Central Administrative Tribunal - Allahabad
Priyanka Singh vs Chief Post Master General Up Circle on 24 January, 2023
Page No.1
Central Administrative Tribunal, Allahabad
Bench Allahabad
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Execution Applicaiton No.08 /2017
In
Original Application No. 1369 of 2014
This the 24th Day of January, 2023.
Hon'ble Mr. Justice B.K.Shrivastava, Member (J)
Priyanka Singh
...........Applicant
By Advocate: Shri Ashish Srivastava
Versus
1. Chief Post Master, General UP Circle & Ors.
...Respondents
By Advocate: Shri L.M. Singh
ORDER
Shri Ashish Srivastava, counsel for the applicant. Shri L.M. Singh, Advocate for respondents.
2. This Execution Application has been filed for the Execution of the order dated 27.04.2016 passed in OA Nos.1369/2014, 1388/2014, 1389/14, 1390/14, 1391/14 and 1392/14.
3. It is submitted by the applicant's counsel that the direction given in the aforesaid order has not been complied with till today. By the aforesaid order, the court vacated the Page No.2 stay order granted earlier on 28.10.2014 but the direction was also given as under:-
"............. But the respondents are directed to pay the entire salary of the applicants as there was an interim relief in their favour for not to join to the new place of posting. "
4. The objection, in the shape of preliminary objection, has been filed by the respondents on 06.01.2022. The respondent opposed the aforesaid execution upon the following grounds:-
(i) The Execution Application is time-barred.
(ii) Joint Application on behalf of all six applicants is not tenable because the Original Application (O.A.) was filed separate and the Contempt Petitions were also filed separately.
(iii) The final order was also passed in the cases and the OAs are also dismissed. Therefore, the interim order will merge in the final order, hence no execution is required.
5. Counsel for the applicant opposed the aforesaid objections and submitted that the Execution Application has been filed within the prescribed limitation. The combined order was passed by the court in all 6 OAs, therefore combined Execution Application is also tenable. He also submitted that the interim order should be executed because Page No.3 in the final order, the aforesaid interim order has not been set aside.
6. The first objection is related to limitation. In para-15, the respondents mentioned that the execution of the order dated 27.04.2016 has been sought while the present application has been moved on 14.08.2017. Therefore, the application is barred by limitation.
7. It appears from the record that the aforesaid averments are not correct. The impugned order was passed on 27.04.2016 and the certified copy was given to the applicant on 03.05.2016, therefore the limitation up to 03.05.2017 was available. This application has been filed on 01.05.2017, therefore the application is within the limitation.
8. In addition to that, it will be proper to mention here that the aforesaid objection was considered on 16.09.2022 and this Court mentioned in the order sheet as under:-
"Shri Ashish Srivastava, counsel for the applicant. Shri L.M. Singh, counsel for the respondents. Partly argument heard upon MA No.10008/2017. Counsel for the respondents draws attention towards the fact that the limitation of one year is prescribed for Execution. He draws attention towards Section 21 of the Administrative Tribunals Act, 1985.
In view of this court, it appears that the aforesaid section is relating to filing the Original Application and not to the Execution Application. The word "Application" has been used in Section21 which has been defined in Section 3(b) and Page No.4 according to the aforesaid Section, the "Application" means an "Application" made under Section 19.
Counsel for the respondents again submitted that some case law is available in which it is defined that the Execution Application is also included in the definition of "Application"
and comes under the purview of Section 21 of the Administrative Tribunals Act, 1985 but at present, he is not having any case law. He seeks time to submit the aforesaid case law.
Time is granted. Upon failure, the argument will be heard and appropriate order will be passed.
List this case on 10.10.2022. "
Therefore, it appears that counsel for respondents took the time for showing the case law but till final argument in this case any case law has not been brought in the notice by the learned counsel for respondents. Therefore, as per the aforesaid observation, the limitation of one year prescribed in Section 21 of the Administrative Tribunals Act, 1985 is not applicable to the application for execution.
9. The second objection is related to the combined application for execution filed by all six applicants. The counsel for respondents submitted that all six OAs were filed separately, therefore separate execution applications should be filed. He also submitted that the Contempt Petitions were also filed separately, hence the separate application for execution is tenable. The joint application is defected, hence liable to be dismissed.
Page No.5
10. On the other side, the counsel for the applicant submitted that the joint order was passed by the Tribunal, hence joint application is tenable.
11. It appears from the record that all six OAs were filed separately. The court only passed the order jointly. It does not mean that all OAs are merged. Each OA has a separate identity, the common order passed by Tribunal will be applicable in each OA but it does not mean that the joint application filed for execution is also tenable. As per the rule, every OA will be treated as a separate case and the execution of each order should be separate.
