Central Administrative Tribunal - Delhi
L.N. Yadav vs Union Of India & Others -Respondents on 16 December, 2008
Central Administrative Tribunal Principal Bench MA No.2315/2007 OA No.2472/2004 New Delhi, this the 16th day of December 2008 HONBLE MR.JUSTICE V.K. BALI, CHAIRMAN HONBLE MR.SHANKER RAJU, MEMBER (J) HONBLE MR.SHAILENDRA PANDEY, MEMBER (A) L.N. Yadav -Applicant (By Advocate Shri Yogesh Sharma) -Versus- Union of India & others -Respondents (By Advocate Shri R.L. Dhawan) O R D E R
Shri Shanker Raju:
This Tribunal vide orders dated 14.9.2006 in OA No.2472/2004 directed the respondents to re-fix the pay of the applicant as per observations made in the body of the order w.e.f. 19.8.1968 without effecting any recovery. The respondents were directed to complete the entire exercise within three months from the date of communication of the order. Pursuant to directions given by this Tribunal, respondents passed the order on 12.12.2006. In the present M.A. bearing No.2315/2007, the case of the applicant is that the order dated 12.12.2006 has not been passed on the basis of the observations made by the Tribunal, but on the basis of office letters dated 7.8.1996 and 8.5.1997 and, therefore, the order passed by this Tribunal has to be implemented in letter and spirit. The respondents have raised a preliminary objection with regard to maintainability of the Misc. Application that the same is barred by limitation, as envisaged in Section 21 of the Administrative Tribunals Act, 1985, inasmuch as, even though the Application for execution may have been filed within the period of limitation prescribed reckoned from 12.12.2006 the date of the orders passed by the respondents, but is not within the period of limitation from the date of orders passed by this Tribunal, i.e., 14.9.2006. In short, the plea raised by the respondents is that whenever the Government passes an order pursuant to directions issued by this Tribunal, the limitation would only commence from the date of passing of the order by the Tribunal. Right to seek remedy before a Court of law is sought to be curtailed by the plea raised by the respondents, which is admittedly otherwise a right guaranteed under the Constitution of India. The learned Bench seized of the matter, primarily because of the decision of Honble Supreme Court in Hukum Raj Khinvsara v. Union of India, (1997) 4 SCC 284, has referred the matter for adjudication by the Full Bench by framing the following reference:
In the matter of execution application under Section 27 of the Administrative Tribunals Act, 1985 an order passed in compliance of the Tribunals directions of a particular date, whether limitation to approach the Tribunal is to be computed from the date of the order passed in compliance or from the original order of the Court?
3. A brief factual matrix relevant for the purpose is highlighted. Applicant in OA-2472/2004 challenged wrong fixation of his pay. OA was finally disposed of on 14.9.2006 with a direction to the respondents to re-fix the pay of applicant as per the observations arrived at in the body of the order of the Tribunal w.e.f. 19.8.1968 without effecting any recovery. The period of three months from the date of communication of the order was allowed to the respondents to complete the exercise.
4. An order dated 12.12.2006 passed by the respondents purportedly complied with the order of the Tribunal by upholding pay fixation earlier done vide orders dated 7.8.1996 and 8.5.1997. The aforesaid led to filing of MA No.2315/2007 on 11.12.2007, wherein the respondents took an exception of limitation by placing reliance on a decision of the Apex Court in Hukam Raj Khinvsara (supra) to propagate that since one year had passed from the date of issue of the order of the Tribunal dated 14.9.2006, the MA filed on 11.12.2007 is not maintainable and the Tribunal lacks jurisdiction to adjudicate. The Honble Bench after making some observations, and in particular, that a view could be taken that the cause of action for filing an execution application could be taken to have arisen only on 13.12.2006, referred the matter to the larger Bench, after framing the question to be answered. The observations and the question framed by the Bench are reproduced below:
6. The import of the decision and a binding precedent is that once the date of an order of the Tribunal is treated as a finality, then the one year period is to be computed from that date. However, while inferring the ratio decidendi of a case the factual situation cannot be ignored, as ruled by the Apex Court in State of Karnataka v. Smt. Gowramma, 2007 (14) SCALE 613.
