Gujarat High Court
Dahyabhai Mohanbhai Prajapati vs Union Of India Through Director General ... on 31 July, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/3492/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3492 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI Sd/-
and
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
1 to 5: NO
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DAHYABHAI MOHANBHAI PRAJAPATI....Petitioner(s)
Versus
UNION OF INDIA THROUGH DIRECTOR GENERAL TELECOM &
1....Respondent(s)
================================================================
Appearance:
PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1
MS PJ DAVAWALA, ADVOCATE for the Respondent(s) No. 2
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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Page 1 of 16
C/SCA/3492/2012 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 31/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner, appearing in person, has challenged a judgment of the Central Administrative Tribunal, Ahmedabad ('the Tribunal" for short) dated 20.12.2011 in O.A.No.399 of 2011 and a further order dated 19.01.2012 passed in M.A.No.14 of 2012. This is a long drawn litigation. We may record brief necessary facts. Petitioner is a retired employee of Bharat Sanchar Nigam Limited ("BSNL" for brief). He retired on superannuation with effect from 31.5.2009 from the post of Divisional Engineer. Departmental Promotion Committee ("the DPC" for short) for promotion to the post of Telecom Engineer Service Group B from Junior Telecom Officer ("JTO" for brief) for the years 1992-93 and 1993-94 considered the case of the petitioner, but did not find him fit for promotion. Petitioner thereupon filed O.A.No.505 of 1994 before the Tribunal. The Tribunal noted that such non-promotion was on the basis of certain adverse entries which were not immediately communicated and, after communication upon a Page 2 of 16 C/SCA/3492/2012 JUDGMENT representation from the petitioner, were expunged. The Tribunal was, therefore, of the opinion that the Department would have to conduct a review DPC to consider the petitioner in light of the expunged adverse remarks for the years 1989- 90 and 1990-91. The Tribunal, therefore, gave the following directions in its judgment dated 15.06.2001:
7. In view of the foregoing discussion, we direct the respondents to conduct a review DPC for the years 1992-93 and 1993-94 to consider the case of the applicant for promotion to the post of TES Group B in the light of the expunged adverse entries in the C.Rs of the applicant for the years 1989-90 and 1990-91. If the review D.P.C. finds the applicant suitable for promotion then, the applicant be given promotion from the date his immediate junior was promoted with all consequential benefits. This exercise be carried out within three months of the receipt of the copy of the order by the respondents. No order is passed as to costs."
2. The said decision of the Tribunal was challenged by the Department before the High Court in SCA No.16139 of 2004. Such petition was dismissed by a judgment dated 29.03.2005 in the following manner:
"Accordingly, case of the petitioner was considered for the post of TES Group B on the basis of seniority cum fitness by the review CPC. The review DPC reconsidered his case and found him unfit, therefore, the applicant challenged the said order through OA No.43 of 2002. Vide order dated 27.7.2004, the Tribunal set aside the order declaring the petitioner unfit for promotion. Respondents have been directed to reconsider Page 3 of 16 C/SCA/3492/2012 JUDGMENT the matter through review DPC While arriving at this decision, it is found that ACRs of 1989-90 and 19910-91 (average) have been set aside, still the review DPC considers the case on the same footing which could not be possible since these entries have been quashed vide order dated August 1, 19i95 and in absence of replacement, he is taken to be good for these years so finding him unfit for promotion on same entries is not proper. Further, it is also found from perusal of the ACRs that the entries have not been properly filed. There is no overall grading. With this back ground and the facts considered by the Tribunal, there could be no other order than what has been passed by the Tribunal. We find no merit on this petition and the same is dismissed."
3. The Department carried the matter further in appeal before the Supreme Court. The Supreme Court dismissed the SLP subject to the following observations:
"While considering the matter, the authorities shall take note of the factual scenario, uninfluenced by any observation made by CAT/High Court as regards alleged non- consideration.
In that view of the case we are not inclined to interfere in this matter which is accordingly disposed of."
