Central Administrative Tribunal - Kolkata
Sujit Sen vs G S I on 8 November, 2017
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CETRAL ADMINISTRATIVE TRIBUNAL
- ,- CALCUTFA BENCH
No. OA 50/1453/2017:L Date of order: 8.11.2011
Present: Hon'ble Ms. -Manjula Das, Judicial Member
Hon'ble Ms. Jáya Das Gupta, Administrative Member
SUJIT SEN
VS
- - UNION OF INDIA & ORS.
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For the applicant : Ms. T.Banerjee, counsel
For the respondents: Mr.K.Prasad, counsel
ORDER
Ms. Jaya Däs Guita, AMt The applicant Sri Sujit Sen has approached CAT seeking the following reliefs An order do issue setting aside and/or cancelling the order-dated 101h October, 20.17 ;.vide No. 147/A-32015/ Promotion/JTA(D)/8/ Adm/ER/04 Vol.11 passed by the Deputy Director (P&A) for additional Director Generil & Head of the Department, Eastern - Region, Geological Survey of India being Annexure Al 19 hereto and/or not to
- give any effeèt or further effect to the said order till disposal of this application; -
An order do issue directing the resppndent authorities specifically the respondent N6.4 to with draw the order dated 10th October, 2017 vide No. 147/A-320 16/ Promotion/JTA(D)/8/ Adrn/ER/04 Vol.11 passed by the Deputy Director (P&A) for additional Director General & Head of the Department, Eastern Region, Geological Survey of India being Annexure A/ 19 hereto and allow the applicant to continue to work as JT (Drilling) with consequential and further benefits of service; An order do issue directing the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of the points at issue;
And to pass such further or other order or orders and/or direction or directions as to this Hon'ble Tribunal may seem fit and proper.
He has also sought the following interim relief:
"An order do issue directing the respondent authorities specifically the respondent .No.4 to with draw the order dated 10th October, 2017 vide No.. 147/A-32016/ Promotion/JTA(D)/8/ Adm/ER/04 Vol.!! passed by the Deputy Director (P&A) for additional Director General & Head of the Department, Eastern Region, Geological Survey of India being Annexure A/ 19 hereto and allow the applicant to continue to work as JT (Drilling) till disposal of this application." .
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It is observed that the main relief and the intefihi Itijéf lead to the sanie
effect namely to stall the operation of order dated lOth October, 2017. /
2. 14. Counsel for the respondents strongly refuted the prayer for because strictly as per Hon'ble High Court's impositionofanyiflt9m.Tel a personal hearing to the applicant and then the ...................y....: .
only the final order of reversion has been given. He has also submitted that any genuine mistake can always be corrected. He has referred to the proceeding of personal heafing in respect of the applicant, Shri Sujit Sen, Drilling Assistant, ER, GSI in compliandé-of the order dated 4.7.20 17 passed by Hon'ble High Court in ASTNo 139/2017, relevant portion of which is set out below the CHQ intimated in its letter dated "In response to this office letter, counting the qualifuin.g 9/10.3:2017 that as per aLle, the crucial date Lor sivice for the vacancti year 2012-2013 is 1.1.2012 and not 1.1.2013 as done in the instant case. The relaxation allowed in the DO, GSI office order dated 11.4.2013 was specfically meant for the year 2012-2013 and all the calculation for the counting of residency should be done from the
1. 1i2012.
........urthe%ñiès-0f DO, OSI, letter No. 32O19/6/(Region)/lO 15A dated 26.4 2017,The special relaxation of qualifying service i e up to orte year in respèdt of all non-gazetted posts/vabanSs of 2012-2013 was granted . by Director General's, OSI office order dated 11.4.2013 .............................fl, fl,a nn PT and was occurred on account of above reldxation.
Accordingly, a Review DPC held on 27.4.20 17 and observed that he
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not completed 08 (eight) years' regular service in the grade of Drilling Assistant for prothotion to the post of JTA (Drilling) as on 1.1.2012 as he had joined in the grade of Drilling Assistant on 20.4.2005. As per the then Recruitment Rules of JTA (Drilling) notified vide GSR No. 264 dated 18.5.2001, the minimum residency period should have been eight years' regular service in the grade of Drilling Assistant for promotion to the post of JTA (Drilling). Accordingly, Shri Sujit Sen was reverted back to the post of Drilling Assistant from JTA (ID) w.e.f. 26.4.2013 by the Addl. Director General & HoD, ER,GSI as per recommendation of review DPC order No. 804-812/A vide this office 32Ol6/PromOtion/JTk(D)/8/m//2°°4 Vol. II, daed 28.4.2017."
the earlier CAT's order which was impugned in the petition served in the 3. Hon'ble High Court on 4.7.2017 in AST 139/2017 has not been enclosed by the applicant. However, from the order dated 4.7.20 17 of Hon'ble High Court it appears that the only reason why the matter is again before the Tribunal is that the order of the Tribunal had become irfructuouS because the respondent authorities did not accord personal hearing to the applicant before reverting 3 k,o.Lli&f&dert0om the promotional post. The relevant portion of 1/him b'a'c I - -:.• ççiri'jV,7"..
