Gujarat High Court
Union Of India & vs Central Administrative Tribunal & on 13 September, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/9339/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9339 of 2017
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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UNION OF INDIA & 1....Petitioner(s)
Versus
CENTRAL ADMINISTRATIVE TRIBUNAL & 1....Respondent(s)
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Appearance:
MS TRUSHA K PATEL, ADVOCATE for the Petitioner(s) No. 1 2
MR MD RANA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226/227 of the Constitution of India, petitioners herein - original opponents - Union of India and another have prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 25.10.2016 passed in Review Application No.33/2016 in Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT Original Application No.508/2014 by which the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "Tribunal") has directed the applicants herein to pay the interest on the delayed payment of arrears of pension on refixation of the amount of pension / revised pension at the rate of 9% per annum with effect from 01.03.2013.
[2.0] We have heard Ms. Trusha Patel, learned Advocate appearing on behalf of the petitioners and Shri M.D. Rana, learned Advocate appearing on behalf of the respondent No.2 - original applicant at length.
[3.0] At the outset it is required to be noted that it is not in dispute that the pension of the respondent No.2 herein was requried to be refixed. It is also not in dispute that as such earlier there was already a decision of the Delhi High Court confirmed by the Hon'ble Supreme Court on the basis of which the Department was required to refix the pension in case of all other similarly situated employees like respondent No.2 herein. Despite the above the pension was not refixed. Some of the employees approached the Punjab & Haryana High Court and the Punjab & Haryana High Court vide judgment and order dated 21.12.2012 allowed CWP No.19641/2009 and other allied CWPs and directed the Department to refix the amount of pension within two months and pay the arrears within two months failing which it shall carry the interest at the rate of 9% per annum with effect from 01.03.2013. Despite the above decisions of the Delhi High Court as well as Punjab & Haryana High Court, the Department did not refix the pension in case of the respondent No.2 herein - original applicant which gave rise to the Original Application No.508/2014. The learned Tribunal allowed the said original application and directed Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT the applicants herein - Department to refix the pension and pay the arrears. However, the order of interest was not passed and therefore, in Review Application No.33/2016 and considering the directions issued by the Punjab & Haryana High Court in its judgment and order dated 21.12.2012 in CWP No.19641/2009 and other alllied CWPs, the learned Tribunal has directed to pay the interest at the rate of 9% per annum on the arrears of pension on refixation.
[3.1] Feeling aggrieved and dissatisfied with the order passed by the learned Tribunal in Review Application directing the applicant to pay the interest at the rate of 9% per annum with effect from 01.03.2013, the original opponents have preferred the present Special Civil Application.
[4.0] Ms. Patel, learned Advocate appearing on behalf of the petitioner - Department has vehemently submitted that as such the learned Tribunal has materially erred in awarding the interest considering the directions issued by the Punjab & Haryana High Court. It is submitted that as such the decision of the Punjab & Haryana High Court was in personem and not in rem and therefore, the learned Tribunal is not justified in awarding the interest considering the decision of the Punjab & Haryana High Court. It is further submitted by Ms. Patel, learned Advocate appearing on behalf of the petitioner that even otherwise the Punjab & Haryana High Court directed to pay the interest with effect from 01.03.2013 in case the pension is not refixed / revised within a period of two months. It is submitted that therefore the learned Tribunal has materially erred in awarding the interest at the rate of 9% per annum from 01.03.2013.
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C/SCA/9339/2017 JUDGMENT
[4.1] It is further submitted by Ms. Patel, learned Advocate appearing on behalf of the petitioner that infact subsequently the Central Government / Union of India accepted the judgment and order passed by the Delhi High Court on the issue, confirmed by the Hon'ble Supreme Court in the month of July 2015 and thereafter immediately in the month of October 2015, the original applicant was paid the arrears. It is submitted that therefore the learned Tribunal is not justified in awarding the interest at the rate of 9% per annum with effect from 01.03.2013.
[5.0] Having heard Ms. Patel, learned Advocate appearing on behalf of the petitioners herein and considering the impugned order passed by the learned Tribunal, we are of the opinion that as such the Union of India ought not to have preferred the present Special Civil Application challenging the impugned order passed by the learned Tribunal awarding the interest at the rate of 9% per annum with effect from 01.03.2013. It is required to be noted that as such the issue with respect to the revision of pension was already settled by the Delhi High Court confirmed by the Hon'ble Supreme Court prior to 2012. Even thereafter the Punjab & Haryana High Court in the year 2012 considering the decision of the Delhi High Court confirmed by the Hon'ble Supreme Court took the similar view. Despite the above though the respondent No.2 - original applicant was similarly situated, the pension was not revised. It is the case on behalf of the petitioners that as the orders passed by the Punjab & Haryana High Court was in personem and not in rem, the learned Tribunal is not justified in awarding the interest on the delayed revision of pension. However, it is required to be noted that being a model employer the decision of the Delhi High Court confirmed by the Hon'ble Supreme Court and the decision of the Punjab & Haryana High Court of the year 2012 was required to be Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT implemented by the Department qua all other similarly situated employees. They cannot be permitted to take the stand that the decision of the High Court was in personem and not in rem. At this stage the decision of the Full Bench of this Court in the case of State of Gujarat Vs. Secretary, Labour Social Welfare & Tribunal Development Department & Anr reported in 1982(1) GLR 61 is required to be referred to. The Full Bench of this Court in the aforesaid decision has specifically observed that nonapplying of the decision of the Court in case of other similarly situated employees may tantamount to committing civil contempt. In paras 9 and 10, the Full Bench of this Court has observed as under:
"9. The legal position regarding the binding nature of judgments delivered by High Courts was clearly explained as far back as 1962 by the Supreme Court. In East India Commercial Co. Ltd. V. Collector of Customs, Calcuttam A.I.R. 1962 S.C. 1893, Subba Rao. J. (as he then was) speaking for himself and Mudholkar J., has explained though A.K. Sarkar J. who was the legal position, the legal position in paragraph 29 of the report as follows:
This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art: 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT confusion in the administration of law and respect for law would irretrievably suffer, We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority, signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."
