Indian Kanoon - Search engine for Indian Law

7. Learned advocate Mr. Shalin Mehta appearing for the appellant union has raised contention that the judgment given by the learned Single Judge of this Court in Special Civil Application No. 3607 of 1982 dated January 30, 1996 has attained finality between the parties as it was confirmed by the Division Bench of this Court in Letters Patent Appeal and then by the apex court in the civil appeal and the subsequent review petition filed by the State of Gujarat was also rejected by the apex court and, therefore, the learned Single Judge was not justified in examining the judgment dated 30th January, 1996 while entertaining Misc. Civil Application No. 2239 of 2003. He submits that in reality, order dated 25th February, 2004 in Miscellaneous Civil Application NO. 2239 of 2003 which is under challenge is review order or modifying the order dated 30th January, 1996 in Special Civil Application No. 3607 of 1982 and, therefore, learned Single Judge was not justified in passing the order in question. He also submits that new material was placed on record by the respondents in the review application being MCA No. 2239 of 2003 which ought to have been ignored by the learned Single Judge while considering the application for modification of the order passed in Special Civil Application No. 7703 of 2002. He submits that review application was filed by the respondent State on the basis of Government Resolution dated 31st March, 1982 which was not produced by the respondents either before the learned Single Judge in Special Civil Application No. 3607 of 1982, Letters Patent Appeal No. 353 of 1997 and then before the apex court in the civil appeal against the judgment dated 30th January, 1996 as confirmed by the Division Bench of this Court. In Review Petition before the apex court also, said GR dated 31.3.82 was not produced by the State of Gujarat and in view of that, learned Single Judge of this Court ought not to have taken into consideration the said GR dated 31.3.82 while examining the MCA No. 2239 of 2003. He also submitted that the GR dated 31st March, 1982 is not applicable to the present appellants but it applies to the permanent Government employees who were regularly selected under the recruitment rules whereas the appellants were the daily wagers entitled for the benefits flowing from the GR dated 4.7.1973 and 7.7.1973 which were granted by the Court in favour of the appellants as per the judgment dated 30th January, 1996. He also submits that after the rejection of the civil appeal and the review petition in 2000-2001, present review application was filed by the respondents on 2nd December, 2003 after a period of more than two years on the basis of the new material which was never relied and produced by the respondents in earlier proceedings upto the apex court. He also raised the contention that the MCA No. 2239 of 2003 was filed by the State of Gujarat against the order dated 7.2.2003 in SPECIAL CIVIL APPLICATION No. 7703 of 2003 and except that, no other prayer was made by the State of Gujarat and, therefore, the learned Single Judge was not having the jurisdiction or power to review and/or modify the order passed in Special Civil Application No. 3607 of 1982 dated 30th January, 1996. He made a reference to certain observations made by the learned Single Judge before us to high light the submission about consideration of the merits of the earlier judgment in special civil application no. 3607 of 1982 while entertaining and examining the MCA No. 2239 of 2003. He submits that the review application was filed by the respondents beyond the period of limitation. He raised the contention that under the guise of review by producing new material, the judgment dated 30th January, 1996 has been re-examined by the learned Single Judge as if he has been acting as an appellate authority over the judgment in SPECIAL CIVIL APPLICATION No. 3607 of 1982. He submits that the learned Single Judge was not justified in adopting such a course while considering the MCA No. 2239 of 2003 for review of the order in SPECIAL CIVIL APPLICATION No. 7703 of 2002. He also submits that because of the operation of interim order passed by the apex court, benefits which were payable to the appellants w.e.f. 1st January, 1995 to 2000 have not been made available to the appellants by the respondents. Said benefits were paid to the appellants for a period upto 31st December, 1994. He also submits that the respondents are not challenging the entitlement of the appellants in respect of the benefits which have been worked out by the respondents including the encashment of public holidays but the respondents are now, impliedly challenging the entitlement of the appellants for encashment of public holidays by placing reliance on G.R. dated 31st March, 1982 which was admittedly not produced by them in the earlier proceedings. As regards the contention of the respondents that they are prepared to give extra leave with wages for the work done by the appellants on public holidays, it was submitted that the work was undertaken by the respondents from the appellants on each and every public holidays between 1995 to 2000 and for that, there is no dispute or challenge. In short, it is his submission that the appellants are entitled for the benefit of public holidays in cash as per the judgment dated 30th January, 1996 which has attained finality upto the apex court and, therefore, the learned Single Judge was not justified in examining that aspect while considering the MCA No. 2239 of 2003. He also submits that the appellants are entitled for such benefits as per the right of restitution and, therefore, the respondents are bound to restore the original position by making payment in cash for the public holidays during which period the appellants had actually worked. Therefore, he submitted that the learned Single Judge has committed grave error in examining the merits of the judgment and order dated 30th January, 1996 by considering the GR dated 31st March, 1982 which was never produced by the State in the earlier proceedings. Learned advocate Mr. Mehta has placed reliance on the following decisions :

