Valsad Nagar Palika vs Gujarat Mazdoor Sabha Thru ...
2021 Latest Caselaw 2067 Guj

          C/LPA/1056/2019                                       IA ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 1056 of 2019
          In R/SPECIAL CIVIL APPLICATION NO. 3062 of 2015
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PRAVIN HARJIVANDAS CHASIYA Versus VALSAD NAGAR PALIKA ========================================================== Appearance:

MR GM JOSHI, SENIOR ADVOCATE WITH VYOM H SHAH for the PETITIONER(s) No. MR JAYNEEL PARIKH, ASSISTANT GOVERNMENT PLEADER for the RESPONDENT(s) No. MR AMRESH N PATEL for the RESPONDENT(s) No. MR YOGI K GADHIA for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 11/02/2021 IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. In this application seeking impleadment as party opponents, the order passed by this court on 7.1.2021 is as follows:-

"1. There are, in all, 137 applicants, who are before this Court, seeking to implead themselves as necessary or in the alternative, as a proper party, on the ground that they are the permanent employees and any outcome of this appeal would also affect directly the benefits, which flow in their favour,and therefore, they have approached this Court.

1.1 It is their say that increasing the expenses of the Municipality would result in canceling the grant of benefits in the form of recommendations of 6th and 7th Pay Commission to those, who are regularly appointed on the sanctioned posts.

2. This court has heard the learned Sr. Advocate, Mr. Gautam Joshi, with learned Advocate, Mr. Shah, for the applicants, who has urged that the applicants may not say that they are the necessary parties, in whose absence no effective order or judgment can be passed by this Court. However, the applicants are, surely, the proper parties,

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whose presence would enable the Court to completely adjudicate upon all the issues. He has relied on the decision of this Court rendered in Special Civil Application No. 2274 of 2008 and the allied matters, decided on 10.03.2011, by the Division Bench of this Court, which was, when challenged by way of Special Leave Petition (Civil) No. 90162 of 2012, the same was not entertained by the Apex Court, by upholding the judgment and order of this Court.

2.1 During the course of hearing, he, further, has urged, that, if, all the applicants are not to be impleaded as party opponents, then, only first five applicants, in their capacity as representatives, be impleaded as party opponents.

3. This is not being objected by the learned Advocate, Mr. Mitul Shelat, appearing with learned Advocate, Mr. Gadhiya, for and on behalf of opponent No.1-Valsad Municipality.

4. However, this application is being strongly objected to by opponent No. 2-Gujarat Mazdoor Sabha and opponent No.3-Rajnikant Sumanbhai Vaghela, who is serving as a sweeper with opponent No.1-Municipality.

5. Essentially, on the ground that, in the appeal, there should be no impleadment of the parties, who were, all along, aware of the litigation, which was going on between the daily-wagers and opponent No.1-Municipality, but, never chose to get themselves impleaded as a party, and therefore, merely because the outcome of the appeal may have some bearing on the all concerned that would not make them necessary or proper parties.

6. Noticing the serious resistance on the part of opponent Nos. 2 and 3, coupled with the fact that they speak of awareness of the present applicant at the time of pendency of lis before the learned Single Judge, let an AFFIDAVIT be filed, with an advance copy to the other side, by 13TH JANUARY, 2021.

6.1 REJOINDER, if any, shall be filed by 20TH JANUARY, 2021.

7. S.O. to 20TH JANUARY, 2021."

2. The affidavit-in-reply is filed on behalf of the opponent Nos.2 and 3 by the Secretary to the opponent - Union, contending, inter alia, that the prayers sought in the Special Civil Application is for quashing and setting aside the order of

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Chief Officer dated 27.6.2019 with a further direction to continue to pay them salary and allowances as per the recommendation of 6th as well as 7th Pay Commission. Certain rights of the original petitioners - opponents herein have been agitated in the main petition. According to the opponent, allowing to join these applicants would adversely affect the judicial dispensation process, as joining party would burden the effective hearing. It may also further add to the judicial complexity. Moreover, it suffers from the ground of delay and laches and is barred by the principle of estoppel.

