passed order dated 17th November, 2007 rejecting the representation dated 30th October, 2006 with respect to 12 daily wagers of the Rajpipla West Division.

8. Being aggrieved, the PWD Employees (1st respondent herein) filed a Miscellaneous Civil Application No.119 of 2008 in SCA No.6913 of 2006 challenging the rejection order dated 17th November, 2007. By an order dated 31st January, 2008, the High Court of Gujarat directed the Secretary, Forest and Environment Department to decide the representation filed by the PWD Employees Union.

9. The Secretary, Forest and Environment Department rejected the application by his order dated 3rd May, 2008 which was a verbatim reproduction of the order dated 17th November, 2007 passed by the Deputy Conservator of Forests, West Division.

10. It is pertinent to mention that by Page 81 of 170 C/MCA/3021/2015 CAV JUDGMENT order dated 3rd May, 2008 the Secretary, Forest and Environment Department, inter alia, admits that "the initial entry in the sense of engagement on daily wages does not suffer from any illegality or irregularity and was in consonance with the provisions of the Minimum Wages Act and continues to be so". (Emphasis supplied) However, the representation was rejected, on the ground that "the daily wagers have not worked on any duly sanctioned posts which were otherwise required to be filled up in a regular manner and further that no such duly sanctioned posts exist. Therefore, the Union's claim of one time regularization, the same being on nonexistent posts, is not maintainable and is consequently denied".

11. After the rejection of the representation, the respondentsEmployees Union had to again move before the High Court in SCA No.8647 of 2008 challenging the order of rejection dated 3rd May, 2008. On hearing the parties and perusal of record, the learned Single Judge of the High Court by its order and judgment dated 29th October, 2010 disposed of the representation recording the Page 82 of 170 C/MCA/3021/2015 CAV JUDGMENT following facts:

(i) The Secretary, Forest and Environment Department, State of Gujarat has himself come to the conclusion vide order dated 3rd May, 2008 that initial entry of the daily wagers does not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural defects does not arise.

(ii) Looking to the nature of work described in the order dated 3rd May, 2008, the daily wagers are engaged in the work which is perennial in nature.

(emphasis supplied)

(iii) The daily wagers of other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc. have been made permanent pursuant to the Government Resolution dated 17th October, 1988. (emphasis supplied)

(iv) The Department of Agriculture and Cooperation has also issued analogous resolution dated 20th December, 2005 to Page 83 of 170 C/MCA/3021/2015 CAV JUDGMENT regularize the services of daily wagers of the Fisheries Department. (emphasis supplied)

(v) The Forest Department of the State of Maharashtra had also issued a scheme in the year 1996 quite similar to the Government Resolution dated 17th October, 1988 in respect to the daily wagers in their Forest Department.

(emphasis supplied)

(vi) In compliance of award passed by the Labour Court in Reference (IT) No.386/88, a number of daily wagers of the Forest Department who have completed 5 years 900 days were absorbed against 22 supernumerary posts created.

(emphasis supplied) Learned Single Judge finally passed the following order:

"7. In the interest of justice, the following directions are issued which will meet with the ends of justice:

1. The impugned order dated 3.05.2008 passed by the Secretary, Forest & Page 84 of 170 C/MCA/3021/2015 CAV JUDGMENT Environment Department, State of Gujarat is quashed and set aside.

2. The Secretary, Forest & Environment Department, State of Gujarat, is directed to consider the case of the petitioners for regularization/conferring permanent status, afresh in light of the facts of each individual case keeping in mind the observations made hereinabove and also to consider the scope of framing a scheme for giving quasi permanent status to the petitionersdaily wagers at par with the scheme for daily wagers in other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., contained in Government Resolution dated 17.10.1988. In case, the authority is of the view that the benefits as prayed for cannot be granted then a reasoned order be passed supported by detailed reasons.

3. The aforesaid exercise be undertaken within a period of two months from today.

4. Liberty to revive the petitions in case of difficulty by filing required application/s."

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Against the judgment dated 29th October, 2010 no appeal was preferred by the State Government or by any person and, thereby, the said judgment reached finality. (emphasis supplied) h. The contention of the parties to the Supreme Court as in case of PWD Employees' Union (supra) also deserve to be set out to appreciate as to what was the contention and what was the finding of Supreme Court thereon.

16. Learned counsel for the appellantState contended as follows:

(i) The High Court under Article 226 of the Constitution cannot direct absorption, regularization or permanency of the daily wage workers unless the recruitment itself was made in a regular manner in terms of the constitutional scheme.

(ii) A large scale regularization of daily wage workers will increase the financial burden on the State.

(iii) The respondents or its member cannot base their claim under Article 14 and 16 of the Constitution to seek permanence or quasi permanence in service .

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(iv) Direction given by the High Court is against the principle laid down by this Court in Secretary, State of Karnataka and Others UmaDevi (3) and Others, (2006) 4 vs. SCC 1 and A. Umarani v. Registrar Cooperative Societies and Others, (2004) 7 SCC 112.

(v) Resolution dated 17th October, 1988 applies only to the daily wage workers who were engaged in building maintenance and repairing work as held by Full Bench of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union State of Gujarat (supra). The vs. respondents or its members are not entitled to claim any benefit under the said scheme contained in Resolution dated 17th October, 1988.

17. Per contra, according to learned counsel for the respondents, the judgment dated 29th October, 2010 passed in SCA No.8647/2008 and connected matters is binding between the parties i.e. the appellants and the respondents as it was not challenged by the appellants or any other person, on the contrary the appellants claimed to have complied with the judgment aforesaid. Learned counsel for the Page 87 of 170 C/MCA/3021/2015 CAV JUDGMENT respondents contended as follows:

(i) The scheme contained in Resolution dated 17th October, 1988 is equally applicable to the daily wage workers of the Forest Department. It does not distinguish the employees on the basis of nature of job performed by one or the other daily wage workers.

(ii) The Resolution dated 22nd December, 1999 issued by the Forest & Environment Department, Government of Gujarat was not brought on record before the High Court. It is for the first time without any leave from this Court such fact has been brought on record by filing additional documents. The Full Bench judgment in Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat (supra) was also not placed before the High Court, therefore, the appellants cannot derive any advantage of the same.

(iii) The Resolution dated 22nd December, 1999 issued from Forest & Environment Department is contrary to the scheme contained in Resolution dated 17th October, 1988 issued by the State of Gujarat.

(iv) The Full Bench of the Gujarat High Page 88 of 170 C/MCA/3021/2015 CAV JUDGMENT Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra) wrongly interpreted the scheme contained in Resolution dated 17th October, 1988. The same is not binding in case of the respondents who were not parties to the said case.

i. The paragraph no.18 of the aforesaid judgment of the Supreme Court contains the question which arose for the consideration of the Supreme Court.

18. The main questions which arise for our consideration in these appeals are:

(1) Whether the daily wage workers of Forest and Environment Department working for 5 to 30 years for works other than building and maintenance and repairing work are entitled to derive benefits of the scheme contained In the Resolution dated 17th October, 1988 issued by the State from Road and Building Department;

(2) If so, whether the members of the respondent employees Union working on daily wages Page 89 of 170 C/MCA/3021/2015 CAV JUDGMENT for more than 5 to 30 years in the Forest and Environment Department of the State will be entitled for similar benefits of the scheme contained in the Resolution dated 17th October, 1988.

20. The daily wage workers who were engaged in building maintenance and repairing work in different departments were already entitled for their work related facilities. Therefore, what we find is that the Committee has not limited the recommendation to the daily wage workers working in building maintenance and repairing work in different departments of the State. The State Government vide its Resolution dated 17th October, 1988 has not limited it to the daily wage workers working in building maintenance and repairing work. What we find is that the Resolution dated 17th October, 1988 is applicable to all the daily wage workers working in different departments of the State including Forest and Environment Department performing any nature of job including the work other than building maintenance and repairing work.

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The decision of the Full Bench of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra and the subsequent Resolution dated 22nd December, 1999 issued from Forest and Environment Department of the State, in our opinion are not sustainable, as the intent of Resolution dated 17th October, 1988 was not properly explained therein and, therefore, the aforesaid decision of Full Bench and Resolution dated 22nd December, 1999 cannot be made applicable to the daily wage workers of the Forest and Environment Department of the State of Gujarat.

21. In view of the aforesaid observation, we find that the full Bench of the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra) proceeded on erroneous premises to hold that the Resolution dated 17th October, 1988 is applicable only to the daily wage workers of Forest Department engaged in building maintenance and repairing work. The conclusions in the said judgment are not sustainable otherwise also. We have already noticed that the Resolution of the State Page 91 of 170 C/MCA/3021/2015 CAV JUDGMENT Government dated 17th October, 1988 is not limited to any particular department, it applies to all the departments including Road and Building, Forest and Environment Department, Water Resources Department, etc. We have also noticed that the Committee headed by the Minister of Road and Building Department looked into the wages of daily wage workers and work related facilities provided to the daily wage workers engaged in building maintenance and repairing work in different departments, only for the purpose of its recommendations. The Committee has not limited the recommendations amongst the daily wage workers engaged in building maintenance and repairing work in different departments by its aforesaid Resolution. It is applicable to all daily wage workers including semi skilled workers performing any nature of job, working in different departments of the State including the daily wage workers of the Forest Department performing work other than building maintenance and repairing work.

22. The impugned order passed by the learned Single Judge and the Division Bench arise out of the final order and Page 92 of 170 C/MCA/3021/2015 CAV JUDGMENT judgment dated 29th October, 2010 passed in SCA No.8647/2008 and connected matters. The said order has reached finality in absence of any challenge before the higher Court and hence became binding between the parties i.e. the appellantState of Gujarat and the respondentsEmployees Union. Therefore, none of the parties including appellants State of Gujarat can rely on Full Bench decision in Gujarat Forest Producers, Gatherers and Forest Workers Union (supra) to scuttle the decision and direction given by the Gujarat High Court in SCA No.8647/2008 and connected matters. (emphasis supplied)

26. Considering, the facts and circumstances of the case, the finding of Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and connected matters and the fact that the said judgment is binding between the parties, we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17th October, 1988 to all the daily wage workers of the Forest and Page 93 of 170 C/MCA/3021/2015 CAV JUDGMENT Environment Department working for more than five years, providing them the benefits as per our finding at Paragraph 25 above. The appellants are directed accordingly. The judgment and order passed by the learned Single Judge dated 29th October, 2010 as affirmed by the Division Bench by its order dated 28th February, 2012 stands modified to the extent above. The benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order. The appeals stand disposed of with the aforesaid observation and directions to the appellant State and its authorities. There shall be no separate orders as to costs.

