Calcutta High Court (Appellete Side)
(Admin.) & Ors vs Shri Prem Narayan Pandey & Ors on 29 April, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray.
And
The Hon'ble Justice Mrinal Kanti Sinha.
W. P. C. T No.310 of 2008
Kendriya Vidyalaya Sangathan represented by the Joint Commissioner
(Admin.) & Ors.
Versus
Shri Prem Narayan Pandey & Ors.
With
W. P. C. T No.93 of 2008
Smt. Sushila Upadhaya
Versus
Union of India & Ors.
With
W. P. C. T No.94 of 2008
Sri Pasupati Kumar Jha
Versus
Union of India & Ors.
For the petitioners : Mr. Paresh Chandra Maity
in W.P.C.T No.310 of 2008
For the petitioners : Mr. Durgadas Purakaystha
in W.P.C.T No.93 of 2008 & Mr. Md. Kalam
W.P.C.T No.94 of 2008
For the Union of India : Mr. Farook M. Razack, A.S.G
Mr. Anup Kumar Biswas
Ms. Priyanka Bhutoria
For the respondents : Mr. Abdur Rahaman
in W.P.C.T No.310 of 2008 Mr. Subrata Chakraborty Heard On: 22.9.2009, 6.4.2010, 4.5.2010, 6.8.2010, 1.10.2010 2 Judgment On : 29th April, 2011.
Pratap Kumar Ray, J:
Heard the learned advocates appearing for the respective parties.
Writ application W.P.C.T No.310 of 2008 has been filed assailing the order of learned Central Administrative Tribunal adjudicating a service dispute raised by one employee of Kendriya Vidyalaya Sangathan against Kendriya Vidyalaya Sangathan, a society registered under the Societies Registration Act, 1860. In course of hearing the Court felt that the questions as framed below, for effective adjudication of the matter, as the answers of those questions may go to the root of the matter regarding jurisdiction of Central Administrative Tribunal to decide service dispute of any employee of the Society registered under the Society Registration Act and is controlled by the Central Government, though the jurisdiction issue of the Tribunal was not raised by the present writ petitioner or by the respondent employee, should be dealt with and as such this Court exercising its power under Article 226 of the Constitution of India, has set up following questions as additional points for decision, on giving full opportunity of hearing to the respective parties before us. The Court has power to frame the questions as additional points having regard to the judgement of the Apex Court passed in the case V. K. Majhotra v. Union of India reported in (2003) 8 SCC 40 paragraph 8, a judgement of two Judges Bench and the judgement passed in the 3 case Som Mittal v. Government of Karnataka reported in (2008) 3 SCC 574, a judgement of three Judges Bench, paragraph 11 of the report.
On the said canvass, we framed the following questions:
"1. Whether of preamble, long title under Section 2, Section 4(d) & (rr), Section 8, 11, 12, 14 & 20 of Administrative Tribunals (Amendment) Act, 1986 incorporating the word 'Society' in Administrative Tribunals Act, 1985, the principal Act, in different sections as referred to by inclusion of word 'society', are ulta vires to Article 323A of the Constitution of India, when Article 323A did not stipulate the word 'society', empowering Parliament to frame law for setting up Tribunal in respect of service dispute of employees of 'Society' controlled by Government and source of setting up Administrative Tribunal, is Article 323A of the Constitution of India and whether by this process a breach of Article 368 of the Constitution of India, was committed by Parliament?
2. Whether meaning of the word 'and' joining two words 'public service' and 'post' is disjunctive as 'or', appearing in Article 323A of Constitution of India?4
3. Whether the power of the Parliament to set up/establish Administrative Tribunals to deal with the recruitment and condition of service of the Union or of any State or of any local or other authority or of any corporation owned and controlled by the government, could be exercised to resolve service disputes of holder of services and post thereof only or does it require that such services and such posts, should be "public services and posts" in connection with the affairs of those bodies mentioned, namely, union or state or local or other authority or any corporation?
4. Whether an employee working in Kendriya Vidyalaya Sangathan is the holder of post which could be termed as public service and public post?
5. Kendriya Vidyalaya Sangathan being a society whether could be brought under the umbrella of Article 323A for exercising the power by the Parliament to amend the Administrative Tribunal Act, 1985, by act 19 of 1986, for incorporating word 'society' in section 14 (1) (c) under chapter III of the said Act which relates to jurisdiction, power and authority of Tribunals and in other provisions of said Act ?
6. Whether in absence of incorporation of the word "society" under Article 323A specifically, but incorporation of the word "Corporation 5 specifically", in the said provision by constitutional amendment having regard to Article 368 of the Constitution of India, Parliament can in exercise of power under Article 323A, may set up the Administrative Tribunal to decide the service dispute of "society" by amending Section 14 of the Administrative Tribunal Act, 1985 and in terms of notification dated 17th December, 1998 being JSR 748(d) can notify Kendriya Vidyalaya Sangathan within the Administrative Tribunal umbrella ?
7. When Parliament in terms of Article 368 of the Constitution of India, amended the Constitution by incorporating Article 323A following a lengthy procedure as laid down thereto which includes acceptance of the wishes of the Parliament, in the manner stated, whether Parliament by amending Administrative Tribunal Act in the manner aforesaid while incorporating the word "Society" in Section 14, transgressed the constitutional framework of amending the Constitution under Article 368 of the Constitution of India.
8. Whether the word 'other authority' in Article 323A of Constitution of India, includes 'society' registered under Societies Registration Act, 1860 and controlled by Government, so that Parliament may set up Tribunal to resolve service disputes of society?"6
The parties advanced their respective arguments to answer those questions. Beside adjudication of said constitutional points framed, in course of hearing, other questions framed on jurisdiction of Administrative Tribunal to deal with service matter of the employees of Kendriya Vidyalaya Sangathan specifically having regard to the provision of Article 323A.
Points framed have been answered in depth by respective parties. They were given proper opportunity of hearing. Learned Additional Solicitor General of India Mr. Farook M. Razack appeared on behalf of Union of India. The impugned order of learned Tribunal was passed on 30th September, 2008, by quashing and setting aside the order of removal from service, dated 12th July, 2007, passed in a disciplinary proceeding against the respondent. Sri Prem Narayan Pandey, with a direction to complete Disciplinary Proceeding by holding de-novo enquiry on first charge memo, after supplying the First Information Report of criminal proceeding. The impugned order of the writ application W.P.C.T. No.310 of 2008 read such:
"In this application the applicant has sought relief from this Tribunal in the matter of his removal from service as a Teacher in the Kendriya Vidyalaya Sangathan. The fact of the case is as follows:-
2. The applicant joined as a TGT Hindi in Kendriya Vidyalaya Sangathan on 23.1.1992. In contemplation fo disciplinary proceeding he was suspended on 14.2.2005 (Annexure-A/2). The suspension order was revoked on 3.5.2003 without prejudice to the disciplinary proceedings(Annexure-A/3).
3. On 3.5.2005 a memorandum was served on him under Rule 14 of CCS(CCA) Rules, 1965 and he was asked to give a written statement of 7 defence. The charges were two in number. Article I referred to six occasions of mis-conduct in the year 2004 regarding arrangement register not signed and classes not taken. Article II referred to two violations of escort duty by the applicant. A total of 8 documents were referred to for sustaining the charges. Four prosecution witnesses were also cited.
Thereafter an inquiry was held in which the applicant participated. He was removed from service by the order of the competent authority on 12.7.2004.
4. It may be mentioned here that the applicant had been earlier proceeded against in a disciplinary case in the year 1998. Against that proceeding he had approached this Tribunal in O.A 1003/01. This Tribunal vide its order dated 24.4.2007 dismissed the O. A. During the pendency of the first proceeding the applicant was charge sheeted second time and this O.A is with reference to second charge sheet.
5. It is, however, seen on going through the records that the respondent authorities found him guilty in respect of both the earlier and later disciplinary proceedings and combined the two in removing him from service on 12.7.2007. combination of penalties in respect of separate disciplinary proceeding is not permissible. The appellate authority also in confirming the order of removal did not point out this defect.
6. Since the Disciplinary Authority has combined two separate disciplinary proceedings and issued the penalty order combining both the proceedings which is not permissible, we have to remand the case back to the Disciplinary Authority for separating the two cases and giving orders in each case separately. Action has to be taken by the disciplinary authority in respect of the two cases from the point at which the violation of the procedures/rules took place namely the submission of the inquiry report. We therefore, direct the respondent authorities to come to separate decisions based on the separate inquiry report submitted in respect of the first and second disciplinary proceedings. If an appeal/appeals are preferred, the Appellate Authority will also have to hear out the appeals separately.
7. In the earlier O.A 1003/2001 the applicant had moved a writ petition against the orders of the Tribunal. The Hon'ble High Court in WPCT No.17/2008 had directed in respect of O.A 1003/01 on 24.4.2007 that -
" If for any reason upon going into the records it is found that the report of the preliminary enquiry or the copy of the F.I.R have been relied on and taken note of by the enquiry office, obviously the petitioner is entitled to be supplied with copies of the same. However, 8 we are not expressing any opinion on this issue. The Learned Tribunal shall, while deciding the matter pending before it, enquire into this matter de novo. Therefore, we make it clear that the findings reached in this matter earlier will not operate as res judicata for decision. The matter is disposed of."
It is seen from the files of the Kendriya Vidyalaya Sangathan in respect of the first charge sheet that the Inquiry Officer has taken note of the F.I.R filed in respect of the earlier charge sheet although the same appears not to have been relied upon for drawing up the memorandum of charges. Para 6 of the order of this Tribunal in O.A No.1003 /2001 has specifically referred to this. Keeping in view however the directions of the Hon'ble High Court, in the writ petition a de novo inquiry would be required in respect of the first charge sheet and the applicant would have to be supplied the FIR.
8. It is made clear that in the present O.A we are not dealing with the earlier charges of 1998. However, since the order of removal from service has been given by the respondent authorities combining both the earlier and the present disciplinary proceedings, the same has been mentioned, for guidance of the respondent authorities and for complying with the directions of the Hon'ble High Court.