In the meantime, the petitioner was promoted to the said post by order dated 18.11.1998.
4. Finally after the judgment of the Supreme Court, a Page 4 of 16 C/SCA/3492/2012 JUDGMENT review DPC was drawn by the Department which found the petitioner fit for promotion. He was granted promotion on notional basis with effect from 18.11.1993 by an order dated 04.09.2009. In such order, it was provided that the petitioner would be promoted notionally with effect from 18.11.1993 to the post of TES Gr.B, i.e. the same date from which his immediate junior was promoted.
5. Despite such order, since the Department did not re-fix his salary, the petitioner represented on 24.01.2010, in response to which Accounts Officer wrote to the petitioner on 25.02.2010 stating that, regarding his payment of pay and allowances, action is already initiated to work out arrears of pay and allowances, if any due and payable to him. It was also conveyed to him that some other payment is recoverable from him which would be adjusted from his dues, if any. In sur- rejoinder filed by the Department before the Tribunal in one of the cases of the petitioner, on 21.5.2011 it was stated that:
"...The revise fixation is done from 10.11.1993, i.e. from the said date on which his junior officer Shri D.H.Patel was promoted to TES Group B. It is found that negative arrears worked out."
6. The petitioner thereupon filed O.A.No.296 of 2011 Page 5 of 16 C/SCA/3492/2012 JUDGMENT before the Tribunal and prayed for a direction to the respondents to pay salary arrears with effect from 18.11.1993. Such O.A. was dismissed by judgment dated 06.09.2011 on the ground that the petitioner had not challenged the validity of the order dated 04.09.2009 granting notional promotion. Unless he challenges such order, the Tribunal opined, he would not be eligible for arrears of pay and allowances.
7. On 02.11.2011 the petitioner wrote to the Director General Telecom stating that he had come to know that on account of his notional promotion with effect from 18.11.1993, the Department has worked out arrears of salary of Rs.1.65 lakhs since no salary arrears are paid for the period between 18.11.1993 to 10.11.1998. He further stated that he would not accept the said notional promotion with effect from 18.11.1993. Instead, he stated that, he must be treated on par with his immediate junior as directed by the Tribunal. He further reminded the Department of the directions of the Tribunal for considering his case for promotion through review DPC and if found suitable for promotion with all consequential benefits.
8. In response to such representation, he did not Page 6 of 16 C/SCA/3492/2012 JUDGMENT receive any reply. He, therefore, filed a petition before the Tribunal again which was numbered as OA No.399 of 2011. The Tribunal, during the course of arguments, seemed to have suggested to the petitioner that his original application was beyond the period of limitation prescribed under the Administrative Tribunals Act, 1985 ("the Act" for short) and whether he would therefore like to file delay condonation application. The petitioner, appearing in person, contended that the Department assured to calculate the arrears under communication dated 25.02.2010 and only when he received a communication dated 21.5.2011, it came to his notice that the Finance Wing had rejected his request for grant of the benefits as per his request and worked out negative arrears. The Tribunal, however, held that the petitioner had challenged the order dated 04.09.2009 under which the petitioner was granted notional promotion with retrospective effect but without arrears of salary. The Original Application which was filed on 16.11.2011 was, therefore, beyond the period of limitation prescribed under the Act without any application for condonation of delay. The Tribunal dismissed such Original Application only on the ground of limitation.
9. The petitioner filed M.A.No.14 of 2012 and Page 7 of 16 C/SCA/3492/2012 JUDGMENT requested the Tribunal for restoration of O.A.No.399 of 2011 and to condone the delay for the grounds stated in the said application. In such application he stated that he was assured pay and allowances with arrears under a communication dated 25.02.2010. He was, therefore, hopeful and waiting for such payments. It was only on 21.5.2011 through a note, which forms a part of the sur-rejoinder in O.A.No.167 of 2011, he came to know that negative arrears were worked out. He was also informed during a telephonic talk on 01.11.2011 that due to notional promotion with effect from 18.11.1993 negative arrears were worked out. He was under the impression that limitation would start from 21.5.2011 and, therefore, his O.A.No.399 of 2011 was within the prescribed time-limit. He, therefore, requested that the delay caused in filing the original application be condoned after restoration of Original Application.