Thus, the Supreme Court observation and direction have been absolutely clear and relying upon this judgment, this Court on various occasions and in various judgments issued appropriate directions in respect of the daily wagers and the benefit given to Page 94 of 170 C/MCA/3021/2015 CAV JUDGMENT them as per GR dated 17.10.1988. The Division Bench of this Court in case of Gujarat Water Supply Vs. PWD Employee's Union reported in LLJ 2014 (3) 420 and LLN 2014 (3) 374 made observations relying upon the Supreme Court judgment in case of PWD Employees' Union (supra), holding that 17.10.1988 benefit could not be denied to the daily wagers of the board. Some of the paragraphs of the said judgment deserve to be set out as under : "2. The brief facts which emerge from the case on hand could be summarized as under: 2.1 The petitioners in Special Civil Application No.1563 of 1992 were appointed as daily wagers with the respondent Gujarat Water Supply and Sewerage Board (hereinafter referred to as "Board" for sake of convenience and brevity) upto the year 1988 and all are given benefits flowing from the Government Resolution dated 17.10.1988 whereby on completion of five/ten/fifteen years, they are taken in the regular payscale and all other service conditions are extended like any other regularly appointed employee. However, benefits like Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concessions are not extended to them. The said Government Resolution dated Page 95 of 170 C/MCA/3021/2015 CAV JUDGMENT 17.10.1988 also interalia provided that no appointment as daily wager shall be made by any office thereafter.

2.3 It has come on record that this Court in Letters Patent Appeal No.958 of 2001, reported in 2011 (2) GLR 1290 held that the attempt by the State Authorities that employee employed on daily wage basis for 15 years had to be continued as daily wage employees with limited benefits is contradictory and has no backing of any legal provision or precedent. It is also pointed out that the above judgment was challenged by the State Authorities before the Apex Court and the said challenge failed vide order dated 09.11.2002 recorded in SLP (Civil) Nos.3504335048 of 2012.

2.4 Whereas the petitioners in Special Civil Application No.11280 of 2010 and cognate matters were appointed as daily wagers by the Board after 30.11.1994. Though they have put in more than five/ten/fifteen years of service, they are not given any benefit as per the Government Resolution dated 17.10.1988.

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9. All the aforesaid decisions cited by Mr.Trivedi, learned Senior Counsel for the appellants are in the nature of laying down principles and guidelines for regularization of services of employees who are irregularly appointed or working as daily wagers. We have gone through the said judgments and we have also taken into consideration various guidelines and principles laid down by the Apex Court.

9.1 In the case of Bharitya Seva Samaj Trust vs. Yogeshbhai Ambalal Patel, reported in (2012) 9 SCC 310, it is held to the effect that after committing any illegality, the employer cannot agitate that the concerned employee is not entitled to consequential benefit. It is further held that it is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person.

9.2 In the case of State of Gujarat & Ors.

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vs. PWD Employees Union & Ors, reported in (2013) 12 SCC 417, after considering all the case laws and the facts and circumstances of the case, the Supreme Court directed to grant benefit of the scheme as contained in the Government Resolution dated 17.10.1988 to all the daily wage workers of the Forest and Environment Department working for more than five years. (Emphasis supplied) Incidentally, it is relevant to note here that the aforesaid case pertains to daily wagers of the Forest Department, who have been in service for about 530 years as on 29.10.2010, for more than 240 days for large number of years, doing full time work of a perennial nature.

11. As regards daily wagers appointed upto the year 1988, it is the case of the appellants that the benefits accorded to the permanent employees could not be extended to them as they do not hold any post. It has come to our notice that similar issues were raised in Special Civil Application Nos.5699 of 1987; 517 of 1988 and 6783 of 1988, decided on Page 98 of 170 C/MCA/3021/2015 CAV JUDGMENT 02.05.2000. The petitions were allowed with a direction that all the workmen concerned be treated as permanent employees at par with other regular employees and that they shall be granted all the benefits as such. Being aggrieved with the said order, Letters Patent Appeal No.958 of 2001 and cognate matters were filed which were decided on 18.03.2011. Notwithstanding the fact that earlier in Special Civil Application No.26790 of 2007 and cognate matters, the learned Single Judge had vide Order dated 01.07.2009 rejected similar contention of the petitioner and the said Order was upheld in Letters Patent Appeal No.2117 of 2010 decided on 11.10.2010; the Division Bench of this Court dismissed Letters Patent Appeal No.958 of 2001 and cognate matters, reported in (2011) 2 GLR 1290. The said judgment and order was challenged before the Supreme Court which was rejected vide Order dated 09.11.2012 recorded in Special Leave to Petition (Civil) Nos.3504335048 of 2012. Thus, the decision of this Court in Letters Patent Appeal No.958 of 2001 and cognate matters, decided on 18.03.2011 has attained finality and all issues are properly addressed.

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The learned Single Judge has rightly observed that the grievance raised by the respondents, I.e original petitioners in Special Civil Application No.1563 of 1992 is already answered by the Division Bench of this Court. We are in full agreement with the above decision rendered by the learned Single Judge. Independent of this, we are of the considered opinion that these benefits in nature of allowances and concessions are incidental to services and they should be normally granted to such employees when they are treated at par with other regular employees. In view of the above, Letter Patel Appeal No.789 of 2013 fails and is accordingly, dismissed.

12. Now, we may proceed to examine the case of the daily wagers appointed after 30.11.1994. It is the contention of the appellants that the Board had taken a policy decision on 30.11.1994 that no new daily wagers be appointed. Still, they were appointed without prior permission or even intimation to the higher authorities, for which penalties are imposed on number of officers for breach of administrative Page 100 of 170 C/MCA/3021/2015 CAV JUDGMENT instructions issued on 30.11.1994. The appointment as daily wagers at the grass root level are without following any regular procedure laid down for regular recruitment and therefore they do not have any right of regularization or the benefits flowing from the Government Resolution dated 17.10.1988.

13. It is an admitted position that the appellant - Board adopted the Government Resolution dated 17.10.1988 as a policy vide its circular dated 08.06.1989. The said Resolution, interalia, provides that no appointment as daily wager shall be made by any office thereafter. Still, daily wagers continued to be appointed by the Board and they were given benefits flowing from the aforesaid Government Resolution. Thereafter the appellant Board reiterated its policy vide another Circular dated 30.11.1994 that no daily wager shall be appointed but still hundreds of daily wagers came to be appointed after 30.11.1994 and now the Board denies to extend the benefits flowing from the Government Resolution dated 17.10.1988 to such daily wagers appointed Page 101 of 170 C/MCA/3021/2015 CAV JUDGMENT after 30.11.1994 terming their appointment as illegal, which cannot be accepted as it is arbitrary and bad in law. On one hand, the Board issues circular that no daily wagers shall be appointed from 30.11.1994 and still the very Board appoint hundreds of daily wagers in gross violation of their own policy and after passage of more than 15 years terming the action of appointing these daily wagers as illegal cannot be accepted and needs to be rejected. The Board cannot punish others for their own wrongdoings. It is a settled legal proposition that a person alleging his own infamy cannot be heard at any forum. If a person has committed a wrong, he cannot be permitted to take the benefit of his own wrong.

14. In view of the above discussion, we see no infirmity in the judgment and order passed by the learned Single Judge and we are in complete agreement with the reasons recorded by the learned Single Judge."

j. The learned Single Judge of this Court in group of matters in SCA No. 12599 of 2008 and other cognate matters decided on 07.08.2015 relying upon the decision of Supreme Court, PWD Page 102 of 170 C/MCA/3021/2015 CAV JUDGMENT Employees' Union (supra) made following observations.

"6.0 Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the respective petitioners were serving as daily wagers on different post and in fact subsequently they are granted the benefit of the pay scale on completion of their 10 years and/or 15 years service as daily wagers as per Government Resolution dated 17/10/1988. It is not in dispute that as per the Government Resolution dated 17/10/1988 they are entitled to pension/pensionable service after 10/15 years service as the case may be, however the respective petitioners are denied the pension / pensionary benefits mainly on the ground that have not completed pensionable service. However, it is required to be noted that while considering the case of the respective petitioners their past services, which they have rendered as daily wagers, have not been considered/counted. As per the aforesaid decision relied upon by the learned advocate appearing on behalf of the respective petitioner and even as per the subsequent Page 103 of 170 C/MCA/3021/2015 CAV JUDGMENT clarification made by the State Government dated 30/05/1989 their past services as daily wagers is required to be considered for pensionable service provided they have completed 240 days in a particular year. Meaning thereby, the year in which the concerned workmen had worked for not less than 240 days that year is required to be considered for the purpose of pensionable service. Under the circumstances, the action of the respondent in not granting the pension /pensionary benefits to the respective petitioners on the aforesaid ground cannot be sustained."

k. The decision of the Division Bench of this Court in case of Kutchh District Panchayat Vs. Mangalbhai K. Rabari decided on 04.01.2016 in LPA No.1381 of 2015 is placed on record page 933 to indicate that the division bench also made observations and upheld the reckoning of earlier service prior to 29.10.2010. The relevant observations deserve to be set out as under :

3. The contention raised on behalf of the appellant is that even in the decision of the Apex Court in the case of State of Gujarat and others vs. PWD Employees Union and Ors., reported at (2013) 12 SCC 417, effective date Page 104 of 170 C/MCA/3021/2015 CAV JUDGMENT for the purpose of conferment of the benefits is 29.10.2010 and not as per the Govt. Resolution dated 17.10.1988. The Labour Court has granted benefits as per the Govt. Resolution dated 17.10.1988 and the learned single Judge did not interfere with the same. It was also submitted that after the above referred decision of the Apex Court in the case of State of Gujarat & Ors. (supra), the Gujarat Water Supply & Sewerage Board approached the Apex Court by preferring Special Leave Petition Nos. 2910829114 of 2014 against the judgment dated 6.7.2014 rendered in Letters Patent Appeal No. 327 of 2013 and allied matters and the Apex Court, vide order dated 14.11.2014 has interfered with the judgment by observing that the payment of arrears shall remain stayed, but the benefits in terms of the judgment of the High Court be released for the future. It was, therefore, submitted that in view of the aforesaid recent development, this Court may consider the matter.

4. If the facts of the present case are considered, the Labour Court has passed the award by directing to grant the benefits available to the respective workmen as per the Page 105 of 170 C/MCA/3021/2015 CAV JUDGMENT Govt. Resolution dated 17.10.1988. The learned single Judge, in view of the above referred decision of the Apex Court in the case of State of Gujarat & others (supra) did not find the case for interference. Mr. Munshaw is not right in submitting that the effect for permanency benefits etc. is to be given from 29.10.2010 as per the abovereferred decision of the Apex Court in the case of State of Gujarat & others (supra). On the contrary, in paragraph29 of the said decision, the Apex Court has observed, inter alia, that, "considering the facts and circumstances of the case, the finding of the Gujarat High Court dated 29.10.2010 in PWD Employees Union v. State of Gujarat and connected matters and the fact that the said judgment is binding between the parties, we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17.10.1988 to all the dailywage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at para 29 above. The appellants are directed accordingly." Entire paragraph29 of the above referred decision Page 106 of 170 C/MCA/3021/2015 CAV JUDGMENT of the Apex Court reads as under:

"29. As per the scheme contained in the Resolution dated 17101988 all the dailywage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:

"(i) They are entitled to daily wages as per the prevailing daily wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semiskilled workers who have service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and Page 107 of 170 C/MCA/3021/2015 CAV JUDGMENT deduction of provident fund.

