Gokulakrishnan, C.J:— The common respondent, Gujarat Mineral Development Corporation Ltd., in Recovery Applications No. 2324 of 1982 etc., before the Presiding Officer of the Labour Court, Ahmedabad, is the petitioner in all these Special Civil applications under Article 227 of the Constitution of India. Independent Recovery Applications under Section 33(C)(2) of the Industrial Disputes Act were filed by various employees of the petitioner-Corporation to recover house-rent allowance and project allowance. The petitioner-Corporation is a limited company registered under the Companies Act, 1956. It is established for the purposes of prospecting and exploiting minerals within the territory of the State of Gujarat. The Government of Gujarat holds all the 100% of its shares. The Corporation has seven projects in Gujarat. One of the projects is situated at village Kadipani, Taluka Chhotaudepur, District Baroda, known as Flourspar Project. It is for the purpose of excavation and beneficiation of Flourspar. Another of the projects of the Corporation is situated at village Ambaji, in Banaskantha district. It is for the purposes of mining different metals.

2. Various employees have been engaged by the petitioner-Corporation for winning minerals for the Corporation which enables the Corporation to earn large-scale profits. Majority of the concerned respondents who are 835 in number in diverse petitions are working as miners in the Corporation in the aforesaid two projects. The rests are doing miscellaneous work concerned with the same projects. They moved separate applications under Section 33(C)(2) of the Industrial Disputes Act before the Labour Court at Ahmedabad against the petitioner-Corporation. It is enough if we state the details of Recovery Application No. 2324 of 1982 since the averments made therein except the amount claimed are the same in all these recovery applications. The respondent herein, who is the petitioner in Recovery Application No. 2324 of 1982, was serving as a permanent light vehicle driver for a long time. It is alleged by him that he is in service at Ambaji Project from 24-6-1976, that he is being given all the leave, casual leave, dearness allowance, etc., to which he is entitled, that he is paid monthly wages calculated at the rate of daily wages, that on such calculation the respondent is paid Rs. 208/- per month calculated at the rate of Rs. 8/- per day, that the respondent has served the Corporation for more than 240 days and that as such he is the permanent employee of the petitioner herein. It is further submitted by the respondent that in spite of Provident? Fund being deducted from his salary and gratuity being given to him, the petitioner-Corporation has not paid the house-rent allowance and the project allowance as it gives to other employees of the Corporation. According to the respondent, the other employees of the Corporation are paid house-rent allowance and project allowance and as such the respondent must also be paid such allowances calculating the project allowance and house-rent allowance in all at Rs. 1,700/- and Rs. 3,650/- respectively. The respondent claimed a sum of Rs. 5,350/- in all. For the above stated claim by the respective employees of the Corporation, the Corporation filed a common written statement, inter alia contending that the applications are not legally tenable and that such applications are false and vexatious. According to the petitioner, the respondents are working as dailyrated workmen either at Ambaji Multi-Metal Project or at Flourspar Project, Kadipani and there are subsisting agreements between Shree Ambaji Multi-Metal Project Employees' Union and the Gujarat Mineral Development Corporation Employees' Union dated 25-5-1979, 26-5-1979, 3-8-1981 and 13-8-1981 respectively. It is the further case of the petitioner herein that the respondents have not been made regular workmen and, therefore they are not entitled to receive project allowance and house-rent allowance for period they were covered by the aforesaid concerned settlement. On these pleadings, after leading evidence of both the parties, the Labour Court at Ahmedabad passed a common order in Recovery Application Nos. 2324 to 3158 of 1982. The Labour Court observed that the main contention of the appellant is that the applicants have not been made regular workmen and, therefore, they were not entitled to receive either project allowance or house rent allowance for the period in question because according to the appellant the cases of the applicants before the Labour Court were not covered by any settlement entitling them to the benefits of such allowances. After going through the evidence and discussing the arguments advanced by the respective counsel appearing for the parties concerned, the Labour Court interpreted Service Rules with reference to Rule 2(KH) of Giyarati version read with Service Rule No. 44(3) and held that daily rated workers who had completed service of 240 days are entitled to the house rent allowance and project allowance. It also observed:

“By no artificial rule or barriers against the clear legal position, the entitlement to the daily rated workers who had completed service of 240 days, to the house rent allowance and project allowance under the service regulations framed in 1969 and admended on 31-12-1975 could be thwarted because in my opinion those rights of the daily rated workers who were full timers had their basis for their such rights in the service regulations plus on their completion of service of 240 days which is the required service under Section 25(B) of the Industrial Disputes Act for benefits to a worker on retrenchment under Section 25-F of the said Act.”

3. The Labour Court, after working out the claims made by the respondents herein, gave the allowance as per the attached schedule to the order. It is as against this order the Gujarat Mineral Development Corporation Limited has come forward with these Special Civil Applications under Article 227 of the Constitution of India. It is not disputed by Mr. Bhatt, learned advocate for the petitioner-Corporation, that if Service Rules 43 and 44 apply to the respondents-workmen they will have subsisting rights to claim these amounts and to get them computed by the Labour Court under Section 33(C)(2) of the Industrial Disputes Act. But he was at pains to point out that the Service Rules themselves do not apply to the respondents-workmen, the settlements had not covered their claims and hence there is no subsisting right with them to claim project allowance or house rent allowance under the applications as moved by them; that they may raise an industrial dispute under Section 10 of the Industrial Disputes Act and get their claims adjudicated but Section 33(C)(2) applications cannot in any way be of any avail to these respondents.

4. Now it is well settled by series of decisions of the Supreme Court that Section 33(C)(2) applications can be moved by workmen to get monetary claims adjudicated by the Labour Court on the basis of existing rights; that Labour Courts under Section 33(C)(2) of the Act cannot adjudicate upon and create new rights for the concerned employees. We may refer to one judgment of the Supreme Court on the point. In the case of Govardhan Prasad v. The Management of Indian Oxygen Limited, (1984) 1 SCC 144 : AIR 1984 SC 27, the Supreme Court was concerned with the claim of the workmen under Section 33C(2) of the Act for computation of monetary benefits claiming that the dearness allowance was not paid to them according to the award by which they claimed to be governed-Holding their claim to be maintainable, the Supreme Court held as under:

“mere commonsense view would dictate that the claim made was unassailable and unquestionable. It was not a case of a fresh demand made by the workmen. The question raised was one of interpretation of award to determine its coverage when computing monetary benefit admissible to workmen.”

5. In the Special Civil Application, the petitioner herein has contended that the respondents are governed only by the Industrial Employment (Standing Orders) Act, 1946 and not by Service Rules. According to the petitioner the respondents are not in regular cadre and they are only daily-rated workmen, that the Service Rules will not apply to the respondents, that unless there is a declaration as envisaged by Rule 15, the Service Rules cannot be made applicable straightaway, that as per the definition under Rule 3(k) the respondents who are governed only by the Standing Orders cannot be termed as “employee”, that the respondents being daily-rated workmen are not entitled to the benefits of Service Rules 43 and 44, that inasmuch as there is no crystallised rights on the part of the respondents, the Labour Court should not have allowed the applications under Section 33(C)(2) of the Industrial Disputes Act which were in the nature of execution proceedings; that the respondents have not made out a case either on facts or through rules for claiming the house rent allowance much less project allowance and that the claims made were barred by law of limitation. For the above said reasons, the petitioner herein wants this Court to interfere under Article 227 of the Constitution of India and to quash and set aside the order and judgment made by the Labour Court.

6. Mr. J.C Bhatt, the learned counsel arguing for the petitioner in all these applications, on a preliminary point submitted that there is no valid vakalat for the counsel to represent the respondents herein. The learned counsel, after narrating the facts of the case, submitted on merits that the Service Rules are not applicable to the respondents and even assuming such rules are applicable, the respondents having failed to take advantage of such rules by following the procedure envisaged under Rule 15 of the Service Rules cannot have the benefit of such rules and that has been made clear by the decision reported in (1974) 3 SCC 601 : AIR 1974 SC 136. Interpreting Rule 3(k) Mr. Bhatt, the learned counsel appearing for the petitioner, submitted that inasmuch as the respondents are governed by the Standing Orders, they cannot satisfy the definition of “employee” under Rule 3(k). Further it is submitted that the definition under Rule 2(b) has to be read with Rule 3(k) and if that be so, the respondents are not entitled to the benefits of the Service Rules. The learned counsel further submitted that there is absolutely no evidence on the part of the respondents to substantiate the claim for house rent allowance and project allowance. On the other band, Mr. Mehta, the learned counsel appearing for the respondents, on the preliminary point raised by Mr. Bhatt submitted that they have filed vakalat in one case and in respect of the remaining respondents undertakes to deposit the money for the stamps on vakalats immediately and further undertakes that such vakalats will be filed within two weeks' time. In view of such undertaking by the learned counsel appearing for the respondents we do not think it necessary to deal with this preliminary objection raised by Mr. Bhatt. Mr. Mehta further submitted that the petitioner had raised only one point before the Labour Court, i.e as to whether the respondents herein are daily rated or monthly rated workmen. According to Mr. Mehta there was absolutely no plea, no case and no argument by the petitioner herein before the Labour Court that the Service Rules will not apply to the respondents since they are governed by the Standing Orders. Hence according to Mr. Mehta, the petitioner cannot be now heard to say that the Service Rules are not applicable to the respondents herein. If that be so, the Labour Court, according to Mr. Mehta, is correct in deciding the cases after referring to Rule 2(b) of the Service Rules. Mr. Mehta also read the order of the Labour Court elaborately in order to point out that the petitioner did not put forth any case alleging that the Service Rules will not apply to the respondents herein.

