State Of Assam vs Union Of India & Ors.Etc

State of Assam ............ Appellant

Versus

Union of India and Ors. Etc. .............. Respondents

J U D G M E N T

H.L. Dattu, J.

1) Leave granted.

2) The appellant, being aggrieved by the judgment

and order in WA No. 535/2001 and other connected appeals

and also the dismissal of the Review Petition No. 124/2006

by the Division Bench of High Court of Gauhati, is before

us in these appeals.

3) The factual matrix in brief is as under :

The Union of India (Respondents herein) had introduced

"Family Welfare Scheme" under its Family Planning

Programme with effect from 1st day of September, 1966.

Under the said scheme, there was a provision for the

appointment of `Voluntary Female Attendants' on a monthly

honorarium of `50/- per month from the inception of the

scheme, which was subsequently increased to `100/- per

month with effect from February, 2001. According to the

Union of India, the work of these attendants is to

motivate people in their locality to have a small family.

This assertion of the Union of India is disputed by the

private respondents. They assert that though they were

appointed as `Volunteers', they were made to assist the

Auxiliary nurses-cum-midwives in the Health sub-centers at

the time of field visit and for miscellaneous works like

cleaning, etc. in the sub-centers.

4) Sometime in the year 1993, one such Voluntary

Female Attendant - Nandeshwari Bora filed a writ petition

CR No. 3847/1993 before the High Court of Gauhati against

the State of Assam, on the ground that the work of the

Voluntary Female Attendant under the aforesaid scheme and

that of the regularly appointed `Ward Girls' by the

respondents therein was similar and, therefore, demanded

parity in the pay scale as `Ward Girls', which at that

time was `900-1435 per month. The single Judge of the High

Court allowed the writ petition and directed the State

Government to pay the minimum pay-scale in the time-scale

of pay i.e. `900/- per month. Unfortunately, the text of

this judgment of the learned Single Judge is not before us

for our perusal, as the counsel appearing on both sides

have stated that though they have made all efforts to

secure a certified copy of the judgment, they have been

unsuccessful, as the same is not available in the Registry

of the High Court of Gauhati. Therefore, we will have to

proceed without having the advantage of seeing the

reasoning of the learned Judge in his conclusion.

However, in the subsequent judgment passed by the High

Court, there is some reference to the findings and

conclusion reached by the learned Single Judge in

Nandeshwari Bora's case. This may help us in

understanding the reasoning and conclusion reached in

Nandeshwari Bora's case.

5) After the decision of the High Court in

Nandeshwari Bora's case in C.R. No. 3847 of 1993, nearly

54 (fifty four) Voluntary Female Attendants filed writ

petition in the High Court, inter alia seeking the same

relief that was granted in Nandeshwari Bora's case. The

lead case was by Jalini Brahma being C.R. No. 3073 of

1995. The relief that was sought in the writ petition was

for regularization of their services and for payment of

salary as per the existing pay scale. In the light of the

decision of the Court in Nandeshwari Bora's case, the

learned Single Judge of the High Court by judgment and

order dated 22.02.2000, partly allowed the writ petition

and directed all the respondents (which included the Union

of India and the State Government) to pay `900/- per

month, the minimum of the pay scale to the Voluntary

Female Attendants. The operative portion of the Judgment

and order is extracted. It reads :-

"...Learned Counsel for the respondents have not been able to show anything whereby the petitioners can be deprived of their minimum wages. It is submitted that the ROP Rules of 1990 provide a pay scale of Rs.900-1435/- for the post of Female Attendant. Accordingly, I direct all the 7 respondents to pay the petitioner the minimum wages of Rs. 900/- per month from the month of July 1990 or from the date of their employment, whichever is later..."

6) However, with regard to the question of

regularization of service, the learned Single Judge has

observed that it was for the State of Assam to consider

the same in accordance with law.

7) Subsequently, another Writ Petition No. 5496 of

2001 came to be filed by Hazera Khatoon for the same

relief as in Jalini Brahma's case. There were 5 (five)

respondents in the petition, amongst them were the Union

of India and the State of Assam. The learned Single Judge

of the High Court disposed of the same in light of the

decision of the Court in Jalini Brahma's case.

8) After disposal of the writ petition filed by

Hazera Khatoon, the Union of India, being aggrieved by the

said order and the orders passed in Jalini Brahma's case,

filed appeals before the Division Bench of the High Court.

