Central Administrative Tribunal - Kolkata
Banshraj Shaw vs M/O Defence on 20 September, 2019
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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, CALCUTTA BENCH, CALCUTTA ISr
0. A. No. of 2014 mK v IN THE MATTER OF:
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1. BANSHRAJ SHAW, aged about 26 years, son •-a of Shri Ram Briksh Shaw, residing at Indrapuri, 1:.
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Ichapur, Post Office- Nawabganj, Police Station- Noapara, District- 24-Parganas, Pin- ■y.-
743144;
2. SASHI BHUSHAN SINGH, son of Shri 'y Nagendra Singh, residing at village- Pithauri w«•:
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Tawalaktola, Post Office- Paygambarpur, ' U-
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Police Station- Baniyapur, District- Chapra, W - • fc-
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Bihar,Pin-841403;
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3, PUSPRAJ RANJAN, son of Shri Jogendar Prasad, residing at Village- Barichowk, Post Office- Itwa, Police Station- Dharhara, District-
Munger, Bihar, Pin-811212;
4. BIKASH KUMAR, son of Shri Bipin Bihari & 2 Prasad, residing at Village- Ahirtoli Bharat "
; Milap, Post Office and Police Station- Bhagwan Bazar, District- Chapra, Pin- 841301;2
...APPLICANTS
-VERSUS-
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1. UNION OF INDIA service through the
s. Secretary, Ministry of Defence (Defence
and Production), Government of India, South Block, New Delhi-110001.
2. THE DIRECTOR GENERAL OF ORDNANCE FACTORIES AND THE CHAIRMAN I ;
: Ordnance Factories Board, Government of 1 India, Ministry of Defence, having his office at.
'Ayudh Bhawan', 10A, Shaheed Khudiram Bose Road, Kolkata-700001;
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3. THE GENERAL MANAGER, Grey Iron s Foundry, Indian Ordnance Factory, Ministry of >1 Defence, Government of India,- Jabalpur-
482009, Madhya Pradesh.
...Respondents. - rP1';:
d J i s'j j t 1 ;) >] t 1 OA 826 OF 2014 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. O.A. 826 of 2014 Date of order: 20.9.2019 Present Hon^ble Ms. Bidisha Banerjee, Judicial Member Honlole Dr. Nandita Chatterjee, Administrative Member (Banshraj Shaw & ors. v. Union off India & ors.J For the Applicants Mr. P.C. Das, Counsel For the Respondents : Mr. Counsel n:'U ^ ■> ^ ^i a r-t.-
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Per Dr. Nandita ChatteriifeMdfhiMstiati^ellember: %
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SWion|9 of
the idmprstrative g?or ^ foUowi^eliel:-
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m Leave mayf%^|rantid /o |h| lAidamts this appl^Mon |>intly
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| ufder|Rule 4(5)(a) 'fevth;l |dftiir&str^iy^nbunal (Procure) ^ules,
\l4'8'?^1ls all the applicants have ^ common gi^ev||tee. ^
■|b) To pass%n a^pTopria^bTMeEfdii^ife^ u^cin the rieSpondent aut^)rity to
consider the case: bTthe; applicants for absorption against a[ large member of vacancies1 issued by. .the? respondent department .jbeingzAnnexure Aifl of this ori^jial appiiCatlpn in 'their respective trade in^the senihskilled gi|&de as per their;;fposseSsion;,'of Natiohral^Apprenticeship^CertiIicateaissued by^me National Council, of Vocational Training in wfriCft aS your applicant^haveipossessed the same wlib. have- successfiilly completed the; Apprenticeship Courf and completed the trainingcand feecame successful in the Same as^ptf spen'ding money by the respondent No.. 3 in respect of such apprenticeship and jf^will be profitable for the respondent No.k.3 if they^absor^^he-pTe applicants in their respective trade against a large^number of vacancies an£#ri§§ue appointment orders and give preference to the appiicahtS 'Olon'g u'itK 'other eligible candidates;"
2. Heard both Ld. Counsel, examined pleadings and documents on record.
The applicant would rely on the orders of coordinate Bench at Allahabad in O.A. 330.00881/2015 along with O.A. No. 330/00532/2015 (Alok Kumar <& ors. v. Union of India & ors.) in support.
« 2 O.A. 826 OF 2014
3. The submissions of the applicant, as conveyed through their Ld. Counsel is,
(a) That the applicants are in-house trained candidates, who 3 completed the apprenticeship training and received their National 3 Apprenticeship Certificates from NCVT. Cost of the said apprenticeship r training was borne by the Grey Foundry, Jabalpur.