J the Hon'ble High Court's order is set out below:
/ ,It is well settled that a order of reversion cannot be passed without a personal hearing being afforded to the affected employee. In these circumstances, the impugned order of reversion which has admittedly been passed without hearing the petitioner, is required to be set aside rather than passing any further order in.this matter. We direct
-the respondents to afford a personal hearing to the petitioner before 'àcting'ofl the proposalto revert him. It appears'from the record that the
-'etitioner'h'ad übHiif€ed arépresentation which has been rejected by the authorities. That order of rejection which is dated 1 1th May, 2017 is also set aside.
Since we have quashed the order of reversion dated 28th April, 2017 and the order dated li th May, 2017, in the event the respondents wish to revert the petitioner, they shall afford him a personal hearing before passingany order of reversion.
in viewd.the, order that we have passed,, the Original Application before the Tribunal has become infructuous and is, therefore dismissed.
in the cvexittherespohdents do revert the petitioner after hearing him, they shall not act on the order passed for a period of. two weeks after the order is communicated to the petitioner."
A personal' hearing has now been accorded to the applicant by respondent meeting the direction of Hon'ble High Court.
As per the direction of the Hon'ble High Court a personal hearing was given td-the'-applicafit,by-ffie itspondent authorities and an order, was passed revering back -'the applidani to the feeder post again. Such order is enclos2d below "GOVERNMENT OF INDIA , . Geological Survey of India Easter Region Bhu-Bijnàn Bhawan, Block DK-6, Sec.!!, Salt Lake City, Kolkata.
No. 1471 /A-320 16/Promotion/JTA(D)IBIAdm/ER/04 vol.11 Dated, the lOth October, 2017.
OFFICE ORDER I cdmjliance of order dated 4/7/2017 passed by the Hon'ble Calcutta Court in AST No. 139 of 2017 'arising out of OA NO. 350/737/201'?', a personal hearing in respect of Sri Sujit Sen, Drilling Assistant, ER, Os! was conducted by the Additional Director General & HoD, Eastern Region, 'OS! on 25th Sept.20 17 in his Chamber, Therefore, Sri Suijit Sen attended in the proceedings of personal hearing on the scheduled date. Sri Sujit Sen was heard in person in details pertaining to reversion from JTA (Drilling) to Drilling Assistant. Sri Sen also submitted a written statement containing 05(five) pages. The Additional Director General & HoD, ER, OS! after hearing Sri Sujit Sen, Drilling Assistant and going through his written statement is of the view that Sri Sujit Sen r4 ;#:. .:. -.
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/ •• ,' 4 had not completed the required residency period of 08(eight) years when he was promoted to the post of JTA (Drilling) on 26.4.2013. As per rules,. any order issued by Government can be modified or withdraw if it is not as per codal provisions. Since Sri Sujit Sen along with ether employees at various 051 offices were promoted to vacant posts by mistakerthe R&isDPCwa5.held dii 27/4/2017 at various offices of 051, uploading said letter in OS! Portal. As per the provision contained in DoFf OM NO. 22013/1/97-Estt(D), dated 13.4.1998, Review tPCcan be held where ineligible person is considered by mistake & where some procedural irregularities were committed by DPC. Based on these provisions & instructions from the office of the DG,GSI, the Additional Director General & HoD, ER constituted a Review DPC and the said DPC recommthded for reversion of Sri Sujit Sen to the post of Drilling Assistant and accordingly recommendation was accepted by the Additional Director General & HoD, ER, OS! which is as per set Rules made by Sri Sujit Sen are baseless and not based on facts.
therefore (dn the recommendation of Review Departmental Promotion Committee held on 27.4.2017, the Addl. Director General & HoD, OS!, Eastern Region hereby reverts back to the following incumbent to the post of Drilling Assistant (now re-designated as Drilling Assistant Gr.1I) from the post of JTA (Drilling) w,e.f. 26.4.2013 as detailed given below. After reversion he will be placed in the pre-revised Pay Band PB-i, Rs.5200-20,2001- with Grade Pay of Rs.2000/-.