7. According to Mr. Bhatt, the learned counsel appearing for the petitioners, the respondents Nos. 2 to 836 are not “employees” since they are governed by the Standing Orders framed under the Industrial Employees (Standing Orders) Act, 1946 and as such not entitled to house rent allowance or project allowance. Mr. Bhatt submitted that once the employees relied on Rules 43 and 44, of the Service Rules which provide for benefits of house rent allowance and project allowance as admissible to the employees, by necessary implication the definition of the term “employee will have to be read in these rules and as the present applications were in the nature of execution proceedings, it was for the party that sought relief from the Court to show that he was armed with an executable decree, absence of contrary plea of the opposing party notwithstanding. The learned counsel further submitted that as per Rule 15 of the Service Rules every candidate who is offered employment under the Corporation shall, before joining his duties, subscribe to a declaration in the form prescribed in Appendix I or in such other form as the Chairman may prescribe from time to time. This form in Appendix I is a declaration to be signed by the employee agreeing to be bound by the Service Rules. Mr. Bhatt the learned counsel, submits that inasmuch as no such declaration has been signed by these employees, they cannot invoke the benefits conferred under the Service Rules. Mr. N.J Mehta, the learned counsel appearing for the respondents-employees, on the other hand submitted that the employees governed by the Standing Orders according to the definition will come under the purview of “employees”, and as such are governed by the Service Rules. Mr. Mehta further submits that inasmuch as the management has not pleaded nor argued that these employees are excluded from the definition of “employee”, it is not open to them to contend at this stage that these respondents are excluded from the definition of “employee”. Mr. N.J Mehta further submits that inasmuch as the parties proceeded on the basis that these respondents are employees, the argument that no declaration has been made under Rule 15 cannot be sustained.

8. In so far as the question of limitation is concerned, Mr. Bhatt, the learned counsel for the petitioner, fairly stated to us that he does not press the said contention. He was right in not pressing the same as series of Supreme Court judgments had taken the view that in proceedings under Section 33(C)(2) of the Industrial Disputes Act, no question of limitation for moving such applications as laid down by the Limitation Act would at all arise.

9. That takes us to the consideration of the main contentions canvassed by Mr. Bhatt, learned counsel for the Corporation, in support of the petitions. At the fore-front Mr. Bhatt pressed in service the contention regarding non-applicability of Service Rules to the respondent-workmen on the ground that they are not covered by the definition of the term “employee” as found in Rule 3(k) of the Rules. Before we consider the rival contentions of respective parties on the correct interpretation of Rule 3(k), it is necessary to note the preliminary objection of Mr. Mehta, for the workmen, to the effect that this debate is foreign to the scope of the present proceedings. Mr. Mehta Submitted that neither in the written statement nor in the arguments before the trial court the petitioner Corporation ever submited that the present workmen are not covered by the definition of the term “employee” as mentioned in Rule 3(k); that its only defence was that these workmen cannot get the benefit of Rules 43 and 44 of the Service Rules only because they were daily-rated and not monthly-rated employees. It is not in dispute that the concerned respondents-workmen are treated as daily-rated employees because they were not paid on monthly basis but as per the rates worked out on daily rate basis. Mr. Mehta for the respondents submitted that as this was the only defence submitted by the Corporation for the consideration of the trial Court, no other additional defence can be permitted to be raised on behalf of the Corporation for the first time in the present proceedings. He further submitted that limited battle-lines were drawn between the parties in the trial court. The attempt on the part of the petitioner-Corporation is to enlarge the scope of these battle-lines for the first time under Article 227 of the Constitution of India which cannot be permitted to be done. In order to appreciate the aforesaid contention it is necessary for us to have a peep into the pleadings of the parties presented before the trial Court and on the basis of which the battle-lines were drawn before that Court. In paragraph 2 of the Recovery Application No. 2324 of 1982 the concerned workman submitted as under:

“The petitioner serves in the skilled category as permanent light vehicle driver at the respondent's project at Ambaji since 24-6-1976 and is being given earned leave, casual leave, dearness allowance, etc., to which he is entitled. The petitioner was being paid monthly wages calculated at the rate of daily wages. The petitioner was paid Rs. 208/- per month calculated at the rate of Rs. 8.00 per day. The petitioner has served the Corporation for more than 240 days and is a permanent employee. Provident Fund is also deducted from his salary and rights relating to gratuity have been given to him after taking his salary into consideration. Employees of the respondent-Corporation are paid 20% of the monthly salary as project allowance and the respondent Corporation is bound to pay Rs. 80/- plus 10% of the salary or the amount of rent actually paid, to the employees and rules, policy, settlement and conditions of service to that effect prevail in the respondent-Corporation and as per these some employees serving with us like clerks, peons, driver, dumper driver, mines supervisor, mining clerk, overseer, mining surveyor, Laboratory Assistant, plant assistant, turner, fitter, welder, rigger are paid project allowance or given rent-free accommodation or house rent allowance and the petitioner is entitled to the same accordingly and it is prayed that an order against the respondent determining as per above the amount due to me mentioned below and to pay the same to be made against the respondent Corporation and in my favour.”

10. It is not in dispute that identical averments were made in the other recovery applications filed by the rest of the respondents-workmen. Identical written statements were filed by the petitioner-Corporation in two recovery applications, but these written statements were considered to be representing common defence in all the petitions. The main averments in the written statement on the basis of which the proceedings were resisted in the Labour Court, as found from the written statement read as under:

1. The above applications are not legally tenable and deserve to be dismissed on this preliminary ground alone.

2. That the contentions, averments, and statement made in the applications, contrary to what are stated hereinbelow, are false vexations and baseless and are not admitted by the Opponents and, therefore, it is respectfully submitted that the same be put to strict proof thereof.

3. That the true facts of the case, the opponents submit in the following paragraphs:

4. That the applicants have been working as a daily rated workman in Ambaji Multi Metal Project and in respect of daily rated workman there are subsisting agreements arrived at between Shri Ambaji Multi Metal Project Employees' Union and/or the Gujarat Mineral Development Corporation Ltd., Employees' Union and Gujarat Mineral Development Corporation Ltd., Ahmedabad on 25-8-1981 and in this respect there has been a demand which was discussed at a meeting with the Union on 24th and 25th May, 1979.

5. That the applicants have not been made regular workmen and therefore they are not entitled to receive project allowance and house rent allowance for period they were covered by the aforesaid concerned settlements.

6. That in the aforesaid circumstances and further they may be urged at the time of hearing the opponents respectfully submit and pray that the applications deserve to be summarily dismissed.”

11. A mere look at the aforesaid pleadings of parties shows that while the concerned workmen stake their claim for project allowance and house rent allowance and on the basis of the rules, policies, settlements and conditions of service as applicable to them, in the written statement not even a whisper was made that the service rules do not apply to the respondents-workmen who were applicants before the Labour Court, and the main defence put forward to defeat the claim of the workmen was that they were working as daily-rated workmen and, therefore, they were not entitled to any relief from the Court in tile proceedings under Section 33(C)(2). An additional defence was taken that as they were not made regular workmen they were not entitled to project allowance or house rent allowance for the period they were covered by the concerned settlements. Save and except these twin defence, no other defence was at all invoked by the petitioner-Corporation before the trial Court. It is also interesting to note that nowhere in the written statement it was contended that the Service Rules do not apply to the concerned workmen, and no denial was made to the averments found its paragraph 2 of the application extracted above that the relevant rules, meaning thereby the Service Rules and the conditions of service prevailing in the respondent-Corporation, which made them entitled to the claim in the application. Mr. Mehta is, therefore, eminently right when he contends that the plea that as per Rule 3(k) of the Service Rules the concerned workmen are not employees as defined therein and, therefore, the Service Rules do not apply to them, is a plea which was never put forward in defence by the petitioner-Corporation for reasons best known to it, though it was represented before the Labour Court by its own counsel Shri Naidu and that such a plea is entirely a new plea which is sought to be raised for the first time before us under Article 227 of the Constitution of India.