3. It is further contended that this is only at the behest of the Municipality to support its plea that the application has been moved. Applicants being neither necessary nor proper parties, they may not be impleaded. It is further urged that in Special Civil Application No.2274 of 2008 and allied matters between S.A. Jafai & Ors. vs. State of Gujarat & Ors. decided on 10.3.2011, this Court has observed that if there is any scheme specifically framed by the State Government for the Municipalities or by the Municipalities and for giving effect to the same, if daily wagers or contract employees are required, they may be paid wages under the scheme, but their salary and wages cannot be clubbed together with the salary of the employees of regular establishment and therefore, the apprehension that the expenditure of the daily wagers and contractual employee would hamper some rights of the regular employee is also misplaced. The issues raised are already raised by the Municipality and therefore also, they should not be allowed to interfere in the rights of the applicants.

4. Affidavit-in-rejoinder is filed by the applicants, emphasizing that they will be directly affected by the grant of

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any right to the original petitioners. As permanent regular employees, they have been receiving their salary and allowances as per the Pay Commission recommendations. It is their definite case that there is no need of employees engaged outside the set-up and it is also pointed out by the Municipality that if these persons are regularised, the expense of Municipality will increase and cross 48% expense at threshold, which would result into original petitioners reverting back to the 5th Pay Commission recommendation for their service benefit.

5. The judgment of this Court in the case of S.A. Jafai & Ors. (supra), confirmed by the Apex Court, makes the case of the applicant stronger, as contended by the applicants which says that the salary and allowances of the employees on the regular set-up of the establishments are to be considered for the purpose of computing expenses. It is their grievance that there is a collusive effort to nullify the effect of the said judgment by regularizing the workman outside the set-up. Original petitioners, according to them, have no right to be regularized for various reasons stated in the rejoinder affidavit.

6. Reliance is also placed on the decisions of the Apex Court in the case of (i) Baddula Lakshmaiah & Ors. vs. Sri Anjaneya Swami Temple & Ors. reported in (1996) 3 SCC 52, and (ii) Bongaigaon Refinery & Petrochemicals Ltd. & Ors. vs. Girish Chandra Sarma reported in (2007) 7 SCC 206.

7. Taking firstly the aspect of delay in preferring this application and attempt to join at the stage of appeal instead of in the main petition, the Apex Court in case of Baddula Lakshmaiah & Ors. (supra) has held that the Letters Patent

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Appeal is normally an intra-court appeal whereunder, the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Unlike in an appeal against the order of the subordinate Court in which the High Court exercises the power of Court of error, so the appellate power under the Letters Patent is quite distinct in contrast to what is ordinarily understood in procedural language. The Court also went to an extent of saying that the construction of the two documents involved in the very nature of their import before the Apex Court, was a mixed question of law and fact, which was well within the powers of the Letters Patent Bench to decide.

8. In the case of Bongaigaon Refinery & Petrochemicals Ltd. & Ors. (supra), the Court was considering as to whether the plea abandoned before the learned Single Judge of the High Court could be raised before the Division Bench, to hold that such plea is not barred by estoppel because the writ appeal is in continuation of the original order passed by the learned Single Judge in writ jurisdiction.

9. Considering these decisions of the Apex Court, even if this is considered as a continuation, the plea of delay and laches will not come in way of the applicants and that may not be the ground for the Court to deny the impleadment, if otherwise it finds such request acceptable under the Code. The vital point to be decided by this Court while considering such a plea is the well settled principle of who could be called a necessary and proper party and whether the applicants will fall under the criterion of either of the two.

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10. The Apex Court in case of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. reported in (1992) 2 SCC 524 was considering the question in appeal whether the respondent before the Apex Court was a necessary or a proper party to be joined as defendant under Order 1 Rule 10 of the CPC in the suit instituted by the appellant against the respondent No.1.