(b) That, the Ordnance Factory Board had issued a circular dated 6.11.2011 (Annexure A-3 to the O.A.) which stated that vacancies be 'i Si-
filled up by All India Or4n^|e^k<^dH$.s|S^!i|h an open advertisement, % % that. Employments"Exclianges are to be notified fef..,spoifsoring list of A**# % '■ tv ................... %
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% eligible e^Kfc, %ie|E|»*^ppre„ticesW ^d„a„e.
Factories wotl'.d not ^ re^^l sponsored through the Employment Exchange. i f tIr ■>±.?
(c) Further, the ^Trad^ :;;^^^rW^Kr|fcncernecl^ecn|ting 3 'a 1 ordnance ^factories :>%ould ' not/be; mfeqmired^ to^dpply agaihst |uch * i. h \ "'X, C^i I 'vv- Ci' >• :t, u, 4'jf, ^r- .•.v^ ..p recnaitmepi notice, B%f they ivili %e "teoriSi^red along 4yith |)ther i /' l t f l * applicants.
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(d) The circular fiihther stated that the %aid^ ExAadfe Apprentices
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would be given'age relaxationTOuthe extent of the ''period for Jvhich they >. /" /■ had undergone, trailing. ..S ■s-
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(e) Despite such ciccular arfd^^she-jiatliHiai decisi?fns in the matter of BHEL Ex. Trade Apprentices Association (Civil Appeal No. 10815- 10816/2013) as well as in U.P. State of Road Transport Corporation & anr. v. U.P. Parivahan Nigam Shishukhs Berozgar Singh & ors.
(Civil Appeal Nos. 4347-34 of 1990), the concerned ordnance factories failed to comply with such directions..
(f) The respondent authority No. 3, who is the General Manager, Grey Iron Factory, Indian Ordinance Factories, Jabalpur, thereafter published (« 3 O.A. 826 OF 2014 an advertisement on 24.5.2014 for filling up a number of vacancies in semi-skilled grade in Grey Iron Foundry, Jabalpur on direct recruitment basis in total violation of the circular and judicial order. Hence, being aggrieved, the applicants have approached the Tribunal praying for their absorption and for an interim relief in the form of restraining the respondents from filling up any vacancies in semi-skilled grade by virtue of the notification.
4. The respondents have controverted the claim of the applicants by .;V:
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questioning, at the outsef,l:tihelJ©is:dif;tiaft ©f the Kolkata Bench to adjudicate the /instant matter as the in^upjed\recruitment
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advertisement\Had laid ;d^own |that ^1' dilputes with regard to the ^\ i 5 # / ,?%> X advertifsemeift-* shall belsubjtect'to jurisdicfiionfnf Gljurts at jSb^lpur.
On 4n.erit, the iffesppndentS'Lhave^disputed ^h^^plaims of. applicants j
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| traiiiihg at the rei^dhdents? ta;ctqry^Linde^the Apprentiqp^ii^ Act, "Ztt* T QfZ 1 I § i961* '•So.
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(b) The ipircufar 3ated 6.1.2011 cSearl^ states^ that/in the X-
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selection process <<othef'''t-hings.„beiffg equals trained apprentices ■•.V. '' shall be given preference". The respondents wbuld arigue that "other ...y V*.- T things being Oqual" implies - that" all applicants including the |i apprentices have to appear fftfie prescribed competitive test and, after such examination, if an apprentice trainee gets equal marks as that of a non-apprentice trainee, preference would be given to ) the said apprentice.
(C) According to the respondents, as the applicants are apprentices, they have entered into the contract of apprenticeship with the employer on such terms and conditions as may agreed to i '■! 4 OA 826 OF 2014 • by the parties to the contract. The contract entered into did not oblige the respondent authorities, particularly, in terms of Section .
22 of the said Act, to offer any employment to said apprentices, who had completed the period of apprenticeship training under such establishment.
(d) That, the notification calling for offline applications for filling up vacancies in semi-skilled grade with the respondent functionary categorically stated that even the trade apprentice of Ordnance "Vv ■<.
Factories would be retimed tb^hilply onlne, .*•.