7. In the case before the Apex Court an order passed by the Tribunal which set aside the dismissal orders was issued on 13.3.1992 and, when the order was not implemented Contempt Petition was filed on 11.12.1992, which was dismissed on 29.7.1993. The application for execution was filed on 13.12.1994 but was dismissed on 16.4.1996 on the ground of being barred by limitation. In this view of the matter, finality after expiry of one year from the date of order has been arrived at. Yet there is a situation in the instant case where though the order in OA-2472/2004 was issued on 14.9.2006, the respondents have decided to comply with it on 12.12.2006. As the compliance was not in true letter and spirit, the applicant has not preferred a CP but filed MA for execution on 11.12.2007, i.e., within one year from the date of the order dated 12.12.2006 issued by the respondents reportedly in compliance of the directions of the Tribunal. It would be pertinent to note in this connection that the Tribunals order dated 14.9.2006 gave three months time to the respondents to comply. Thus a view can be taken that the cause of action for filing an Execution Application can be taken to have arisen only on 13.12.2006 (i.e., 3 months after the Tribunals order as the Tribunal gave 3 months time to the respondents to comply). In any case, the applicant would be in a position to file an Execution Application only after the respondents order dated 12.12.2006 as only on this date he became aware of alleged compliance. In such view of the matter, we are of the view that the present application for execution cannot be rejected on mere limitation.
8. However, as an important question of law has emanated as to whether in a case where the respondents have issued an order in compliance of a Courts order on a particular date, whether the finality of an order of the Tribunal would be construed from the date of that order, or from the date of the original order of the Court?
9. Accordingly, to settle this legal issue, it would be expedient in the interest of justice to refer this matter to a larger Bench. Registry is directed to place the papers before the Honble Chairman, on administrate side, for appropriate orders.
5. Learned counsel of applicant Shri Yogesh Sharma vehemently argued his case and stated that decision in Hukam Raj Khinvsara (supra) is distinguishable and has no applicability in the facts and circumstances of the case.
6. Shri Sharma states that the finality of the order as described under Section 27 of the Administrative Tribunals Act, 1985 is not the date of the order passed by the Tribunal in original proceedings but once a direction has been issued and in compliance thereof a methodology has to be adopted by the respondents on re-examination to process the claim, a decision thereof by the respondents is a final decision. As such in case the directions are not complied with in true letter and spirit, the limitation would run from the date of an order passed by the respondents and in such an event, while in the instant case, within one year from the date of passing of the order dated 12.12.2006 by the respondents. Decision of the Himachal Pradesh High Court in Puran Chand Sharma v. State of H.P. & others, 2005 (2) ATJ HC 431 has been placed reliance on wherein for computing the period under Section 21 of the A.T. Act 1985 for limitation, the final order passed rejecting the grievance of the applicant shall be the initial point of reckoning limitation.
7. Respondents counsel Shri R.L. Dhawan opposed the contentions and by placing reliance on Hukam Raj Khinvsara (supra) it is stated that the only interpretation which could now be given to Section 27 of the A.T. Act, 1985 on its literal and grammatical construction is that if an application for execution is filed beyond one year from the date the final order has been passed by the Tribunal, it would not lie unless there is a prayer for condonation of delay. As the order passed by the Tribunal in the instant case is 14.9.2006, MA filed on 11.12.2007 is beyond one year and cannot be entertained. Accordingly, Shri R.L. Dhawan states that the binding precedent in Hukam Raj Khinvsara (supra) where Section 27 of the Act ibid has been interpreted would have to be followed and be applied mutatis mutandis in the present case as well.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. Before we proceed to answer the reference, the conception of applicability of law in this myriad situation is to be examined. The constitution of Administrative Tribunal is with an object to impart justice to the litigants relating to their service matters expeditiously and also in a less intricate procedural web. The Tribunal being declared as Court of first instance and enjoying all the jurisdiction akin to the High Court under Article 226 of the Constitution of India, as ruled by the Constitution Bench in L. Chandra Kumar v. Union of India, JT 1997 (3) SC 589 conceptual jurisprudence in the context of judicial activism has made law of the land. The Apex Court in State of U.P. v. J.S. Bisht, 2007 (5) SCC 586, ruled as under:
With the advent of globalisation, we are witnessing a shift from formalism to a value-laden approach to law. In the contemporary scholarship, especially with the decimation of law as purely an autonomous discipline (with the emergence of cross-cutting realms such as Law and Economics, Law and Philosophy, Law and Society, IPR et al), it is seen that laws embody a goal, which may have its provenance in sciences other than law as well. It is no more the black letter in the law which guides the interpretation but the goal which is embodied by the particular body of law, which may be termed as the rationality of law. Law, in its value-laden conception, is not entirely endogenous in its meaning and purpose: the constructions thereof also depends on the statement of purport and object. There is spillover of the aforementioned shift in philosophy of law to statutory interpretation. Purposive interpretation, of lately, has gained considerable currency, which is relevant for the sake of maximizing the efficiency in respect of the point behind the rule. There may be a situation when purposive interpretation is required even in the context of deciphering the constitutional mandate by invoking the notion of active liberty discovered by Justice Stephen Breyer of the American Supreme Court.