12. But leaving aside the aforesaid state of pleadings even at the stage of trial before the Labour Court and the arguments, no such plea was at all raised by the learned counsel for the petitioner-Corporation appearing before the Labour Court. Even that appears to be quite clear when we have a look at the judgment of the Labour Court. A few relevant paragraphs from the common judgment under challenge in the present proceedings are required to be noted in this connection. They read as under:

“15. According to Shri P.T.S Naidu, the daily raters cannot be classified as regular servants of the Corporation. According to him only those employees who were paid their salaries on monthly rate basis were the regular employees of the Corporation entitling them to the house rent as fixed in Service Regulation No. 43 and Project Allowance as fixed in Service Regulation No. 44(3). I do not agree with that argument of the learned advocate of the opponent.

17. Shri P.T.S Naidu therefore argued that the daily rated workers working at Ambaji whose case was covered by the agreement Ex. 22/2 dated 25-1-1981 were not entitled to claim any allowance such as House Rent allowance or project allowance because there was no provision for the same made in the agreement fixing their pay, produced at Ex. 22/2 dated 25-1-81.

18. Similarly he argued that in respect of the daily rated workers working at Kadipani their pay was fixed by the settlement at Exhibit 22/6 dated 13-8-1981 and according to Shri P.T.S Naidu, the workers who were daily rated were entitled to the pay according to that agreement and that they were not entitled to any house rent allowance or project allowance, because it was a regulation that there was no provision in Ex. 22/6 for payment of any such allowance to the workers working at Kadipani.

22. From the agreement Ex. 22/2 dated 25-8-1981 in regard to the daily rated workers at Ambaji and from the agreement Ex. 22/6 dated 13-o-81 which applies to daily rated workers at Kadipani, it is clear that in the pay fixation made in regard to them by the agreements made, they were entitled to the dearness allowance, and even the increments as set out in the agreements. In the same way similar is the scheme of the pay fixation given in the agreement Ex. 22/6 dated 13-8-1981 which applies to the daily rated workers at Kadipani. Therefore, in regard to the rights for entitling the daily rated workers working at Kadipani and working at Ambaji in the terms of the service regulations there is no distinction made to disallow them from getting house rent allowance as provided in service regulation No. 43 and Project Allowance as provided in Service Regulation No. 44(3). In other words in the agreements Ex. 22/2 dated 25-8-1981 which applies to daily rated workers at Ambaji and the agreement at Ex. 22/6 dated 13-8-1981 which applies to the daily rated workers working at Kadipani, no exception is carved out that they will not get the house rent or Project allowance as fixed in Service Regulations Nos. 43 and 44(3). Certain workers are classified as daily rated workers because mode of paying them of salaries is fixed in that manner. Simply because therefore certain workers are paid on daily rate basis thereby it cannot be said that they are not working full time, and if they are working full time as defined in Service Regulation No. 3(KH) all the service regulations apply to them including the Service Regulation Nos. 33, 43 and 44(3) entitling them to the house rent and project allowance, provided of course they are not casual labourers.

29. In relying on this decision in the proceedings referred to, Shri P.T.S Naidu wanted to make out a case that unless a daily rated worker was made a monthly rated worker, he could not get the house rent allowance or project allowance. I do not agree with that argument. In Service Regulation as specified before, there is nothing laid down and which is of paramount importance that only monthly rated workmen should get the house rent allowance or project allowance. Monthly-rated worker means that worker who was entitled to the pay according to that mode and daily-rated workers get pay in a certain mode. Settlements dated 25-8-1981 produced with list Ex. 22 made that position clear. I agree with Shri P.T.S Naidu that unless a daily rated worker was absorbed as a monthly rated worker he could not be paid at the rate of pay to which a monthly rated worker was entitled to unless he completed the service for the duration as laid down in the decision recorded against the question No. 1 in the proceeding of the meeting held on 25-5-1979 between the union leaders and the officers of the management which proceeding is produced in Rec. Application No. 2425/82 at Ex. 5/1. By that decision however the Service Regulations earlier framed in 1969 and amended in 1975 do not get affected.”

13. The aforesaid paragraphs in the judgment under challenge clearly indicate that though the petitioner's learned advocate before the Labour Court, Shri P.T.S Naidu, submitted in defence that as the concerned workmen were daily-rated employees, meaning thereby, as their monthly wages were paid on the basis of daily-rate emoluments, and as they were not regular employees they were not entitled to Service Rules 43 and 44. Nowhere it was submitted by Mr. Naidu before the Labour Court that the Service Rules do not apply for the additional reasons that the concerned workmen were not employees at all within the meaning of the Service Rules, especially Rule 3(k). It appears that such a contention was never canvassed before the Labour Court for the simple reason that it was not even pleaded as a defence in the written statement. Mr. Mehta is, therefore, right when he submits that we should not permit any debate centering round the construction of Rule 3(k) as it will be absolutely foreign to the scope of the present proceedings. He is also right when he submits that the learned advocate for the petitioner-Corporation, in the trial court, for the reasons best known to him, waived these contentions for the Corporation both at the stages of drafting of his written statement as well as at the stage of trial and argument before the Labour Court; that he never put forward such a contention at any stage nor did he press it for consideration of the Labour Court. Mr. Mehta is also right when he submits that the petitioner which is a mighty Corporation and is a “State” within the meaning of Article 12 of the Constitution of India, cannot be permitted to raise such a new contention for the first time under Article 227 of the Constitution of India to defeat the just claim of a large body of workmen who are tribals and who are toiling in the bowels of the earth as miners for winning minerals for the Corporation with a view to enabling them to earn huge profits for the Corporation. The aforesaid contention of Mr. Mehta is well made out. Article 227 is not meant for perpetrating injustice by having resort to the highly technical contentions which may be submitted for the first time for consideration of the Court when such contentions are not taken in the trial court and which are deemed to be waived and given up. If such a new contention is permitted to be taken for the first time in the present proceedings it would obviously work grave injustice to the respondents-workmen who will be taken by utter surprise. In this connection we may profitably refer to a decision of the Supreme Court reported in the case of Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566 : AIR 1984 SC 38, wherein the Supreme court has made the following pertinent observations on the scope and ambit of proceedings under Article 227 of the Constitution of India:

“A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The Supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited ‘to seeing that an inferior Court or Tribunal functions within the limits of its authority’, and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court of Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”

14. Mr. Mehta further argued that by conduct the Management has taken these respondents as its “employees” coming under the definition of Rule 3(k). In the minutes of the discussions on 25-5-1979 and 26-6-1979 between the representatives of the Union and the Management, it is provided under Clause (15) that quarters should be given to employees working on each project. According to Mr. Mehta this arrangement clearly spells out the conduct of the management to treat these workmen as employees entitled to get the house rent allowance as per the Rules. Mr. Mehta also read the evidence of Shri Thaker Vikramray who, in his examination-in-chief marked as Exh. 8 in recovery application No. 2425 of 1982, has stated that Rs. 80/- per month plus 10% of the salary are being paid to some of such employees as house rent and they were daily rated employees. Proceeding further this witness has also stated that house rent is being paid to daily rated employees working at Panando Mines, that the rules of the Corporation apply to daily rated employees and that leave with pay and casual leave are given to them in accordance with service regulations. One Ramesh bhai in his examination-in-chief marked as Exh. 10 in Recovery Application No. 2425 of 1982 has stated that the Management provides free residential accommodation and pays project allowance to the daily rated employees. Another witness by name Rumalbhai marked as Exh. 11 in Recovery Application No. 2425 of 1982 has stated that he is a daily rated permanent employee, that he was given free residential accommodation by the Management, that even though he was not paid project allowance, at other places project allowance is paid to daily rated employees. Yet another witness by name Shri Mahesh Ambalal Shah which is Exh. 15 in the Recovery Application No. 2425 of 1982 has stated that house rent and project allowances are paid according to Service Regulations at Bhatia and other projects. This witness has also stated that Service Regulation is applicable to the employees at projects. There was absolutely no cross-examination on this aspect of the case. Pointing out these facts, Mr. Mehta, the learned counsel appearing for the employees, submits that by conduct the Management applied the Service Rules and were giving all the benefits payable under the Service Rules even to the employees governed by the Standing Orders. Inasmuch as the Management has not pleaded in the trial court and proved the exception now put forth for the first time before this Court, they cannot be allowed to argue as if these respondents are excluded from getting the benefits under the Rules.