(iii) Daily wagers and semiskilled workers who have service of more than ten years but less than 15 years are entitled to get minimum pay scale on a par with skilled workers along with dearness allowance as per prevailing standard, for his working days.

Moreover, such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. He/She will be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semiskilled workers who have service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired (sic retiral) salary, general provident fund. Moreover, they will get two optional Page 108 of 170 C/MCA/3021/2015 CAV JUDGMENT leaves in addition to 14 miscellaneous leaves, 30 days' earned leave, 20 days' half pay leave, Sunday leave and national festival holidays. The daily wage workers and semiskilled workers who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

Hence, what is ordered by the Apex Court is grant of benefits as per the Govt.

Resolution dated 17.10.1988 and not from the date as sought to be canvassed by the learned counsel for the appellant so as to deprive the benefits, if any, of the Govt. Resolution dated 17.10.1988.

(Emphasis supplied) l. Thus, there remains no manner of doubt qua purport, purview and extent of applicability of Government Resolution dated 17.10.1988 to the daily wagers in the State of Gujarat. The Supreme Court judgment in case of PWD Employees' Union (supra) has also reiterated and affirmed the purview and purport so far understood and applied by the courts in its various judgments.

Page 109 of 170 C/MCA/3021/2015 CAV JUDGMENT

m. In light of the aforesaid clear and an unambiguous purview and purport of Government Resolution dated 17.10.1988, now we must advert to the observations and directions of learned Single Judge in its order dated 11.06.2015 passed in the proceedings of SCA No.9814 of 2014 and other matters.

n. The learned Single Judge whose direction is said to have been not complied with by the respondent and on that account prayers initiating for contempt proceedings have been made has in extenso referred the Government Resolution dated 17.10.1988 and the judgment of the Supreme Court in case of PWD Employees' Union (supra) and has also set out the prayers of the petitioners before issuing appropriate direction.

o. The learned Single Judge's order dated 11.06.2015 noncompliance of which is subject matter of this petition has in fact been reproduced herein above however at the cost of repetition but in order to juxtaposed in a proper perspective once again few paragraphs thereof are reproduced at the cost of repetition. : "...In the case of State of Gujarat and others v. PWD Employees' Union and others, (2013)8 SCALE 579, the Supreme Court held that the daily wagers working in the Forest Department are to be granted the benefits according to the Government Resolution Page 110 of 170 C/MCA/3021/2015 CAV JUDGMENT dated 17th October 1988 issued by the Government of Gujarat. According to the said Resolution, the daily wagers are entitled to the following benefits :

"(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc.

leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

(iii)Daily wagers and semi skilled workers who has service of more than Page 111 of 170 C/MCA/3021/2015 CAV JUDGMENT ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily Page 112 of 170 C/MCA/3021/2015 CAV JUDGMENT wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

"... ... On 30th March 2015, the following order was passed :

"Mr.Swapneshwar Goutam, learned Assistant Government Pleader states, upon instructions from Dr.S.Sasikumar, Deputy Conservator of Forester, that the preparation of the individual pay fixation order is underway in compliance of the judgment of the Supreme Court and they will be issued shortly.

List on 1342015, on which date it is hopped and expected that the needful is done."

Thus, it appears from the statement which was made by the learned AGP and recorded in the order referred to above, the preparation of the individual pay fixation order is underway. Mr.Gautam, the learned AGP appearing for the State, upon telephonic instructions from Page 113 of 170 C/MCA/3021/2015 CAV JUDGMENT the DFO Dr.Sasi, as well as the Law Officer Mr.Mukesh Chauhan, who is present in the Court, fairly submitted that all the necessary steps are being taken day and night to see that pay fixation orders are passed in the case of each of the petitioners and other identically situated daily wagers who are not before this Court. According to him, this exercise is likely to take some more time but the same will be surely completed within a period of two months from today.

It appears that so far as the claim of the petitioners is concerned, the issue is no longer res integra in view of the decision of the Supreme Court and series of other orders passed in the earlier round of litigations. It is expected that the authorities concerned shall complete the work of preparation of individual pay fixation within a period of two months from today.

However, Mr.Shalin Mehta, the learned senior advocate appearing for the petitioners, brought to my notice that before the individual orders of pay fixation are passed, the authorities will have to first determine the Page 114 of 170 C/MCA/3021/2015 CAV JUDGMENT date of joining because the benefits will have to be granted from the date of joining in the department. After the pay fixation orders are passed, the service books will have to be prepared (a sample of which is at Annexure'Y' to this petition). The service books will have to be verified by the petitioners in accordance with the provisions contained in ChapterIV - Maintenance of Records of Service of the Gujarat Civil Services (General Conditions of Service) Rules, 2002. The servicebooks as well as other documents will thereafter be referred to the Local Funds Office and the concerned office will look into the same and thereafter grant final approval.

Mr.Mehta has one more grievance to redress. He submits that before the orders of pay fixation, the authorities have started effecting recovery of the excess amount, if any, paid to the petitioners. It will be much more desirable and equitable if this exercise is undertaken after the orders of pay fixation are finalized. Mr.Mehta submits that even the salaries are not paid to these petitioners past last two months.

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The authorities should bear in mind that here are the persons who are daily wagers working in the Forest Department past couple of years. This aspect needs to be considered at the earliest and the requisite salaries shall be paid to the petitioners at the earliest.

In any view of the matter, the authorities are directed to complete this entire process on or before three months from today.

p. It is most important to emphatically mentioned at this stage that in the entire order of 11.06.2015 passed by the learned Single Judge in SCA No.9814 of 2014 and other allied matters, there is no reference to any Government Resolution dated 15.09.2014 which is heldout by the respondent to be "current policy" based upon the Supreme Court order and judgment in case of PWD Employees' Union (supra). In other words, though the said Government Resolution dated 15.09.2014 was very much existing and available with the State neither the Government Pleader nor the Court made any reference to it and therefore, the direction of learned Single Judge contained in the order dated 11.06.2015 passed in SCA No.9814 of 2014 needs to be borne in mind in light of the rival contentions of the counsels for the parties.

q. It is most important to advert to the learned Single Judges order dated 11.06.2015 passed in 9814 of 2014 and allied matters Page 116 of 170 C/MCA/3021/2015 CAV JUDGMENT on the aspect of the steps undertaken by the State pursuant to the order of the Supreme Court noncompliance whereof was subject matter of writ petition in which this Court issued direction on 11.06.2015. The court did record on internal page no.5 and 6 the contention of learned counsel for the petitioner therein qua the authorities were required to determine the date of joining before passing pay fixation orders in case of individual the service books were required to be prepared in accordance with law and the history deposit of some amount which was sought to be deposited and employees accounts were frozen etc. r. The relevant excerpts of the pleadings of the parties in the form of the contention and answer thereto deserve to be set out by reproducing the same in order to depict their contention in their own language.

1. Affidavit in reply on behalf of respondent no.4 - page no.151.Paragraph no.2 on page no.152 reads as under:.

"2. ... ... ... I most respectfully say and submit that the Government Resolution dated 15.09.2014 is the current policy of the State Government which takes into consideration the judgment and order of the Hon'ble Apex Court in PWD employees Union & Ors. It is humbly and respectfully submitted that while considering the case of the 214 petitioners before the Hon'ble Single Judge also the Page 117 of 170 C/MCA/3021/2015 CAV JUDGMENT applicants in the captioned contempt application, it is found that 182 from amongst the same are eligible for availing benefits whereas the remaining have been found to be not fulfilling the requisite criteria of the current policy of the State Government as envisaged in Government Resolution dated 15.09.2014."

2. Affidavit in rejoinder on behalf of the applicants to affidavit in reply of opponent no.4 - page no.267.... paragraph nos.5 on page nos.269 to 272.

"5. ... ... ... I say that the Hon'ble Supreme Court in para 25 of is decision dated 09.07.2013, reported in 2013 (8) Scale 579 had directed the State of Gujarat to extend the benefits of the scheme as contained in Government Resolution dated 17.10.1988 to all the dailywage employees, who have worked for 5/10/15 years in the Forests and Environment Department. The opponent no.1, instead of complying with the directions issued by the Hon'ble Supreme Court by granting the benefits of Government Resolution dated 17.10.1988, framed a separate Government Resolution dated 15.09.2014 for extending the benefits of Page 118 of 170 C/MCA/3021/2015 CAV JUDGMENT Government Resolution dated 17.10.1988 to the dailywage employees working in the Forests and Environment Department. This itself amounts to contempt of the Hon'ble Supreme Court's decision dated 09.07.2013 and also deliberate breach of the directions issued by this Hon'ble Court in its common oral order dated 11.06.2015 passed in Special Civil Application No.9814 of 2014 and other cognate matters. ... ... ...

... ... ... I say that in para 26 of the decision dated 09.07.2013 passed by the Hon'ble Supreme Court, the opponent authorities were required to grant the benefits of Government Resolution dated 17.10.1988 notionally to all the daily wageemployees working in the opponent no.1 department from the date of the accrual of benefits of 5/10/15 years of service till 28.10.2010 and thereafter, from 29.10.2010, they were entitled to get all the consequential benefits in cash. However, if the service book of Shri Panaji Chhaganji Gamit is seen, he is directly given benefits from 29.10.2010 and no notional benefits are granted to him from his date of the accrual of the benefits. For Page 119 of 170 C/MCA/3021/2015 CAV JUDGMENT illustrative purpose, the applicants in Special Civil Application No.9814 of 2014 had produced a service book of one Shri Kakabhai Vasava as AnnexureY to explain how the decision passed by the Hon'ble Supreme Court on 09.07.2013 is to be implemented in its true letter and spirit. This Hon'ble Court, while passing common oral order dated 11.06.2015 has referred to the service book produced at AnnexureY to Special Civil Application no.9814 of 2014 (internal page 5 of the common oral order dated 11.06.2015). Thereafter, this Hon'ble Court has directed the authorities to complete the entire process on or before three months form the date of the order. The process also includes preparing the service books as produced at AnnexureY to Special Civil Application no.9814 of 2014. ... ... ..."

3. Affidavit in reply on behalf of the respondent no.5 (Puneet Nayyar) dated 19.12.2015 to affidavit in rejoinder-page no. 561, Paragraph nos.5, 6, 7, 9 & 12 on page nos.562 & 564.