In the appeals so filed, the Union of India, strangely,

did not implead the State of Assam as a party to those

proceedings.

9) In their appeals, the Union of India contended

that these Voluntary Female Attendants were not their

employees and, therefore, the learned Single Judge ought

not to have issued any direction to the Union of India,

much less for payment of minimum of pay scale. It was

further brought on record that the State of Assam had

issued appointment letters to these Female Attendants and

there was no mention in those appointment letters that

they were appointed under the Centrally Sponsored Scheme.

Hence, the Union of India requested the Court to discharge

them of the liability of any payment of wages to the

private respondents appointed by the State Government by

issuing orders/letters of appointment. The Division

Bench, while accepting the stand of the Union of India,

has observed :-

"...However, it will be seen as discussed in this judgment that the appointment letters in question have nothing to link them with the centrally sponsored scheme of Voluntary Workers at fixed honorarium espoused by the present appellant. Neither in the assertion in the writ petitions nor in the appointment letters there are any contention to invite and fix any liability on the Union of India for minimum wages. Any such dispute is a matter to be settled by the Union of India and the State of Assam without effecting the rights of the Writ petitions.

Appeals filed by the Union of India are allowed. The Union of India has no liability in these connected Writ Appeals, vis-`-vis the writ petitions..."

10) By this order, the Division Bench of the High

Court absolved the Union of India of the responsibility of

making payment of minimum of the pay scale to these

Voluntary Female Attendants, but fixed this liability on

the State of Assam.

11) Aggrieved by the judgment and order of the

Division Bench, a Review Petition was filed by the State

of Assam, inter alia, on the ground, that they were not

heard before an adverse order was passed against them. By

an innocuous order, the Division Bench has dismissed the

same. Hence the State of Assam is before us, being

aggrieved by the judgment and order of the Gauhati High

Court in the said Writ Appeals and also against the

dismissal of the Review Petition.

12) Shri. Krishnan Venugopal, learned senior counsel,

appeared on behalf of the appellants. Shri. H.P. Rawal,

the learned Additional Solicitor General, appeared for the

Union of India. The private respondents were represented

by Sh. Vijay Hansaria, learned senior counsel and Sh.

Sanjiv Sen, learned counsel.

13) The State of Assam has raised several grounds in

their petitions for Special Leave. However, at the time

of hearing of these appeals, the learned senior counsel

for the State of Assam contended that the State of Assam

was not arrayed as a party to the proceedings and without

impleading the State and without affording an opportunity

of hearing, the Division Bench ought not to have passed an

adverse order against the State. He further contended

that the State of Assam was a necessary party to the lis

before the High Court and the non-impleadment was contrary

to the well settled principle of Natural Justice, namely

audi alterem partem. In aid of this submission, the

learned senior counsel has placed reliance on the law laid

down by this Court in the case of Udit Narain Singh

Malpharia Vs. Additional Member, Board of Revenue, Bihar

(AIR 1963 SC 786), wherein it was held that in proceedings

for a writ of certiorari, it is not only the Tribunal or

Authority whose order is sought to be quashed but also the

parties in whose favour the said order is issued, are

necessary parties and that it is in the discretion of the

Court to add or implead proper parties for completely

settling all the questions that may be involved in the

controversy either suo-moto or on the application of a

party to the writ or on application filed at the instance

of such proper party.

14) We respectfully agree with the observations

made by this Court in Udit Narain's case (supra) and adopt

the same. We may add that the law is now well settled

that a necessary party is one without whom, no order can

be made effectively and a proper party is one in whose

absence an effective order can be made but whose presence

is necessary for a complete and final decision of the

question involved in the proceeding.

15) In the appeals filed, the State of Assam has

specifically joined the issue with the respondents that

the appellant was neither impleaded as a party to the

proceedings nor it was heard in the matter before passing

an adverse order against it. The specific issue raised

reads as under:

"c) For that, the Division Bench of the Hon'ble Court while exercising its review as well as writ appellate jurisdiction failed to appreciate the facts of the case and overlooked the fact that the State of Assam, present leave petitioner, was not made party to the said 14 numbers of Writ Appeals preferred by the Respondent No.1 while allowing the said Writ Appeals absolving the responsibility of Union of India/Respondent No.1 from making payment of the honorarium at the enhanced rate of Rs. 900/- per month to the writ petitioners and imposing the entire burden of such payment on the State of Assam and more particularly when the State of Assam was not made a party in the aforesaid Writ Appeals. In view of commission of such gross error of law as well facts, the said impugned order dated November 16, 2007 and judgment and order dated September 02, 2003 is liable to be interfered with for meeting the ends of justice."