15. Mr. Bhatt, the learned counsel appearing for the management submitted that there is absolutely no pleading for proof by the employees that in spite of the fact that they are governed by the Standing Orders, they are entitled to the benefits under the Service Rules also. In the absence of such, pleading and proof, Mr. Bhatt submits, the employees cannot get the benefit under the Rules. They at best can have the benefits accrued to them through the settlements effected. Mr. Bhatt, reading the settlement effected on 3-8-81 between the General Secretary, Gujarat Mineral Development Corporation Employees' Union and the management in respect of the daily rated workers, submitted that the settlement is in respect of revision/increase of pay and dearness allowance. Mr. Bhatt also referred to the settlement dated 13-8-1981 between the General Secretary, Gujarat Mineral Development Corporation Employees' Union and the Management in respect of the daily rated workers working at Flourspar project, Kadipani wherein the revision/increase of pay and dearness allowance was settled. In this settlement it is mentioned that it will be in effect upto 31-12-1981 and the rest of the demands made by the Union will be withdrawn till the settlement is in force. Mr. J.C Bhatt also referred to the memorandum of settlement dated 3-8-1981, being the settlement between the General Secretary, Gujarat Mineral Development Corporation Employees' Union and the Management in respect of the monthly rated employees wherein settlement was arrived at regarding medical reimbursement and leave travel concession and also the pay scales of these monthly rated employees. Pressing these settlements referred above, Mr. J.C Bhatt strenuously contended that the employees herein having accepted to be governed by such settlements, cannot have recourse to the Rules. According to the learned counsel by conduct the daily rated workers herein have accepted available benefits under the settlement and never opted to have the benefits under the Rules. Mr. Bhatt, placing reliance on this settlement submitted that for getting the benefit, of dearness allowance the workmen seem to have accepted the lesser benefits as compared to those available in the Service Rules. This showed by implication that they had nothing to fall back upon under the rules and had no such existing benefits subsisting under the rules. That is the reason why they accepted whatever was given under the settlement for the first time. This is too spacious a contention to be entertained for the first time in the present proceedings. Such a case was not put up or argued before the Trial Court. Even the witnesses of the workmen who were examined in support of the applications were not cross-examined on this basis. It is obvious that there may be diverse reasons why a trade union of workmen may settle some claims by adopting the basis of settlements as a package deal. Suffice it to say that the claims regarding house rent allowance and project allowance were not at all covered by these settlements. Secondly these settlements confer no existing rights on the concerned workmen for obtaining the admissible amounts of house rent allowance and project allowance on the basis of the settlements, nor do these settlements indicate that such allowances will not be available to the concerned workmen. In fact these settlements have not touched upon these claimants at all. Consequently, the assistance which Mr. Bhatt, the learned counsel for the petitioner, sought to receive from Sections 18 and 19 of the Industrial Disputes Act remain in the realm of merely an abortive attempt. These Sections could have helped him if there was any provision about house rent allowance and project allowance in the concerned settlements. If that were so, the rates fixed therein would have prevailed notwithstanding any better or worse rates in the Service Rules. But as the settlements are silent about the same, by implication it cannot be said that whatever pre-existing benefits are there under the Service Rules for the workmen also get wiped off as if by a sidewind by the concerned settlements.

16. It is obvious that the settlement in respect of the monthly-rated employees cannot have any bearing upon the daily-rated employees who are the respondents herein. As regards the other settlements referred by Mr. J.C Bhatt, it is clear from the recitals therein that the respondents herein through their General Secretary have not given up any additional benefits, the Service Rules confer upon them. Simply because certain settlements were arrived for conferring certain additional benefits upon the employees, it cannot be contended that the employees have accepted the benefits only through settlements de hors the benefits under the Service Rules. There must be something more explicit either by conduct or by any other agreement in order to deprive the employees the benefits under the Service Rules. The argument advanced by Mr. Mehta, the learned counsel appearing for the employees, that by conduct the management has taken these respondents as its employees coming under the definition of Rule 3(k) which we have already extracted in paragraph supra is reasonable and convincing and as such we do not find that there is anything in the settlement or in the conduct of the employees wherein they have opted only for the benefits under the settlements and eschewed the benefits the Service Rules confer upon them.

17. As seen earlier, in the petition it has been clearly stated that the employees of the respondent-Corporation are paid 20% of the monthly salary as project allowance and the respondent-Corporation is bound to pay Rs. 80/- plus 10% of the salary for the amount of rent actually paid. As regards this quantum claimed in the Recovery Application, there is absolutely no denial in the written statement filed by the management. The only thing stated regarding the project allowance and house rent allowance claimed by the employees is that the employees are not regular workmen and, therefore, they are not entitled to receive project allowance and house rent allowance for the period they were covered by the concerned aforesaid settlements. It is also seen from the evidence of one Mr. N.R Mehta that some daily rated employees of the management have been provided residential houses and some have not been provided and that Rs. 80/- per month plus 10% of the salary are being paid to some of such employees as house rent. This witness has also stated that some employees of the Corporation are paid project allowance at the rate of 20% every month. This witness in the chief examination has also stated that the rules of the Corporation apply to daily-rated employees and that leave with pay and casual leave are gives to them in accordance with Service Regulations. In respect of such a deposition in the chief examination, we do not find any cross-examination on this aspect of the case. Pressing this into service, Mr. Mehta also contended that there is clear evidence for applying the rules to the employees herein and also that house rent allowance and project allowance are being paid to such daily rated employees. The evidence of one Mr. Rameshbhai in the recovery application also states that the daily rated workmen were provided with free residential accommodation and were also paid project allowance. To the very same effect one Rumalbhai has also stated in his deposition. No doubt this witness Rumalbhai has stated that project allowance is not being paid to him. As we have referred already, the evidence of one Mr. Mehta has also made it clear that house rent and project allowance are paid according to the service regulations at Bhatia and other projects. There is no cross-examination on this aspect of the case. Thus, the evidence and the particulars given above clearly establish that the rules were applied to the daily-rated employees and some of them were even paid the house rent and project allowance. Thus by conduct the management has taken the respondents as its employees, coming under the definition of Rule 3(k).

18. We have now to consider the argument of Mr. Bhatt, the learned counsel appearing for the management, to the effect that the claim of the respondents ought to have been rejected at the threshold itself since they cannot be considered as persons who can get the benefit of the rules. The interpretation of Rule 3(k) will amply establish that employees governed by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946, cannot be termed as “employees” under the Corporation. Mr. N.J Mehta, the learned counsel appearing for the respondents, apart from contending that by conduct the management applied the rules ta these respondents and taken these respondents as its employees, submits that there is neither pleading nor argument nor any evidence on the side of the management that the Service Rules will not apply to the respondents since they are governed by the Standing Orders. Mr. N.J Mehta further submitted that since the bone of contention is as to whether the daily rated workers are entitled to the benefits under the Rules or not, the question that the Rules are not applicable to the respondents herein never was pleaded nor argued. Hence it is not open to the petitioner to raise this fresh issue at this stage and it must be taken that the applicability of the rules to the respondents was never in dispute. Mr. Bhatt reiterated that since the respondents are governed by the Standing Orders, they are not entitled to the benefits under the Rules.

19. Rule 2(b) of the Gujarat Mineral Development Corporation Limited reads as follows:

“2(b). These rules shall apply to every whole-time employee of the Corporation; provided that employees under specific agreement or arrangement shall not be governed by these rules or shall be governed by them only subject to such special terms, conditions or stipulations as may be provided for by such agreement or arrangement.”

20. Rule 3(k) reads as follows:

“3(k). ‘Employee’ means any person who holds a post under the Corporation, other than a casual employee, a member of the workcharged establishment, a person paid from contingencies or a person whose conditions of service are governed by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946, and includes any person whose services are temporarily placed at the disposal of the Central Government, a State Government, a Government Industrial undertaking or a local or other authority.”

21. Rule 43 deals with house rent allowance and it reads as follows:

“43. House Rent Allowance: Until otherwise determined by the Board, employees shall be paid House Rent Allowance at the rate of 15% subject to a minimum of Rs. 15/- of the basic salary.”

22. This rule was amended and in its place the following rule was substituted as and from 1st August, 1976 vide Board Resolution No. 861 dated 14-9-76:

“43. House Rent Allowance: Until otherwise determined by the Board, House Rent allowance shall be paid to the employees of the Corporation as per the rules of the Government of Gujarat from time to time.”

23. Rule 44 (iii) deals with project allowance and reads as under:

“44(iii) Project Allowance: Until otherwise determined by the Board, Project Allowance will be paid to the employees engaged at the Projects of the Corporation, at 20% of the basic salary. No project allowance will be allowed where H.R.A and C.L.A are paid.”

24. In this connection we can also refer to Rule 15 of the Rules which reads as follows:

“Every candidate who is offered employment under the Corporation shall, before joining his duties subscribe to a declaration in the form, prescribed in Appendix-I or in such other form as the Chairman may prescribe from time time.”