"5. It is stated that pursuant to the order dated 11.06.2015 of this Hon'ble Court, all of the 214 petitioners have been individually considered for the purpose of assessing their Page 120 of 170 C/MCA/3021/2015 CAV JUDGMENT eligibility with regards the criteria as prescribed in the judgment by the Hon'ble Supreme Court of India in the matter to grant benefits to eligible dailywagers working in the Forest Department on the line of provisions contained in the resolution dated 17.10.1988 of the State Government.

6. It is submitted that the Government Resolution dated 15.09.2014 is the current policy of the State Government which takes into consideration the judgment and order of the Hon'ble Apex Court in PWD employees Union & Ors. dated 09.07.2013.

7. ... ... ... It is stated that in compliance of the Hon'ble Apex Court's decision, the Government of Gujarat has framed the said Resolution on the line of Hon'ble Apex Court decision and therefore, there has been necessary incorporation of the Supreme Court directions.

9. It is further submitted that the daily wage workers would be engaged for the seasonal and casual works like weeding, cutting, watering, maintenance and protection of plantation etc. Therefore, in Page 121 of 170 C/MCA/3021/2015 CAV JUDGMENT some of the years, where the casual works would not be undertaken by the forest department, the said daily wage workers would not be engaged in casual work and therefore, they did not completed 240 days in such years so that as per the Govt. of Gujarat Resolution dated 15.09.2014 which takes into consideration judgment of the Hon'ble Supreme Court that those daily wage workers who entitled to get such benefits.

12. It is respectfully submitted that the service books, pay fixation orders of the petitioners no.84 Rasik Ishwar Chaudhari,

86. Kantilal Kotiyabhai Gamit, 107. Harishbhai Jivliyabhai Gamit, 117. Shantilal Jayram Kokani. Kemubhai, 119. Kemubhai Kotiyanbhai Vasava, 153. Mirajbhai Kotiyabhal Gamit, 170 Chandresh Prabhubhai Gamit, 201 Demubhai Bhiljibhai Vasava were done. Manually, pay fixation orders has been done, however, the online pay fixation order and CPF accounts will be opened after they complete the service period of 10 years. It is submitted that the above applicant are put in the category 5 to 9 years which is directed by the Hon'ble Supreme Page 122 of 170 C/MCA/3021/2015 CAV JUDGMENT Court decision dated 09.07.2013. ... ... ..."

4. Affidavit in rejoinder on behalf of the applicants (Saiyed Mehmood Ibrahim) to the affidavit in reply dated - 19.12.2015 of Respondent no.5, page no. 641, paragraph nos.4 & 7 on page nos.644 to 652.

"4. Noticing the Supreme Court's decision dated 09.07.2013 passed in Civil Appeal Nos.53215322 of 2013 and the High Court's common oral order dated 11.06.2015 passed in Special Civil Application no.9814 of 2014, the following are the serious noncompliance by the opponents.

(i) The pay fixation orders issued to the members of the applicant Union are contrary to the letter and spirit of the High Court's common oral order dated 11.06.2015 passed in Special Civil Application no.9814 of 2014 as well as the Supreme Court's judgment dated 09.07.2013 passed in Civil Appeal Nos.53215322 of 2013. The pay of each applicant is fixed in the Sixth Pay Commission's lowest band of Rs.44407440 without accounting for their past service as dailywagers in the Forest Department. The Supreme Court's order is crystal clear that the Page 123 of 170 C/MCA/3021/2015 CAV JUDGMENT members of the applicant Union working as dailywagers in the Forest Department are to be given the benefits of Government Resolution dated 17.10.1988 as and when they complete 5 years, 10 years, 15 years, 20 years or more in the Department. This means that the service of each member of the applicant Union from the date of his/her joining is to be taken into account. May be that consequential monetary benefits are to be paid up to 28.10.2010 notionally and actual monetary benefits are to be paid from 29.10.2010, but neither Supreme Court, nor the High Court has directed that the past service of the members be ignored. This means that the date of joining of each member is to be determined and his or her pay has to be fixed as on the date of his becoming eligible for the benefits of 5/10/15/20 years of service, as the case may be, with reference to his date of joining. From the said date till 29.10.2010, the pay fixation should reflect all pay revisions though notionally. This notional pay determined up to 28.10.2010 would from 29.10.2010 become the members' actual pay for actual monetary benefits. This exercise has not been Page 124 of 170 C/MCA/3021/2015 CAV JUDGMENT undertaken by the answering opponent at all.

Service before 29.10.2010 in case of each member of the applicant Union is ignored. This can be easily illustrated from the pay fixation statement of Arjun Vasava produced at Page 569. The payment of Rs.44407440 is the lowest pay band of Sixth Pay Commission which came into effect from 1.1.2006. Therefore, Arjun Vasava's pay fixation order should have shown him getting this pay scale from 1.1.2006 notionally up to 28.10.2010. However, the pay fixation order at Page 569 shows that Arjun Vasava is fixed in the pay band of Rs.44407440 on 30.10.2010. In other words, his past service for the purpose of notional pay fixation from the date of his joining is completely ignored. This illegality of saving of past service before 29.10.2010 is done in case of each and every member of the applicant Union.

(ii) No member of the applicant Union who has completed 20 years of service in the Forest Department on dailywages is paid pension. In case of dailywagers of Narmada Water Resources, Water Supply and Kalpsar Department and Roads and Buildings Page 125 of 170 C/MCA/3021/2015 CAV JUDGMENT Department, pension is paid to all those, who have completed more than 20 years of service. Thus, there cannot be different standards while applying Government Resolution dated 17.10.1988 to different Departments of the Government. The Supreme Court's direction to the opponents herein is crystal clear that they are to apply Government Resolution dated 17.10.1988 to the dailywagers of Forest Department. This Government Resolution has already been applied to daily wagers of the Narmada Water resources, Water Supply and Kalpsar Department and the Roads and Buildings Department. The dailywagers of those two Departments are getting pension after 20 years of service on retirement at the age of 60. Same benefits must be extended to the dailywagers of the Forest Department who complete 20 years of service and on attaining the age of 60 years.

In para 14 of the Affidavitinreply dated 19.12.2015, it is admitted by the answering opponent that retiral benefits to all retired and expired eligible dailywage employees would be given soon is not yet given. The time for compliance expired in March, 2014 Page 126 of 170 C/MCA/3021/2015 CAV JUDGMENT and more than 18 months thereafter have passed without any succor for the retirees of the Forest Department. These retirees of the Forest Department, some of whom are members of the applicant Union have not been paid pension or gratuity. It is unbelievable that the opponents are still waiting for financial grant from the Finance Department as if the Supreme Court's direction and the High Court's direction would have to wait till financial grant is made available by the Financial Department. This would give a virtual veto to the Finance Department over the orders of the Supreme Court and the High Court.

(iv) Though the opponents are under a legal obligation to pay regular salary with increments to the members of the applicant Union from 29.10.2010 the same is observed more in breach. Regular salary is rarely paid to the members of the applicant Union before 15th of every month and no increment is paid at all from 29.10.2010. A copy of the statement showing particulars of those daily wagers who are not being paid salary or irregular payment is made or have been Page 127 of 170 C/MCA/3021/2015 CAV JUDGMENT terminated from service is annexed hereto and marked as AnnexureVII.

(v) Valuable years of service of the members of the applicant Union are trashed by the opponents on the specious ground that record of service or muster roll of the relevant period are not available. Maintenance of proper record of service and muster roll is the solemn obligation of the opponents. The members of the applicant Union cannot be penalized for serious dereliction of duty on the part of the opponents in not maintaining muster roll and record of service of the daily wagers in a proper fashion. It has been the say of the members of the applicant Union that right from the day they joined service as dailywagers in the Forest Department, through this day, they have consistently worked for more than 240 days in every single year. But their say is not taken into account by the opponents for those years, where the record of service or muster roll is wanting. If the maintenance of such record of service and muster roll is the solemn duty of the Forest Department, the members of the applicant Union cannot be put to a loss by Page 128 of 170 C/MCA/3021/2015 CAV JUDGMENT being told that the years for which the record of service is not available would be ignored. This is like allowing a party to take advantage of his own wrong. Knowing fully well that there has been serious dereliction of duty on the part of the forest officials in not maintaining proper record of service and muster roll of dailywagers, the Forest Department has given unto itself the window to escape calamitous consequences by mischievously providing in Government Resolution dated 15.09.2014 that service of dailywagers would be counted only for those years of which record is available. Therefore, by not counting years of service of the members of the applicant Union, for which allegedly the record is not available with the Forest Department, the opponents have breached in letter and spirit the High Court's order directing them to grant benefits as directed by the Supreme Court in its judgment dated 09.07.2013.

(vi) The service book of the members of the applicant Union is seriously lacking in particulars and is prepared in blatant violation of the High Court's common oral Page 129 of 170 C/MCA/3021/2015 CAV JUDGMENT order dated 11.06.2015. A sample of the service book is referred to by the High Court in its common oral order and if the present service books are compared with that sample, the difference between the two is easily discernible. The service books of the members of the applicant Union prepared by the answering opponent show no fixation of pay from the date of joining service. The service books show pay fixation from 29.10.2010 only as if all the members of the applicant Union became eligible for the benefits of Government Resolution dated 17.10.1988 only from 29.10.2010 without regard for the dates when they became eligible for the benefits of Government Resolution dated 17.10.1988 with reference to their date of joining.

7. With regard to paras 6 and 7 of the Affidavitinreply, I say that the Government Resolution dated 15.09.2014 issued by the State Government terming it "current policy"

for Forest Department is the sole source of confusion. If the judgment dated 09.07.2013 of the Supreme Court in Civil Appeal Nos.53215322 of 2013 is read, it nowhere Page 130 of 170 C/MCA/3021/2015 CAV JUDGMENT contemplates issuance of a new or fresh Government Resolution by the State Government to award benefits to dailywagers of the Forest Department. The clearcut direction of the Supreme Court is to implement and apply Government Resolution dated 17.10.1988 to all dailywagers of the Forest Department. Thus, there was no need or requirement for the State Government to issue a fresh Government Resolution like Government Resolution dated 15.09.2014, but this is purposely done by the State Government with a view to depress the benefits admissible under Government Resolution dated 17.10.1988 to the daily wagers of the Forest Department. For example, Government Resolution dated 17.10.1988 does not provide for a clause like Government Resolution dated 15.09.2014 for taking into account only that service of the dailywagers for which service record is available with the Department. This mischievous clause found in Government Resolution dated 15.09.2014 allows the State Government to trash several years of past service of a majority of dailywagers of the Forest Department on the specious ground Page 131 of 170 C/MCA/3021/2015 CAV JUDGMENT that record of service and muster roll of the dailywagers for the relevant years are not available as not maintained. Non maintenance of service record constitutes serious dereliction of duty on the part of the Department's officials. Instead of initiating disciplinary action against such officials, they are given a clean chit and rewarded by the State Government by inserting an escape clause in Government Resolution dated 15.09.2014. Another example is that Government Resolution dated 15.09.2014 mandates counting of service from 29.10.2010 for all dailywagers as if the date of joining of all dailywagers of the Forest Department is 29.10.2010. In fact, many of the dailywagers of Forest Department have started work from 1980 onwards. So, what about their past service ? Government Resolution dated 15.09.2014 is unequivocal in holding that the service before 29.10.2010 of all dailywagers of Forest Department is not to be counted at all. This is a well thought of and nicely calculated massacre of Government Resolution dated 17.10.1988.