10. On such M.A.No.14 of 2012, the Tribunal has passed an order 19.01.2012 recording that O.A. was dismissed on merits. There was no rule under which an application which is dismissed can be restored and thereafter delay be condoned at that stage.
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C/SCA/3492/2012 JUDGMENT
11. These orders are challenged by the petitioner in this petition. Having heard the appearing parties, we are of the opinion that the Tribunal committed a serious error in rejecting the O.A. as well as the M.A. of the petitioner only on the ground of delay. Firstly, in the O.A., the petitioner had challenged order dated 04.09.2009 granting him notional promotion with effect from 18.11.1993 without arrears of salary. He further prayed that he be granted promotion and salary on par with his immediate junior. We may recall that after such order dated 04.09.2009 was passed, the petitioner was continuously in contact with the Department. When he pointed out about non-release of arrears, he was conveyed on 25.02.2010 that steps are already initiated for working out the arrears of pay, if any. It was only through a sur-rejoinder dated 21.5.2011 filed in O.A.No.167 of 2011 he came to know that pursuant to revision of pay fixation, the Department has worked out negative arrears. He thereupon wrote a detailed representation to the Director General of Telecom on 02.11.2011 stating that the Tribunal has already directed his consideration for promotion and, if found fit for promotion, to grant the same with all consequential benefits. There was no response to this representation.
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C/SCA/3492/2012 JUDGMENT
12. Section 19 of the Administrative Tribunals Act, 1985 pertains to 'Applications to Tribunals'. Section 20(1) provides that, a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. Section 20(2) further provides that, for the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules, if a final order has been made by the government or other authority or officer or a competent person rejecting an appeal preferred or representation made by such person in connection with the grievance; or where no final order has been made as regards such appeal or representation, if a period of six months from the date on which such appeal was preferred or representation was made has expired. Section 21 prescribes 'limitation' and provides as under:
"21. LIMITATION. -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause
(a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year Page 10 of 16 C/SCA/3492/2012 JUDGMENT from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-
section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
13. In terms of sections 20 and 21 of the Act, therefore, if the petitioner had made representation against non-granting of arrears of salary upon his retrospective promotion, he had to approach the Tribunal within one year from the date such representation was decided and, if no such representation was decided within six months, within a period of one year thereafter. In the present case, he had made representation to the Department on or around 24.01.2010. On 25.02.2010 in response to such representation, the Department conveyed to him that exercise of payment of pay and allowance is already initiated to work out the arrears, if payable. It was only in the sur-rejoinder to O.A.No.167 of 2011 filed on 21.05.2011 that Page 11 of 16 C/SCA/3492/2012 JUDGMENT the Department contended that there is negative arrears worked out against the petitioner that his representation could be stated to have been finally turned down. Even thereafter, he filed O.A.No.296 of 2011 and sought a direction for payment of arrears of salary with effect from 18.11.1993. The Tribunal in its judgment dated 09.11.2011 held that unless he challenges validity of order dated 04.09.2009, such relief cannot be granted. It was thereupon he filed O.A.No.399 of 2011. In our opinion, the same was wrongly rejected on the ground or limitation. He thereafter filed M.A.No.14 of 2012 seeking restoration of the O.A. and also for condonation of delay on the basis of the explanation contained in such application. Such application was dismissed by the Tribunal. Unfortunately, the observations made in that order was that the O.A. was dismissed on merits, which was not correct. Be that as it may, when we hold that the O.A. was not hit by the provision of limitation contained in section 21 of the Act read with section 20 thereof, the Tribunal's judgment must be reversed.
