Central Administrative Tribunal - Delhi
Shri Shiv Prakash, (Staff No. 90772), ... vs Union Of India (Uoi) And Ors. (The ... on 30 January, 2008
ORDER
M. Ramachandran, J. (Vice Chairman)
1. A preliminary objection appears to have been raised at the instance of the respondents about the jurisdictional power of the Central Administrative Tribunal to adjudicate the claim raised in these applications. As there was no appearance on their behalf, we are constrained to resort to examine the issue on the basis of pleadings in the counter reply. The objection in O.A. 2581/2005 appears to be that since the applicant as at present is employed in a public sector enterprises, and since the said establishment (BSNL) has not been notified under Section 14 (2) of the Act as an Institution as coming within the purview of the Tribunal, the application is not maintainable. Presence of a Full Bench judgment of the Tribunal reported as B.N. Sharma and Ors. v. Union of India and Ors. 2004 (2) ATJ 11 had been referred to. Attached to the counter reply, a copy of the orders passed by a Division Bench (Mumbai) in OA 81/2004 had been produced. There, the Full Bench Decision had been followed. In spite of these, evidently the Bench was not impressed by the above objection. The Hon'ble Members were of the view that the Full Bench had not considered true perspective the law laid down by the Delhi High Court in Ram Gopal Verma v. Union of India and Anr. 2002 (1) AISLJ 352. The Bench also had come across a similar issue on 23.11.2006 as well, raised in OA No. 189/2006 and had thought it proper to refer the question to a Full Bench. They were of opinion that since already a reference on the subject was existing, this matter also could be considered by a Full Bench. The two original applications had come to be considered by a Full Bench in the aforesaid background. The point of reference, as extracted in the order dated 21.11.2006 could be reproduced hereinbelow:
In the light of above, the decision of the High Court in the case of Ram Gopal Verma supra where an exception has been carved out as to the amenability to the jurisdiction of the Tribunal in the event an order assailed pertains to DoT having not been looked into in its right perspective and no reasoning has been recorded by the Full Bench, the Full Bench decision is not only per incuriam of the provisions but also a sub-silentio precedent which has no precedent value in law. However, to have judicial propriety maintained and to avoid any conflict, we refer this matter to the Hon'ble Chairman on administrative side for appropriate action, may be a clarification to the Full Bench or a constitution of larger Bench, which would not only be in the interest of justice but shall also prevent mis-carriage of justice. Let this case be placed before the Hon'ble Chairman for necessary orders.
2. We had opportunity to hear Mr. M.K. Bhardwaj, appearing on behalf of the applicants. As referred to earlier, there was no representation, as coming from the respondents. Nevertheless, we may look into the matter on the basis of submissions made at the bar, the counter statements on record and also may examine the issue in the general perspective.
3. Since prima facie we were of the view that the observations of the Delhi High Court as pointed out by the Division Bench are sufficiently revealing enough for us to come to a conclusion that the Full Bench in B.N. Sharma (cited supra) had not examined the issue, as strictly coming within the observations gatherable from the judgment of the High Court, we did not think it is necessary to refer the issue to the Larger Bench and, therefore, have chosen to answer the issue by ourselves, although in the process we may have to clarify that the position of law, as explained by the three Member Full Bench may not be acceptable guideline to be followed.
4. The applicant in OA 2581/2005 has impleaded only the Union of India through the Secretary, Ministry of Telecommunication as a party to the proceedings. The relief sought for is to direct the respondents to fix the seniority of the applicant, on the basis of his notional promotion as Executive Engineer. It was a long pending issue. In fact, he refers to a circumstance that a writ petition had been filed in the High Court of Delhi at New Delhi as WP (C) No. 7249 of 2005 seeking the reliefs, but the Court had expressed opinion that an application may be maintainable in the forum of the Administrative Tribunal. The order is dated 27.04.2005. Counsel submits that although applicant is in the rolls of M.T.N.L., of course, a statutory corporation, the nature of relief prayed for should not go unnoticed which, in fact, alone should be the relevant consideration.
5. The factual aspects as emerging, therefore, now requires to be looked into. The applicant had been in the employment of the P&T Department, having been recruited by them. In later years of his career, he had been sent over on deputation, almost on a compulsory basis to the newly formed company, MTNL. Ultimately, he was absorbed by MTNL, but it was essential that his position of seniority as might be admissible while in the erstwhile Department required to be determined with precision, as this had a vital bearing on the position to be assigned to him on his absorption by the new employer. That he is at present an employee of MTNL, and the said organization does not come within the jurisdictional power of CAT is conceded. But this by itself has no real relevance, since the position as existed earlier requires to be gone into and got repaired. This grievance could be urged only before the CAT, as no other authority is conferred with jurisdiction in this regard, as has also presently turned out by the order of the High Court.
6. A combined seniority list in the grade of Executive Engineers had been published by the Department, taking notice of his position as a member in the P&T Building (Works). That was erroneous since credit was omitted to be given to the ad hoc service as Executive Engineer rendered by him. As a matter of fact, deemed date of notional promotion had been accepted, but his further promotions on the basis of notional arrangements had not been properly taken notice of. Representations were made in this regard, but there was no positive assurance forthcoming, which necessitated the OA.