A third party example of how Page 132 of 170 C/MCA/3021/2015 CAV JUDGMENT Government Resolution dated 15.09/2014 runs smack into Government Resolution dated 17.10.1988 is the clause about pension. All dailywagers of the Narmada Water Resources, Water Supply and Kalpasar Department and the Roads and Buildings Department who have taken benefits under Government Resolution dated 17.10.1988 have been granted pension on retirement and on completion of 20 years of service. The same should be the case for Forest Department's dailywagers, but Government Resolution dated 15.09.2014 denounces that. Thus, the very issuance of Government Resolution dated 15.09.2014 by the State Government is an act of contempt. The State Government was only asked to grant benefits to all Forest Department's dailywagers under Government Resolution dated 17.10.1988 just as the State Government has done in case of other Government Departments. The Supreme Court never directed the State Government to issue a fresh Government Resolution for the Forest Department. The act of the State Government issuing the said Government Resolution dated 15.09.2014, which depresses the benefits payable to the Page 133 of 170 C/MCA/3021/2015 CAV JUDGMENT Forest Department's dailywagers under Government Resolution dated 17.10.1988, is a gross act of contempt not only of the Supreme Court's judgment dated 09.07.2013, but also of the High Court's common oral order dated 11.06.2015."

5. Further Affidavit on behalf of respondent no.4 page no. 665, paragraph no.6 on page no.668669.

"6. ... ... ... As per the directives of the Hon'ble Supreme Court all the employees who are serving in the Forest Department in the State of Gujarat have to be given actual benefit from 29.10.2010 and therefore, as per the prevailing policy of the State Government for pension the employees are entitled to get the benefits at par with the other employees of the State of Gujarat. I further respectfully submit that all the daily wagers who are eligible for pension will be extended the benefits of the new pension scheme as their services are regularized after 29.10.2010 and all the benefits of pension to the daily wagers who have attained the superannuation have been given the benefit as per the new pension scheme."

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6. Further affidavit on behalf of the applicant. Page no.709.

Paragraph nos.5 and 6 page nos.712 to 714.

"5. I say that the officers of Narmada Water Resources, Water Supply and Kalpsar Department have rightly interpreted the Government Resolution dated 17.10.1988 and accordingly have granted benefits under it to its employees. The same Government Resolution 17.10.1988 is also applicable to the dailywagers of Forests and Environment Department by virtue of the Hon'ble Supreme Court's decision dated 09.07.2013 passed in PWD Employees Union matter(Supra). However, to frustrate the legitimate claims of the dailywagers working in the Forests and Environment Department, the Government Resolution 17.10.1988 is interpreted by the opponents herein in an erroneous manner. This apart to dilute the decision of the Hon'ble Supreme Court, Forests and Environment Department has also issued a separate Government Resolution dated 15.09.2014.

6. I say that the applicant no.1 Union has prepared servicebooks of all the concerned dailywagers who were petitioners in the captioned Special Civil Application no.9814 Page 135 of 170 C/MCA/3021/2015 CAV JUDGMENT of 2014. The servicebooks have been prepared on the basis of servicebooks prepared by other Government Departments for granting benefits of Government Resolution 17.10.1988 to the daily wagers working with them. For, illustrative purpose, copies of servicebook and pay fixation order prepared by the applicant Union for one Shri Arjunbhai Napriyabhai Gamit are annexed hereto and marked collectively as AnnexureZ ("Colly")."

7. Additional affidavit in reply on behalf of respondent no.2 Dr. Dinesh Misra page no.793. Paragraph nos.3, 7 & 9 on page nos.794, 797 to 800.

"3. I most respectfully say and submit that I am filing this additional affidavit with a view to substitute earlier Affidavits in Reply filed in this matter dated 24.08.2015 & 03.02.2016. I most humbly say and submit that there is no intentional, willful and calculated disobedience on part of the respondents of not complying with the directions issued by this Hon'ble Court, within the prescribed time limit. (Emphasis supplied)

7. The answering respondent most Page 136 of 170 C/MCA/3021/2015 CAV JUDGMENT respectfully says and submits that the following procedure has taken considerable time in implementation of the order dated 11.06.2015;

A. That the Forest Department has to verify its records of more than past 30 years and adjudged the admissibility of benefits to labourers qualifying for benefits as per order of this Hon'ble Court.

B. That based on the analysis of the record, as many as 182 labourers were found to be qualifying for the said benefits and all the 182 are paid arrears due to them.

C. That, depending upon the service record and length of service of each of the labourers, they were classified into different five categories as per the direction of the Hon'ble Supreme Court.

D. That based on various categories of admissibility Page 137 of 170 C/MCA/3021/2015 CAV JUDGMENT of benefits to the daily wage worker was carried out along with details of benefits accrued to them, past payments made, arrears admissible etc. were calculated for each of the labourers.

E. That, based on individual details of each daily wages worker, the pay fixation orders and arrears bills of each of the labourers were prepared.

F. That, the payments of difference amount/ arrears were made to daily wage workers through bank accounts. A total number of 182 labourers are paid their admissible benefits as per the order of this Hon'ble Court as well as as per Hon'ble Supreme Court's directions.

G. That, as can seen from above, the implementation of the judgment of this Hon'ble Court involved enormous task of record verification hundreds of daily wager workers spread over a Page 138 of 170 C/MCA/3021/2015 CAV JUDGMENT period of over three decades.

H. That, eligible daily wage workers' service periods are verified from the past Government records and accordingly pay fixation is carried out and arrears are calculated. That, the payment of 182 eligible daily wage workers arrears payment are made and there is no cause of grievance or action for the Petitioners.

9. I further most respectfully say and submit that to comply with the directions issued by the Hon'ble Supreme Court in its true letter and spirit and to avoid any further confusion for its implementation, the state government has introduced a government resolution dated 15.09.2014 and as per the same the guidelines are issued to the various Forest authorities to grant the benefits of the government resolution dated 17.10.1988 and in view of the Hon'ble Court Supreme Court above referred decision but, after the verification of the survey conditions and the records. A copy of the government resolution dated 15.09.2014 is enclosed herewith and Page 139 of 170 C/MCA/3021/2015 CAV JUDGMENT marked as AnnexureRR2 to this affidavit."

8. Affidavit in reply on behalf of the respondent no.2 page

871. Paragraph nos.5 and 6 page nos.874 & 875.

"5. .. ... ... For daily wagers of Forest & Environment Department, Government Resolution has been issued on 15.09.2014 as per the directions of Hon'ble Supreme Court for giving the benefits to the daily wagers of Forest Department with a cutoff date 29.10.2010. The said Government Resolution dated 15.09.2014 is being applied to all the daily wagers in the Forest Department including the petitioners uniformly. This Government Resolution was placed before Hon'ble Supreme Court in contempt petition (Civil) no.493/2013 and the said contempt petition is already been annexed as RR/5 to the affidavit dated 07.04.2016 filed on behalf of respondents.

6. I say and submit that contents of para 25(iv) of Hon'ble Supreme Court, it is very much clear that on the daily wagers pay on the cutoff date is required to be fixed on the basis of the length of their service on the cut off date. The Hon'ble Supreme Court has Page 140 of 170 C/MCA/3021/2015 CAV JUDGMENT clearly stated in para26 of the judgment 09.07.2013 that "The daily wagers and semi skilled workers who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly." This directive clearly suggest that the date of pay fixation of the daily wagers should be 29.10.2010. Had it been the intention of Hon'ble Supreme Court to grant increments after 10 years of service to the daily wager. The direction of Hon'ble Supreme Court of grouping into 152025 years and giving benefit of one increment for the service of 5 years would not have been there. Even the same provision has been mentioned in the Government Resolution dated 17.10.1988, but the cutoff date is 01.10.1988 in it."

9. Affidavitinrejoinder of the applicants in response to the affidavit inreply dated 13.04.2015 of respondent no.2. Paragraph nos.2, 4, 6 & 8 page nos. 885, 886, 890 to 893 & 897898, 902904.

"2. ... ... ... Even the entire history of the Page 141 of 170 C/MCA/3021/2015 CAV JUDGMENT present litigation will show that the Forest Department has throughout defied orders passed by the High Court and has made the applicant Union approach the High Court time and again for compliance. After the Hon'ble Supreme Court rendered final judgment dated 09.07.2013 in Civil Appeals no.53215322 of 2013, the State Government did not comply with the time bound directions issued by the Hon'ble Supreme Court. The applicant Union was constrained to file a Contempt Petition in the Supreme Court. Pending the said Contempt Petition in the Supreme Court, the State Government, without issuing pay fixation orders to the claimantspetitioners, deposited ad hoc amounts in the respective Bank accounts of the claimantspetitioners. After depositing money in the Bank accounts of the claimantspetitioners, haphazard recoveries were made fro the claimantspetitioners. This manner of illegally recovering money from the Bank accounts of the claimants petitioners and other connected issues, led the petitioners to file Special Civil Application no.9814 of 2014. The said petition was disposed of by common oral order dated Page 142 of 170 C/MCA/3021/2015 CAV JUDGMENT 11.06.2015 with directions to the State Government to complete the work of preparation of individual pay fixation orders within a period of two months from 11.06.2015. When the Contempt Petition in the Supreme Court of India was disposed of on 27.07.2015, the State Government had not issued individual pay fixation orders to the claimants petitioners. They were not issued even after 11.08.2015 and so the applicant Union had to file the present Misc. Civil application for contempt of this Court's common oral order dated 11.06.2015. After exchanging a volley of affidavits in this proceeding and after a full hearing on merits, when this Court passed an order on 16.03.2016, there was nothing else left for the State Government to do, but to obey. Unfortunately, by way of the present Affidavitinreply dated 13.04.2016, the opponents herein, led by opponent no.2, are trying to wriggle out of the statement made on their behalf and recorded in the oral order dated 16.03.2016. A telling tale of contempt of Court is made out."