10. Law of interpretation has clearly laid down that intention of the legislature is to be gathered from the language used in the provisions and the Court should not read and substitute the words into it. It is also an established position of law that in a welfare legislation interpretation should be liberal. Liberal construction is the rule but when it causes hardship or injustice to a party, it has to be avoided, as ruled by the Apex Court in M/s Girnar Traders v. State of Maharashtra, 2007 (10) SCALE 391.
11. As regards ratio decidendi, the decisions of the Apex Court are not like statutes to be read and interpreted but the question of law decided, which in legal parlance is the ratio decidendi, has to be derived from the principles and reasons on which it is based but is also distinct from the relief finally granted or the manner adopted for its disposal as ruled in Executive Engineer Dhenkanal Minor Irrigation Division. v. N.C. Budharaj, CA No.3586/1984, decided on 10.1.2001.
12. While considering the ratio decidendi under the doctrine of precedent, the Apex Court in Govt. of Karnataka v. Smt. Gowramma, 2007 (14) SCALE 613 ruled as under:
9. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
10. 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 Euclids theorems nor as provisions of the statute and that too 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 London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra 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.
11. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, Lord Atkins speech.....is not to be treated as if it was statute definition. It will require qualification in new circumstances. Megarry, J in (1971) 1 WLR 1062 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 (1972 (2) WLR 537) Lord Morris said:
There is always peril in treating the words of a speech or judgment as though they are 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.
12. 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.
13. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
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 Cordozo) 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. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
13. Having regard to the above, the statutory provisions under the Sections 20 and 21 of A.T. Act, which are relevant for our purpose, are reproduced:
20. Application not to be admitted unless other remedies exhausted (1) 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.
(2) 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 as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
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 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.
14. Section 27 of the A.T. Act for execution of orders of a Tribunal provides as under:
27. Execution of orders of a Tribunal -
Subject to the other provisions of this Act and the rules, [the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order] shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-section (2) or section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.
15. While giving interpretation to Section 27 in Hukam Raj Khinvsara (supra) where the fact situation was that the applicant, who was earlier suspended and was dismissed finally, the dismissal was set aside by an order passed by the Tribunal on 13.3.1992 and in pursuance thereof he was reinstated. However, the consequential benefits granted to applicant when not given, a contempt filed on 11.12.1992 was dismissed on 29.7.1993 and thereafter the MA was filed much beyond one year from the date of final order passed by the Tribunal in OA. In this backdrop while quoting Sections 27 and 22 of the A.T. Act, the following observation was made:
8. Thus it could be seen that the final order passed by the Tribunal is executable under Section 27 of the Act within one year from the date of its becoming final. Admittedly, the final order was passed on March 13, 1992. Consequently, the appellant was required to file the execution application within one year from the said date unless the order of the Tribunal was suspended by this Court in a special leave petition/appeal which is not the case herein. Admittedly, the application came to be filed by the appellant on December 13, 1994 which is well beyond one year. Under these circumstances, the Tribunal was right in its conclusion that the application was barred by limitation.
