Karnataka High Court
The Central Provident Fund ... vs Ms S Savitha D/O Shri M Srinivasan on 3 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF SEPTEMBAER, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT PETITION NOs.38310-38311/2011 (S-CAT)
AND
WRIT PETITION NOs.37974-38001/2011 (S-CAT)
IN WRIT PETITION NO.38310-38311/2011:
Between:
1. The Central Provident
Fund Commissioner
No.141, Bhikaji Camaplace
New Delhi - 110 066.
2. The Regional Provident
Fund Commissioner
"Bhvishyanidhi Bhavan"
13 Raja Ram Mohan Roy Road
Bangalore 560 025.
3. The Regional Provident
Fund Commissioner
Sub-Regional Office
No.S-(1) F, 1st Cross
1st Phase, Peenya Indl. Estate
Bangalore - 560 058. ... Petitioners
(By Sri. Harikrishna S. Holla, Adv.,)
2
AND:
1. Ms. S. Savitha
D/o. Shri. M. Srinivasan
Aged about 32 years
Social Security Assistant (SSA).
2. Smt. S. Poornima
W/o. Shri. A.V.Nagaraj
Aged about 37 years
Social Security Assistant (SSA).
Both are working in the office of
The Regional Provident
Fund Commissioner
Sub-Regional Office
No.S(1) F, 1st Cross, 1st Phase,
Peenya 1st Stage, Bangalore - 560 058.
...Respondents
(By Sri. M.Vasudeva Rao, Adv.)
These Writ Petitions are filed under Articles 226
and 227 of Constitution of India praying to call for the
records on the file of Central Administrative Tribunal,
Bangalore and set aside the order dated 24.2.10 in
O.A.No.478/2007 vide Annexure-C and etc.,
In Writ Petition Nos.37974-38001/2011 (S-CAT)
Between:
1. The Central Provident
Fund Commissioner
No.141, Bhikaji Camaplace
New Delhi - 110 066.
2. The Regional Provident
Fund Commissioner
"Bhvishyanidhi Bhavan"
3
13 Raja Ram Mohan Roy Road
Bangalore 560 025.
3. The Regional Provident
Fund Commissioner
Sub-Regional Office
No.S-(1) F, 1st Cross
1st Phase, Peenya Indl. Estate
Bangalore - 560 058.
4. The Assistant Provident
Fund Commissioner
Sub-Regional Office
No.4 Lakshmi Complex
Old Madras Road
K.R.Puram, Bangalore - 560 036. ... Petitioners
(By Sri. Hari Krishna S. Holla, Adv.,)
AND:
1. Smt. H.K.Nalini
W/o. Sri. H.B.Srinath
Aged about 37 years
Social Security Assistant (SSA)
2. Smt. Sujatha L
W/o. Sri. K.Srinivas Murthy
Aged about 36 years
Social Security Assistant (SSA)
3. Smt. Anuradha Mahesh
W/o. Sri. B. Mahesh
Aged about 41 years
Social Security Assistant (SSA).
4. Smt. P. Neetha Kuamri
W/o. Sri. M.K. Ramesh
Aged about 39 years
4
Social Security Assistant (SSA)
5. Smt. Rajini Menon
W/o. Sri. G.K.Prasad
Aged about 34 years
Social Security Assistant (SSA)
6. Smt. J.Kavitha
W/o. Sri. Kamesh R.
Aged about 32 years
Social Security Assistant (SSA)
7. Smt. P. Geetha
W/o. Sri. G. Satish Kumar
Aged about 34 years
Social Security Assistant (SSA)
8. Sri. M. Prashantha
S/o. Sri. N.J.Mohan Rao
Aged about 34 years
Social Security Assistant (SSA)
9. Smt. N. Sudha
D/o. Sri. M.N.Nagabhushan
Aged about 34 years
Social Security Assistant (SSA)
10. Smt. Zabina
D/o. Sri. Abdul Rahim
Aged about 37 years
Social Security Assistant (SSA)
11. Smt. Anupama V. Hubli
W/o. Sri. S. Stanley
Aged about 34 years
Social Security Assistant (SSA)
12. Sri. Jayaprakash
S/o. Sri. Dhansegaran
5
Aged about 35 years
Social Security Assistant (SSA).
13. Smt. Tanveer Fathima
W/o. Sri. Imtheyaz Hussain
Aged about 42 years
Social Security Assistant (SSA)
14. Smt. K. Shyja
W/o. Sri. Preejesh M
Aged about 36 years
Social Security Assistant (SSA).