"4. ... ... ... The foundation of State Page 143 of 170 C/MCA/3021/2015 CAV JUDGMENT Government's illegality is the issuance of Government Resolution dated 15.09.2014 for dailywagers of the Forests and Environment Department. The State Government says that the same is done in compliance of the Supreme Court's judgment dated 09.07.2013. However, at no place, in the Supreme Court's judgment, the State Government is asked to issue a fresh Government Resolution for the eligible dailywagers of the Forests and Environment Department. The only direction issued by the Supreme Court to the State Government is to apply Government Resolution dated 17.10.1988 to the eligible dailywagers of the Forests and Environment Department. Clearly, therefore, the pay fixation orders issued individually to the claimantspetitioners, in the present case, need rectification and correction because the State Government has mistaken the Supreme Court's directions of granting consequential benefit with effect from 29.10.2010 to mean that Government Resolution dated 17.10.1988 is to be applied to the daily wagers of the Forests and Environment Department from 29.10.2010. In language as in law, there is marked difference between Page 144 of 170 C/MCA/3021/2015 CAV JUDGMENT the words "benefit" and "consequential benefit". The "benefit" in this case is the application of Government Resolution dated 17.10.1988 to the eligibility dailywagers of Forests and Environment Department. Whereas, "consequential benefit" in this case is the monetary benefit flowing from the application of Government Resolution dated 17.10.1988. Therefore, a sheer illegality is committed by the State Government and the opponents herein by issuing Government Resolution dated 15.09.2014 and prescribing cutoff date of 29.10.2010 as the date of applicability. As I said earlier, the issuance of Government Resolution dated 15.09.2014 is in itself a breach of the directions issued by the Supreme Court in paras 25 and 26 of the decision dated 09.07.2013. All that the State Government had to do was to implement Government Resolution dated 17.10.1988 in respect of all the dailywage workers of Forests and Environment Department and pay them the consequential monetary benefits in cash from 29.10.2010. However, willfully and quite wantonly, the opponents herein have taken the cutoff date 29.10.2010 as the first day of service of every dailywager of the Page 145 of 170 C/MCA/3021/2015 CAV JUDGMENT Forests and Environment Department for the purpose of pay fixation. This strange reading of the Supreme Court's order dated 09.07.2013 is, to say the least, mischievous and intentional. The Hon'ble Supreme Court's order needs to be read as it is and not to be interpreted."

"6. ... ... ... Further, I say that the Government Resolution dated 17.10.1988 is also applied to those dailywagers, who are appointed in service after 01.10.1988. The Government of Gujarat by its Government Resolution dated 30.05.1989 has made the Government Resolution dated 17.10.1988 a permanent scheme to be applied to all those dailywagers, who are appointed after 01.10.1988 as well. Further, this Hon'ble Court in its orders has also held that the Government Resolution dated 17.10.1988 is also to be applied to those dailywagers, who are appointed after 01.10.1988. Therefore, in reality, there is no cutoff date for extending the benefits of Government Resolution dated 17.10.1988 to dailywagers working in various departments of the State. Copies of Government Resolution dated Page 146 of 170 C/MCA/3021/2015 CAV JUDGMENT 30.05.1989 and orders passed by this Hon'ble Court are annexed hereto and collectively marked as AnnexureY ("Colly.")."

"8. ... ... ... Opponent no.2 herein argues that Government Resolution dated 17.10.1988 has cutoff date 01.10.1988. Whereas, Government Resolution dated 15.09.2014 issued for the dailywagers of the Forests Department has cutoff date 29.10.2010. This is a clear misreading and misconstruction of the Supreme Court's directives issued in paras 25 and 26 of the judgment dated 09.07.2013 for more than one reason. Firstly, the Supreme Court never directed the State Government to issue a fresh Government Resolution for the Forests and Environment Department on the lines of Government Resolution dated 17.10.1988. Secondly, it is not correct to say that Government Resolution dated 17.10.1988 has cut off date 01.10.1988. This is because there is proof on record placed by the applicant Union in the form of pay fixation orders issued in other Government Departments that would go to show that the other Government departments have not Page 147 of 170 C/MCA/3021/2015 CAV JUDGMENT commenced pay fixation only from 01.10.1988. This is because there are several judgments of this Court rendered in the context of Government Resolution dated 17.10.1988, where this Court has spoken in one voice that service rendered by daily wagers prior to 17.10.1988 is to be counted for pension and all other purposes. This can only be done if pay fixation is done from date of entry into service."

10. Affidavit in reply on behalf of the respondent no.1 page no.897. Paragraph no.5 and 6.

"5. It is respectfully submitted that in para 26 of the order, the Hon'ble Apex Court has reiterated that the daily wage workers who had put in a service of more than 5 years with the department are entitled to the benefits of the scheme contained in the resolution dated 17.10.1988. The Hon'ble Apex Court in paragraph no.25 has referred to the benefits to be extended to the daily wage employees and has observed that the employees were entitled for the consequential benefits w.e.f. 29.10.2010 or subsequent date from which they are so eligible... ... ... ..."

Page 148 of 170 C/MCA/3021/2015 CAV JUDGMENT

"6. ... ... ... I respectfully submit before this Hon'ble Court that the State Government has implemented the directives of the Hon'ble Supreme Court in its letters and spirit."

11. Additional Affidavit on behalf of the respondent no.4 Sasikumar, page no.902. Paragraph nos.4, 5 and 12 page nos.903 to 905, 910 & 911.

"4. I most respectfully say and submit that Miscellaneous Civil Application (Contempt) 3021 of 2015 listed for hearing on 16.03.2016. The deponent herein was regularly attending the proceedings in the High Court on earlier dates of the petition. Unfortunately, because of serious medical emergency in the family of the deponent herein, the deponent was not able to attend the hearing on 16.03.2016 and one officer Shri R. A. Darediya, Assistant Conservator of Forest, was deputed to assist Ld. Assistant Government Pleader before the Hon'ble High Court on behalf of respondents. On 16.03.2016, the following order has been passed, relying on the statement made by the Assistant Conservator of Forest R.A.Darediya.

Page 149 of 170 C/MCA/3021/2015 CAV JUDGMENT

"Shri Rutvij Oza, learned AGP, under the instruction of Officer of Deputy Conservative of Forest makes a statement that the necessary amendment will be made in the orders for refixing the emoluments admissible to the claimants petitioners and the same will be strictly in accordance with the provision of Government Resolution dated 17.10.1988 as directed by the Supreme Court in the judgment dated 09.07.2013, which will take care of grievance of the petitioners that they have been given benefit only fro the year 2010 instead of the date, on which, they would have been given benefit otherwise as per resolution dated 17.10.1988. The entire exercise will be completed and the pay would be fixed and the Pay Fixation statement will be placed on record on or before 31.03.2013. The payment, on that basis, would be made in light of the decision of the Supreme Court on or before Page 150 of 170 C/MCA/3021/2015 CAV JUDGMENT 07.04.2016."

"5. It is further submitted that neither the deponent herein nor any officers are authorize to go beyond the ambit of judgment and order dated 09.07.2013 passed by the Hon'ble Supreme Court and anything stated beyond the ambit and scope of aforesaid order, will be without authority looking to the order passed by the Hon'ble Supreme Court on 09.07.2013. It is respectfully submitted that appropriate application will be made with prayer to recall the statement of Assistant Conservator of Forest. The deponent tender unconditional apology to this Hon'ble Court for such act on the part of the officer concerned."

"12. It is submitted that the respondents have clearly followed the directions of the Hon'ble Supreme Court. Respondent have faithfully implemented Government Resolution dated 15.09.2014 in its letter and spirit followed by the procedure prescribed in said Government Resolution dated 15.09.2014 strictly in accordance with Government Resolution dated 17.10.1988 as directed modification of para no.25 and 26 of Page 151 of 170 C/MCA/3021/2015 CAV JUDGMENT the Hon'ble Supreme Court's judgment dated 09.07.2013 which are described below in short :

(a) Issue of office orders to all concerned unit of the department with necessary guidance and directives for proper implementation and interpretation of order of Hon'ble Supreme Court in this regard.

             (b)      Calculation   of   eligibility  
             length of services of petitioner.


             (c)      Arriving   at   the   figure   of

difference of arrears payment based on amounts already paid to each petitioners.

             (d)      Original document obtained  
             from range (Taluka level office).
             (e)      Detailed   scrutinization   at  
             district level.


             (f)      Verification   of   all   these  
             details at regional level.


             (g)      Formal   order   passed,  


                               Page 152 of 170
       C/MCA/3021/2015                                           CAV JUDGMENT

establishing eligibility of individual petitioners and also informing of the same to the individual daily wagers."

13. Thus, close perusal of the aforesaid would indicate that the petitioners have been contending that the respondents have not complied with the order of the Supreme Court dated 09.07.2013 passed in case of PWD Employees' Union (supra) nor have they complied with the order dated 11.06.2015 passed by the learned Single Judge of this Court in the proceedings of SCA no.9814 of 2014 and they have depicted the same in the paragraphs which have been extracted hereinabove from the petition.

14. The petitioners have laid greater emphasis upon the noncompliance with the direction of this Court contained in the order dated 11.06.2015 in SCA no.9814 of 2014 and submitted that the respondents have just projected some compliance with the order of Supreme Court by depositing certain amounts into the savings accounts of the petitioners and that too with in within no time issuing further orders either for recovery or for freezing those accounts of the petitioners in which the amount has been deposited. Against this scenario the petitioners and other similarly situated employees were constrained to take out proceedings for seeking writ of mandamus against the state for doing their duty in extending the benefits flowing from the Government Resolution dated 17.10.1988 as observed by the Supreme Court in its order dated 09.07.2013 in case of PWD Employees' Union (supra) and in that scenario the learned Single Judge after adverting elaborately Page 153 of 170 C/MCA/3021/2015 CAV JUDGMENT to the crux of the order of the Supreme Court dated 09.07.2013 in the proceedings in PWD Employees' Union (supra) issued directions which were required to be complied in time framed set out by the learned Single Judge. This time frame was not adhered to nor was there any complete compliance resulted into filing of the present contempt proceedings before this Court.

15. The respondents have submitted that the Supreme Court order dated 09.07.2013 in case of PWD Employees' Union (supra) has been complied with and current policy is framed to guide the executing officers as to how the same is to be complied with by Government Resolution dated 15.09.2014. The respondents have also contended that the petitioners could not have laid contempt proceedings as they are claiming noncompliance with the Supreme Court order dated 09.07.2013 in light of the judgment cited especially Bombay High Court it was contended that the High Court would not be competent forum to lay contempt proceedings complaining noncompliance with the Supreme Court direction the appropriate forum for such a compliant being Supreme Court the present proceedings would not be sustainable. It was further contended on behalf of the respondents that the petitioners did prefer contempt proceedings in the Supreme Court in the form of Contempt Petition (Civil) No.(s) 493 of 2013 which came to be dismissed by the Supreme Court vide order dated 15.09.2014 itself. It was further contended on behalf of the respondent that the compliance report of the Supreme Court judgment placed on the proceedings of the said contempt petition and in that view of the matter now the present proceedings Page 154 of 170 C/MCA/3021/2015 CAV JUDGMENT would not be sustainable.