According to the learned A.G. Mr. Shelat, it was the case of the respondents before the learned Single Judge in Review Application No. 2239 of 2003 that it was their mistake in calculating the amounts payable to the appellants in view of the order of this Court dated 30.1.1996 and on that basis, said MCA was filed for review and modification of the order passed in SPECIAL CIVIL APPLICATION No. 7703 of 2002 and the prayer was made to correct the figure of the amount by placing reliance on the GR dated 31.3.82. Learned Advocate General has emphasized this point that this was their mistake in calculation since the GR dated 31.3.82 was subsequently brought to the notice of the officers concerned. According to him, as per the GR dated 31.3.82, the appellants are not entitled for the encashment of public holidays because the said GR is not permitting for such encashment. It is his submission that in entire State of Gujarat, no employee is entitled for such benefit of encashment of public holidays if he was required to work on public holidays. In such circumstances, such employee is entitled only for compensatory leave in lieu of the work done by him on public holidays. Thus, it is his submission that the mistake committed by the respondents in calculation of the amount has rightly been rectified by the learned Single Judge by considering the GR dated 31.3.82. He relied upon the decision of Apex Court in case of S. Nagraj and Ors. v. State of Karnataka, JT 1993 (4) SC page 27 and submitted that the Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. He relied upon para 18 and 19 of the said judgment which are reproduced as under:

18. From the aforesaid observations made by the learned Single Judge in the impugned order, it is clear that Learned Judge observed that the rights of the petitioners in SPECIAL CIVIL APPLICATION No. 3607/82 were not crystallized on the question of encashment of leave in lieu of work on public holidays. Learned Judge also examined that what was ordered by the Court in the judgment dated 30.1.96 was for giving benefits including the benefit of leave encashment in lieu of work on public holidays in accordance with the rules and Government Resolutions. In para 11 of the impugned order, Learned Judge observed and held to the extent that it will have to be examined as to whether such benefits really accrued to the petitioners or not even as per the judgment of this court. It was also held by Learned Judge in para 11 of the impugned order that merely because the time has expired of the concerned year it cannot be validly asserted by the petitioners that now said leave must be allowed to be encashed and thereby Learned Judge examined the merits of the judgment dated 30.1.96 which was not open for Learned Judge since the said judgment was confirmed by the Apex Court. It was not open for Learned Judge to touch the merits of the said judgment dated 30.1.96 since that order was not under review before Learned Judge. While modifying his own order, it was not open for Learned Judge to consider the GR dated 31.3.82 since it was produced for the first time by the respondents in the said MCA No. 2239 of 2003 and was not produced in the earlier proceedings upto the apex court. From the aforesaid observations, it appears that the learned single judge has, while examining the MCA No. 2239/03, para 8 and 9 of the judgment dated 30.1.96, amounts to reexamination on merits. Therefore, observations made by the learned single judge are self contradictory.

27. We are of the view that the learned Single Judge has committed grave error in relying upon the GR dated 31.3.1982 since it was produced by the State Government for the first time in MCA No. 2239 of 2003 and not produced in the earlier proceedings upto the apex court. We are of the opinion that an application seeking modification and/or review of the earlier order cannot be entertained on the basis of a new material and it is having very limited scope of correction of typographical error/mistake which is apparent on the face of the record. From the bare perusal of the impugned order of the learned Single Judge, it appears that the entire order has been passed by Learned Judge as if Learned Judge was examining the merits of both the orders dated 30.1.1996 as well as 7.2.2003 as a Court of Appeal. While entertaining the application seeking review of the order dated 7.2.2003, it was not open for him to examine as to which rights of the appellants were crystallized and which were not crystallized and in examining such aspect of the order dated 30.1.96 while entertaining review application being MCA No. 2239 of 2003, he has committed grave error. After the order has become final and has attained finality upto the apex court, filing of an application for review/modification amounts to misuse of the process of the court. Because of the operation of the interim stay granted by the apex court for a number of years, natural effect would be that the appellants were required to work on public holidays and no wages for those public holidays were paid to the appellants. Since the stay was obtained by the State and since the benefits of such stay order were enjoyed by the State Government, after finalization of the proceedings and after vacation of the stay order by the Apex Court, it was incumbent upon the State Government to restore the position following the principles of restitution.