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5. Prima facie,, prior to adjudicating this O.A. -Bfijneriftrit has to be V;-... V"" . \ decided whetft|Pthis Trpi|ll'|ial: to adju^cafe on this
--' ■ 6.1. dn this, we ref|40,thjj|^^^^pm% at Ani^hre 11//Ok •« % 1 to ■•-V"
f IreTnlf^lfls been slated % the il the O.A,?as well as'' Tt&sifr feacM notl <be# notes 1 foUows: i"-
1^ "• t''^^The General%.../'/! 1 V\ I Maiiagert Grey ijonVouridryf^abalpur reserves*ffie light to ^modify/alter/re.striet/caiieehthe recfuitmentlprocessTHf'need so arises, without issuing any ■ furthec_ri^ce ¥^as^hii#^y redspn thfeof The dedsion of GM/GIF will be hnafhn^l no appeal will be erileffain^d against this ipsue. All disputes;will be subject^to Jabalpur jurisdiction.''2' . 'T .a:
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6.2. Further,vdn the.proviso VVofj"Provisibh;nri compensatory time", the {' jF following is stated:-^ v"^i 'C;
"r) The advertisement is subject to orders, if any, by Honble Courts/Tribunals/Ministry of Defence/Ordnance Factory Board having bearing on the recruitment matter and any unforeseen circumstances, if any, etc."
The applicants have not used the rejoinder to refute the ! maintainability of the O.A. on grounds of jurisdiction raised by the respondent authorities. We further find that, vide daily order dated 7.11.2014, the applicant was directed to file relevant documents to show that this Tribunal has jurisdiction in the matter. We find no such 5 O.A. 826 OF 2014 Y affidavit or documents on record to refute the claim of the respondents / that this matter is essentially to be decided upon by the $ Tribunal/judicial forum having jurisdiction at Jabalpur. j 6.3. Whether a Tribunal has jurisdiction on certain facts depends not i on the merit of the matter or upon the correctness of its findings on these facts placed for adjudication, but upon their nature, which is determinable at the commencement and not at the conclusion of the adjudication.
| 1 1- 1 I. f *3. «• ■ Hence, since the/i^sUe^of jurisdictioh-i«|a .p^ehmihmy issue to be raised and, d^ded.>at th^J^lapwduld adftjss, Si^mtio, the preliminary objection raisfd fey tfcie rfesplindfeMllin regard^to tdilission of . ._■/ S. \ % 11 / ^ X .■! if Adlffinistrativ4|ri:ilwnafie^^^ft^afelish^ M'" She.
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the Administrative fehunof the A|^r0|des for jiin.sdrejtion, powefe, and amthbrttylo&Tribun* under the»Act.| The i w provisions make iTplear / / Tribitoap^ll^xercise i %\W ^ l jurisdict^n on recruitments aSid^seryice^ihatters relating tos¥fvices\or posts. The ; M JF \ \-£ / M;' V4" A\^ / j?
Tribunal%as the dame jiin-sdiction, which Va^vcivil eburt of a High Court \ t. ,;\ y J' was exercising before establishment ..of the'Tribunal/bver^l matters in relation to recruitment and all service matters in .respect of All India ■ "................................... . '4* •f Services and civil service df-^cM^ppsf^or^td-'-S' post held by a civilian in i Defence Services. It is true that forum depends on litigants' discretion i i.e. litigant has a right to choose the forum that will serve him better.
Nevertheless it is trite law that such choice is available only in regard to choosing such a forum wherefrom the cause of action has arisen.
6.4. We note that for determination of jurisdiction of a forum, cause of action has been given great importance. In the case of Rajasthan High p 6 O.A. 826 OF 2014 Court Advocates' Association vs. Union of India reported in 2001 AIR SOW l(para 17), the Honhle Supreme Court noted as follows:-
"The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself Compendiously the expression means evem fact, which_it would be necessaru for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.Every fact, which is necessary to be proved, ^s^:<Atmaibshecf 'i&om everu piece of evidence, which if^c&Sary%o fidve^mc0^jpx^, comprises in 'cause of action'. I%h$s%o*be left to be detenriifSetk A^pacffiiqdividual case as to where iKe cause of action arises." %I--.
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1. In the instant'mater ^"notification-^ A1 td;Xthe/O.A/chas been challenged andvis the. primaiy .caus.ef of adtidh The-^fiotifieftion has been " " ^ ftr issued by the authorities aF'dabalpurj^the^ applicants are aspirants for appointment in the Grey Iron" faSSfy^aTSffialpur. Most importantly, the notification categorically lays down that any dispute on the notification will be decided by courts having jurisdiction at Jabalpur.
The applicants have not brought any countervailing arguments to the above; we are hence of the considered view that only a Tribunal having jurisdiction at Jabalpur can adjudicate in this matter. .
In terms of Administrative Tribunals Act, 1985, C.A.T., Kolkata Bench
7 O.A. 826 OF 2014 lacks jurisdiction in regard to a cause of action which has arisen in Jabalpur.
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8. Accordingly the O.A. fails due to lack of jurisdiction.
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(Bidisha
(Dr. Nandita Chatterjee) Administrative Member 7 ' ¥ Judicial Member u S • V. •v, - / :
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