16) The Union of India has filed its counter

affidavit. It has denied various assertions made by the

appellants, but in so far as the aforesaid assertion of

the appellants, it is not stated by them that they had

arrayed the State of Assam as a party to the proceedings

nor do they assert that the learned counsel for the State

was heard in the matter. In our view, the respondents

must deal specifically with each allegation of fact of

which, it does not admit to be true. The allegation of

fact, if not denied/controverted in the counter affidavit,

normally it shall be taken to be admitted by the

respondents.

17) The learned A.S.G. Shri H.P. Rawal drew our

attention to the observation in the impugned judgment of

the Writ Appeal to contend that though State of Assam was

not arrayed as a party in the Memorandum of Appeal filed,

the learned Government Advocate was heard in the matter.

In support of his submission, the learned ASG invites our

attention to the following observations made by the Court

in the course of the order :-

"5. We have heard the learned Sr CGSC and the Government Advocates in length, considered all relevant materials in these appeals and perused the judgment and order passed by the Single Benches."

18) Keeping the aforesaid observation in view, Sh. Rawal

urged before us that an inference can be drawn from the

reference made in the judgment, that the State of Assam

was heard through their Government Advocate. Therefore, he

submits that it cannot be contended by the State of Assam

that they were not heard before passing of the impugned

judgment. We are not inclined to accept this argument.

19) State of Assam, while filing these appeals, has

enclosed the copies of the memorandum of writ appeals

filed by the Union of India before the Division Bench of

the High Court. On a perusal of the same, we are of the

view that in light of the grounds raised and relief

sought, the State of Assam should have been joined as a

necessary party. The reason being, firstly, the State of

Assam was the first respondent in the writ petition that

was filed by the private respondents. Secondly, the main

grievance of the Union of India was against the direction

issued by the learned Single Judge to pay minimum pay

scale to the volunteers, since it is their stand in the

writ appeal that under the scheme, their liability is only

to the extent of `100/- per month as honorarium payable to

Voluntary Female Attendants and anything over and above,

requires to be paid by the State Government. Thirdly, the

Division Bench of the High Court has imposed the burden of

payment of the salary/wages as directed by the Single

Judge on the State of Assam in view of the fact that the

appointments were made by the State Government. In our

view, this omission or default cannot be characterized as

technical breach nor just an irregularity, since this

omission has resulted in a party suffering an adverse

order without getting a fair hearing.

20) We cannot also agree with the contention of Shri Rawal,

learned Additional Solicitor General, that the learned

Government counsel for the State of Assam was heard by the

Division Bench before passing the impugned order for the

reason that it is consistently held by this Court that we

need to look into the impugned judgment for the facts

stated therein and not infer facts based on what is urged

before us. In other words, the appellate court always

proceeds on the assumption that whatever is on record in

clear terms is the correct factual position, and not what

can be inferred by interpreting stray observations. This

principle is now well settled by several decisions of this

Court. [See: State of Maharashtra v. R.S. Nayak, (1982) 2

SCC 463; Apar Pvt. Ltd. v. Union of India, (1992) Supp (1)

SCC 1; Registrar, Osmania University v. K. Jyoti Lakshmi,

(2000) 9 SCC 177].

21) We are also unable to comprehend any possible reasons

for the Union of India to omit the State of Assam from the

array of parties in the writ appeals filed before the

Division Bench of the High Court. The fact remains that

they were not made parties to the proceedings. The High

Court, in our view, while allowing the appeals filed by

the Union of India and shifting the liability of payment

of salary/wages to Voluntary Female Attendants on the

State of Assam, should have taken a little more care and

caution to find out whether the State of Assam is arrayed

as a party to the proceedings and whether they are served

with the notice of the appeals and in spite of service,

whether they have remained absent. This is the least that

is expected from the Court. Without making this small

verification, the Division Bench of the High Court has

fixed huge recurring financial liability on the State

Government. In our opinion, in matters of this nature,

even by mistake of the party, the proper parties were not

arrayed in the proceedings, it is the duty of the Court to

see that the parties are properly impleaded. It is well

settled principle consistent with natural justice that if

some persons are likely to be affected on account of

setting aside a decision enuring to their benefit, the

Court should not embark upon the consideration and the

correctness of such decision in the absence of such

persons.