25. Mr. Bhatt, the learned counsel appearing for the petitioners, referring to Rule 15 has stated that inasmuch as the respondents have not signed the declaration nor produced before the Labour Court such declaration, the rules are not applicable to these respondents. No doubt, the Supreme Court in (1974) 3 SCC 601 : AIR 1974 SC 136 has held that the Gujarat Mineral Development Corporation Limited Staff Service Rules will not be applicable to the employees, if a decal-ration as envisaged under Rule 15 is not signed by the employees. The short argument on this aspect of the case given by Mr. N.J Mehta is that there is no such pleading by the petitioners nor argument that the employees have not given the declaration as per Rule 15 of the Rules. It is also clear from the statement filed by the petitioner to the claim made by the respondents herein that there is absolutely no averment to spell out that the rules will not be applicable to the respondents herein. On the contrary as we have held in paragraph supra, the petitioners by conduct made the rules applicable to the respondents herein. Further Mr. N.J Mehta has also argued that all the employees who are the respondents herein joined duty subsequent to the framing of the rules and as such there is no need to invoke Rule 15.

26. We may now look into the arguments of the learned counsel who appeared for the petitioner before the Presiding Officer. It is pertinent to note that the plea whether the concerned employees had signed the agreement as per Rule 15 is a pure question of fact. Such a question having not been raised in the written statement before the trial court, nor been argued before it, cannot be permitted to be raised for the first time in the present proceedings under Article 227 of the Constitution of India. If such a plea was raised and argued in the trial court the workmen could have shown that they had signed such an agreement. This plea, raising pure question of fact, if allowed to be raised for the first time before us, would tane the workmen by complate rurprise. Hence it cannot be allowed to be raised in the present proceedings. The Labour Court has correctly observed that the main contention of the opponent, i.e the petitioner is that the respondents have not been made regular workmen and, therefore, they were not entitled to receive either project allowance or house rent allowance for the period in question. It is also mentioned by the Labour Court that Shri P.T.S Naidu, the counsel for the petitioner before the Labour Court, submitted that the daily raters cannot be classified as regular servants of the Corporation, that employees who were paid their salaries on monthly-rate basis were the regular employees of the Corporation entitling them to the house rent as fixed in Service Regulation No. 43 and Project Allowance as fixed in Service Regulation No. 44(3). Before the Labour Court the learned counsel had further argued that the daily-rated workers working at Ambaji whose case was covered by the agreement Ex. 22/2 dated 25-8-1981 were not entitled to claim any allowance such as House Rent Allowance or Project Allowance because there was no provision for the same made in the agreement fixing their pay. The same argument was advanced in respect of the workers working at Kadipani. Mr. P.T.S Naidu, the learned counsel who appeared for the petitioners before the Labour Court has also argued that unless the doily-rated workers are made monthly rated workers, they could not get house rent allowance or project allowance. Thus, the simple and only argument of Mr. P.T.S Naidu who appeared for the petitioner before the Labour Court was that the respondents who are daily rated employees are not entitled to the benefits under the Rules. Rule 2(b) clearly states that these rules will apply to every wholetime employee of the Corporation. It cannot be said that the daily rated employees are not the wholetime employees of the Corporation. If that be so, the benefits under the rules are definitely available to these concerned employees. There is absolutely no iota of pleading or argument to the effect that the respondents who are governed by the Standing Orders cannot be classified as “employees” in view of Rule 3(k). The Labour Court, in our opinion, has correctly not adverted to Rule 3(k) since there was absolutely no dispute raised that the employees governed by the Standing Orders are excluded from the definition of “employee”. If that contention was raised, the respondents would have clearly established that both by conduct and acquiescence, these respondents were taken as the employees of the Corporation coming under the definition of Rule 3(k). It has got to be noted that the service rules are contractual in character. They are neither statutory nor settled under any agreement. Hence they can easily be modified in their application even by consistent conduct of the contracting parties. Despite what is stated in definition clause 3(k), by conduct the employer Corporation could easily bring in any class of employees to extend the benefits of the relevant Service Rules to that class. As exclusion of the respondents from operation of service rules because of Rule 3(k) was not made an issue by the petitioner in trial court, these workmen lost the opportunity of showing how by conduct spread over years, the management had treated them as employees governed by the service rules despite the definition clause (3k). Consequently such a new contention which would take the respondents by surprise cannot be permitted to be raised for the first time in present proceedings. Mr. Mehta's preliminary objection is, therefore, is unassailable Mr. N.J Mehta, the learned counsel appearing for the respondents correctly submitted that this question which was never pleaded nor argued cannot be countenanced at this Stage in the case of Workmen of National & Grindlays Bank Ltd. v. The National and Grindlays Bank Ltd. (1976) 1 SCC 925 : AIR 1976 SC 611 Bhagwati, J. (as he then was) speaking for the Supreme Court had to consider the question whether the employees of the National Grindiays Bank Employees Federation were entitled to bonus claimed by them for the relevent years. A settlement arrived at between the parties on 28th December, 1965 was pressed in service. As per provisions of the settlement for deciding the question of available surplus for computing the concerned bonus claim, the bonus amount paid to the employees in respect of the previous accounting years were to be added back. Section 2 of the Payment of Bonus Act is the definition Section and clause (13) of that Section defines “employees” to mean any person employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technic?. or clerical work for hire or reward. The argument of the workmen before the Supreme Court was that the word “employees” in item (2) a of the First Schedule was not limited to “employees” as defined in Section 2 Cl. (13), but covered all employees because the object of adding back provisions for bonus to employees was to arrive at the figure of profit available for distribution of bonus and that required that the entire amount set apart as provision for bonus should be added back, for in determining what is the available fund with reference to which bonus should be paid, one cannot exclude the amount already paid or provided as bonus, whether to employees drawing more than Rs. 1,600/- or to employees drawing less. While not permitting this argument to be pressrd for the first time in appeal under Article 136 of the Constitution of India, the following pertinent observations were made by the Supreme Court speaking through Bhagwati, J.

“Now, this argument of the workmen would have required serious consideration by us, but we do not think we can permit the workmen to raise it, as it does not appear to have been advanced by them before the Industrial Tribunal. The award of the Industrial Tribunal does not show that this argument was at any time urged by the workmen. The only argument raised by the workmen before the Industrial Tribunal was that the amount of bonus payable to them for the accounting year 1966 was Rs. 38.66 lacs representing 18 per cent of their wage or salary and this amount of Rs. 38.66 lacs was liable to be added back and not the amount of Rs. 19.52 lacs. This argument was rightly rejected by the Tribunal because what is liable to be added back under item 2(a) of the First Schedule is not the amount of bonus payable to the workmen, nor the amount less of bonus in fact paid, but the provision for bonus made in the profit and loss account. We cannot, therefore, permit the workmen to raise a new contention for the first time in this Court that the provision for bonus liable to be added back was not merely the provision for bonus to “employees” as defined in Section 2, clause (13), but also the provision for bonus to workmen who were not such “employees”.

27. In Filmistan Pvt. Ltd. v. Balkrishna Shiwa (1972) 4 SCC 200 : AIR 1972 SC 171, the Supreme Court has categorically held that the contention not raised before the Industrial Tribunal even by the workmen cannot be raised in the proceedings under Article 227 of the Constitution. It is further stated by the Supreme Court that it should be presumed that the party has abandoned that plea. In Bachan Singh v. Gauri Shankar, AIR 1971 SC 1534, the Supreme Court has observed that unless High Court is of the opinion that the order assailed suffers from errors of law apparant on the face of the record, it has no jurisdiction to quash that order by having recourse to its certiorari jurisdiction on the ground of error of law, and that the mere possibility of raising a question of law in a case is no ground for interefering with an order impugned. In Hindustan Steel v. Labour Court, Orissa, (1976) 4 SCC 222 : AIR 1977 SC 31, the Supreme Court had occasion to consider the order of the High Court wherein it refused to interfere with the backwages fixed by the Presiding Officer even though the employer placed an argument that the worker would have mitigated the loss for deprivation of employment. This is purely on the ground that the question of mitigation of loss for deprivation of employement was not at all raised before the Labour Court and hence the Supreme Court held that the High Court has correctly refrained from exercising its discretionary jurisdiction in favour of the employer. In Management of Hindustan Steel Ltd. v. Workmen, (1973) 3 SCC 564, the Supreme Court had occasion to consider the dismissal of an employee by name Naidu. The said employee even though did not plead that there is defect in the notice, the Tribunal allowed him to raise the said plea. In that case the Supreme Court had held as follows:

“12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Exh. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written, statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.