15. Smt. V. Prathima
W/o. Sri. Nagaraj H.K.
Aged about 34 years
Social Security Assistant (SSA).
16. Sri. B. Manohar
S/o. Sri. Basavaraju
Aged about 33 years
Social Security Assistant (SSA).
17. Smt. D.Bhuvaneshwari
W/o. Sri.Rajagopal R.
Aged about 35 years
Social Security Assistant (SSA).
18. Sri. Rajesh V.
S/o. Sri. N. Varadarajan
Aged about 40 years
Social Security Assistant (SSA)
All are working in the office of
The Regional Provident
Fund Commissioner
Bhavishyanidhi Bhavan
No.13, Rajaram Mohan Roy Road
Bangalore - 560 025.
6
19. Sri. Mallikarjuna
S/o. Sri. R. Nataraj
Aged about 33 years
Social Security Assistant (SSA).
20. Sri. P. Mohan
S/o. Sri. Pillappa
Aged about 36 years
Social Security Assistant (SSA).
21. Smt. Sri. Vidya V.S.
W/o. Sri. N.K.Subramaniam
Aged about 35 years
Social Security Assistant (SSA).
22. Smt. R. Poornima
W/o. Sri. Renuka Prasad N
Aged about 38 years
Social Security Assistant (SSA).
23. Sri. B.Srinivasa
S/o. Sri. Rame Gowda
Aged about 43 years
Social Security Assistant (SSA).
24. Smt. B. Veena Prabhu
W/o. Sri. K. Anantha Padmanabha Kamat
Aged about 33 years
Social Security Assistant (SSA).
25. Sri. R.K.Bhaskar
S/o. Late Sri. Keshavelu Naidu
Aged about 31 years
Social Security Assistant (SSA).
All are working in the office of
The Regional Provident
Fund Commissioner
Sub-Regional Office
7
No.S(1) F, I Cross, I Phase
Peenya I Stage, Bangalore - 560 058.
26. Sri. G.M. Afsar
S/o. Sri. Abdul Azeem
Aged about 37 years
Social Security Assistant (SSA).
27. Smt. N.Aparna
D/o. Sri. K. Natarajan
Aged about 34 years
Social Security Assistant (SSA).
28. Smt. D. Nalini
W/o. Sri. B. Ramesh
Aged about 36 years
Social Security Assistant (SSA).
All are working in the office of
The Assistant Provident
Fund Commissioner
Sub-Regional Office
No.4, Lakshmi Complex
Old Madras Road, K.R.Puram
Bangalore - 560 036. ...Respondents
(By Sri. M.Vasudeva Rao, Adv., for C/R.1 - R.7, R.9-
R.12, R.14, R.16 - R.18 & R.28.
These writ petitions are filed under Articles 226
and 227 of the Constitution of India praying to set aside
the order dated 24.2.2012 passed in O.A.No.436/2010
and etc.,
These petitions coming on for hearing this day, N.
Kumar J., made the following:-
8
ORDER
These writ petitions are preferred by the Central Provident Fund Commissioner, challenging the order passed by the Central Administrative Tribunal declining to review the earlier order passed in O.A.Nos.436/2007 and 478/2007 dated 24.2.2010.
2. Respondents were initially appointed as Lower Division Clerks (LDC). They were subsequently appointed to the ex-cadre post of Data Entry Operators (DEO) purely on deputation/adhoc basis, as a stop-gap of arrangement, pending finalization of Recruitment Rules and appointment on regular basis. Similarly, Upper Division Clerk (UDC) who opted for the post of DEO were given monetary benefit in the form of deputation allowance who are appointed to the ex-cadre of DEO. The Recruitment Rules for the post of DEO was framed both in respect of the Data Entry Operators Grade-A and Data Entry Operators Grade-C. A notification came to be issued in the Central 9 Government Gazette dated 21.10.2003. The cadres of Lower Division Clerk and Upper Division Clerk were merged and new cadre "Social Security Assistants' in the pay scale of Rs.4000-100-6000 was created vide the Recruitment Rules for the said post i.e., the Employees' Provident Fund Organisation (Social Security Assistant) Recruitment Rules, 2003.