14. Now comes the question as to what relief can be granted to the petitioner. Learned counsel for the Department submitted that the matter may now be remanded to the Page 12 of 16 C/SCA/3492/2012 JUDGMENT Tribunal to decide the issues on merits. We refuse to toss a retired employee from one court to another. We would decide all the issues in this petition. In its judgment dated 15.6.2001, the Tribunal directed the Department to consider the case of the petitioner by drawing a review DPC for the years 1992-93 and 1993-94. It was further directed that if the DPC finds the petitioner suitable for promotion, he would be granted such promotion from the date his immediate junior was promoted "with all consequential benefits". This judgment, we may recall, was challenged unsuccessfully before the High Court and thereafter before the Supreme Court. The Supreme Court granted only a small modification, namely, that while considering the matter, the authorities would take note of the factual scenario uninfluenced by the observations of the Tribunal and the High Court as regards non-consideration. The essence of the Supreme Court's direction was that relevant service record of the employee would be looked into by the review DPC for judging his suitability for promotion and such consideration would be uninfluenced by the observations made by the Tribunal and the High Court. The direction of the Tribunal that if found suitable for promotion the petitioner would be granted such promotion from the date of his junior was granted promotion with all consequential benefits, was not Page 13 of 16 C/SCA/3492/2012 JUDGMENT altered either by the High Court or by the Supreme Court.
15. The petitioner was thus entitled to all consequential benefits if, upon consideration by the review DPC, he was found fit for promotion and such promotion was granted. In the present case, he was not only found fit for promotion but was also granted retrospective promotion with effect from 18.11.1993, the date on which his junior was promoted. The Department, however, under order dated 04.09.2009, granted notional promotion to the petitioner, thereby denying arrears of salary to him. All consequential benefits would include difference of salary also.
16. Reliance of the counsel for BSNL on the decisions of the Supreme Court in case of A.K.Soumini v., State Bank of Travancore reported in (2003) 7 SCC 2238 and in case of State of Haryana v. O.P.Gupta reported in (1996) 7 SCC 533 would be of no avail. Had the question of granting consequential benefits arisen before us for the first time, we would have certainly examined that issue. We are, however, not deciding this question for the first time. This question has already been decided by the Tribunal. The Tribunal granted all Page 14 of 16 C/SCA/3492/2012 JUDGMENT consequential benefits. Such decision of the Tribunal was upheld by the High Court and this material aspect was not touched by the Supreme Court. Once this issue has thus achieved finality, the Department cannot take a stand which would be contrary to the judgment binding the Department.
17. In the result, the petition is allowed. Orders passed by the Tribunal dated 20.12.2011 and 19.01.2012 in O.A.No.399 of 2011 and M.A.No.14 of 2012 respectively are quashed. Order dated 04.09.2009 passed by the respondent granting promotion to the petitioner with effect from 18.11.1993 notionally is quashed to the extent it denies to the petitioner arrears of salary flowing from such retrospective promotion. The petitioner is held entitled to arrears of salary on the basis of such backdated promotion. The respondent concerned shall work out such arrears payable to the petitioner after carrying out pay fixation on the basis of his retrospective promotion with effect from 18.11.1993. Pay fixation shall be communicated to the petitioner latest by 31.8.2014 and the arrears shall be released latest by 30.09.2014, failing which the entire amount of arrears shall carry simple interest at the rate of 8% per annum from the date it fell due till actual payment. It is clarified that we have not examined the aspect Page 15 of 16 C/SCA/3492/2012 JUDGMENT of the petitioner's revised pay fixation pursuant to his retrospective promotion. If the petitioner has any grievance and the Department is adopting a particular pay fixation, it will be open for the petitioner to raise such grievance before the appropriate forum in accordance with law. Petition is disposed of accordingly. Rule is made absolute.
18. Before closing, we may clarify that, in the order dated 21.01.2014 this Court had called for explanation from the Department for not following the direction of the Tribunal confirmed by the High Court and the Supreme Court. In the facts of the present case, we pass no further action.
Sd/-
(AKIL KURESHI, J.) Sd/-
(MOHINDER PAL, J.) (KMGThilake) Page 16 of 16