9. Learned counsel for the appellant contends that the Tribunal would have condoned the delay in filing the application. It is not his case that he made an application for condonation of delay and the Tribunal had rejected the application without examining the grounds for the delay occasioned by him. Under these circumstances, we need not go into further question of refusal to condone the delay by the Tribunal.
16. Section 27 of the A.T. Act, 1985 being a non-obstante clause, which is subject to other provisions of the Act and the Rules, the order of the Tribunal finally disposing of an application has to be executed in the same manner. Section 20 (a) of the Act talks of a final order to be made by the Government where rejection of an appeal or representation or when no final order has been passed after expiry of six months, the Tribunal ordinarily shall admit an application. The time prescription for such remedy to be exhausted is provided under Section 21 of the A.T. Act, 1985, wherein against final order one year is allowed to raise the grievance and in case where an appeal is preferred 1-1/2 years from the date of the order appealed against. It is trite that a decision in its ratio decidendi by change of fact situation the applicability of statutory rules would have different applicability.
17. In our considered view, when Section 27 is subjected to other provisions of the Act and the Rules, Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 with a view to prevent abuse of its process and secure ends of justice is competent to issue orders or directions expedient in giving effect. Likewise, when Section 27 is subjected to other provisions and more particularly when Section 20 (a) refers to a final order on appeal and representation where an appeal is preferred and no decision is taken to limitation to extend to 1-1/2 years from the date of final order.
18. In our considered view in the case before the Apex Court after reinstatement non-grant of consequential benefits has been agitated after more than one year and that too after rejection of the Contempt Petition. In that backdrop one year from the date of final order is construed as the date of the decision of the Tribunal disposing of the original proceedings. However, distinguishing feature is that whereas in case of disposal whatever direction has been given there is no discretion left to the respondents to process or act subsequently, i.e., one is reinstated back and benefits are accorded. However, where an act of the respondents is not found apt in law as per rules and the matter is sent back for re-examination, unless that re-examination is complete and a final order is passed thereof, we cannot hold that the issue has attained finality in any manner whatsoever. Accordingly, this distinguishing feature when applied to the facts of the present MA shows that in respect of the applicant whose pay fixation was done wrongly by the respondents direction to re-fix with regard to the above observation was made on 14.9.2006 and three months time was accorded to the respondents to comply with it. Before three months no cause of action had arisen to the applicant to approach the Tribunal and as an order passed by the Tribunal on 12.12.2006, i.e., grant of three months within the time limit laid down by the Tribunal did not consider the observation it is for the first time that the applicant was made aware of the bent of mind of the respondents and compliance in true letter and spirit of the direction of the Tribunal. Accordingly, he agitated the issue by filing an MA on 11.12.2007, which is within one year from the date of order passed by the respondents.
19. Assuming without admitting as a legal fiction that the applicant immediately on decision of the Tribunal preferred a representation to the respondents for grant of benefits as per the direction after three months, i.e., on 12.12.2006 a period of six months and one year thereafter would be computed as a period of limitation to approach the Tribunal for execution under Section 21 (b) of the Act. In such an event also the MA filed by the applicant is within the limitation period. The aforesaid legal fiction is created on the basis that while execution of the orders of the Tribunal is also subject to other provisions of the Act thereafter on consideration of other provisions a final order shall have to be construed. In the present case the distinguishing feature is as an order passed by the Govt. towards compliance of the Tribunals order.
20. Moreover, as Section 20 prescribes in extraordinary circumstances to admit an application even without availing the remedies there is an exception to the Rule and in such an event without a final order or even without exhaustation of the remedy available an application before the Tribunal can be admitted.
21. Resultantly, for the foregoing reasons we answer the reference as under:
In a situation like the present case if the respondents in compliance of the directions of the Tribunal pass an order, the finality of the order of the Tribunal shall have to be construed from that date, which shall be the initial point of computing limitation of one year, as prescribed under the A.T. Act, 1985.
22. The matter be now placed before the Division Bench for further proceedings.
(Shailendra Pandey) (Shanker Raju) (V.K. Bali) Member (A) Member (J) Chairman San.