S.Nd. Name - 'df Date of promotion Date of reversion from
incumbents based on earlier DPC the post of JTA (D) to
held on 264.2013 for 'Drilling Assistant (now
promotion to the post redesignated as Drilling
of JTA (0) Assistant Gr.II) as per
the Review DPC held on
27.4.2017
1 jShri Sujit Sen . 26/4/2013 26/4/ 2013 . .1
As the Hon'ble High Court has given 2 weeks not to act on the order passed for reversion the applicant has again approached CAT in the present OA seeking an interim order staying the reversion.
It has already been stated above that the final relief and the interim telief effectively lead to the same result i.e. reversion should not take place now.
It is apparent that as per this office order dated 10.10.2017 reversion order resulted because of mistakes made in the original order and according to the respondents mistakes can be corrected. This is borne out by the Hon'ble Supreme Court's order given in the case of VSNL -vs- Ajit Kumar 12008 (11) SCC 591] that "it is well settled that a bonafide mistake does nto confer any right on any party and it can be corrected."
Ld. Counsel for the applicaht has depended on the interim relief, given according to her, in similar cases by CAT, Hyderabad Bench (page 73 of OA) and CAT .Jaipur Bench (page 74(A) of OA). Both these orders have been given
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have already taken a view in this Bench
//by SingleMeihbef BendliH6vèver; we
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earlier consisting of Hon'ble Justice O.Rajasuria, iüditial MeMber and Ms.
- / Jaya Das Gupta, Administrative Member that interim orders cannot act as precedent.
10. The Hon'ble Apex Court has repeatedly direCted that interim relief cannot be given in' The garb °' :fi'1' relief thught. Some of the directions of Hon'ble Apex Court in the matter are given below
1) Public Services Tribunal Bar Assocaition --vs- State of U.P. & Anr.
(2003 SCC (L&S) 4001 .............. has a right to approach the High Court under Article of the Coñititufiôñ of Ihdia for redressal of his grievance for interim 22 relief. Power to grant interim relief from the Tribunal has not been taken away completely. It has only been taken away partially. Referring to the following judgments vIz. (i) Delhi Cloth & General Mills Co. Ltd. V . Shri Rameshwar Dyal & Anotherreported in 1961 (2) SCR 590, (ii) U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan reported in 1993 Supp. (3) SCC 483;. and (iii) State . of Harvana v. Suman Dutta reported in 2000 (10): SCC 311, it was contended that this Court has consistently been of the View that final relief could not be given at the interim stage. In case the order of suspension or termination or dismissal or removal is stayed at the interim stage it amounts to allowing the petition itself at the interim stage. This Court in State of Haryana's case(supra) has held that order of termination could not be stayed by interim order. In case any public servant is finally ordered to be reinstated after quashing the order of termination, removal, dismissal, suspension etc., he can be compensated by the courts by appropriately moulding the relief whereas in cases where the order of removal, dismissal, termination etc. is stayed at the interim stage but later on the petition is dismissed then the courts cannot mould the relief to undo the mischief resulting from the interim order passed.... ................. Under the circumstances it was contended by grant Interim relief him that taking away of the jurisdiction to against an order of suspension, dismissal, removal, deduction of rank, compulsory retirement or reversion of a public servant or to grant interim relief against an order of transfer or against an adverse entry made in the record is not violative of Article 14 & 16 of the Constitution.
34. In Delhi Cloth and General Mills Co. Ltd. case (supra) this Court examined the point as to whether a workman could be ordered to be reinstated as an interim measure pending final adjudication by the Tribunal under the Industrial Disputes Act. In the said case the employer dismissed the workman for disobeying the orders of the managing authority. The workman filed an application before the Industrial Tribunal under Section 33-A of the Industrial Disputes Act, 1947 contesting his dismissal on various grounds, whereupon the Tribunal passed an order to the effect that as an interim measure the workman be permitted to work and if the management failed to take him back his full wages be paid from the date he reported for duty. The employer challenged the order of the Tribunal by filing a writ petition before the High Court which was dismissed. On appeal by a certificate of the High Court it was held that the order of reinstatement could not be given 1/ .1/ L
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as an interim relief because that would be giving the employee the very relief which he would get if order of dismissal is not found to be JUstified. Order passed by the Tribunal was held to be manifestly erroneous and set aside. It was observed:
°. . .We are of opinion that such an order cannot be passed in law as . aninterith- relief, for that would amount to giving the respondent at the outsethe arelief to which he would be entitled only if the em!dY fáii&BtIWtEipioceediñs.upders: 33-A. As was pointed eâse (196a(lt) SCfl76, ordinarily, interim relief should. hot be the whole relief that the workmen would get if they succeeded, finally. The order therefore of the Tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payMent of full wagS is manifestly erroneous and must therefore be set aside...