9. We are, therefore, not at this stage going further into the merits of the O.A 78/2008 before the respondent authorities carry out directions given above. The proceeding may be finalized within a period of six months giving the applicant opportunities of defending himself as per rules and procedure and canons of natural justice.
10. Since the disciplinary proceeding is being remanded back to the respondent, the order of removal dated 12.7.2007 of the applicant is hereby quashed. The applicant should also be permitted to stay on in the quarters allotted to him till further directions of this Tribunal. M.A is disposed of accordingly. There shall be no order as to costs." As question of jurisdiction of learned Tribunal below goes to the root of the matter, we decided to consider those questions framed as preliminary points prior to testing the order of learned Tribunal below under scanner of judicial review in writ jurisdiction.
9
Other identical matters on said service dispute challenging respective orders of learned Tribunal below in writ applications W.P.C.T No.93 of 2008 and W.P.C.T No.94 of 2008 respectively, have been heard analogously on those questions of law framed in this writ application W.P.C.T No.310 of 2008 upon giving proper opportunity to the parties.
To deal with those questions framed by this Court, the constitutional provision under Article 323A and the amendment made in Section 14(1) (b) (iii) of Administrative Tribunal Act, 1985 incorporating the word 'or Society', are required to be considered. Article 323A of Constitution of India read such:
"323A. Administrative tribunals.- Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may-
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;10
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any Court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the cause of action on which such suits or proceedings are based ad arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals. (3) The provisions of this article shall have effect notwithstanding anything in any other provisions of this Constitution or in any other law for the time being in force."
Amendment to Section 14(1) (b) (iii) of the Administrative Tribunal Act, 1985 by amending act of 1986 read such:
"(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;"11
Article 323A is out come of the Constitution (42nd amendment) Act, 1976. The statement of objects and reasons appended to the Constitution (42nd amendment) Bill 1976 (Bill No.91 of 1976), which subsequently became an Act, namely the Constitution (42nd amendment) Act, 1976, will lead us to understand the said questions.
Under clause 5 of statement of objects and reasons, it stipulates the purpose of amendment of the Constitution of India to incorporate new Articles 323A and 323B, under Part XIVA of the Constitution of India for setting up different tribunals namely Administrative Tribunals and other Tribunals, relating to the subject matter of litigation and subject matter of enactment stipulated therein. Clause 5 of the said object and reason read such:
"5. To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under Article 136 of the Constitution. It is also necessary to make certain modifications in the writ jurisdiction of the High Courts under Article 226."
The provision for amendment of Constitution, is Article 368. Article 368 under Part XX of the Constitution provides power of Parliament to amend the Constitution, by detailing procedures, as to be followed to amend, relevant portion read such:-
12
"368. [Power of Parliament to amend the Constitution and procedure therefor] -
[(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.] [(2)] An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in-
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) Any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States [***] by resolution to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.
[(3) Nothing in article 13 shall apply to any amendment made under this article ]"
On a bare reading of the said provision under Article 368 of the Constitution of India, particularly sub Article 2 thereof, it appears that a detailed procedures regarding introduction of the bill, passing of the bill by each house by 13 a majority of the total membership of that house and by a majority of not less than two third of the members of that house present and voting is required before presentation to the President of India to have his assent of the bill and thereafter the Constitution stands amended in accordance with provisions of the bill. Following said procedure of Article 368 of the Constitution of India, by the Constitution (42nd amendment) Act, 1976, a new chapter Part XIVA was enacted providing provision for setting up Administrative Tribunals empowering the Parliament to frame law under Article 323A of the Constitution of India. On a bare reading of said Article 323A of the Constitution, it appears that Parliament is vested with power to enact a law relating to adjudication or trial by Administrative Tribunals, in respect of disputes and complaints on recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union of India or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the government.
A question has been framed whether the power of the Parliament to set up/establish Administrative Tribunals to deal with the recruitment and condition of service of the Union or of any State or of any local or other authority or of any corporation owned and controlled by the government, could be exercised to resolve service disputes of holder of services and post thereof only or does it require that such services and such posts, should be "public services and posts"14
in connection with the affairs of those bodies mentioned, namely, union or state or local or other authority or any corporation? The use of the language "public service and post" by adding the words "public services" with the word "posts" by a word "and", whether carries conjunctive or disjunctive meaning ?
It is the argument of the learned Additional Solicitor General that the word "and", appearing in between two words "public services", "posts", is disjunctive and not conjunctive, to substantiate the point that mere holding of the post by any employee which is not within category of "post in public service", relating to bodies mentioned thereof in Article 323A, Parliament is vested with power to constitute administrative tribunal to resolve service disputes of holders of said post. On scanning Article 323A, it appears that relating to disputes on recruitment and condition of service of those persons who are holding "public services and posts" in connection with affairs of different bodies as mentioned thereof, namely Union or of any state or of any local or other authority or of any corporation, Parliament is vested with power to constitute an administrative Tribunal. If we construe the meaning of the word "and" by holding it disjunctive in nature and thereby mean it as "or", then there was no necessity of putting the word "public services" in Article 323A and only the word "post" would have been suffice to provide jurisdiction to the Parliament to enact law for setting up administrative tribunals. It is a settled legal proposition of law that no word of any statute or the constitution, would be considered as redundant or an unnecessary inclusion. It is will of the Parliament who passed amendment, as 15 such it requires strict interpretation as would satisfy "public service' and "post", by construing the word "and" as conjunctive.
The use of the word 'or' and 'and' whether conjunctive and disjunctive in form has been discussed in Chapter-V Syn.7 by the author Justice Guru Prasanna Singh in his book Principles of Statutory Interpretation, 9th Edition, 2004 at page 404, which read as follows:-
" The word 'or' is normally disjunctive and 'and' is normally conjunctive (Hyderabad Asbestos Cement Product v. Union of India, JT 1999(9) SC 505 p. 510: 2000 (1) SCC 426) but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context (Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1459, p. 1454: (1969) 1 SCR 219; Municipal Corporation of Delhi v. Tek Chand Bhatia, AIR 1980 SC 360, p. 363: (1980) 1 SCC 158 ; R. S. Nayak v. A.R. Antulay (1984) 2 SCC 183, pp. 224, 225: AIR 1984 SC 684; M. Satyanarayana v. State of Karnataka (1986) 2 SCC 512, p. 515: AIR 1986 SC 1162). As stated by Scrutton, L.J.: "You do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'(Green v. Premier Glynrhonwy Slate Co., (1928) 1 KB 561, p. 568; Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331, p. 338: (1975) 2 SCC 671; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra; State (Delhi Administration) v. Puran Mal, (1985) 2 SCC 589: AIR 1985 SC 741). And as pointed out by Lord Halsbury the reading of 'or' as 'and' is not to be resorted to "unless some other part of the same statute or the clear intention of it requires that to be done."(Mersey Docks and Harbour Board v. Henderson Bros., (1888) 13 AC 595, p. 603 (HL) See further Puran Singh v. State of M.P., AIR 1965 SC 1583, p. 1584 (para 5): (1965) 2 SCR 853; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra.) But if the literal reading of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear(A. G. V. Beauchamp (1920) 1 KB 650; R. V. Oakes, (1959) 2 All ER 92). Conversely if reading of 'and' as 'or' produces grammatical distortion and makes no sense of the portion following 'and', 'or' cannot be read in place of 'and'(Sahney Steel & Press Works Ltd., aHyderabad v. Commissioner of Income-tax, Andhra Pradesh, JT (1997) 8 SC 173, p. 188 : 1997 (7) SCC 764). The alternatives 16 joined by 'or' need not always be mutually exclusive(J. Jayalalitha v. UOI, AIR 1999 SC 1912 p. 1919 : (1999) 5 SCC 138).
It is also not unusual to find use of pairs of words as a composite class. An example of this nature is found in section 22(1) of the Common Regulation Act, 1965 which uses the expression 'sports and pastimes' as a composite class. In interpreting this expression Lord Hoffman said : "As a matter of language I think that 'sports and pastimes' is not two classes of activities but a single composite class which uses two words in order to avoid arguments over whether an activity is a sport or pastime. The law constantly uses pairs of words in this way. As along as the activity can properly be called a sport or a pastime, it falls within the composite class." Having regard to the discussion as quoted above in our view the word "and" appearing in Article 323A is conjunctive, which means that only the recruitment and condition of service of those persons who are appointed to a post which is a "public post" and within the "public service" domain, could be brought under the umbrella of said article to set up administrative tribunals for speedy disposal of service dispute.
It is the submission of the learned Additional Solicitor General that while considering any constitutional provision qua statutory provision, if there is any conflict due to any word, said particular word, should be read down to give a purposive meaning of constitutional provision. Reliance has been placed to the judgement passed in the case His Holiness Kesavananda Bharati v. The State of Kerala & Ors. reported in (1973) 4 SCC 225, Commissioner of Customs & Central Excise vs. Kumar Cotton Mills (P) Ltd. reported in 2005 (13) SCC 296, D. S. Nakara vs. Union of India reported in (1983) 1 SCC 305, Seaford Court Estates Ltd. vs. Asher, (1949) 2 All ER 155 (CA).
17
On careful consideration of said principle, we are unable to hold that word "and" appearing in between two words "public service" and "posts" should be read down to make the meaning of the word "and" appearing thereto, disjunctive. The both houses of the Parliament consciously and by reading the words incorporated the same in the amended provision aforesaid and passed the bill before it was presented to the President for his assent. Hence it cannot be said that there was a legislation by mistake which could be considered as a tool to apply said "read down" principle to avoid the conflict. If we consider the word "and" as "or" to hold that nature of post need not be within the domain of "public service" and thereby a "public post", then each and every service of any person in any post would be attracted by the said constitutional provision for raising their dispute to the administrative tribunal. Had there been such intention there would not have been any necessity to use the word 'public' before the word 'services and posts' and also there was no necessity of using the word 'public service'. Simply the word "post" would have been suffice to achieve that purpose. When it was not done consciously, the court should not consider the word 'and' loosely, in the manner as has been argued by the learned Additional Solicitor General, which otherwise would be stepping into the shoes of legislatures in legislative field.