14. In our view, Shri Setalwad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional. The plea of the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard about the precise case to be met; at the trial and tell the management the precise nature of the plea with respect to the defect in the notice, to enable them to meet it. In our view, if clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out, as we hold on these two points in agreement with Shri Setalwad, then, the impugned order is clearly insupportable. We are, therefore, constrained to allow the appeal, set aside the impugned award and hold that the retrenchment of Shri Naidu was proper and justified. In the circumstances of the case there would be no order as to costs.”

28. In Union Of India v. Surjit Singh Atwal , (1979) 1 SCC 520 : AIR 1979 SC 1701, the Supreme Court had occasion to consider as to whether from a bare denial of the agreement can also be impliedly taken that there was a denial of legality or sufficiency in law of such contract. The Supreme Court in that case held that the defendant was not entitled to raise the plea of illegality of the agreement not having raised any issue with regard to it. The Supreme Court further held that to permit such a plea to be raised several years after the institution of the suit would greatly prejudice the plaintiff. In Hindustan Brown Boveri v. Their Workmen, 1966 (I) L.L.J 571, the Supreme Court had occasion to consider the legality of the dismissal of the workman who was dismissed by the Works Manager to whom the power to dismiss was delegated. In that case the Company failed to produce the document at the initial stage wherein the Works Manager was empowered with the power to dismiss. On those facts the Supreme Court held:

“Now, the principles on which the appellate Court permits additional evidence are well known. It is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company could not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh peice of evidence. In these circumstances we would not be justified in granting at this late stage leave to produce additional evidence. In the absence of such evidence the company obviously must be held to have failed to establish delegation of power of dismissal to the Works Manager. The appeal consequently is dismissed with costs.”

29. In the case of Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861, the Supreme Court, speaking through Raghubar Dayal, J. (as he then was), placing reliance on the Privy Council case [AIR 1930 PC 57 (1)], held that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward.

30. Thus, the decisions cited above amply establish the principle to the effect that the party who fails to plead and argue a particular case must be taken as having abandoned the said plea. As far as the present case is concerned, there is absolutely no plea, or argument regarding non-applicability of the definition of “employee” contemplated under Rule 3(k) of the Service Rules to the respondents herein. In the absence of such a plea and argument which is patent from the pleading and the argument on record cannot be allowed to be raised for the first time in these proceedings. The only argument advanced before the Labour Court is that the respondents are daily rated employees and as such the Service Rules are not applicable. The Labour Court, adverting to this aspect of the case and referring to Rule 2(b) has correctly come to the conclusion that these rules are applicable to the respondents herein who are all daily rated employees.

31. No doubt Mr. N.J Mehta, citing the decision in Veerayya v. Sivagami Achi, AIR 1949 Privy Council 319, asserted that the burden is upon the petitioner to prove that the respondents cannot come under the definition of “employee” as envisaged in Rule 3(k). On the other hand, Mr. Bhatt, the learned counsel appearing for the petitioner, submitted that the burden is upon the respondents to prove that they are “employees” coming under the purview of Rule 3(k). In Veerayya v. Savagami Achi., AIR 1949 Privy Council 319, it is stated as follows:

“Burden is on those who claim to be ‘agriculturists’ within S. 3(2)(9), to show that they fall within the general definition of that term as defined in S. 3(2)(a). But having shown that they fell within the general definition of that word they are entitled to relief unless they are deprived of the privilege by one of the provisos and the burden would be upon anyone so asserting to prove his case.”

32. As far as the present case on hand is concerned, we have already discussed that there is absolutely no plea or argument stating that the respondents cannot be termed as “employees” under the petitioner herein. Further, we have also discussed that by conduct, the petitioner has recognised the respondents as its employees. Hence the decision cited with reference to burden of proof cannot have any bearing to the facts of the present case.

33. In view of the aforesaid facts and circumstances of the case it is obvious that entirely new plea which is a mixed plea of law and facts, namely, that the respondent workmen are not entitled to the benefits of Service Rules in view of the definition of the word “employee” as per Rule 3(k) cannot be permitted to be raised for the first time before us by the petitioner Corporation as such plea was never pleaded nor pressed in service by the petitioner-Corporation before the trial Court throughout till the end of the proceedings before it. This decision of ours would really put an end to the first submission of Mr. Bhatt centering round interpretation of Rule 3(k). We, therefore, uphold the preliminary objection raised by Mr. Mehta in that connection.

34. However, Mr. Bhatt was sanguine about our looking to Rule 3(k) of the Service Rules. We, therefore, do so. Rule 3(k) of the Service Rules is already reproduced by us in para 14 of this judgment. Mr. Mehta wants to interpret Rule 3(k) to mean that the persons governed by the Standing Orders also come under the definition of “employees”. This argument is based upon the facts that “or” is used to refer to the category of person whose conditions of service are governed by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 subsequent to the earlier description of employees belonging to the classes of casual employees, workcharged establishment employees and employees paid from contingencies. Hence Mr. Mehta submits that the exclusion is only upto the above said three categories from the definition of employees and not upto the employees governed by the Standing Orders. According to Mr. Mehta, the later clause really qualifies the first three categories of employees mentioned in the earlier part of the definition and superimposes an added condition to be fulfilled by these three categories of employees before they can be excluded from the general definition of the term “employee”, and that the said later clause does not represent a separate category of employees for exclusion. Alternatively Mr. Mehta submits that the first three categories of employees are referred to as exluded categories while the fourth category refers to an additional included category of employees. For that purpose Mr. Mehta analysed the definition in 3(k) as follows:—

(k). “Employee” means any person who holds a post under the Corporation—other than

a casual employee

a member of the workcharged establishment

a person paid from contingencies

a person whose conditions of service are governed by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946.

includes any person whose services are temporarily placed at the disposal of the Central Government, a State Government, a Government Industrial undertaking or a local or other authority.

35. Mr. Mehta, citing the decision reported in Alembic Chemical Works Co. Ltd. v. The workmen AIR 1961 SC 647, submitted that the beneficial construction which tends to benefit the workman has to be resorted to while interpreting the laws intended for the benefit of the employees. In this decision the Supreme Court, interpreting Section 79(1) of the Factories Act, observed:

“When there are two constructions possible, that construction should be preferred which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed.”

36. The Supreme Court has further observed:

“It is well settled that in construing the provisions of a welfare legislation Courts should adopt what is sometimes described as a beneficent rule of construction; but, apart from this general consideration about the policy and object of the Act, Ss. 78 and 84 occuring in the same Chapter as S. 79 clearly indicate that S. 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellant's argument cannot be accepted.”

37. We are afraid that we cannot subscribe to the argument advanced by Mr. Mehta. There is no question of Rule 3(k) being capable of two constructions. As we will presently show, on a plain reading of the definition of the term “employee” in Rule 3(k) of the Service Rules, only one construction is possible. Hence the abovesaid decision is not applicable.

38. The next decision cited by Mr. Mehta is the decision in Workmen of F.T & R. Co. v. The Management, (1973) 1 SCC 813 : AIR 1973 SC 1227. The Supreme Court no doubt followed the observations made in AIR 1961 SC 647 as to how a beneficial legislation for workmen should be interpreted. But in the very same judgment, the Supreme Court observed:

“But we should not also lose sight of another canon of interpretation that a statute or for the matter of that even a particular section, has to be interpreted according to its plain words and without doing violence to the language used by the legislature…. Therefore, it will have to be found from the words of the section whether it has altered the entire law, as laid down by the decisions, and, if so, whether there is a clear expression of that intention in the language of the section.”

39. As far as the Rule 3(k) is concerned, we are able to read the plain words in the rule and, in our opinion, only one interpretation is possible from reading Rule 3(k).

40. The learned counsel also read “Crawford on Statutory Construction” for elaborating his argument.

41. Bearing the above said principles in mind, Rule 3(k) can be interpreted as follows:

The definition of “employee” in the said rule starts with stating that any person who holds a post under the Corporation is an employee with an exception of those who are in casual employment, workcharged establishment, persons paid from the contingencies or a person whose conditions of service are governed by the Standing Orders. It is only later in that rule it is stated what other employees are included and before this inclusion, the word “and” is used. It is clear that the inclusion clause in this rule starts from the word “and” and this leaves no doubt in our mind that this rule clearly excluded the categories mentioned above the word “and” and below the words “other than” from the definition of “employees”. If it is not read like that, in our opinion, we would be doing violence to the express language of Rule 3(k).