22) In light of the above findings, we have no other

alternative except to set aside the impugned judgment and

remand the matter to the Division Bench of the High Court

for de-novo hearing.

23) The next issue that needs our attention is: what

is to be done to protect the interests of the private

respondents who are working as volunteers for the last two

decades. Whether they should wait till the writ appeals

are decided by the High Court or whether they should be

paid some remuneration during the interregnum. If they

have to be paid immediately, what is the amount and who

should pay?

24) Sh. Vijay Hansaria and Sh. Sanjiv Sen, appearing

on behalf of the private respondents, have vehemently

argued before us that the matter may be remanded only to

decide who should shoulder the burden of payment of salary

to the private respondents.

25) In support of their submission, they have urged

before us that the issue whether the liability of payment

of salary exists or not, has attained finality. The only

issue that requires to be gone into by the High Court is

who should shoulder the responsibility. It is pointed out

that in Jalini Brahma's case, the learned Single Judge of

the Gauhati High Court has placed the responsibility of

payment of salary to the private respondents and similarly

placed persons, on all the respondents, viz. the Union of

India and the State Government (or their functionaries).

They further stated that the question of liability, as

decided by the learned Single Judge, was never appealed

against and in so far as the payment of minimum wages to

the Voluntary Female Attendants at par with the regularly

appointed Ward Girls has also attained finality. They

fairly conceded that with respect to their request for

regularization of their service, the learned Single Judge

had decided against the private respondents, and since

they never appealed against the same, it had also attained

finality. Therefore, the learned counsel would contend

that till the appeals are decided by the Division Bench of

the High Court, the State of Assam should be directed to

pay the minimum of the pay scale to the private

respondents.

26) Having considered the rival opinions suggested by the

learned counsel for the parties to the lis and also

keeping in view the interim orders passed by this Court

dated 20.04.2009, pursuant to which it is the State of

Assam which is paying minimum of pay scale to the private

respondents, we are of the view that the private

respondents in these appeals require to be paid at least

minimum wages payable under The Minimum Wages Act during

the pendency of the appeals before the High Court, by the

State of Assam, subject to the final orders that may be

passed by the High Court.

27) In view of the above, we allow these appeals and

set aside the impugned judgment and orders passed by the

Division Bench of Gauhati High Court and remand the matter

to the High Court with a request to dispose of the appeals

as early as possible, at any rate, within six months from

today after ensuring that proper parties are impleaded.

During the interregnum, we direct the State Government to

pay the minimum wages under the provisions of Minimum

Wages Act, as notified in their official Gazette to the

private respondents. Liberty is reserved to all the

parties to raise all such contentions which are available

to them including the contentions raised before this

Court. In the facts and circumstances of the case, we

direct the parties to bear their own costs.

....................................J. [ D.K. JAIN ]

....................................J. [ H.L. DATTU ]

New Delhi, September 30, 2010.

ITEM NO. 1-A COURT No.5 SECTION XIV ( For Judgment )

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL NOS. 8378-8392 of 2010 @

PETITION FOR SPECIAL LEAVE TO APPEAL ) NOS. 6432-6446 OF 2008

State of Assam .. Appellant(s)

Versus

Union of India & Ors. Etc. .. Respondent(s)

DATE : 30/09/2010 These matters were called on for pronouncement of judgment today.

For Appellant(s) Mr. Avijit Roy, Adv. for M/s Corporate Law Group, Advs.

For Respondent(s) Mr. Sanjeev Sen, Adv. Mr.Jai Prakash Pandey, Adv.

Mr. Rajiv Mehta, Adv.

Mr. D.S. Mahra, Adv.

Mr. Shankar Divate, Adv.

Mr. Goodwill Indeevar, Adv.

Mr. Gopal Singh, Adv. ---

Hon'ble Mr. Justice H.L. Dattu pronounced the judgment of the Bench comprising Hon'ble Mr. Justice D.K. Jain and His Lordship.

Leave granted.

The appeals are allowed in terms of the signed order. In the facts and circumstances of the case, the parties are directed to bear their own costs.

[ Charanjeet Kaur ] [ Kusum Gulati ] Court Master Court Master

[ Signed reportable judgment is placed on the file ]