The purposive object of reducing mounting arrears of cases of High Courts and to secure speedy disposal of service matters, by said amended provision, 18 identified only the post of "public services and post" which means that holder of the post under litigation must satisfy also the word 'public service' and "post" held by him a "public post".
If we analyse the word "public service and post", it appears that the word "public" has been used before the word "services and posts", which clearly indicative of that service dispute must be with reference to a "public post" under the canopy of "public service". If we look through the definition of "public service and posts" it may reflect an answer to that point also. The word 'public service' came for judicial consideration and interpretation in the case Satya Narain Singh v. Distt. Engineer, PWD reported in AIR 1962 SC 1161: 1962 All LJ 476, where Apex Court held that by reason of the fact that a commercial undertaking was owned and run by the State, it does not ipso facto become a 'public service'.
The holder of the post Kendriya Vidlaya Sangathan having regard to its memorandum of association does not satisfy the point that employees working in different posts of the Kendriya Vidlaya Sangathan are holder of public posts within the canopy of public service. On application of definition of public posts and public services, we are not finding any scope to bring the service of Kendriya Vidlaya Sangathan as a service to the public post within domain of public service.
19
From the wording of Article 323A, it appears that "public service and posts"
of other authority within the control of the Government of India, could be the subject matter of dispute-resolve forum of Administrative Tribunals. "Other authority" has not been defined in the Constitution of India. There is no doubt that Kendriya Vidyalaya Sangathan is an authority under Article 12 of the Constitution of India, for the purpose of bringing it within the fold of State under chapter Part III, the fundamental rights. Article 12 read such:
"12. Definition- In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. "
The definition of word State which is inclusive of other local or other authority under the control of the government of India could be applied to deal with the rights under Part III of the Constitution of India in view of wording of Article 12 defining that meaning of "State" should be construed as local or other authority for this part only. The word "State" in part III has a significant meaning to include local or other authority, for bringing any organization under the canopy of the State under Article 12 relating to matters of Part III and said meaning could be applied also under Part IV having regard to Article 36 which has defined the word "the State" as of same meaning as in Part III. Hence, Kendriya Vidyalaya Sangathan is an authority to deal with the matters under Part III and Part IV of the Constitution of India. Since the local or other authority was not brought under the canopy of State in Article 323A by defining in the manner as stipulated 20 in Article 12 and Article 36 of the Constitution of India, we cannot borrow the meaning of "local or other authority", similar to the meaning while dealing with the matters falling under chapter III or IV of Constitution of India. The word "authority" is mentioned in Article 226 of the Constitution of India, stipulating the power of the High Court to issue writs against those authorities. The word authority under said Article 226, is not synonymous to the meaning of the word authority under Article 12 of the Constitution of India. Under Article 226 the meaning of the word "authority" has wide connotation and it has no limitational contour alike the meaning of word "authority" in Article 12 and Article 36 of the Constitution of India. Reliance is placed to the judgement of Constitution Bench passed in the case Unni Krishnan, J.P & Ors. v. State of Andhra Pradesh & Ors. reported in AIR 1993 SC 2178 wherein the distinguishing feature of the meaning of the word authority under Article 12 qua under Article 226 of the Constitution of India has been dealt with. The relevant portion is quoted from paragraph 82 of the said report wherein the view expressed by Subbarao, J in Dwarkanath v. I.T.O reported in AIR 1966 SC 81 at pages 84-85 was quoted which read such:
" This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this 21 country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
The term "authority" used in Article 226, the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
In the said report Unni Krishnan, J. P. (supra) in paragraph 83 speaks such:
"83. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty."
The said issue as to whether a juristic entity being an authority could be brought under the canopy of 'State' in Article 12 and to other provisions of the Constitution where said word is used in other parts, was decided in the case Ajoy Hasia v. Khalid Mujid Sehravardi reported in (1981) 1 SCC 722, a constitution Bench judgement. In paragraph 12 of the said report while dealing with meaning 22 of the word State under Part XIV of the Constitution of India, it was answered that the meaning of the word "State" under Article 12, cannot be lifted to the position of "State" for the purpose of Article 309, 310 and 311 in Part XIV of the Constitution of India as the meaning of State under Article 12 is limited in its applicability for the purpose of Parts III & IV of the Constitution of India. Paragraph 12 of the said report read such:
"It is also necessary to add that merely because juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. and other cases involving the applicability of Articles 311 have no relevance to the issue before us."
Since the other authority has not been defined in article 323A, Article 367 of the Constitution of India could be resorted to find out the meaning of the word 'authority' under the General Clauses Act, 1897. Article 367 read such:
"367. Interpretation.- (1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and 23 modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State shall be construed as including a reference to an ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.
(3) For the purpose of this Constitution "foreign State" means any State other than India:
Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign state for such purposes as may be specified in the order."
The meaning of words 'authority' and "other authorities" were considered by the Apex Court in the case State Electricity Board, Jaipur vs. Mohan Lal reported in AIR 1968 SC 1857 at 1862. Per Majority it was held -
The meaning of the word 'authority' given in Webster's Third New International Dictionary, which can be applicable is ' a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise'. This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statue on which powers are conferred to carry out governmental or quasi-governmental functions. The expression 'other authorities' is wide enough to include within it every authority created by a statute and functioning within the territory of India , or under the control of the Government of India; and reason to narrow down this meaning in the context.
'Local authority' has been defined in Section 3 (31) of the General Clauses Act which read such:
24
"Section 3(31)- "Local Authority" shall mean a municipal committee, district Board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund."
Though the word other authority dealing with the control or management of municipal or local funds entrusted by the government has been included in the definition of local authority but meaning of the other authority therein is confined only on control or management of municipal or local fund, hence the word "other authority" included in the definition of local authority cannot be used in this case to identify the meaning of word "other authority" under Article 323A of the Constitution of India.
Word 'Authority' has been defined in Black's Law Dictionary as follows:-
"Authority. The right or permission to act legally on another's behalf; esp., the power of one person to affect another's legal relations by acts done in accordance with the other's manifestations of assent; the power delegated by a principal to an agent <authority to sign contract>- Also termed power over other persons. See agency [Cases: Principal and Agent]"
Having regard to those definition and judgements on 'Authority', those cannot be applied herein.
Learned Additional Solicitor General has referred the case of Pradip Kumar Biswas reported in (2002) 5 SCC 111, a judgement of Seven Judges Bench and relying paragraphs 63, 64 and 65, argued that since CSIR, a society registered under Society Registration Act, was declared as an "authority" under Article 12 of 25 the Constitution of India and on that logic "Society" was brought within the ambit of Section 14 (2) of the Administrative Tribunal Act, 1985, hence, service dispute of employees of Kendriya Vidyalaya Sangathan, a society, registered under said Act, could be dealt with by Administrative Tribunal. It appears before us that the issue as we are dealing with here, was not the subject matter of challenge or adjudication in Pradip Kumar Biswas (supra). Here, we are concerned with two points (i) whether an employee working in Kendriya Vidyalaya Sangathan is the holder of post which could be termed as public service and public post? (ii) Kendriya Vidyalaya Sangathan being a society whether could be brought under the umbrella of Article 323A for exercising the power by the Parliament to amend the Administrative Tribunal Act, 1985, by act 19 of 1986, for incorporating word 'society' in section 14 (1) (c) under chapter III of the said Act which relates to jurisdiction, power and authority of Tribunals and in other provisions of said Act ? The word "society" has been incorporated in Section 14 (1) (c) of the said Act with effect from 22nd January, 1986 amending the Administrative Tribunal Act, 1985 by the Parliament. The relevant act by which the preamble of the Administrative Act, 1985 and Section 14 sub section 1
(c) and other sections, referred to in question framed, were amended by incorporating the word 'society', read such:
"The historical background for enactment of this Act can be ascertained from the recommendation of the Swaran Singh Committee to establish Tribunals and also from decisions made by the Apex Court in various matters. It is product of 42nd Amendment Act, 1976 introducing Article 26 323-A and there by authorizing establishment of tribunals for public services. Statement of object and reasons of the Act indicates that a large number of cases were pending on "Service Matters" before the high courts and Supreme Court, the burden can be reduced so that those courts can devote more time to deal with other matters pending before the said Courts as well as to provide speedy relief to the litigants or matters covered by the Administrative Tribunals Act. The Tribunals created under the Act were intended to perform a substitutional role of the Supreme Court and High Courts. As the power of Judicial Review under Article 32 and Article 226 and Article 227 of the Constitution was given a go by several matters came before the Apex Court as well as High Courts to consider whether the said exclusion would be "violative of basic structure of the Constitution". In S. P. Sampath Kumar v. Union of India, (1985) 4 Supreme Court Cases 458, the Apex Court made several suggestions with a direction to carry out certain measures with a view to ensure the functioning of the Tribunals. Pursuant to an undertaking of the Government of India to the Court at the preliminary stage of hearing interim matter an Amending Act (Act 19 of 1986) was enacted. One of the suggestions of the Court was that the function of the Bench can be done consisting of one judicial member and one non-judicial member and the appointment of judicial member should be made in consultation with the Chief Justice of India. By the amendment the power of Judicial Review of the Supreme Court was restored without any change of the power of Judicial Review of the High Courts under Articles 226 and 227 of the Indian Constitution. During the pendency of Sampath Kumar's case (supra) further amendment of the Act was made by Article 51 of 1987 (w.e.f. 22.12.1987). When the said case was finally heard those changes having already been made the Apex Court did not find any merit to decide the Constitutional validity of Article 323A. It was held; that though Judicial Review is a basic feature of the Constitution, the vesting of the power of Judicial Review is an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the 27 basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the high Court. "Again trouble started relating to exclusion of jurisdiction of the High Courts under Article 226 and 227 which resulted institution of several cases. Due to several conflicting decisions of the Apex Court a Division bench thought it fit to refer the matter to a larger bench upon holding that the decision rendered by a five Judges Constitution Bench required to be reviewed (1995) 1 SCC
400. The seven Judges Constitution Bench in - L. Chandra Kumar v.
Union of India with other matters finally decided on 18.3.1997 [AIR 1997 SC 1125 : (1997) 3 SCC 261]. It has been held that Clause 2 (d) of Article 323A to the extent it excludes the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 is part of the inviolable basic structure of the Constitution. While such jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. It has also been observed that the Tribunals under Article 323A of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules but their decisions are subject to scrutiny before a Division Bench of the High Court. They will continue to act as Courts of first instance in respect of the areas of law for which they have been constituted. If any question of vires of legislation relating to creation of particular Tribunal arises the matter can be directly moved before high Court".