7. Mr. Bhardwaj submits that although the applicant is on the rolls of the MTNL, the basic corrective steps and recognition of his claims if at all are to be considered by the Central Government and, therefore, Writ Petition might not have been the remedy. There was not much of intelligence required to appreciate that the MTNL could not have been in a position to go into the issue by themselves practically or legally, nor they could prescribe remedial measure, as disputes pertained to a period before the concerned employee was actually taken over by them.
8. In the reply filed, objection had been taken that as the applicant had been absorbed in the MTNL with effect from 01.10.2000 all his service disputes are to be looked into by the MTNL. As the Institution does not come within the purview of jurisdiction of the CAT, obviously, there is no jurisdiction for this Tribunal to go into the matter. In fact, the contention appears to be that the issue of promotion to the post of Superintending Engineer cannot be entertained at all. But there is no advertence to the clinching circumstance pleaded by the applicant that his writ petition in the High Court was not found as one to be taken cognizance of by them.
9. The issue that has been agitated in OA 189/2006 is slightly different. Having joined as Junior Engineer, the applicant had received promotion as Executive Engineer during August, 1991 and had been transferred to BSNL on 08.11.1994. He had met with certain adverse orders during his career but the Tribunal had come to his rescue by order dated 19.10.1999 (Chandigarh Bench) and he was allowed to cross the EB. Under the ACP Scheme, thereafter, he became entitled to the second higher grade on 9.4.2002. But that was not sanctioned for no reasons attributable to him. In the meanwhile, he had been asked for option to come over to BSNL, which was accepted on 30.04.2004 but even on the date of the filing of the OA, formal orders were yet to be passed recognizing the change. It is conceded that retrospectively, from 01.10.2000, his request for transfer and repatriation has been accepted. As of now he is a staff of BSNL. But it so happened that his claims for ACP Grade, which was admissible before his repatriation were never sanctioned. This was a continuing grievance, which could have been remedied only by the parent organization, namely, Telecommunication authority, counsel submits, and seeking remedy the OA has been preferred.
10. In the reply filed by the Department, it is conceded that persons who were similarly situated like the applicant have been given the ACP benefits. It is revealed that on the date of reckoning of the matters, DPC could not peruse the confidential records of the applicant. His claim was not, therefore, considered. The position remained so till the date of his absorption. Records reveal that effective from October, 2000, he has been repatriated to a statutory corporation. Since B.S.N.L. is not notified authority under Section 14 of the Administrative Tribunals Act, it could not have been possible for the applicant to maintain an application under Section 19 of the Administrative Tribunals Act. Here also, reliance is placed on the Full Bench Decision (B.N. Sharma, cited supra), as justifying the stand.
11. The short question in issue is as to whether it would have been possible for the applicants to file applications under Section 19 of the Administrative Tribunals Act before this Tribunal in respect of their grievances, which had its genesis while they were on the rolls of their parent employer. Also required to be examined is as to whether their deputation and the ultimate severance of connection brought a disablement on them from approaching the Tribunal as has now been suggested by the Respondents.
12. At the time of the reference, the Division Bench had noted that advertence was made by the Full Bench to Ram Gopal Verma v. Union of India and Anr. 2002 (1) AISLJ 352 pronounced by the Delhi High Court, but, however, had expressed opinion that full impact of the possible inference that were to be drawn from the judgment had gone rather unnoticed. This prompted the Division Bench to express a view that the Full Bench decision is not only per incuriam of the provisions but also sub-silentio precedent, which possibly could not, therefore, claim precedent value in law.
13. We find that the Full Bench in B.N. Sharma's case (cited supra) had observed that a decision of Rajasthan High Court in CWP 6186/2002, as opposed to their view was to be considered as sub-silentio while considering the scope of Sub-sections (2) and (3) of Section 14. It was, therefore, not accepted as a binding precedent. With respect, we may point out that this was not so. However, we may go to certain further details as well.
14. It is seen that the following questions were posed for consideration by the Full Bench ( paragraph 13 ):
1. Whether the Tribunal has jurisdiction on all service matter in respect of service matters of central government employees who are on deemed deputation to BSNL or only in respect of cause of action relating to their parent department e.g. disciplinary proceedings, retiral benefits, promotions, in their department etc and not for the cause of action wholly arisen from BSNL e.g. transfer, promotion etc by BSNL.
2. Whether the Tribunal has jurisdiction on all service matter in respect of service matter of central government employees, the cause of action for which related to a period prior to the absorption of such employees in BSNL.
15. The first issue was left undecided, as it did not directly arise in the case. Observation is:
We are also, therefore, not inclined to go into the other questions which are co-related thereto and are confining ourselves to the controversy as to if this Tribunal has the jurisdiction on service matters with respect to the Central Government employees, who have been absorbed in the BSNL.