36. In sumañ- tutta's case (supra) this Court set aside the order pásáed by the HiYCburt-staying the order of termination as an interim measure in the pending proceeding It was observed are clearly of the opinion that the High Court erred in law in staying the order of termination as an interim n- easure in the pending writ petition. By such interim order if an employee is allowed to continue in service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the same....'
38.'' "'From thé 'abbve quoted decisions, it is evident that this Court has consistently'been1 of the view that by way of interim order the order of suspeniion, termination, dismissal and trinsfer etc. should not be stayed during the pendency of the proceedings in the Court.
39. Sub-section (5-13) provides that the Tribunal shall have not the power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination; compulsory retirement or reversion of a public servant. Dismissálr&njoval, termination and compulsory retirement puts an end to the relationship of employer and employee. In case of suspension,, reduction in rank or reversion the relationship of employer and employee continues. Interference at the interim stage with an order of dismissal, removal, termination and compulsory retirement would be giving the final relief to an employee at an interim stage which he would have got in case the order of dismissal, removal, termination and compulsory retirement is found not to be justified. If the order of dismissal, removal, termination and compulsory retirement is set aside then an employee can be compensated by moulding the relief appropriately in terms of arrears of salary, promotions which May have become due or otherwise compensating him in some other way. But in case the order of dismissal, removal, termination and compulsory retirement is found to be justified then holding of the office during the operation of the interim order would amount to usurpation of an office which the employee was not entitled to hold. The action becomes irreversible as the salary paid to the employee cannot btaken away as he has worked during that period and the orders passed by him during the period he holds office (because of the interim order) cannot also be put at naught. The Legislature in its wisdom thought it proper not to confer the power to grant interim relief on the Tribunal. State Legislature had the legislative competence to constitute a service tribunal and it was for it to define the parameters of the jurisdiction of the Tribunal. An employee is not left without any remedy. Judicial .t2 7
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review of an order regarding which the urisdictiori of the tribunal is barred would be available by approaching the High Court by filing petitioti under Article 226or 227 of the Constitution of India. In an extreme and rare case where the order is passed mala fide or without following the ptocedurt under the law then the employee can certainly onstitution for the approach the High Court under Article 2 of the C interim relief. the High Court in such an extreme and rare .case may in its wisdom stay , the operation of the said order. In the case of reversion therelationship of eMployer suspension,u j64 7 k Norrnally, the suspension is made during a pending enquiry. During the suspension period the contethplated 'or a employee is entitled for the suspension allowance. If the suspension continues for indefinite period or order of suspension is passed mala fide then it would be open to the employee to challenge the same by a pproaching the High Court under Article .226 of the Constitution of In case the order of reduction in rank or reversiân is set aside India.
then the employee can be compensated by adequately moulding the at the final stage. Power of the Tribunal to reliefwhile itng;thcrelief grant interim tëlléf hs been taken away qua certain matters not thepower has been taken away in matters where the €drnpidtèly. in giving the gtaM of said relief at the interim stage would result relief which would normally be given while disposing .of the case of microscoPiC number a case fináll. Simply becauC in a rare cases 1W Made &dt for stá of oideis of suspension, transfer, reduction in rank, tevérsiOP or terminatiOn, dismissal and compulsory to approach the. High Court retiteméñt and the employee is liable for interim stay by itself is no ground to strike down the law enacted byi4egislativewhich is within its competence to enact.
sub-sections (5-13) and (5-C) are not arbitrary as contended by the
41. as this Court in earlier cases has taken the counsel for the appellant suspension, dismissal, removal, reduction in rank, view that orders of reversion of a public servant terMination, compulsory retirement or as the normally should not be interfered with at an interim stage employee can be suitably compensated in case the order of The.
suspension, dismissal, removal, etc. is found not to be in order. cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during:
the operation of the interim order. This act becomes irreversible and the'[ , employet cannot be suitably compensated by moulding the relief at .the on final stage. In an extreme and rare case where the order is prima fécie a public sean the face of it is mala Me or bad in law then it is open to to approach the High Court by filing a writ petition under Article 226 of the Constitution of India for stay of such an order. The employee is tiot left without any remedy. In an extreme and rare case an employee is to approach the High Court for interim relief resulting in some extr4 expense by itself is no reason to strike down the Sub-section (5-B) being l. I Arbitrary and violative of Articles 14 and 16 of the Cor
(ii) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1788 OF 2009 (Arising out of SLP(C) No. 22196 of 2007) HH•H .1 H 8 'A ..