The position was reiterated in Makhan Lal Vs. State of Jammu and Kashmir, A.I.R. 1971 S.C. 2206. It was the context of the law declared by the Supreme Court that the decision laid down to that effect so far as Article 141 of the Constitution was concerned, but what has been observed in paragraph 5 at page 2209 by Grover J. speaking for the Supreme Court has equal application so far as pronouncements by the High Courts are concerned. Grover J. observed at page 2209:
"The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition."
It cannot, therefore, be contended by anyone, that since Acharya, the petitioner in Special Civil Application No. 2215 of 1979, was not a party to Special Civil Application No. 806 of 1975, that the law laid down by D.A. Desai, J. in his judgment in that case on August 7, 1975 was not applicable to the case of Acharya. Whether the law is declared by the Supreme Court or whether the law is declared by the High Court, the legal position as regards authorities and tribunals subordinate to the Supreme Court and High Courts respectively is the same as pointed out by Subba Rao J. in East India Commercial Co.s case (supra).
10. In Shri Baradakanta Mishtra V. Shri Bhimsen Dixit, A.I.R. 1972 S.C. 2466, the legal position regarding binding nature of the High Court's decision was once again reiterated by the Supreme Court and after quoting the above passage which we have extracted from the judgment of Subba Rao J. in East India Commercial Co. s case (supra) in paragraphs 15 and 16 of the judgment, Dwiveid J. speaking for the Supreme Court observed at page 2169:
Page 6 of 9HC-NIC Page 6 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT "The conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law."
In Hashmukhlal C. Shah V. State of Gujarat, 19 G.L.R. 378, a Division Bench of this High Court consisting of J.B. Mehta and P.D. Desai JJ. after examining several decisions on the point, observed:
"... in a Government which is ruled by laws, there must be complete awareness to carry out faithfully and honestly lawful orders passed by a Court of law after impartial adjudication. Then only will private individuals, organizations and institutions learn to respect the decisions of Court. In absence of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the Courts of law under the Constitution might be rendered a futile exercise."
From these four decisions, the following propositions emerges:
1. It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State.
2. The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceeding of deciding on the rights involved in such a proceeding.
3. If in spite of the earlier exposition of law by the High Court Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT having been pointed out and attention being pointedly drawn to that legal position in utter disregard of that position proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in section 2(b) of the Contempt Courts Act, 1971."
[5.1] Following the aforesaid decision of the Full Bench of this Court, the learned Single Judge of this Court in its judgment and order in the case of Vipulkumar Atmaram Parekh & Ors. vs. State of Gujarat through Secretary & Ors. reported in 2009 (5) GLR 3914 has observed that to raise the objections again and again which are overruled by the Court by decisions, would not only compel the similarly situated employees to incur expenditure towards legal proceedings, but it will also increase litigation and burden to the Courts, which are otherwise today heavy burdened due to backlog of cases and Courts are trying their best to get out of the backlog. In the case of (Smt) Dhanlakshmiben Liladhar Suchak vs. Director of Ayurved and Ors. reported in 1992(2) GLH 478 as far as back in the year 1992, the learned Single Judge of this Court has observed that the Government should be model employer. The model employer is one who would not deny just claim of his employee and employees on nontechnical ground. Such model employer would not wait for any direction to be given to accept just claim of the employee/s. It is further observed that once it is found that an employee is similarly situated, the benefits flowing from judgment in a case should be given to other similarly situated employees and the employees should not be driven to the Court for addressing just grievances.
[5.2] Applying the aforesaid decisions to the facts of the case on hand, we are of the opinion that the learned Single Judge has not committed any error in awarding the interest at the rate of 9% per annum on the delayed payment of revised pension. We are in Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Oct 01 19:32:37 IST 2017 C/SCA/9339/2017 JUDGMENT complete agreement with the view taken by the learned Tribunal.
[6.0] In view of the above and for the reasons stated hereinabove, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. Notice is discharged.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Oct 01 19:32:37 IST 2017