Finally, the answer was as following:
Resultantly, we answer the controversy, as already referred to above, holding that in cases in which the employees had been absorbed permanently with the BSNL, the Central Administrative Tribunal has no jurisdiction to adjudicate upon their service matters till a Notification under Sub-section (2) to Section 14 is issued.
16. Mr. Bhardwaj points out that the resultant decision essentially omitted to take notice of the contingency as well as grievance has been placed on record in these two applications. He submits that in common parlance it would not have been possible to agree or appreciate the ultimate finding of the Tribunal that an applicant was to sit idle, even if he has a grievance, awaiting a Notification to be issued, the possibility of which would have been positive or negative. He submits that the Full Bench has failed to foresee the possible result of its observation in that the net result was the introduction of a totally uncalled for stumbling block. We agree. A legal remedy could not have been denied by an authority by an interpretive process, and perhaps on principles of limitation, there was even the possibility of the rights being lost to the employee forever. As far as the transferee employer is concerned, the applicant presently has no course of action, which could be presented as a grievance. But the fact remains that if correctional steps, nevertheless, required to be carried out vis-`-vis his career necessity or absence thereof could have been attended to by the original employer alone and if it was being overlooked, only the Central Administrative Tribunal could have jurisdictional power to examine the grievance. The Telecom Authority was always deemed as coming under the jurisdictional powers of the Central Administrative Tribunal and when the grievance was that the employees were subjected to differential treatment and when they were subjected to discrimination, they had every right to approach the Tribunal requesting for examining the matter in accordance with law. The matter had been initially taken to the High Court, but stands returned with observation that Tribunal was the appropriate authority.
17. As suggested by the counsel, the Full Bench had omitted to notice the gist of the observations made by the Delhi High Court in Ram Gopal Verma and Ors. (cited supra). The finding there was, of course, that the MTNL did not come within the jurisdictional power of the Administrative Tribunals, as Notification under Section 14 had not come. It was a case where a person, who while on deputation to MTNL had been placed under suspension by the MTNL. The Tribunal refused to take cognizance of the application on ground of want of jurisdiction. The decision had been upheld by the High Court. However, the clinching circumstance on this point, which we would highlight, could be the observation in Paragraph 6, which might throw light to the crux of the issue. The relevant observation is as following It is also not the case that impugned order of his suspension was a composite order passed with the approval of DOT which could perhaps provide some basis for Tribunal's jurisdiction.
18. According to the counsel, the Full Bench ought to have taken notice of the above position of law suggested by the High Court. An error has thereby been committed by not adverting to it during the discussions, counsel submits.
19. The argument as above made especially in the factual background referred to earlier appear to be based on sound reasoning, and the criticism might be true. It may not be possible to assume that a service dispute which is ripe and worthy of being adjudicated, where correctional steps are to be taken by the DOT, nevertheless requires to be kept in hibernation for the only reason that, in the meanwhile, the employee has been absorbed in a Government company. The ultimate impact of the Full Bench judgment is that till such time a Notification is issued under Section 14, the dispute is incapable of being looked into by the Tribunal. Especially since the High Court has declined jurisdiction, we feel that there is neither equity or purpose in understanding the law as above. If we accept the reasoning of the Full Bench, it may also lead to a situation, namely, that if a Notification does not come at all, the employee concerned will have no right whatsoever to highlight his grievance or get it adjudicated in his life time. We have to bear in mind the principle as highlighted by the Maxim Ub jus ibi remedium. Wherever there is a right there should be a remedy. As pointed out by Lord Trayner in Trayner's Latin Maxims (Fourth Edition 1993), 'where one's right is invaded or destroyed, the law gives a remedy by interdict, to protect it, or damages for its loss; and where one's right is denied, the law affords the remedy of an action for its enforcement.'
20. In case due seniority or monetary benefits, as admissible under the service rules have not been extended to them, it is not possible to assume that law permits the illegality should work against them relentlessly, or the aggrieved person is to suffer silently. That they have become employees of a statutory Corporation or a government company will not wipe away their erstwhile rights. The analogy of a relieved government servant, who has rights to agitate over his causes, despite his retirement could be also relevant. The view taken by the Full Bench (B.N. Sharma) appears to be too technical and strict. We feel, when an opportunity has arisen, it should be our duty to go deeper into the matter, taking a cue from the observations of the High Court.
21. In the circumstances, we answer the reference by holding that in respect of a grievance of a person in relation to service matters, which could have been possible to be agitated at any time before the Administrative Tribunal under Section 19 of the Administrative Tribunals Act, such rights are not lost for the reason that he had migrated to any other employment/repatriated to any other organizations, which did not come within the jurisdiction of the Administrative Tribunal for want of a Notification under Section 14 of the Administrative Tribunals Act, when the claim was being taken up. We express our disagreement over the Full Bench decision (B.N. Sharma and Ors. v. UOI and Ors. 2004 (2) ATJ 11.
22. As a decision on the merits and on the disputed claims could be arrived at only after further hearing the parties, we remit the matter to the Division Bench for adjudication of the other contested issues.
23. Let a copy of this order be placed in O.A. 2581/2005.