16. The respondents further contended that the process of detail compliance being time consuming and being dependent upon the availability of old record of 30 years any omission and/or short coming may not be treated as deliberate and willful omission so as to attract the contempt proceedings.

17. The respondents further contended that the petitioners cannot attribute any deliberate and willful attempt to disobey or flout the court direction upon the respondent in absence of any such material indicative of any willfulness on the part of the respondents. The petitioner would not be justified in seeking initiation of contempt proceedings against the respondents.

18. In order to examine these rival contentions one needs to look into the backdrop of various facts leading to filing of the proceedings and the directions issued by this Court. There cannot be any dispute qua proposition canvassed on behalf of the respondent that the contempt proceedings for compliance of the Supreme Court's order would not be maintainable in the High Court, had there been a proceedings in which such attempt was made by the petitioners then the court would have not entertained the contempt proceedings as the law on this aspect is absolutely clear and does not require any further elaboration. However, in the instant case, we are of the view that the petitioners cannot be said to have been agitating noncompliance of the Supreme Court's order. The close perusal of the proceedings of SCA no.9814 of Page 155 of 170 C/MCA/3021/2015 CAV JUDGMENT 2014 and other allied matters, would make it abundant clear that what was being agitated before the High Court in that petition was inaction and/or lack of proper action on the part of the respondent and therefore, appropriate writ in the form of mandamus was sought seeking direction from this Court to the respondent for doing their duties. It may be noted at this stage that the contempt proceedings in the form of Contempt Petition no.493 of 2013 had been pending before the Supreme Court and during pendency of the said proceedings the State appears to have come out with the resolution of 15.09.2014 and the petitioners' right to maintain petition and direction in the form of Writ Petition No. 9814 of 2014 had not been subject matter of challenge in any forum and the same resulted into passing of the order by learned Single Judge on 11.06.2015 and the contempt proceedings before the Supreme Court came to be withdrawn and the withdrawal order of the Supreme Court which is reproduced as under did not affect the right of the petitioners to seek appropriate remedy in appropriate forum.

"After arguing the matter at some length, Ms.Rukhmini Bobde, learned counsel for the petitionerPWD Employees Union, seeks leave to withdraw this contempt petition reserving liberty for the petitioner to move the High Court in a proper petitioner under Article 226 of the Constitution of India for grant of such further relief and directions as my be legally admissible to them keeping in view the Page 156 of 170 C/MCA/3021/2015 CAV JUDGMENT judgment of this Court in Civil Appeals No.53215322 of 2013.

This contempt petition is accordingly dismissed as withdrawn with the liberty prayed for."

Thus, while disposing of the contempt petition and granting permission to the petitioners to withdraw the same Supreme Court reserved liberty for agitating before the High Court under Article

226. Thus, it can well be said that the disposal of the contempt petition did not affect in any manner rights of the petitioner to maintain petition for appropriate direction. In light of this if one examines the order dated 11.06.2015 it would become amply clear that the petitioners were in fact agitating and seeking writ of mandamus for receiving benefits of the Government Resolution dated 17.10.1988 and consequential relief like preparing of service records of the petitioners such as service books in accordance with the provision of Chapter IV of Maintenance of Records of Service of the Gujarat Civil Services (General Conditions of Services) Rules, 2002 and the learned Single Judge has also recorded the development and assurances coming forward during the pendency of that petitioner as could be seen from the order of the learned Single Judge. The learned Single Judge has also recorded the contention of the learned counsel qua serious lapses in implementing the order of the Supreme Court and in that view of the matter, the learned Single Judge's direction came to be issued in the order dated 11.06.2015 compliance whereof is the essential Page 157 of 170 C/MCA/3021/2015 CAV JUDGMENT character of the present proceedings and therefore, the same cannot be said to be proceedings not maintainable in stricto senso.

19. This brings the Court to consider the submission of the respondents qua compliance with the direction. We have in fact setout herein above the relevant extracts and excerpts of the pleading and averments of the petition in which the petitioners have indicated as to how there is non compliance. We may not repeat the same, but the respondents have not shown in response to those contention as to how those contentions said to be not justified.

20. The respondents have in fact indicated that the Government Resolution dated 15.09.2014 was issued for guidance to the concerned officers for compliance with the Supreme Court's direction. We are of the view that when the learned Single Judge's direction in its order dated 11.06.2015 contains specific direction to the respondents to accord the benefits of Government Resolution dated 17.10.1988 to the petitioner in light of the judgment of the Supreme Court dated 09.07.2013 rendered in case of PWD Employees' Union (supra), the close scrutiny of the said Government Resolution dated 15.09.2014 becomes necessary.

21. The Government Resolution dated 15.9.2014 unfortunately proceeds on incorrect premise that the benefit of regularization if any, would be available to the petitionersdaily wagers only when they become so eligible after 29.10.2010. This incorrect premise has unfortunate effect upon the employees who Page 158 of 170 C/MCA/3021/2015 CAV JUDGMENT are to be granted benefits as per the Government Resolution dated 17.10.1988. The Supreme Court's decision in case of PWD (supra) clearly directed that the benefits are to be given on the basis of the Government Resolution dated 17.10.1988 and there was no requirement therefore of framing a new scheme. In fact, if any one peruses the order of learned Single Judge dated 29.10.2010, then, one would noticed that the learned Single Judge ordered framing of the scheme similar to the Government Resolution dated 17.10.1988 and the actual benefit on account of concession of the petitioners therein were to accrue from the cutoff date 29.10.2010. This is categorically modified by the Supreme Court as could be seen from the Supreme Court decision in case of PWD (supra) set out with due emphasis, para 12(g) & 12(h). The Supreme Court did say that the benefits as envisaged under the Government Resolution dated 17.10.1988 were to be extended to the petitioners and on that basis the actual monetary benefits were to be made admissible after cutoff date as neither party has challenged the order dated 29.10.2010. The learned Single Judge's observation have been incorporated by the Supreme Court in para11, which have been cited hereinabove which indicate that the learned Single Judge had also categorically held that Secretary of Forest and Environment Department, State of Gujarat himself has come to the conclusion vide order dated 3.5.2008 that initial entry of the daily wagers does not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural defect does not arise. The Supreme Court has also reproduced as it is stated hereinabove in para11, the further finding of the learned Page 159 of 170 C/MCA/3021/2015 CAV JUDGMENT Single Judge qua the work performed by the Daily wagers is perennial in nature. The daily wager of other Govt department like Roads and Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department etc. have been made permanent pursuant to Government Resolution dated 17.10.1988. The learned Single Judge has further observed that Department of Agriculture & Cooperation has also issued analogous resolution dated 20.12.2005 to regularize the service of daily wagers of the Fisheries Department. The learned Single Judge further observed which has been reproduced by the Supreme Court in para11 that the Forest Department of State of Maharashra has also issued a scheme in the year 1996 quite similar to the Government Resolution dated 17.10.1988 in respect to the daily wagers in their Forest Department. The learned Single Judge also observed that in compliance of the award passed by the Labour Court in Reference (IT) No. 386 of 1988, a number of daily wagers of the Forest Department who have completed 5 years 900 days were absorbed against 22 supernumerary posts created and the Supreme Court has enlisted the final portion of the order and at the end thereof, mentioned "against the judgment dated 29.10.2010, no appeal was preferred by the State Government or by any person and, thereby, the said judgment reached finality."

This finding of the Supreme Court that the learned Single Judge's order was not challenged by the State and it has attained finality would also hold good for the entire finding of learned Single Judge which Supreme Court has reproduced in para

11. Therefore, Supreme Court also instead of directing the State to Page 160 of 170 C/MCA/3021/2015 CAV JUDGMENT issue any fresh scheme keeping in mind the fact that 17.10.1988 has been in fact made applicable to all the daily wagers and it has not been confined to only a department issued direction in its order to follow Government Resolution dated 17.10.1988. However, the actual monetary benefit was to be paid on that basis from 29.10.2010. Therefore, Supreme Court order leaves no room for any doubt qua considering the past services of the daily wagers and fixing them accordingly. The actual payment of monetary benefit after that exercise would be started from 10.10.2010. The Government Resolution dated 15.9.2014 unfortunately has effect of wiping of the entire earlier service rendered by the daily wagers and therefore, the same cannot be said to be inconsonance with the direction of the Supreme Court.

22. The Supreme Court in its order dated 09.07.2013 rendered in case of PWD Employees' Union (supra) has in no unequivocal terms considered that the benefits of past services in terms of the Government Resolution dated 17.10.1988 is to be granted to the dailywagers and the State was therefore, required to undertake an exercise of implementing the said Government Resolution and the actual monitory benefits to be determined on that basis were to be reckoned only from 29.10.2010. The said direction of the Supreme Court and the direction of the learned Single Judge in its order dated 11.6.2015, therefore, required the State authorities to undertake the task of implementing the Government Resolution dated 17.10.1988 to the petitioners and on that basis whatever actual monetary benefit accrue were to be reckoned from 29.10.2010. In other words, it can well be said that Page 161 of 170 C/MCA/3021/2015 CAV JUDGMENT the order of the Supreme Court cannot be construed as obliterating the past services of the dailywagers. In fact, the said order on its close perusal, with the emphasis supplied hereinabove, would indicate that the past services were not to be ignored and unfortunately the Government Resolution dated 15.09.2014 has effect of wiping of and obliterating the past service of dailywagers which cannot be said to be a compliance with the Court's order and therefore, reliance upon that Government Resolution of 15.09.2014 to indicate the compliance of the Supreme Court's order also of the learned Single Judge order dated 11.06.2015 would be of no avail to respondents to justify and defend themselves.

23. The learned Single Judge has also therefore, categorically issued direction, which has been set out hereinabove in which there is no reference at all to the Government Resolution dated 15.09.2014 and therefore, it is unfortunate that the same is being held out by the respondent for indicating compliance. The close perusal of the said Government Resolution dated 15.09.2014 in light of the Supreme Court decision in case of PWD Employees' Union (supra) would indicate that the same is wholly misconceived and can not be said to be even an attempt to comply with the order of Supreme Court and the same has not been referred to by the learned Single Judge nor has the same been pressed into service by the respondent before the learned Single Judge and therefore, we have no hesitation in holding that on the strength of said Government Resolution dated 15.09.2014 the compliance cannot be claimed as sought to be canvassed by the respondent as it would run contrary to the observations of the Supreme Court as well as Page 162 of 170 C/MCA/3021/2015 CAV JUDGMENT those of learned Single Judge of this Court in his order dated 11.06.2015.