3. The respondents on qualifying in the Skill Test, they were promoted to the post of UDC/SSA in the regular channel of service and the pay was fixed in the pay scale of Rs.4000-100-6000, which resulted in reduction of their scale of pay by Rs.300/-. Therefore, they sought for fixation of their pay as per the fundamental rules. Accordingly, their pay was re-fixed. Thereafter, Zonal Audit Officer questioned the pay fixation of the petitioner. On account of the office objection, by an order dated 13.09.2004, the pay was re-fixed and the benefit of Rs.3,000/- granted earlier was withdrawn. Challenging the said action, the 10 respondents preferred an application before the Central Administrative Tribunal. The petitioners contested the matter. However, as similar issues arose before the Tribunal at Ernaculum which has passed the order setting aside the action of withdrawing the benefit, the Tribunal following the said judgment allowed the applications and restored the benefit to the said respondents. Thereafter, the Ernaculam bench in the review petition filed had recalled its earlier order. Therefore, the petitioners herein also filed a review petition seeking recalling the order passed by the Tribunal. The said applications were dismissed on the ground that the order passed by the Ernaculam bench was earlier to the order passed by the Tribunal. The petitioners did not bring it to the notice of the Tribunal the fact of recalling the earlier order. Therefore, the Tribunal felt there is no justification to recall the earlier order. Supporting its contention, the Tribunal relied on two judgments of the Supreme Court and dismissed the 11 applications with costs. Aggrieved by the said order, the present writ petitions are filed.
5. The learned counsel for the petitioners assailing the impugned order contends that the earlier order of the Tribunal is based on the order of the Ernaculam bench. When the earlier order of the Ernaculam bench was recalled and the same is produced before the Tribunal at Bangalore, in all fairness, the Tribunal ought to have recalled the earlier order and decided the case on merits. On the ground that the order recalling the earlier order was in- existence, on the day the Tribunal passed the order, which was not brought to their notice, cannot be a ground for refusing to review the order. Therefore, he submits that the order passed is erroneous and requires to be set aside.
6. Per contra, learned counsel for the respondents submits that what the Court has to consider in its jurisdiction under Article 226 is whether 12 there is any error in the order passed by the Tribunal refusing the review petition and not on the merits of the case. When the Tribunal has followed two judgments of the Apex Court, no case for interference is made out and therefore, he submits that this review petition is liable to be dismissed.
7. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is;
"Whether the Administrative Tribunal was justified in declining to review its earlier order?"
8. The reasons given for allowing the original Application Nos.436/2007 and 438/2007 are as under;
"8. At the time of hearing the matter, the counsel for the applicants has filed a Memo enclosing the decision of the Ernakulam Bench of the Tribunal in O.A.Nos.295/2007 and 368/2007 pronounced on 12th November, 2008 .The counsel for the applicants submit that the 13 facts in O.As before the Ernakulam Bench were identical to the facts in the O.As before this Tribunal and following the law of precedents the order of the Ernakulam Bench is applicable to the applicants in the OAs before this Bench.
9. We have carefully gone through the Order of the Ernakulam Bench of the Tribunal and find that the applicants in OAs before us are similarly placed as the applicants who approached the Ernakulam Bench of the Tribunal. In the case of the OAs before the Ernakulam Bench also there was a refixation of pay to the applicants who were initially recruited as LDCs and who officiated as DEOs after their promotion to the SSA cadre. It was contended by the respondents that the pay on repatriation to the parent cadre had to be fixed as per the provisions of FR 22 (IV). After discussing various case laws, the Ernakulam Bench of the Tribunal decided as below:
"14. .................. The O.A. succeeds. It is declared that pay protection as contained in order dated 19.4.2006 14 would be equally applicable to those who were promoted to the post of SSA who were on the date of promotion functioning as DEO on ad hoc basis, ever prior to the issue of the said order. Thus, the applicants are entitled to the same and consequently, respondents are directed to the post of SSA in accordance with the provisions of Order dated 19th April, 2006 and difference between the pay due and drawn by paid to them. This drill shall be completed within a period of three months from the date of communication of this order".