/ Mehul Mahendra Thakkar @ Karia . Appellant .Versus
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MéenaMehuI Thakkar @Kària. Respondent
ORDER
Leave granted.
• 2) 'The order passed by the High Court of Bombay in Civil Application No. 238
of 2O0ifiled in Family Court Appeal No. 128 of 2007 dated 5.10.2007 is the subject matter of this appeal
3) By'the' impigned order[ the court has directed the Court Receiver to take ossession of the flat from the appellant and induct respondent-wife in the flat during the pendency of the appeal.
hi the appeal flled the appellant has called in question the correctness or 'Otherwise of the findings and the conclusion reached by the Family Court in Petition No. A-1072/b00 dated 6.2.2007, wherein the Family Court has reached the conèlusion that both the husband and wife are joint owners of flat bearing No. 303, Rajesh Nagar Co-operative Housing Society Ltd., Borivali (West), Mutnbai.
Even before giving a verdict on the findings and the conclusions reached by I the Family Court, by way of interim relief, the court has granted the main relief itself. This, in our opinion is unsustainable. It is settled legal position, that by way of interim relief, final relief should not be granted till the matter is decided one way or the other.
In view of the above, we allow this appeal and set aside the order by the High Court in Family Court Appeal No. 128 of 2007 dated 5th day of October, 2007. In view of the peculiar facts and circumstances of this case, we tequest the court to dispose of the appeal as early as possible and at any rate wIthin an outer limit of six months from the date of receipt of copy of this courts order.
Sd/-
(Tarun Chatterjee, J.) Sd/-
(H.L.Dattur j.)"
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4196-4197 OF 2012 (Arising out of SLP(C)Nos.26581-26582 of 2011) 1 Super Cassettes Industries Ltd. Appellant Vs. 2 Music Broadcast Nt. Ltd. Respondent / I 9 1 / JUDGMENT
21. Mr. Sibal also submitted.that apart from the decisions rendered in the case of Morgan Stanley Mutual Fund (supra), the Supreme Court had final relief rl' held on several occasions that while entertaining matters, In fact, as the interim stage.
ought not to have been granted at 1 submitted by Mr. Sibal, the courts will not imply a power in a particular provision of the'statute if the legislative intent behind the statute sües'€ed 'a c6nfrFfiè*" Leained counsel submitted that implying a exercise th& powers under SectiorLil of the Act was not the power 'to , legislative intent which is easily discernible. It was urged that implying mpulsory licensing to statutory such a power would transform co licensing without any statutory mandate to do so.' Mr. Sibal also reiterated the principle that power would not be implied to displace a pre-existing vested statutory right and the court would not, therefore, exercise such powers as a statutory right unless a statute expressly allowed the sàthe. The power to over-ride such pre-existing right had to be in expreè& terms and could not be implied. Various other decisions were referred toMr "Sibal, which will only amount to repetition to whatthas already been stated.
42. In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final relief, which is the only d under Section 31 of the Copyright Act. Even in relief cor1tmpiate matters under Order XXXIX Rules 1 and 2 and Section 151 of the Code of 'Civil Procedure, an interim relief granting the final relief should be given after exercise of great caution and in rare and exceptional cases. In the instant case, such a power is not even vested in the Copyright Board and hence the question of granting interim relief by grant of an interim compulsory licence cannot, in our view, arise. Mr. Salve's submission that the substratum of the scheme of Section$j is commercial in nature and only involves computation of the charges to be paid to the holder of the copyright who withholds the same from the public, is no answer to the proposition that under Sectioni only an ultimate relief by way of grant of a licence on payment of reasonable charges to the copyright To grant an owner to publish and/or broadcast the work could be given. interim compulsory licence during the étay of the proceedings would amount to granting the final relief at the interim stage, although the power to grant such relief has not been vested in the Board.:
that Tribunals discharging quasi-judicial,
43. It is no doubt true, Court, are generally functions and having the trappings of a considered to be vested with incidental and ancillafl" powers to discharge their functions, but that cannot surely mean that in the such Tribunal would have absence of any provision to the contrary, final relief which it could the power to grant at the interim stage the grant."
11. Therefore as per repeated directions of Hon'ble Apex Court (supra) no interim relief is given now. However, the reversion obviously shall be subject t the final outcome of the case.
One week foc , :12. Reply to be given by the respondents within 3 weeks.
rejoinder if any. 47 1 410 -- -
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13. List the OA for hearing before the Bench on 13.12.2017.
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(JAYA DAS GUPTA) . (MANJULA DAS)
ADMIFISTRATIVE MEMBER JUDICIAL MEMBEI
in