24. This Court is of the considered view that the respondents were in fact required to implement the Government Resolution dated 17.10.1988 in light of the observation of the Supreme Court in its judgment dated 09.07.2013 and notionally reckon the benefits which were available to the employees and the actual monitory benefits based upon their past services as per Government Resolution dated 17.10.1988 were required to be paid after 29.10.2010. Anything short of this would be a noncompliance with the order of the Supreme Court and that of the learned Single Judge of this Court dated 11.06.2015. We are therefore, of the view that the respondents cannot be said to have complied the order passed by the learned Single Judge in proceedings of SCA No. 9814 of 2014.

25. After having come to the conclusion that there is non compliance on the part of the respondents so far as the direction contained in learned Single Judge's order passed in SCA No.9814 of 2014 is concerned, this Court will have to examine as to whether the said noncompliance is deliberate, willful and so vicious as to attract the provision of Contempt of Court Act.

26. The learned counsel for the petitioner placing reliance upon the decision of All Bengal Excise Licensees' Association Vs. Raghabendra Singh & Ors., reported in (2007) 11 SCC, page No.374, contended that the defense of lack of understanding and Page 163 of 170 C/MCA/3021/2015 CAV JUDGMENT incorrect understanding would not be permissible on the part of the respondent when there are clear order of this Court time and again in respect of purport and provisions of Government Resolution dated 17.10.1988. In the said judgment of ALL Bengal Excise Licensees' Association (supra) the Court observed that the High Court should have directed the respondents to undo the wrong as party flouting the order cannot be permitted to take advantage under the said wrongdoing. Based upon this observation, the counsel for the petitioner has made alternative submission that the court at least may issue direction for complete compliance with learned Single Judge order dated 11.6.2015.

27. The learned counsel for the petitioner also relied upon the decision of Gurminder Singh Kang Vs. Shiv Prasad Singh & Ors., reported in (2013) 11 SCC, page No.332, submitted that Court may appreciate the observation of the Supreme Court in paras11, 12 and 13 and hold that it was not open to the respondents to take shelter under the Government Resolution dated 15.9.2014. In the aforesaid case of Gurminder Singh (supra), the Supreme Court said that despite there being clear condition that the Shiv Prasad Singh would not be entitled to receive benefit of any promotion as per the condition of the reappointment dated 28.10.1980. the said gentleman could not have been deprived of the same, as the same was admissible to him on account of separate scheme under which it was admissible to all. Based upon this, a submission was canvassed that there remains no manner of doubt so far as purport and purview of Government Resolution dated 17.10.1988 is concerned and on that basis the respondent ought to Page 164 of 170 C/MCA/3021/2015 CAV JUDGMENT have implemented the same in its true spirit and letter.

28. The learned counsel appearing for the petitioner also relied upon the decision in case of Anil Ratan Sarkar & Ors. Vs. Hirak Ghosh & Ors., reported in (2002) 4 SCC, submitted that the State Government ought to have implemented the judgment and order of learned Single Judge dated 11.6.2016 and granted benefits to the petitioners flowing from the Government Resolution dated 17.10.1988. The respondents adamance in not granting the same is nothing but the untenable attitude of depriving the petitioners of their benefits available to them under the decision and this tendency deserves to be deprecated.

29. The learned counsel for the respondent has relied upon decision in case S.S.Roy Vs. State of Orissa, reported in AIR 1960 SC, 190, K.D.Gupta Vs. Union of India, reported in 1989 (3) SCC, page No.566 and submitted that the Court would always appreciate that the officers concerned would not in their dream flout the order and if there is any room for nurturing bonafide relief qua the scope and purpose of the judgment, then even if that is not held to be in consonance with judgment of the Court, for that action, contempt proceedings would not get attracted. In the case of K.D. Gupta (supra) the officer concerned while making the payment had deducted the TDS and given the lesser amount than the order, the Supreme Court viewed this to be an act to be considered appropriately. It was pleaded on this basis that the Government Resolution dated 15.9.2014 and the attempts listed hereinabove as could be seen from the affidavit would indicate that Page 165 of 170 C/MCA/3021/2015 CAV JUDGMENT there was no malafide motive or intention on the part of the officers and hence, contempt proceedings may not be initiated.

30. Learned counsel for the respondent has also relied upon the decisions in case of V.G.Nigam & Ors. Vs. Kedar Nath Gupta & Anr., reported in AIR 1992 SC, page No.2153, Niaz Mohammad & Ors. Vs. State of Haryana & Ors., reported in (1994) 6 SCC, page No.332, Kapildeo Prasad Sah & Ors. Vs. State of Bihar, reported in AIR 1999 SC, page No.3215(1), Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited & Ors. Vs. M.George Ravishekaran & Ors., reported in (2014) 3 SCC, page No.373, Ram Kishan Vs. Sh. Tarun Bajaj, reported in 2014 (16) SC, page No.204, Rajureshwar and Associates Vs. State of Maharashtra, reported in 2013 (7) Scale, page No.77, which have been adverted to hereinabove. By and large they pertain to the proposition of law that in proceedings of contempt of Court Act, the Courts need to be careful and cautious and there has to be clear finding qua willful and deliberate breach of the Court's order, which will also be evidence of guilty mind on the part of the concerned committing breach of the order. As against this, learned counsel for the petitioner has indicated judgment of the Supreme Court to the effect that even if there is mistaken belief or a misunderstanding, the High Court while examining the aspect of the contempt should issue direction to the person for undoing the wrong.

31. The Court is mindful of the shift in the stand on the part of the respondents, as reflected in the above cited excerpts of Page 166 of 170 C/MCA/3021/2015 CAV JUDGMENT the paragraphs of affidavit in replies. The Court is also mindful of the fact that the authorities have attempted to comply and have deposited some amounts, which immediately were ordered to be withdrawn or accounts were frozen, the various orders passed by the Court in the proceedings also would indicate that the respondents are constantly shifting their stand. The order dated 10.3.2016, cited hereinabove was prayed to be recalled by the respondents being Civil Application(for orders) No. 3962 of 2016 on the ground that the statement recorded was made by the Dy. Conservator of Forest, who was not authorized to make such statement. The Court on 6.5.2016, on the request of counsels appearing for the parties, ordered that said Civil Application to be placed with main matter and following order was passed:

"CA (For Orders) No. 3962 of 2016 in Misc. Civil Application No. 3021 of 2015 in Special Civil Application No. 9814 of 2014 Date: 06/05/2016 Oral Order:

"Heard learned counsel appearing for the parties. During the course of submissions, it transpired that both the counsels requested the Court that this matter be placed along with main matter and in case if there is a requirement, the further orders could be obtained thereafter. Reply filed by Ms. Bhatt, learned counsel, is taken on record."

The statement was that of only Dy. Conservator of Forest and same has been said to have made erroneously, therefore, we don't propose to rely thereupon for holding against the authority only account of the said statement, though we hastened to add here that the original petitioners and respondents Page 167 of 170 C/MCA/3021/2015 CAV JUDGMENT in the Civil Application (for orders) No. 3962 of 2016 have filed detailed affidavit contending that the attempt to wriggle out the statement. Be that as it may, we don't propose to hold the statement against the respondent authorities for any purpose.

32. The question arises as to whether the frequent shift of the stand by the authorities in itself was so sufficient and grave as to attribute deliberate and willful defiance of the order of the Court by the authority. We are of the view that in the instant case the development of the matter and the events during the pendency of the matter needs to be viewed in a proper prospective which will dissuade this Court from holding the respondents to be guilty of committing contempt of the Court. We hastened to add here that though there was very little scope for any misunderstanding on the part of the authority so far as the order of the learned Single Judge dated 11.6.2015 is concerned, especially when there was no reference to the Government Resolution dated 15.9.2014 therein, it was not open to the authorities to fall back upon the same for wiping off the initial years of service of the petitioners as daily wagers prior to 29.10.2010. However, the half hearted attempt of compliance shall not be lost sight of and when the counsel for the respondent has cited decisions of the Apex Court indicating that the willful disobedience requires final conclusion qua guilty mind on the part of the contemner, this Court is of the view that the gravity of disobedience cannot be attributed to any deliberate design for flouting the Court's order and therefore, we are not of the view that the contempt proceedings are required to be initiated against them.

33. This brings the Court to consider as to whether in such Page 168 of 170 C/MCA/3021/2015 CAV JUDGMENT scenario, can the petitioners be left high and dry without any relief as this Court has clearly held that the plain and simple reading of the order of the Supreme Court dated 09.07.2013 passed in case of PWD Employees' Union (supra) cannot be ever construed as wiping off the earlier services of the daily wagers prior to 29.10.2010 and therefore learned Single Judge when he issued order on 11.6.2015 in the proceeding of SCA 9814 of 2014, he did not refer to the Government Resolution dated 15.9.2014 and therefore, this Court should be mindful of the fact that the petitioners and similarly situated persons have been awaiting for their legitimate benefits since years, this Court is rather duty bound to issue appropriate direction calling upon the respondents for rectifying their deeds and correcting their omissions. The Supreme Court in case of ALL Bengal Excise Licensees' Association (supra) observed that "the High Court should have directed the respondents to undo the wrong as party flouting the order cannot be permitted to take advantage under the said wrongdoing", we are of the view that the following direction is required to be issued in the interest of justice.

34. The respondents are directed to extend the benefits of Government Resolution dated 17.10.1988 as ordered by the Supreme Court in order dated 09.07.2013 passed in case of PWD Employees' Union (supra) and as reiterated by the learned Single Judge in its order on 11.6.2015 in the proceeding of SCA 9814 of 2014 and examine the case of all the concerned in light thereof and without being influenced by their own Government Resolution dated 15.9.2014, as we have categorically held that Government Page 169 of 170 C/MCA/3021/2015 CAV JUDGMENT Resolution to be not in consonance with the Supreme Court order dated 09.07.2013 passed in case of PWD Employees' Union (supra). The entire exercise shall be over within period of 60 days from the date of receipt of writ of the order. We dispose of this petition with aforesaid directions. Notice discharged in each matter. However, there shall be no order as to costs.

35. In view of order passed in main Misc. Civil Application No. 3021 of 2015, no order in Civil Application No. 3962 of 2016 and is disposed of accordingly.

(S.R.BRAHMBHATT, J) (A.Y. KOGJE, J) FURTHER ORDER:

Learned AAG Shri Jani submitted that the direction be stayed for period of 4 weeks. The said request is vehemently opposed by Shri Mehta, learned counsel for the petitioner on the ground that the petitioners have been awaiting the benefits of their legitimate dues since decades. We are of the view that the objection deserves to be sustained as the petitioners and similarly situated persons have been awating for their legitimate dues since years and we have also held that there is noncompliance with the order of this Court though we have not held noncompliance to be deliberate so as to attract contempt proceedings. Hence, we would not be justified in granting time and keeping the direction in abeyance as it would be against the interest of justice. The request for stay is rejected.

(S.R.BRAHMBHATT, J) (A.Y. KOGJE, J) P.S. JOSHI Page 170 of 170

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