State of Assam Vs. Union
of India & Ors. Etc  INSC 816 (30 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS...8378-8392 OF 2010
(Arising out of S.L.P.(C) Nos.6432-6446 of 2008) State of Assam ............
Appellant Versus Union of India and Ors. Etc. .............. Respondents
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.
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.
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..."
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.
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.
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.
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..."
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.
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.
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.
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 (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.
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.
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."
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.
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
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.
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.
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].
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
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.
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
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
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.
[ D.K. JAIN ]
[ H.L. DATTU ]
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. Rajiv Mehta, Adv.
Mr. D.S. Mahra, Adv.
Mr. Shankar Divate,
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.