Section 14 (1) (c) of said Act read such:-
"S. 14 (1) (c)- all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any 28 local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment."
Now I have to deal with the word 'society' to consider the point whether it will come under the umbrella of "other authority" stipulated in Article 323A of the Constitution of India. Admittedly Kendriya Vidlaya Sangathan is a society registered under the Societies Registration Act, 1860 (Act XXI of 1860). The preamble of the Society Registration Act, 1860 read such:
"Preamble.- Whereas it is expedient that provision should be made for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, (the diffusion of political education) or for charitable purposes ;"
A society registered under the Society Registration Act, 1860 is not a corporation or quasi corporation but is an un-incorporated society contemplated by list 2 entry 32 of Schedule 7 of the Constitution of India.
Bombay High Court expressed same view in Servants of India Society, Poona 4 vs. Charity Commissioner of Bombay reported in AIR 1962 Bombay page 12 in paragraph 15 of said report. Para 15 of the said report read such:-
"In my judgement, societies registered under the Societies Registration Act are neither corporations nor quasi-corporations but are unincorporated societies contemplated under the second part of entry."
"List II-State List, entry 32 read such :-29
32. Incorporation, regulation and winding up of corporations other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-
operative societies."
A person holding a post under registered society does not hold a civil post under the union or the State and therefore, he is not entitled to protection under Article 311 of the Constitution of India is the view expressed in the case K. C. thomas vs. R. L. Gadrock reported in AIR 1970 Patna 163 (DB). In this case, view of Apex Court and House of Lords were referred to. Relevant paragraphs 7 to 10 read such:
"7. The question as to what is exactly the legal character of a Society registered under the Act has been the subject matter of consideration in several decisions with reference to relevant decisions of the English Court under Friendly Societies Act or the Trade Union Act. The gist of those decisions is that a Society registered under the Act is not body corporate or a corporation having a distinct legal entity from the members constituting it in the sense a company incorporated under the Indian Companies Act has or a Society registered under the Co-operative Societies Act has, yet it has its own identity, personality or entity which, for all purposes is not identical with that of the members constituting it. A society when registered comes into existence as a registered Society and has properties of its own. Although legal title in the properties may vest in the trustees or Board of Governors yet the equitable title, to use the English phraseology, vests in the Society.30
A person serving under the Society or in any of the institutions started by the Society in accordance with its objects is an employee of the Society under the control of the Board of Governors. His service conditions are regulated by the rules and regulations framed by the Society which undisputedly in this case, empowered respondent No.1 to appoint the petitioner and under certain circumstances, to dismiss him by following certain rules. Nowhere it is suggested by the petitioner that the rules governing his service conditions were those framed in accordance with Article 309 of the Constitution. hAd i been able to say that the society is a full-fledged corporate body or a corporation, numerous decisions were there to say that in such a situation, even if the ownership of the corporation or the control of its management was in the Government, an employee of the corporation cannot be an employee of the Union or the State. In this connection, I may only refer to the case of Subodh Ranjan v. Sindri Fertiliser and Chemicals Ltd. AIR 1957Pat 10 and Ranjit Kumar v. Union of India, AIR 1969 Cal 95 in which various other cases have been discussed.
8. The difficulty in applying the ratio of all those cases on all fours is that the Society registered under the Act is not a body corporate as held by the Supreme Court in Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi AIR 1962 SC 458. In many cases decided by various High Courts, a view had been taken that section 6 of the Act is an enabling provision and the Society registered under the Act can sue and be sued in its own name: vide A. S. Krishnan v. M. Sundaram, AIR 1941 Bom 312, Satyavart Sidhantalankar v. Arya Samaj, Bombay. AIR 1946 Bom. 516, P. B. N. College Committee v. govt. of Andhra Pradesh, AIR 1958 Andh Pra 773 and Radhasoami Satsang Sabha v. Hans Kumar, AIR 1959 Madh Pra 172. In none of those cases however, there was any occasion for decision of the question as to whether a registered Society registered under the Act is distinct in all respects from the members constituting it or 31 whether all the members in their own names could file the suit or be sued in respect of a matter relating to the Society. Bhagwati, J., if I may say so with respect, discussed this point elaborately in the Bombay case, referred to above: AIR 1943 Bom 516. His Lordship took the view that once a Society is registered under the Act, "the society enjoys the status of a legal entity apart from its members constituting the same and is capable of suing or being sued."
In the Tibia College case, AIR 1962 SC 458 the Supreme Court does not seem to have either approved this view or disapproved it. What it laid down was that the Bombay decision did not proceed to the extent of saying that the society registered under the Act is a corporation in the sense of being incorporated as the term is legally understood. Yet I am inclined to think that in the limited sense of possessing a different legal entity the view of Bhagwati, J. finds ample support from the decision of the House of Lords in Bonsor v. Musician's Union 1956 AC 104, a case which has been noticed by the Supreme Court in the Tibia College case. Lord Morton of Henryton and Lord Porter in their speeches had clearly opined that a registered trade union though not an in incorporated body, was capable of entering into contracts and of being sued as a legal entity distinct from its individual members. Lord Keith of Avonholm, who had agreed with the majority view in some respects, did not dissociate from the view of Lord Morton of Henryton and Lord Porter in this regard, rather he was inclined to think that a registered trade union, though not an incorporated body, may be called a separate legal entity while, at the same time, remaining an unincorporated association of individuals which, as the majority view was, is not distinguishable at any moment of time from the members of which, it was at that time composed.
S. K. Das, J (as he then was) delivering the leading judgement on behalf of the Court in the Tibia College case, referred to the majority view 32 expressed in 1956 A.C 104 only for the purpose of showing that a society registered under the Act is not a body corporate but is still an unincorporated body of persons. The problem has got to be viewed differently in different context. A Society registered under the Act may not be a body corporate, quite distinct from its members. But without going into the debatable question as to whether it would have its own legal entity or not, suffice it to say that yet it has got a separate existence for many purposes. It is no doubt true, as is the case of the petitioner, that most of the members constituting the Society were ex officio holders of office in the Central Government or various State Government, yet, when they agreed to form a Society they brought into existence a new body called the Sainik Schools Society to raise funds either from the Government as the memorandum of article shows or from other sources to start Sainik Schools, to control its management through the Board of Governors, as also through the local Board of Governors and not to leave the control in the hands of either the Central Government, or the State Government.
The very fact that Chief Ministers of various States had combined with the Defence Minister of the Centre to form a Society, indicates that the control or management of the Society or its institutions was not to be left in the hands of any Government either the Central or of any one State. It could not be so left. And that is the reason that for the purpose of establishing institutions like Sainik Schools, a new body was formed in the shape of a registered Society under the Act. As soon as that new body was formed, any person agreeing to serve under the Society or in any of its institutions must be deemed to hold the post under the Society and not to hold any civil post either under the Union or the State.
9. Adverting once more to the decision of the House of Lords in the case of 1956 AC 104 referred to above it is to be noticed that none of the English cases discussed therein had gone to the extent of saying that a registered Society of the kind with which we are concerned in this case was a 33 corporate body. Even short of that, the earlier case decided by the House of Lords in the Taff Vale Rly. Co. v. Amalgamated Society of Rly. Servants, 1901 AC 426 was interpreted to mean that such a Society was a legal entity by three of the Noble and Learned Lords while the remaining two of their Lordship said that it has used that expression for the purpose of deciding the suability only. One thing is clear to me that position of registered Societies or unregistered Societies cannot be on the same footing. There cannot be any doubt that a registered Society can sue and be sued in its own name, can own its own property and can employ its own servants. In such a situation, if I may draw an analogy from the case of partnership, as was done by the House of Lords in Bonsor's case for deciding the point at issue, it may be said that the Governor, acting on behalf of a State, through his authorised officer, may enter into a partnership with A and B, say to carry on a business. Although the partnership firm will have no separate legal entity, yet, it will have its separate existence, owning its property separately and employing its servants separately. It is difficult to imagine that the servants of such a partnership will be civil servants under the State getting the protection of Art. 311 of the Constitution.
10. Applying the tests laid down by a Bench of this Court in Lachimi v. Millitary Secy. to the Government of Bihar, AIR 19567 Pat 398 it is also to be noticed that the petitioner, in no sense, can be said to be holding a civil post under the Union or a State. I, therefore, hold that the main argument put forward on behalf o the petitioner must fail. It is accordingly, rejected." Section 20 provides the category of society, which could be registered under the Society Registration Act, 1860, which read such: 34
"20. To what societies Act applies.- The following societies may be registered under this Act :
Charitable societies, the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature or the fine arts, for instruction, the diffusion of useful knowledge (the diffusion for political education), the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public museums and galleries of paintings and other works or art, collections of natural history, mechanical and philosophical inventions, instruments or designs. "
The position of a society registered under the Society Registration Act aforesaid is more like that of a club or a joint sector company, is the view expressed by His Lordship Kania J. in the case A. S. Krishnan v. M. Sundaram reported in AIR 1941 Bombay para 312 (at page 315 CI).