42. In Municipal Corporation of Delhi v. Tek Chan Bhatia, (1980) 1 SCC 158 : AIR 1980 SC 360, the Supreme Court had occasion to consider Section 2(1)(f) of the Prevention of Food Adulteration Act which reads:

“(f) If the article consists wholly or is part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.” In interpreting this ‘or’ as to whether the clause occurring thereafter in Section 2(1)(f) is disjunctive or not, the Supreme Court held as follows:

“We are of the opinion that the High Court was clearly wrong in its interpretation of Section 2(1)(f). On the plain language of the definition section, it is quite apparent that the words ‘or is otherwise unfit for human consumption’ are disjunctive of the rest of the words preceding them. It relates to a distinct and separate class together. It seems to us that the last clause ‘or is otherwise unfit for human consumption’ is residuary provision which would apply to a case not covered by or falling squarely within the clause preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being ‘filthy, putrid, rotten, decomposed…. or insect-infested’ would be per se sufficient to bring the case within the purview of the word ‘adulterated’ as defined in sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption.”

43. Pressing this into service Mr. Mehta submitted that ‘or’ appearing in Rule 3(k) excludes the employee from the category of employees mentioned above “the word ‘or’. In short, Mr. Mehta submits that a person whose conditions of service are governed by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946, will not come under the category of “employees” who are excluded from the definition of ‘employee’ under Section 3(k). We do not think that the Supreme Court decision referred to above in any way supports this contention. Even if we read the category of person occurring after ‘or’ disjunctively, it will definitely come under the exception to the “employee” defined under Section 3(k). It is also not possible to agree with the contention of Mr. Mehta for the workmen that the fourth clause is not an independent category of excluded employees, but is a qualifying clause for earlier three excluded categories of workmen. The way in which this clause is couched in Rule 3(k) does clearly reflect an additional excluded category of workmen from the general scope and ambit of the term ‘employee’. We may mention at this stage that it is not in dispute between the parties that all the concerned workmen in the present case are governed for the purpose of their service condition by the Industrial Employment (Standing Orders) Act, 1946. Consequently, on a plain construction of the various clauses employed in Rule 3(k), the construction canvassed by Mr. Bhatt appears to be the only plausible and possible construction and it yields the result to the effect that those workmen whose service conditions are governed by the Standing Orders would get excluded from the definition of the term ‘employee’ as mentioned in Rule 3(k) of the Service Rules.

44. However, Mr. N.J Mehta, the learned counsel for the respondent workmen, on this aspect of the matter, had an additional objection to offer for our consideration. He submitted that the English version of Rule 3(k) was never submitted before the trial court, nor even the Gujarati version of Rule 3(k) was produced before the trial Court. On the other hand, the workmen themselves had produced the relevant Gujarati extracts of the rules, namely, Rule 2(b) and Rules 43 and 44 of the Service Rules. Mr. Mehta submitted that the learned advocate for the workmen had given a notice to the petitioner's advocate Mr. Naidu to produce the relevant Service Rules, but by a reply Exhibit 19 it was submitted that the rules are irrelevant and were, therefore, kept back by the petitioner-Corporation from the Court's scrutiny. Under these circumstances the workmen produced the aforesaid Gujarati extracts of the concerned rules. Consequently, Rule 3(b) which is being relied upon by Mr. Bhatt for the petitioner-Corporation is not on record of the case either in its English version or in its Gujarati version. However, Mr. Mehta submitted that as the relevant rules which were produced before the Tribunal were in Gujarati, the Gujarati version of Rule 3(k) which has been mentioned in paragraph 5 of the petition at page 31 of the paper book may be considered for the purpose of interpretation, if at all such a contention is open to the petitioner-Corporation, and its English version in any case should not be taken into consideration. In order to appreciate this alternative contention of Mr. Mehta, we have to look into the Gujarati version of Rule 3(k) which has been mentioned in paragraph 5 of the main Special Civil Application No. 1100 of 1985. The said Gujarati version reads as under:

45. Relying on this Gujarati version Mr. Mehta submitted that those employees whose service conditions are governed by the Industrial Employment (Standing Orders) Act, 1946, are not at all excluded from the operation of the definition of the term ‘employee’. According to Mr. Mehta when the Gujarati version of the term ‘employee’ is construed the result that follows is to the effect that the words “whose service conditions are governed by the Industrial Employment (Standing Orders) Act, 1946” are found to have qualified the earlier three categories of employees, namely, casual employees, work-charged employees or employees whose salaries are paid from contingencies. For coming to the aforesaid conclusion on the construction of Gujarati version of Rule 3(k) Mr. Mehta heavily leaned on the employment of the words ‘ke jeni’ which when translated into English would read ‘whose’ and these words so translated in English would only show that the last clause which follows those words is merely a qualification clause qualifying the earlier three categories of employees, and does not represent the additional fourth excluded category of employees. It is not possible to agree with the aforesaid contention of Mr. Mehta for the simple reason that the words ‘ke jeni’ can have two connotations, firstly, ‘whose’ or secondly ‘or whose’. In the context in which the different categories of employees are mentioned in the Gujarati version of Rule 3(k) it becomes clear that the fourth category of employees are mentioned as an additional excluded category. The alternative construction canvassed by Mr. Mehta on the Gujarati version does not bear scrutiny in view of the further fact that if the fourth category of employees, namely, the employees whose service conditions are governed by the Industrial Employment (Standing Orders) Act, 1946, was only referred to in the Gujarati version not as a separate category but only as qualifying clause to the earlier three categories of employees, the words ‘tevi vyakti’ i.e, such persons, would not have been used twice in the Gujarati version of the said rule once at the beginning of the 4th category of employees and once at its end, but they would have been employed only once. Under these circumstances Mr. Mehta's alternative contention on the Gujarati version of Rule 3(k) is not acceptable. It must be held that even according to the Gujarati version of Rule 3(k) the employees whose service conditions are governed by the Industrial Employment (Standing Orders) Act, 1946 are sought to be excluded from the definition of the term “employee”. However, the aforesaid conclusion of ours on the construction of the term “employee” in Rule 3(k) cannot be of any assistance to Mr. Bhatt for the petitioner in view of the fact that such a contention is not at all open to the petitioner Corporation for reasons that we have already elaborated earlier, nor is it open to the petitioner to contend that the agreements under Rule 15 are not signed by the concerned employees as already shown earlier.

46. Under these circumstances, the only permissible ground on which the impugned common decision of the Tribunal can be assailed by Mr. Bhatt for the petitioner Corporation is the contention on which the proceedings were resisted in the trial court by the petitioner's learned advocate Shri Naidu, and that contention was that as the employees are daily-rated workmen they are not entitled to the benefit of Rules 43 and 44. As seen earlier the trial court rightly rejected that contention as Rule 2(b) covers both the two types of employees within its fold, whether daily-rated or monthly-rated, provided they are not part-timers. It is no body's case that the present respondents are part-timers. The mode and manner in which their emoluments are being paid by treating them as daily-rated or monthly-rated would not take them out of the coverage of Rule 2(b). Hence no error of law, much less any patent error of law, is detected in the decision of the trial court in extending to them the benefits of Rules 43 and 44 of the Service Rules, and in culling out the existing right for these employees to a-ward them house rent allowance and project allowance under these Rules. This conclusion of ours would, therefore, put an end to the main contentions canvassed by Mr. Bhatt for the petitioner.

47. This leaves out the last grievance put forward by Mr. Bhatt, learned counsel for the petitioner. It was submitted by him that even assuming that the concerned workmen were entitled to the benefits of Service Rules 43 and 44, and had existing rights under these Rules to get house-rent allowance and project allowance, atleast so far as house rent allowance is concerned the concerned workmen had to show before the Tribunal how the benefit of Rule 43 could be worked out in their favour and how the computation of house rent allowance claimed could be made. The said exercise is completely by-passed by the Labour Court. Mr. Bhatt, however, agreed that if his main contention that the concerned workmen are not entitled to the benefit of Service Rules as they are not employees within the meaning of Rule 3(k) is not entertained and if the Rules are held to be applicable to the concerned workmen, so far as the project allowance payable under Rule 44 is concerned, the computation made by the trial court cannot be found fault with. His mam grievance was that the computation of house rent allowance as payable to the concerned workmen at the rate of Rs. 80/- per month plus 10% of basic salary does not logically flow from the very wordings of Rule 43 and to that extent the Labour Court's judgment and award suffer from patent erreor of law. It is, therefore, necessary for us to address ourselves to the question of the actual amount claimed by the concerned workmen as house rent allowance.