12. But this fact cannot be ignored that the Execution Application was filed on 01.05.2017, about 5 years have passed. At this stage, if the direction is given to file a separate Execution Application, will cause unnecessary difficulties. Therefore, this technical defect may be ignored. But it is proper to mention here that it will not take as a rule of law or precedent in the future. The law is clear that every execution should be filed separately. Only in the interest of justice, in this case, the joint application is taken into consideration.
13. Now come to the order passed in all six OAs on 27.04.2016̀. In all cases, the applicants were transferred from Page No.6 Gorakhpur to other places by order dated 15.10.2014. They preferred the OA and the stay was granted on 28.10.2014 in OA No.1369 of 2014 and on 31.10.2014 in the other five OAs. Thereafter, the impugned order was passed on 27.04.2016 jointly in all OAs and the court come to the conclusion that the stay should not be granted, therefore in the last para, the court observed as under:-
"Accordingly, taking into consideration that in the instant case the issues are almost covered by the judgment passed by the Hon'ble Apex Court in the case of Janardhan Debanath (Supra) the stay granted on 28.10.2014 is vacated. But the respondents are directed to pay the entire salary to the applicant as there was an interim relief in their favour for not to join to the new place of posting. Ordered accordingly."
14. After vacating the stay, the matter was finally decided on 21.02.2016 and dismissed all six OAs by saying in Para-7 as under:-
"7. Heard the rival contentions of the parties and perused the documents on record. It is found that the entire argument of the applicants counsel argument has been completely dealt by Hon'ble Apex Court in the case of Union of India and others versus Janardhan Debanath and Another, 2004(4) SCC 245 and placing reliance on the judgment passed by the Hon'ble Apex Court the stay granted earlier was vacated. In that judgment, the Hon'ble Apex Court has held that while deciding the issue of punitive transfer that transfer under Rule 37 of Post of Telegraph Manual Vol IV cannot be treated as punitive but has to be treated as a measure of enforcing discipline in public interest and in exigencies of administration. It is also held transfer is matter for the employer to consider depending upon the administrative Page No.7 necessities and the extent of solutions for the problems faced by the administration. It is seen that the issue involved in this matter squarely covered by the judgment passed by the Hon'ble Apex Court in the case of Janardhan Debanath (Supra). It is also brought to the notice that the applicant joined to the new place of posting. Hence, after joining the new place of posting the issue of transfer becomes infructuous also. Hence, taking into consideration the pronouncement of hte Hon'ble Apex Court the issues raised by the counsel for the applicant does not hold good Hence, the original application is dismissed. No costs."
15. In the aforesaid order, the court mentioned that the applicant has joined new place of posting. Hence, after joining the new place of posting the issue of transfer has become infructuous also.
16. In Para-6 of the objection, the respondents mentioned that the stay order was passed on 28.10.2014 and 31.10.2014 while in compliance of the transfer order, the applicants were relieved vide relieving order dated 18.10.2014. Therefore, after the execution of the transfer order, the stay was not having any meaning because the transfer order was already been executed. This fact is not specifically denied by the applicant. If the applicants were relieved on 18.10.2014 then it was the duty of the applicants to inform the court that the transfer order had already been executed. Hence, the stay upon the operation of the aforesaid transfer order was not executable.
Page No.8
17. As far as the payment of pay is concerned, the respondents also submitted that the contempt petition nos. 133/14 to 138/14 were filed and the court also dismissed the aforesid application.
18. It appears from the order of contempt petition that the aforesaid applications for contempt were moved for non-compliance of the same order which is the subject matter of this Execution Application. It was stated that the respondents failed to comply with the interim order. The court dismissed the contempt petition and said in Para-15 that the dismissal of OA, the interim order merged with the final order. The court said in Para-15 as under:-
"15. In view of the dismissal of the OA, the interim order merges with the final order and further the interim order was also stayed by this Tribunal. Hence, there is no wilful disobedience of the aforesaid order passed by this Tribunal and the present Contempt Petition renders infructuous and the same is accordingly dismissed as having become infructuous. Notices issued to the respondents are discharged."
19. Therefore, it appears that the court already held that the interim order has been merged into the final order. The issue involved in this case has already been decided at the time of deciding the contempt petition. The aforesaid order has not been challenged by the applicant, hence this court cannot consider the aforesaid relief only by converting the Page No.9 nature of the petition from "contempt" to "execution application".
20. Therefore, no execution application is permissible. The final order shows that the petitions were dismissed. When the interim order was passed, at that time the applicants were also relieved. Therefore, they themselves are responsible for not joining at new place of posting.
21. Hence, the Execution Application is dismissed.
(Justice B.K. Shrivastava) Member (J) Sushil