Kendriya Vidyalaya Sangathan got its registration as a society under the said Act. From the memorandum of association, it appears that the source of funding of the society is not solely by the Central Government, but other organisations also may contribute. Clause 3(k) on that issue read such:
"3 (k) To maintain a fund to which shall be credited;
(i) All moneys provided by the Central Government;
(ii) All fees and other charges received by the Sangathan;
(iii) All moneys received by the Sangathan by way of grants; gifts;
donations; benefactions; bequeaths or transfers; and
(iv) All moneys received by the Sangathan in any other manner or from any other source;"35
The Government of India through Ministry of Human Resource Development (Department of Education) has direct control over the functioning of the Kendriya Vidlaya Sangathan except in cases of employees who is controlled by their service conditions, but it was established as a society and under Section 2 of the said Act it carries all the features, components and characteristics of society under said Act. It was registered under Punjab Amendment Act, 1957 as extended to the Union Territory of Delhi. It consists of members some of them holder of civil post under control of Government. The category of members of Kendriya Vidyalaya Sangathan, have been detailed in memorandum of the Kendriya Vidlaya Sangathan framed by the Sangathan. Clause 3(a) of the said memorandum read such:
"3. (a) The Sangathan shall consist of the following members;
(i) Minister or Minister of State or Deputy Minister in the Ministry of Human Resource Development (Department of Education) in charge of Kendriya Vidyalaya Scheme ....... Chairman
(i) (a) Any person specified by the Govt. of India for this purpose.
... Dy. Chairman
(ii) An Officer of the Ministry of HRD, Department of Education specified by the Government of India for this purpose.
... Vice Chairman
(iii) Financial Adviser to the Ministry of Human Resource Development, Department of Education, or his representative.
... Financial Member
(iv) Chief Welfare Officer, Department of Personnel.
(v) Representative of the Ministry of Defence to be nominated by that
Ministry.
(vi) Director of Education, Army Headquarters.
(vii) Director of Education, Naval Headquarters.
(viii) Director of Education, Air Headquarters.
(viii) (a) Director, Navodaya Vidyalaya Samiti
36
(viii)(b) A representative from amongst Central Police Organisation (CPOs) to be nominated by the Ministry of Human Resource Development.
(viii) (c) A representative from amongst Public Sector Undertakings(PSUs) to be nominated by the Ministry of Human Resource Development.
(ix) Representative of the Ministry of Health and Family Welfare to be nominated by that Ministry.
(x) Representative of the Ministry of Works and Housing to be nominated by that Ministry.
(xi) Chairman, Central Board of Secondary Education.
(xii) Director, National Council of Educational Research and Training.
(xiii) Two Education Secretaries of State Government to &
(xiv) be nominated by the Ministry of Human Resource Development
(xv) Two Directors of Public Instruction or Directors of Education & (xvi) of State Governments to be nominated by the Ministry of Human Resource Development, Department of Education.
(xvii) Four other educationists to be nominated by the Ministry of (xviii) Human Resource Development out of which atleast one (xix) Will be from among women, one from the Schedule Castes (xx) And one from among Scheduled Tribes.
(xxi) Three members of Parliament, two from Lok Sabha and (xxii) One from Rajya Sabha, to be nominated by the Ministry of (xxiii) Human Resource Development (xxiv) Commissioner of the Sangathan.
(xxv) Jt. Commissioner (admn.) and ex-officio Secretary of the Sangathan." Under clause 5 of said memorandum membership of the Sangathan of those, who being holder of post under Central Government, terminable, when he ceases to held that office or appointment.
The major function of Sangathan is vested with the members dealing with day to day administration and other issues. Some specific functions as stipulated are required to have the approval of the Central Government.
Hence, even if we assume, having regard to the aforesaid findings and observation the Kendriya Vidyalaya Sangathan, is a State under Article 12 and 37 36 of the Constitution of India, but such definition is contoured with action-field stipulated in Part-III & Part-IV of the Constitution of India. The tests of Article 12 to hold Kendriya Vidyalaya Sangathan as "State" under nomenclature of "other authority" cannot be considered under Article 323A, as Parliament while amending the Constitution to incorporate Part XIVA did not stipulate that meaning of the word "other authority" would be similar to the meaning of the word "other authority" under Article 12 and 36 of the Constitution of India. This has been done consciously by the Parliament, to pass the bill for amendment of constitution, a formation stage, for an Act which got assent of President thereafter.
Another question is about conceptual idea of stipulating word "Corporation" under Article 323A of the Constitution of India providing scope for adjudication of service disputes of said corporation, owned or controlled by the Government, by setting up tribunal. If we consider that the words "other authorities" would suffice to bring different organizations, namely, society, corporation, Government Company etc. who are instrumentality of State, owned or controlled by the Government, then there was no necessity of stipulating word "Corporation" separately under Article 323A for the purpose of setting up Administrative Tribunals relating to service disputes of employees of the Corporation, owned and controlled by Government. That logic if applied reversely, answer would be that "other authority" stipulated in Article 323A did not denote and include "society" within that canopy of words "other authority". 38
It appears that service disputes of Union, State, local authority, other authority, Corporation etc. have been mentioned using the word "Or" in between those bodies. On mere reading of Article 323A, it appears that service dispute of the persons who are holder of public service and posts, in connection with the affairs of Union, State, local or other authority and corporation were included within the canopy of Article 323A. The use of the word 'or' is disjunctive, whereby different employers have been identified separately by using the words Union, State, local authority, other authority and Corporation. As the society, already discussed, is formed and constituted under a Statute, namely Society Registration Act and thereby its legal status is neither a corporation, nor quasi corporation, but an unincorporated society, the word society cannot be considered as within the meaning of the word "other authority" under Article 323A of the Constitution of India. The legislative will is reflected clearly due to bringing the employees of the "Corporation" holding public service and post, owned or controlled by the Government, separately, by not putting the same within the canopy of "other authority" as already discussed. The words "other authority" if is omnipotent and omni-powerful to include each and every organisation, namely a Government Company, Corporation, Society, then there was no necessity of specifying the word "Corporation" separately in the constitution while incorporating the constitutional provision by amendment tool of Article 368 of Constitution of India. It is well settled proposition of law that each and every word used by the legislatures should be considered to give a 39 meaning of the concerned statutory provision or constitutional provision. The using of the word "Corporation" owned or controlled by the Government, is not an unnecessary exercise by legislatures, but a purposive, conscious and conceptual, exercise of power, by incorporating the same, only for the reason as lead us to an answer that Corporation even if owned or controlled by the Government, could not be brought under umbrella of "other authority" controlled by the Government of India, in terms of Article 323A of the Constitution of India, though Corporation owned or controlled by the Government very well could be an "authority" under Article 12 of the Constitution of India for being considered as a "State" with reference to its application in matters relating to breach of rights under Chapter III and IV of the Constitution of India. This logic advance a point that "other authority" under Article 12 of the Constitution of India, though is State, is not included as "other authority" under Article 323A of the Constitution of India and for that reason separately "corporation" was brought within the canopy of Article 323A by specifying it therein. As corporation owned and controlled by the Government was not considered by the legislatures as "other authority" under Article 323A of the Constitution of India, then positive answer lead as that it was not will of the Parliament while incorporated Article 323A in the Constitution by amendment of the Constitution under Article 368 of the Constitution of India, to bring any "society" owned or controlled by the Government, within the umbrella of Article 323A for setting up the administrative tribunal to resolve its service dispute.
40
Now we have to consider about jurisdiction of the Parliament to amend Section 14(1) (c) for the purpose of incorporating the word "Society or other body"
by changing the nomenclature of status of "service or post" as mentioned thereof, on deviation from the language used in Article 323A which stipulates "public services and post" and merely not any "service or post" as mentioned in Section 14(1) (c). Similarly the incorporation of word recruitment to any service or post in connection with affairs of society as mentioned in sub Section 3 of Section 14, in sub Section 2 of Section 14, inclusion of jurisdiction, power and authority of State Administrative Tribunal, under Section 15 by incorporating the words "service and post" of "society owned or controlled by Government" in different sub Sections thereof.
From the preamble of Administrative Tribunal Act, 1985 wherein the words "Society owned or controlled by the Government" has been incorporated, on a reading of the preamble, it appears that the power exercised by the Parliament to enact the Administrative Tribunal Act, 1985 was derived under Article 323A of the Constitution of India.
It appears that the word "any corporation or society owned or controlled by the Government of India in pursuance of Article 323A of the Constitution" was substituted in Principal Act by Section 2 of Act 19 of 1986, the amending Act, for the words "any Corporation owned or controlled by the Government" with effect from 22nd January, 1986. Similarly in Section 14 sub Section 1 (c), the words "or 41 society" was inserted, by Section 11 of the said amending Act, the words "or society" and thereafter "or society" was included in Section 14 sub Section 2, in the proviso of the said sub Section, the words "or Society" has been inserted by Section 11 of Act 19 of 1986 and similarly the words "or society" appearing in sub Section 3, have been inserted by said Section 11 of the said amending Act.
The history of enactment of Act 19 of 1986 under the title the Administrative Tribunals (Amendment) Act, 1986, will appear from the prefactory note : Statement of Objects and Reasons, read such:
"Prefactory note: Statement of Objects and Reasons- The Central Administrative Tribunal, with five Benches, was established on the 1st November, 1985 in pursuance of the provisions of the Administrative Tribunals Act, 1985. Prior to its establishment, writ petitions were filed in various High Courts as well as in the Supreme Court challenging the constitutional validity of Article 323-A of the Constitution and the provisions of the Administrative Tribunals Act. The main contention in the writ petitions was that the writ jurisdiction of the Supreme Court under Article 32 of the Constitution as well as in the High Courts under Article 226 of the Constitution cannot be taken away even by an amendment of the Constitution. Although the Supreme Court, by an interim order, stayed the transfer of writ petitions filed in the Supreme Court under Article 32 of the Constitution to the Central Administrative Tribunal, it did not stay the transfer of writ petitions under Article 226 subject to the condition that the Government would make certain amendments in the Act. One of the amendments suggested by the Court was that each case in the Tribunal must heard by a Bench consisting of one Judicial Member and one non- Judicial Member and the appointment of Judicial Members should be done 42 in consultation with the Chief Justice of India. An undertaking was given in the Supreme Court that a Bill to make suitable amendments in the Act would be brought before Parliament as early as possible. The Central Administrative Tribunal had also started functioning in Benches in accordance with the above directions of the Supreme Court. As the writ petitions preferred to above were coming up for hearing some time in January, 1986, the President promulgated the Administrative Tribunals (Amendment) Ordinance, 1986 on the 22nd January 1986 so as to give effect to the assurance given in the Supreme Court and to make some other amendments found necessary in the administration of the Act.