10. Learned counsel for the respondents argued that the facts in the OAs before this Bench are distinguishable from the facts in the OAs before the Ernakulam Bench. We do not find a single reason for distinguishing the case before us from the facts in the OAs decided by the Ernakulam Bench. The learned counsel would further submit that the decision of the Ernakulam Bench was per incuriam, citing the judgment of the Hon'ble 15 Supreme Court in Badriprasad and Others Vs. Union of India and Others, 2006 SCC (L&T) 92, wherein the Hon'ble Apex Court had held that the appellants were not entitled to regularisation of Grade 'C' post merely on the basis of their adhoc promotion but entitled to protection of pay last drawn by them in the said post even after their repatriation to Group 'D' posts. We do not understand how the ratio of the above case can be applied in the case of the applicants before us. The applicants were on deputation to the post of DEOs after they qualified in the prescribed test etc., and only because there were no recruitment rules for the post of DEO, they continued on such deputation. Once the recruitment rules were framed for the post of DEOs in the respondent department, those posts cannot be treated as ex cadre posts. Further, the applicants were not continued as DEOs or reverted as LDCs/UDCs but were posted to the post of SSAs which was a cadre formed on merging the erstwhile LDC and UDC cadres. Thus, viewed from any angle the facts in Badriprasad and Others are purely different from the facts in the cases before us. 16
We hold that the decision rendered by the Ernakulam Bench of this Tribunal is squarely applicable to the applicants before us. The prayer in the OAs to quash and set aside the impugned orders is allowed. The respondents have to fix the pay of the applicants as per the provisions of the order dated 19th April, 2006 and if any arrears are due to the applicants, the same shall be paid within three months from the date of receipt of a copy of this order. No costs."
9. From the aforesaid reasons, it is clear that the applications came to be allowed because the Tribunal was of the view that the decisions rendered by the Ernaculam Bench of the Tribunal is squarely applicable to the applicants before them. Therefore, the prayer in the original applications to quash and set aside the impugned order was allowed. This order is dated 24.05.2010. The order of the Ernaculam Bench of the Tribunal was reviewed on 9th October, 2009. Therefore, the date, on which, the Tribunal allowed the 17 applications on the basis of the order dated 10.11.2008, the said order was not in existence. The order passed by the Tribunal is erroneous, on the face of the record. It is an error apparent on the face of the record, which is a good ground for review.
10. It has declined to review the order on the ground that though the order of review was in existence, it was not brought to its notice. The order passed by the Tribunal would not get validity because of the said omission. It only confirms their contention that the order passed by the Tribunal is erroneous, unsustainable without any further enquiry. Therefore, there is an error apparent on face of the record. Therefore, the review petition ought to have allowed and the applications ought to have been decided on merits. The Hon'ble Supreme Court has held in the judgment on which the reliance is made as under;
"The power can be exercised on the application of a person on discovery of new and important matter or evidence which, after 18 the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. ............ A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.
However, the Apex Court has held as under:
"Where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and dowes not require detailed 19 examination, scrutiny and elucidation either of the facts or the legal position."
11. While exercising the power of review, the Court or Tribunal cannot exercise the powers conferred on it while deciding an appeal on a judgment or decision. That is clear by the legal position of law laid down by the Apex Court, which binds the Court as well. When the Tribunal allowed the applications filed by the respondents, it has not given an independent reason as setout above, because the Ernaculam Bench of the Tribunal in identical matters where the petitioner is the party has allowed the applications. The Tribunal also allowed the applications relying on the said judgments. The said judgments had been rendered on 10.11.2008. On the day, when the Tribunal allowed the applications, that judgment was not in-existence. Unfortunately, the petitioners who had preferred the review petition earlier got the order reviewed, but did not bring it to the notice of the Tribunal. On 24.2.2010, the order passed by the Ernaculam Bench of the Tribunal, on which, the 20 reliance is placed by the applicants before them does not exist. If it had been brought to the notice of the Court, certainly, the Court would have allowed the applications. Merely because, this fact was not brought it to the notice of the Court when the applications were allowed, which is not a ground to refuse for reviewing the order and the order passed by the Tribunal is illegal, because it is based on the order, which is not in- existence. As held by the Apex Court, the error should be evident per se from the record. It does not require any detailed examination. In the facts of the case, no detailed examination is required. Facts are not in dispute. All the orders are before the Court. The fact is; the Tribunal committed an error in allowing the applications on the basis of the order, which was not in- existence. The said order ought to have been corrected. The Tribunal missed the point and accusing the respondents of not bringing it to its notice the review of the order of Ernakulum Bench of the Tribunal. Therefore, the order passed by the Tribunal in refusing 21 to review the order is illegal and requires to be set aside. Accordingly, we proceed to pass the following:
ORDER
(i) Writ petitions are allowed.
(ii) Impugned order refusing to review the order is hereby set aside.
(iii) Review application is allowed. The original application is restored to its original file.
(iv) The Tribunal shall decide the original application on its merits and in accordance with law without in any way influenced by the order passed either by this Court or by the Tribunal earlier.
Sd/-
JUDGE Sd/-
JUDGE SA