10.1 The Court held that the plaintiff - appellant is dominus litis and is not bound to sue every possible adverse claimant in the same suit and he may choose to implead only those persons as defendants against whom he wishes to proceed, but the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. The Court further held that question of impleadment of a party has to be decided on the touchstone of whether the party is a necessary or a proper party to be added as provided Order 1 Rule 10 of the Code of Civil Procedure, 1908 and in light of the clear language of the Rule, it is not open to the party to contend that a person cannot be added even in a case where his presence is necessary to enable the Court to decide the matter effectively.

10.2 This Rule gives a wide discretion according to the Apex Court to meet every case of defect of parties and is not affected by the inaction on the part of the plaintiff to bring the necessary parties on record. The Court defined that a necessary party is one without whom no order can be made effectively; whereas 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 on the question involved in

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the proceeding (emphasis supplied). The addition of the parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. The intervener, if has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.

10.3 What is thus required is that the person who is sought to be joined itself as a party, must be one whose presence is a must being the necessary party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of relevant arguments to advance. The only reason which makes party a necessary party is that such person is a party to an action so that he should be bound by the result of an action and that question to be settled, therefore, must be a question in action which cannot be effectually and completely settled unless he is a party. The Court also held that it is necessary that the person must be directly or legally interested in the action in the answer. The litigation may lead to a result which will affect him legally that is by curtailing his legal rights. The Rule does not contemplate regarding any party whose only object is to prosecute his own cause of action.

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11. Adverting to the facts of the instant case, it is quite obvious that the applicants are not the necessary parties. It is also not their case that without them, no order can be effectively made; nor is their case that being the necessary party the outcome would directly and legally bind them. The claim is of being the proper party in whose absence, an effective decision on the question involved in the proceedings cannot be arrived at, since it is a judicial discretion of the Court to be exercised considering all facts and circumstances. Even if the intervener has a cause of action against the petitioner, his independent cause cannot be permitted to be espoused in the present petition. It is only if the same relates to the subject matter of the existing action to avoid the multiplicity of the proceedings, they can be joined as proper parties, which is not the case here.

12. We could notice that emphasis on the part of the respondent is the ratio laid down in the case of S.A. Jafai & Ors. (supra), which lays down that the salary and allowances of the employees who are on the regular set-up of the establishments are required to be considered for the purpose of computing expenses. Assuming that this Court upholds the cause of the daily wagers or ad hoc employees, the same cannot be done without the sanctioned set up and to plead that their salary and other expenses would act prejudicially to the rights of the applicants not only is far fetched but, the same is hardly the cause worth recognising if the opponents have their legal and constitutional rights of permanency.

13. We are not in agreement with the submissions of the applicants that there is a collusive effort on the part of the

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Municipality that for regularizing the workman outside the set- up, and to nullify the judgment of S.A. Jafai & Ors. (supra) , an attempt is made not to contest, as is otherwise required by it. Even if the Appellate Bench affirms the decision of the learned Single Judge and the petitioners are regularized, the expenses incurred on their salary and allowances, if are to be calculated for the purpose of regarding the expenses of the Municipality, the same would not make applicants the proper parties. There is a completely independent cause the original petitioners are pursuing for their legal rights. The present applicants, in our opinion, are neither necessary nor the proper parties. Many parties would have their cause against the Municipality or the statutory bodies, those who are the employees, may in some manner also get affected, but that would not mean that in every matter where the parties are pursuing their cause against the Municipality, there shall be a need for the Court to permit the intervener. The Court also needs to bear-in-mind the clear distinction which has been made as the proper party is one in whose absence an effective order can be passed, but whose presence is necessary for complete and final decision, which is not the case in the instant case and therefore, the Court does not deem it appropriate to increase complexity with impleadment of improper parties as also open a Pandora's box in every such litigation. At the same time, while rejecting this application of all the applicants, it deems it appropriate to request learned senior advocate Mr. G.M. Joshi to be an amicus curiae in this matter, to assist the cause. He has graciously accepted the same.

14. Office shall provide all the papers of the main petition and of the appeal to learned senior advocate Mr. G.M. Joshi, within a fortnight.

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15. The application is accordingly disposed of.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) BINOY Bv PILLAI