2. The Ordinance provided, among other things, for the following matters, namely:-
(a) The concept of Judicial member and Administrative Member was introduced in the Act, and a Bench of the Administrative Tribunal would consist of one Judicial Member and one Administrative member instead of three member-Benches to be presided over either by the Chairman or by the Vice-Chairman. It was also provided that the appointment of a Judicial Member would be made after consultation with the Chief Justice of India. Suitable provisions had also been included in the Ordinance to regularise the existing appointment of Members as Judicial Members and Administrative Members.
(b) The jurisdiction of the Supreme Court in service matters under Article 32 of the Constitution was preserved. The principal Act intended to confer this jurisdiction also on the Tribunal.
(c) A provision was included to designate, with the concurrence of any State Government, all or any of the Members of the Bench or Benches of the Bench or Benches of the Central Administrative Tribunal in respect of that State, and to designate, on receipt of a 43 request from any State Government, all or Tribunal functioning in that State as members of the Bench or Benches of the State Administrative Tribunal for that State.
(d) The jurisdiction of the Tribunal was also extended to persons who are governed by the provisions of the Industrial Disputes Act, 1947 without affecting the rights of such persons under that Act.
3. Subsequent to the promulgation of the Ordinance, a few doubts were expressed in respect of some of the provisions of the Act and the Ordinance. It is, therefore, proposed to include in the bill a few clarificatory amendments, to make certain provisions included in the Ordinance retrospective from the date of establishment of the Central Administrative Tribunal, and to validate certain actions taken by the said Tribunal. The amendments included in the bill have been explained in the memorandum attached to the Bill.
4. The Bill seeks to replace the aforesaid Ordinance and to include therein the aforesaid amendments.
Memorandum explaining the modifications contained in the Bill to replace the Administrative Tribunals (Amendment) Ordinance, 1986. The Administrative Tribunals (Amendment) Ordinance, 1986 was promulgated by the President in the 36th year of Republic of India in view of emergency, as the Parliament was not in session and President was satisfied about emergent circumstances for immediate action to promulgate the ordinance. The preamble of the said ordinance, short title and commencement and the relevant amendments relating to incorporation of the word society are as follows:-
"1. Short title and commencement.- (1) This Act may be called the Administrative Tribunal (Amendment) Act, 1986.44
(2) Save as otherwise provided in this Act, it shall be deemed to have come into force on the 22nd day of January, 1986.
8. Amendment of Section 11- In Section 11 of the principal Act, in the Explanation after the words "any corporation", the words "or society" shall be inserted."
The said ordinance was made in exercise of power conferred by clause 1 of Article 123 of the Constitution of India. From the objects and reasons, it appears that the Administrative Tribunals (Amendment) Act, 1986 was placed in the Parliament as a bill to replace the earlier ordinance in that field for incorporating different amendments having regard to the doubts expressed in respect of some provisions of the Act and the ordinance. The memorandum explaining the modification, contained in the bill, to replace the Administrative Tribunals (Amendment) Ordinance, 1986 read such:
" The Administrative Tribunals (Amendment) Bill, 1986, which seeks to repeal and replace the Administrative Tribunals (Amendment) Ordinance, 1986, proposes to make the following modifications, apart from modifications of a consequential or drafting nature, in the provisions contained in the said Ordinance:-
(i) Clause 2 of the Bill seeks to indicate in the long title that the Act was enacted in pursuance of Article 323-A of the Constitution
(ii) As the Benches of the Central Administrative Tribunal had already started functioning from the date of their establishment by the Constitution of Benches consisting of one Judicial Member and one Administrative Member in accordance with the directions of the 45 Supreme Court, the amendments, included in the Ordinance for this purpose, are proposed to be given retrospective effect from the date of establishment of the Tribunal, i.e., 1st November, 1985. The Benches of the said Tribunal had also exercised jurisdiction in respect of persons governed by the provisions of the Industrial Disputes Act, 1947 with effect from 1st November, 1985. Hence this amendment also is proposed to be given effect to from that date and a provision has been included to validate the actions taken by the Tribunal.
(iii) The establishment of certain Benches in a few places has also been challenged in a few writ petitions. To overcome the objections raised in these petitions, the provision regarding establishment of Benches has been redrafted to indicate the places where the Benches will be established and to make the provision effective retrospectively from 1st November, 1985 ( vide Clause 6 (g) of the Bill).
(iv) A doubt has been expressed as to whether the Central Administrative Tribunal will have jurisdiction in respect of the services in connection wit the affairs of a union territory. Although the expression "in connection with the affairs of a Union" would include services under the administration of a Union territory, it is proposed to make this clear by an amendment in Section 14 (1) of the Act (vide Clause 11 (d) of the Bill).
(v) It is also proposed to include a clarificatory amendment that the order of a Tribunal finally disposing of an application or appeal will not be called in question in any court, except by way of special leave petition in the Supreme Court (vide Clause 18 of the Bill).46
(vi) Appeals against many of the decrees, orders or judgments of subordinate courts in respect of service matters passed before the establishment of the Central Administrative Tribunal had not ben preferred after such establishment either to the High Courts or to the Central Administrative Tribunal in view of the doubts as to whether the appeal should be filed in the Tribunal or in the high Courts. It is proposed to provide that appeals against such decrees, orders or judgments may be preferred to the Central Administrative Tribunal within a period of ninety days from the date when the copies of the judgments were received whichever is later and, in respect of cases before any other Tribunals or from the date of establishment of such Tribunals or from the date when the copies of the judgments were received, whichever is later. This amendment would also make it clear that the Administrative Tribunal will have the jurisdiction to entertain appeals from subordinate courts in respect of service matters (vide Clause 21 of the Bill)."
The relevant amendment which are the subject matter of our consideration of the said amending Act are Section 2, amendment of long title. Section 4 clause
(d), incorporating the words 'society' and clause (rr) defining the words 'society', section 8 to incorporate the words 'or society', section 11 to incorporate the words ' or society' after the word 'corporation', Section 12 to incorporate the word 'or society' after the word 'corporation' and Section 20 to incorporate the words 'or society', which read such:
"2. Amendment of long title. - In the Administrative Tribunals Act, 1985 (hereinafter referred to as the principal Act), in the long title, for the words "any corporation owned or controlled by the Government", the words, figures and letters "any corporation or society owned or controlled by the 47 Government in pursuance of Article 323-A of the Constitution" shall be substituted.
5. Amendment of Section 3.
Clause (d) - in clause (q), after the words "any corporation", the words " or society" shall be inserted ;
Clause (e) - after clause (r), the following clause shall be inserted, namely :-
(rr) "society" means a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State;
8. Amendment of Section 11. - In Section 11 of the principal Act, in the Explanation, after the words "any corporation", the words "or society"
shall be inserted.
11. Amendment of Section 14. - In Section 14 of the principal Act,
(a) the words and figures "under Article 136 of the Constitution", wherever they occur, shall be omitted ;
(b) after the word "corporation", wherever it occurs, the words "society"
shall be inserted ;
(c) after the word "corporations", wherever it occurs, the words "or societies" shall be inserted;
(d) in sub-section (1), after clause (c), the following Explanation shall be inserted and shall be deemed to have been inserted with effect from the 1st day of November, 1985, namely:-
'Explanation. - For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.'.
12. Amendment of Section 15 - In Section 15 of the principal Act, -
(a) the words and figures " under Article 136 of the Constitution", wherever they occur, shall be omitted ;
(b) after the word "corporation", wherever it occurs, the words "or society" shall be inserted.
(c) after the word "corporations", wherever it occurs, the words "or societies" shall be inserted.
20. Amendment of Section 29. - In Section 29 of the principal Act, -
(a) in sub-section (1), in the proviso, the words, "or the Supreme Court"
shall be omitted;
(b) in sub-section (2),-
(i) after the word "corporation", wherever it occurs, the words "or society" shall be inserted;
(ii) in the proviso, the words "or the Supreme Court" shall be omitted. "48
It appears that there was no provision for amendment of Administrative Tribunals Act, 1985 in the statute itself. Only provision is Section 34, which provides that if any difficulty arises in giving effect to the provision of the said Act, Central Government may, by order, published in the official gazette make such provision, not inconsistent with the provision of this Act as appear to it to be necessary or expedient for removing the difficulty. Sub Section 2 of Section 34 further provides that any order as to be made by the Central Government, shall as soon as may be, after it is made, be laid before each house of Parliament. Section 34 of the Administrative Tribunal Act, 1985 read such:
"S. 34 Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament."
From the amended provision and the main act of the Administrative Tribunal Act, it appears that it was enacted in pursuance of Article 323A of the Constitution of India.