48. Coming to the question to actual amount claimed towards house rent allowance and project allowance, Mr. Mehta, the learned counsel, bases his contention on the uncontroverted assertion made by the respondents herein in the Recovery Application. We have already extracted the relevant Rules through which the respondents claim the house rent allowance and project allowance. Mr. Bhatt, the learned counsel appearing for the petitioner, citing the decision reported in Porbandar Nagar Palika v. V.G Patel, (XVI GLR 963), contended that Rules 43 and 44 can be applicable only to the employee and in as much as the respondents will not come under the category of “employees” as defined in Rule 3(k), there is no question of house rent allowance or project allowance being paid to them as per the rules. He cites Porbandar Nagar Palika v. V.G Patel, XVI GLR 963, wherein a Division Bench of this High Court has stated as follows:

“The definition clause contained in a statute is the legislative dictionary and unless the context otherwise requires all expressions used in the Act carry the meaning assigned to them in the definition clause. Therefore, in order to ascertain the meaning of an expression used in a statute, reference must necessarily be made to the definition section and if that expression is defined, then, it will ordinarily have that meaning for the purposes of the statute.”

49. The learned counsel also cited the decision in Jagatchandra v. Bombay Province, AIR 1950 Bombay 144, wherein it is stated that a definition given in an Act must be substituted for the word defined wherever it occurs in the Act. The next decision cited by Mr. Bhatt is that if B.N Hardikar v. S.G Daithankar, AIR 1971 Bom. 188, wherein a Bench of the Bombay High Court at Nagpur held that when the Act defines a particular term it is that definition which has to be taken for that term wherever it occurs in the Act and it would not be permissible to construe the term in any other manner. The next decision cited by Mr. Bhatt is the one reported in Anant v. Ratnagiri Local Board, AIR 1953 Bombay 71, where Chagla, C.J, has held that when an expression is defined in the Act, that definition must apply wherever that expression occurs in the statute, unless the Act itself indicates to the contrary. There is absolutely no difficulty in appreciating these decisions. As we have held already, the question as to whether the respondents come under the rate-gory of “employees” as envisaged under Rule 3(k) of the Rules was never in issue before the Labour Court nor was it pleaded nor argued Nevertheless, the learned counsel Mr. Bhatt submits that there is absolutely no basis for the demand of the house-rent allowance claimed by the petitioner in the Recovery Application nor is there any rationale in awarding such claim by the Labour Court. The learned counsel submits that if really the Rules are pressed into service for the claim of such house rent allowance as if the respondents are employees, Rule 43 cannot permit the claim made by the respondents and the award made by the Labour Court will be in contravention of the said Rule 43. According to the learned counsel such an award is arbitrary without any application of the mind by the Labour Court. Mr. Bhatt, the learned counsel strenuously contended that there is no executable decree to invoke Section 33C (2) by the respondents herein. We are afraid we are not able to appreciate this argument. By just bringing the respondents under the definition of “employees”, the benefits accruing to the employees under the Rules must automatically flow to the respondents herein. Then there is absolutely no difficulty in coming to the conclusion that the petition under Section 33C(2) is maintainable on the facts and circumstances of the present case.

50. The real question which survives for our consideration is as to whether the Labour Court was justified in straightaway granting various amounts as claimed in the Recovery Applications to the concerned workmen as arrears of house rent allowance payable under Rule 43 of the Rules. Now a mere look at Rule 43 of the Rules shows that upto 31st July, 1976, house rent allowance was payable to the concerned employees at the rate of 15% subject to the minimum of Rs. 15/-, of the basic salary while from 1-8-1976 Rule 43 provided that until otherwise determined by the Board house rent allowance shall be paid to the employees of the Corporation as per the Rules of the Government of Gujarat from time to time. As we have held earlier, the Labour Court was justified in holding that the concerned workmen had existing right under Rule 43(2) for house rent allowance for the relevant period for which they were not paid, and the application under Section 33C(2) for the said relief was maintainable. However, a moot question would arise for consideration as to what was the exact amount payable to the concerned workmen by way of house rent allowance as per Rule 43. Now it is axiomatic that in Section 33 C(2)-applications once the existing right to claim a monetary benefit is held to be existing, the permissible benefits will have to be computed in the light of that right and it will be for the concerned court to undertake that exercise. It is true that in the recovery applications it has been pleaded that house rent allowance was payable at the rate of Rs. 80 per month plus 10 per cent of the salary. But the said pleading which we have extracted in the earlier part of this judgment is not solely based on Rule 43, as Rule 43 nowhere talks of payment of house rent allowance at Rs. 80/- plus 10% of salary. Mr. Mehta submitted that the aforesaid averments in the application were based on the Consistent practice of grant of such amounts to various employees by the Corporation under Rule 43 as Rule 43 as amended from 1st August, 1976 contemplates also otherwise determination by the Board. Now, these are pure questions of fact which could have been agitated by the concerned employee before the trial Court. A mere general pleading about payment of house rent allowance at the rate of Rs. 80 per month plus 10% of salary not directly connected only with Rule 43 cannot be automatically accepted as representing a complete case for grant of various amounts under Rule 43 as pleaded by the concerned claimants. The Labour Court ought to have undertaken the exercise of actually finding out how the computation of house rent allowance arrears by the concerned workmen in their applications were justified in the light of Rule 43 as applicable from time to time and to that extent the Labour Court has failed to exercise its jurisdiction vested in it by law. To this limited extent the computation of house rent benefits as accepted by the Labour Court must be held to be reflecting a patent error of law and jurisdiction. The order of the Labour Court as regards the house rent allowance, in our opinion, is not based upon Rule 43 of the Rules and what the Labour Court has done is to just pick up the calculations of arrears of house rent allowance payable to the concerned workmen from the Recovery Applications and they have been mentioned as payable to them as shown in the statement of the recoveries of the house rent allowance as per column 5 of the said statement annexed to the impugned common judgment and award. The Labour Court in our view has not at all applied its mind to relevant Rule 43 before it decided to grant house rent allowance as claimed by the respondents herein. The claim of the respondents for house rent allowance in the teeth of Rule 43 is not properly established. It was the duty of the Labour Court to analyse the evidence in relation to Rule 43 before it awarded house rent allowance to the respondents herein. On this aspect alone the common judgment and award of the labour court in all these cases will have to be remanded for the purpose of deciding the short question as to what is the correct amount of house rent allowance arrears payable to each of the respondents in this group of petitions. It is not possible to agree with the submission of Mr. Mehta, the learned counsel for the respondents, that as the petitioner-Corporation in its written statement has not controverted the averments in the Recovery Applications that house rent allowance was payable at the rate of Rs. 80 per month plus 10% of the salary, even this aspect of the matter should be taken to have been impliedly admitted. It is equally not possible to agree with his further contention that as the learned advocate for the petitioner-Corporation did not urge any contention regarding proper computation of house rent allowance or did not find any fault with the computation of the arrears of house rent allowance as mentioned in the recovery applications, the said contention was deemed to have been waived. We have already shown earlier that the pleading regarding house rent allowance payable at the rate of Rs. 80 per month plus 10% of salary was not explicitly based on Rule 43, and was a general pleading. Once the Labour Court held that as per Rule 43, house rent allowance was payable, it became the duty of the Labour Court to find out what proper amount was payable to the concerned employees in view of that existing right. That being the duty of the Labour Court it cannot be said that it was not required to be complied with by it on the facts of the present case and that even the amount of house rent allowance claimed by the employees should be ipso facto awarded to them. We, however, make it clear that we confirm the finding and the decision reached by the Labour Court to the effect that all the concerned respondent workmen are employees of the petitioner Corporation entitled to the benefits of Service Rules, and that Service Rules 43 and 44 are applicable to them, even though they are daily-rated employees. We also confirm the judgment and common awards passed by the Labour Court granting various amounts of project allowance to the concerned respondent-employees as per Rule 44. We only set aside that part of the judgment and awards of the Tribunal which grant various amounts of house rent allowance under Rule 43 to the concerned employees-respondents as mentioned in column 5 of the statement of recoveries of the workers of the G.M.D.C as annexed to the common judgment of the Labour Court. Under these circumstances we confirm the award of project allowance amounts to the concerned workmen. But as regards house rent allowance arrears awarded by the Labour Court to the concerned employees under Rule 43 of the Rules are concerned, that part of the common award of the Labour Court in all the recovery applications is quashed and set aside, and the recovery applications are remanded to the Labour Court for fresh calculations, with a direction to the Labour Court to recompute the awardable house rent allowances to the concerned employee keeping in mind Rule 43 of the Rules. For that limited purpose the present proceedings will stand remanded to and restored on the file of the Labour Court. The Labour Court shall decide the aforesaid question of proper computation of house rent allowance to the concerned employees afresh. It will decide the said question in the light of the existing evidence and whatever additional evidence is brought on record by the concerned parties if they so choose. The Labour Court is directed to award the house rent allowance in accordance with Rule 43 of the Rules to the concerned employees as expeditiously as possible, but not later than three months from the date of receipt of the writ of this High Court. Rules issued in these petitions are accordingly made partly absolute to the aforesaid extent and are partly discharged as indicated in this judgment. There will be no order as to costs in these petitions.

51. Order accordginly.