Since the Parliament enacted the amending act by incorporation and substitution of the word for the purpose of including the word "society", though 49 having regard to Article 323A of Constitution of India, the word "society" has not been mentioned either specifically in the constitution or by impliedly taking note of words "other authority" as already discussed, the incorporation of the word "Society" by amending Act, 1986, in the main Act, was beyond the legislative jurisdiction and competence of the Parliament. By amendment, incorporation of the word society as has been done by saying that it was done in pursuance of Article 323A of Constitution of India, does not satisfy its jurisdiction from Article 323A. Article 323A of the Constitution of India, is not a provision empowering Parliament to amend the Administrative Tribunal Act, 1985. Though it was not mentioned in the concerned Article itself providing scope of amendment, which was incorporation in the Constitution, by amendment under Article 368 of the Constitution of India following different procedure to amend a constitutional provision, as already discussed and which is not identical or alike with the procedure for amendment of any act, by placing the same in the Parliament, but it was done allegedly in terms of General Clauses Act which provides that when power to enact any law is vested to Parliament it has power to amend it. Hence Parliament had no power to amend Constitution otherwise by action incorporating the word "society" in the main act of Administrative Tribunal Act, 1985, which was outcome of exercise of Constitutional Provision, Article 323A. Beside such, the Article 323A has been enacted by amendment of the Constitution by way of incorporation of a new constitutional provision following the procedure laid down under Article 368 of the Constitution of India which requires passing of the bill by both houses of Parliament in the manner as laid 50 down, particularly by two third majority of the members present. By Section 34 of the Administrative Tribunal Act, 1985, as discussed above, it will not empower the Central Government to amend the principal Act, for substitution of word "society" or for incorporation of word "society". Substitution/incorporation of the word "society" in the Act, practically has caused an amendment of Article 323A, a constitutional provision. Similarly, incorporation of words "service and post" in lieu of "public service and posts", as stipulated in Article 323A of the Constitution of India, caused same result.
Learned Additional Solicitor General has argued that when Parliament has power to enact a law which includes the power to amend a statute, the amendment of Section 14 of the Administrative Tribunal Act, 1985 and other amendments, as promulgated by the Administrative Tribunals (Amendment) Act, 1986, ought not to be declared unconstitutional on the reasoning that in terms of Article 246(1) of the Constitution of India, Parliament has exclusive power to make laws with respect to any of the matters enumerated in List-I (Union List) in the 7th Schedule and similarly in terms of Article 246 (2), both Parliament and the legislature of any State have powers to make laws with respect to any of the matters enumerated in List-III- concurrent list, in the 7th Schedule and such powers could be exercised notwithstanding the existence of Article 323A or Article 323B of the Constitution of India.
51
It is contended further that since the Parliament in terms of Entry 95 of List 1 of the 7th Schedule and entry 11A read with entry 46 of List III of the 7th Schedule has power under Article 246(2) of the Constitution of India, to make laws with respect to "jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in this list, " amendment of Section 14 and other sections of the Administrative Tribunal Act, 1985, incorporating the word 'Society' did not breach the constitutional provision. Reliance has been placed to the judgement State of Karnataka v. Vishwa Bharati Housing Building Co-operative Society & Ors. reported (2003) 2 SCC 412. There is no doubt that the Parliament may in exercise of power under Article 246 of the Constitution of India, may make laws, with respect to any of the matters enumerated in List-1 in the 7th Schedule which has been referred to as Union list in the Constitution. Entry 95 of List-I of the 7th Schedule is the field of enactment of any provision which provides jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in the list and there is no doubt that Parliament has the power under Article 246 which is the enabling provision to make a statute relating to the field under subjects stipulated in List-1 Union List as referred to. But in the instant case the Parliament has not exercised that power under Article 246 of the Constitution of India as is explicit and clear from the preamble of Administrative Tribunals Act, 1985, which indicates the source of power Article 323A. Once the source of power identified as under Article 323A, for constitution of Administrative Tribunals relating to the subject matter specified therein and when specifically the word "Corporation" is stipulated but 52 not the word "society" and when under the meaning of the words "other authority", "society" cannot be included, as already discussed, the argument as advanced, in our view will not lead the answer as we have asked for. Parliament had no jurisdiction or competency to amend any law, in exercise of power under Article 246.
It is contended by the Learned Additional Solicitor General further that in the case Pradip Kumar Biswas v. Indian Institute of Chemical Biology reported in (2002) 5 SCC 111, in paragraph 63 and 64, the issue has been decided by the Apex Court when CSIR a society under the Society Registration Act, was considered as an authority, under Article 12, applying the test of meaning of the word "State". Due to the reasoning advanced in paragraph 65 of the said report, by notification in the year 1986, Central Government, under Section 14(2) of the Administrative Tribunals Act, 1985 since has brought the organisation "society" under the anvil of Administrative Tribunal, as such decisively, it concluded the issue about identification of status as "State" under Article 12 of the Constitution of India. With due respect, the question as now being faced by this Court to have an answer namely "in absence of incorporation of the word "society" under Article 323A specifically, but incorporation of the word "Corporation specifically", in the said provision by constitutional amendment having regard to Article 368 of the Constitution of India, whether Parliament can in exercise of power under Article 323A, may set up the Administrative Tribunal to decide the service dispute of "society" by amending Section 14 of the Administrative Tribunal Act, 1985 and in 53 terms of notification dated 17th December, 1998 being JSR 748(d) can notify Kendriya Vidyalaya Sangathan within the Administrative Tribunal umbrella, was not issue in Pradeep Kumar Biswas (supra) and this point was not decided therein. In that case, issue was different to determine whether any society registered under the Society Registration Act could be considered as a "State" under Article 12 of the Constitution of India for the purpose of adjudication of disputes relating to and touching the constitutional provision of Part III & Part IV of the Constitution of India and in that angle the Court answered the issue as framed, in paragraph 4 of the said report, namely "whether CSIR a State within the meaning of Article 12 of the Constitution of India". The question before the said Bench from paragraph 4 of report, is quoted below:-
"The questions therefore before us are - is CSIR a State within the meaning of Article 12 of the Constitution and if it is, should this Court reverse a decision which has stood for over a quarter of a century."
It appears from the concluding part of paragraph 66 of said report that conflict as arose in view of decision of Subhojit Tewari case reported in (1975) 1 SCC 485, was resolved by overruling the same and holding that CSIR, though registered under the Society Registration Act, but, having regard to its management, financial aid, and control in the angle of financial, functional and administrative domination or control of the Government, will lead an answer that CSIR a State under Article 12 of the Constitution of India. In Pradip Kumar Biswas(supra) there was no challenge of said Government notification and no 54 issue raised as already discussed that in Article 323A when the word "society" has not been mentioned, whether it could be placed within the umbrella of Administrative Tribunals, by exercising the constitutional powers under Article 323A, for setting up such tribunals to adjudicate service disputes of employee of such type of society.
Learned Additional Solicitor General relied the judgement passed in the case Kendriya Vidyalaya Sangathan & Anr. vs. Subhash Sharma reported in (2002) 4 SCC 145 to submit that the Apex Court has dealt with the issue that service dispute of Kendriya Vidyalaya Sangathan could be adjudicated by Administrative Tribunals. On reading the said judgement, it appears that in that judgement the issue involved was whether Central Administrative Tribunal had exclusive jurisdiction, as Court of first instance, in relation to service matter concerning employees of Kendriya Vidyalaya Sangathan, posted in State of Jammu & Kashmir, in the angle of jurisdictional power of High Court under Article 226/227 of the Constitution of India read with corresponding provision of Section 103/104 of the Constitution of Jammu & Kashmir, which has not excluded the jurisdiction of the writ Court to deal with that issue. In that case also, with due respect, the Apex Court was not addressed to have an answer of the point which is the subject matter of the present case as discussed above, namely, power of the Parliament under Article 323A to set up the Administrative Tribunal in respect of service disputes of any "Society" registered under the said Society Registration Act and controlled by the Government. 55
It is a settled legal position of law that a judgement of a Court is binding with reference to ratio decidendi of the judgement. A Constitution Bench, in the case State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172 in paragraph 43, answered the issue in the following language "A decision is an authority for which it decides and not that everything said therein constitute a precedent. The Courts are obliged to employ an intelligent technique in the use of precedents, bearing it in mind that a decision of the Court takes its colour from the question involved in the case in which it was rendered". In the case Regional Manager v. Pawan Kumar Dubey, reported in 1976 SC 1766, a judgement of three Judges Bench, in paragraph 7, held "one additional or different fact can make a world of difference between conclusion in two cases, even when the same principles are applied in each case to similar facts". It is also a settled legal position now that "a decision is not an authority for what it had not decided or on a point which has not been argued" as expressed in the case Goodyear Limited v. State of Harayana reported in (1990) 2 SCC 71 (para 23 & 33), a judgement of two Judges bench and in the case Mittal Engineering Works (Pvt.) Ltd. v. Collector of Central Excise, Meerut reported in (1997) 1 SCC 203. Long back in the case Quinn v. Leathem, reported in 1901 AC 495 : (1900-1903) All England Reports Rep. 1 (HL), Lord Halsbury said as follows:-
"Before discussing Allen vs. Flood [1898 AC 1] and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgement must be read as applicable to the particular facts proved or 56 assume to be proved; since the generality of expression which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts of the case, in which such expression are to be found. The other are that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all"
Said view of Lord Halsbury in Leathem(supra) quoted and relied in the case Sarva Shramik Sangathan (KV) v. State of Maharashtra & Ors. reported in (2008) 1 SCC 494. Sarva Shramik Sangathan (KV) (supra), referred to in the case Ambika Quarry Works v. State of Gujarat, reported in (1987) 1 SCC 213 at page 221 wherein in paragraph 18 the Court held "the ratio of any decision must be understood in the back ground of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it." In the case Bhavnagar University v. Palitana Sugar Mills (Pvt.) Ltd. reported in (2003) 2 SCC 111 at paragraph 59, page 130, Court held "it is also settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
In the case Bharat Petroleum Corporation Ltd. v. N. R. Bhairamani reported in (2004) 8 SCC 579, in paragraphs 9 to 12 the Apex Court discussed the issue at length further. Paragraphs 9 to 12 read such:
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too 57 taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In Lordon Graving Dock Co. Ltd. v. Horton (AC at p. 761) Lord MacDermott observed : (All ER p. 14 C-D) "This matter cannot, of course be settled merely by treating the ipissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,......
10. In Home Office v. Dorset Yacht Co. (All ER p. 297 g-h) Lord Reid said, "Lord Atkin's speech ....is not to be treated as if it were a statutory definition. It will required qualification in new circumstances".
Megearry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) observed : "
One must not, of course, construe even a reserved judgment of Russell, L. J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board Lord Morris said: (All ER p. 761).
"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus.
58
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
Those cases namely Leathem(supra), Ambika Quarry Works Pvt. Ltd. (supra) Bhavnagar University (supra), Bharat Petroleum Corporation Ltd.(supra) were referred to and relied in Sarva Shramik Sangathan(KV) v. State of Maharashtra & Ors. reported in (2008) 1 SCC 495. In Rajbir Singh Dalal (Dr.) v. Chowdhury Devilal University, Sirsa & Anr. reported in (2008) 9 SCC 284, Apex Court discussed the precedential status of a judgement, by holding "it is some principle of law stipulated by reason, mere observation without laying down any principle of law and without giving reasons, does not tantamount to a precedent". The Court relied in that case, Baldev Singh(supra), a constitution Bench judgement, Leathem (supra), Palitana Suger Mills (Supra), Ambika Quarry Works Pvt. Ltd.(supra), Bharat Petroleum Corporation Ltd.(supra). In the case Bhanu Prasad Panda (Dr.) v. Vice Chancellor, Sambalpur University, reported in (2001) 8 SCC 532 as relied in Rajbir Singh Dalal(supra), it was held that the judgement of the Court cannot be read as "Euclid's formula". The said principle was re- echoed by the Apex Court in the case Bank of India & Anr. v. K. Mohandas & Ors. reported in (2009) 5 SCC 313. In the case Armit Das v. State of Bihar reported in (2000) 5 SCC 488 the Court held "a decision not expressed and accompanied by reason and not proceeded on a concise consideration of issue, 59 cannot be deemed to be a law declared to have a binding effect as contemplated under Article 141 of the Constitution of India".
Applying the aforesaid tests of precedent, the judgement as relied upon and as are referred to above, by the learned Additional Solicitor General, in our opinion, will not help us to answer the questions framed herein regarding jurisdiction of the Parliament to set up the Administrative Tribunal relating to the service disputes of society registered under the Society Registration Act, owned and controlled by the Government in exercise of the power under Article 323A of the Constitution of India, which became the source of power to enact Administrative Tribunal Act, 1985 and the question that when Parliament in terms of Article 368 of the Constitution of India, amended the Constitution by incorporating Article 323A following a lengthy procedure as laid down thereto which includes acceptance of the wishes of the Parliament, in the manner stated, whether Parliament by amending Administrative Tribunal Act in the manner aforesaid while incorporating the word "Society" in Section 14, transgressed the constitutional framework of amending the Constitution under Article 368 of the Constitution of India. Those questions were not at all addressed either in the Pradip Kumar Biswas (supra) and in the case Subhash Sharma (supra) as relied upon by the learned Additional Solicitor General.
Learned Additional Solicitor General further relied a judgement of Allahabad High Court, an unreported judgement, passed in the case Civil Misc. 60 W. P. No.22207 of 2009, under cause title Bhaskar Mishra v. Union of India & Anr., to place persuasive value of the ratio of the said case, for its application herein. It is true that in the said case some of the present questions framed, save and except the question touching the constitutional amendment of Article 368 and its procedural set up, were dealt with. On a bare reading of the said judgement it appears that the Division Bench of Allahabad High Court, with due respect, only answered the issue in the angle of Article 12 of the Constitution of India by taking resort to the meaning of State thereto applicable to other authorities who are instrumentalities or agent of the State, by relying upon the case Kendriya Vidyalaya Sangathan(supra) and Pradip Kumar Biswas(supra), as discussed earlier. In that case Allahabad High Court held that Kendriya Vidyalaya Sangathan, will fall within the scope of "other authority" under Article 323A. With due respect, we fail to subscribe our views in that angle, as held by Allahabad High Court, on basis of discussion made earlier.
Having regard to aforesaid discussions and findings, we are unable to substitute our views in the angle as considered by the Division Bench of Allahabad High Court. Learned Additional Solicitor General further has relied upon one un-reported judgement of Apex Court passed in the case Civil Appeal No.5108 of 2002, under cause title, Commissioner, Kendriya Vidyalaya Sangathan & Ors. v. Krishna, to contend that Apex Court has decided the point by quashing the decree of trial Court, holding, inter alia, that civil Court had no jurisdiction to decide the service dispute of employees of Kendriya Vidyalaya 61 Sangathan as it was brought within the Administrative Tribunals Act issuing notification dated 17th December, 1998. The judgement as referred to read such:
" We have heard learned counsel for the parties.
This appeal is preferred b y the Commissioner, Kendriya Vidyalaya Sangathan against the order dated 26th April , 2002 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. No. 1687 of 2002. The Second Appeal was dismissed by the High Court on 26th April, 2002 by a cryptic order, which reads as under :-
"I find no reason to interfere with the well reasoned judgments recorded by the courts below. No injustice has been done to the appellants."
In view of the order that we propose to pass, it may not be necessary to give the entire facts.
Suffice it to say that the respondent was working as T.G.T. Hindi teacher on adhoc basis from 21st January, 1993 and continued till 25th June, 1996. She filed a Civil Suit on 16th October, 1996 for declaration and regularisation with consequential benefits. The suit was partly decreed with regard to arrears in salary but in respect of regularisation, the suit was dismissed by the trial Court. The decree was challenged before the District Judge, faridkot and the High Court by the appellant herein on the ground of jurisdictional error.
It is a case of the appellant consistently before the District Judge and the High Court that by a Government Notification dated 17th Decemebr, 1998 issued under Section 14 (2) of the Administrative Tribunals Act, 1985 (in short, 'the Act'), the Kendriya Vidyalaya was brought within the ambit of 62 the Central Administrative Tribunal with effect from 1.1. 1999. It is contended by the appellant that at the time of Notification which was issued on 17th December, 1998, the suit pending before trial Court ought to have been transferred to the Central Administrative Tribunal in terms of Section 28 of the Act. This being a question of law, we agree with the contention of the appellant. We are clearly of the view that the decree of the Trial Court is without jurisdiction and is null and void.
On the aforesaid sole ground, decree passed by the Trial Court, confirmed by the Appellate Court and the High Court in R.S.A. is set aside and, accordingly, the suit is dismissed.
This appeal is allowed, with no order as to costs. "
On a bare reading of the said judgement, with due respect, it appears that the questions as being considered by us herein, were not the question involved, addressed and answered by apex Court.
Having regard to the aforesaid discussions and findings, though the Learned Additional Solicitor General has argued before us to read down the word "and" which is joining the words "public service" and "post" or to read the word as "or", giving a disjunctive meaning of word "and" appearing in Article 323A, by citing different judgements to substantiate his argument that the Court will interpret the Constitution with different view than the interpretation tools to interpret statutory provision, we are of conscious opinion that the aforesaid amending provisions by amendment Act of 1986 as quoted above, are of without 63 jurisdiction and ultra virus to the Article 323A of the Constitution of India and accordingly those amended provision of Amending Act as incorporated in Principal Act, wherever word "society" has been incorporated/substituted, are set aside and quashed. As a consequence thereof the preliminary question is answered by holding that incorporation of the word "society" by amendment and incorporation of the word only "service and post", are contrary to the constitutional provision of Article 323A and being ultra vires to the said provision. Hence the Administrative Tribunal set up under said Principal Act has no jurisdiction to deal with the cases arising out of service dispute of an employee of Kendriya Vidyalaya Sangathan. Notification aforesaid dated 17th December, 1998 relating to 'Society' and including therein "Kendriya Vidyalaya Sangathan", also stand quashed. The order of the Learned Tribunal below impugned accordingly is set aside and quashed on that reasoning. The respondents now may raise his grievance for remedy in appropriate forum, in accordance with law.
In view of the judgement, the application, being CAN 750 of 2010, cannot be considered by us. It accordingly stands dismissed.
This order will cover other two writ applications W.P.C.T No.93 of 2008 and W.P.C.T No.94 of 2008. All writ applications thus disposed off.Re: W.P.C.T No.93 of 2008
Fact :64
This writ application has been heard along with W.P.C.T No.310 of 2008 analogously. In this writ application one Smt. Sushila Upadhyay, an employee of Kendriya Vidyalaya Sangathan, assailed the order dated 1st February, 2008 passed by the Central Administrative Tribunal, Calcutta Bench in O. A. No.303/2006, which arose out of challenge of the order of the appellate authority confirming the dismissal from service passed by the Disciplinary Authority on the charge of marriage with P. K. Jha, who earlier was married with another lady and children be gotten in wedlock of the same. Learned Tribunal interfering with the order of dismissal directed the Kendriya Vidyalaya Sangathan authority to reconsider the quantum of punishment.Re: W.P.C.T No.94 of 2008
Fact :
This writ application W.P.C.T No.94 of 2008 was filed by one Sri P. K. Jha assailing the order dated 1st December, 2008 passed by said Administrative Tribunal in O.A. No.302/2006 whereby learned Tribunal below did not interfere with the order passed by the appellate authority confirming the decision of removal from service, passed by the Disciplinary Authority with reference to charge of second marriage with Smt. Sushila Upadhyay who is writ petitioner of W.P.C.T No.93 of 2008.
Those writ applications have been heard by setting up the preliminary point as referred to in writ application W.P.C.T No.310 of 2008 relating to 65 jurisdiction of the Administrative Tribunal to hear original application by setting up the questions as framed. These writ applications are disposed of by the identical order as passed in W.P.C.T. No.310 of 2008 by holding, inter alia, that the Tribunal had no jurisdiction to entertain the original applications on the reasoning as advanced in the W.P.C.T. No.310 of 2008. Hence, the impugned order of those writ applications, stand set aside and quashed.
(Pratap Kumar Ray,J.) I agree, (Mrinal Kanti Sinha, J.) LATER:
Urgent xerox certified copy of this order, if applied for, be given.
(Pratap Kumar Ray,J.) (Mrinal Kanti Sinha, J.)