Bombay High Court
Naval Employees Union Thr.General ... vs The Union Of India Thr. The Flag Officer ... on 22 June, 2022
Author: M. S. Karnik
Bench: Dipankar Datta, M. S. Karnik
3-aswp6774-2022
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6774 OF 2022
Naval Employees Union
through General Secretary
R. K. Singh ...Petitioner
V/s.
The Union of India
through Flag Officer
Commanding-in-Chief & Ors. ...Respondents
Mr. Rajeev N. Kumar for the petitioner.
Mr. Rui A. Rodrigues with Mr. R. R. Shetty for
respondent nos. 1 and 2.
Mr. V. A. Nagrani for respondent nos. 3 to 24.
CORAM: DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE: JUNE 22, 2022 P.C.:
1. This writ petition is at the instance of Naval Employees Union through its General Secretary. The petitioning union has been impleaded as an additional respondent in Original Application No. 93 of 2017 (R. Venugopal & Ors. v. Union of India & Ors.) pending on the file of the Central Administrative Tribunal (hereafter "the Tribunal", for short), by an order passed by in September 2017.
13-aswp6774-2022
2. By instituting this writ petition, the petitioning union seeks vacation of the interim order passed by the Tribunal on 27th April 2017 as well as an order dated 6th April 2022 whereby, interim relief granted earlier has been continued till the next date of hearing, i.e., 20th June 2022.
3. The original applicants are the respondents 3 to 24 in this writ petition. They had moved the Tribunal aggrieved by the process initiated by the official respondents for promotion from HSK-I to Master Craftsman Industrial staff for the year 2017-2018. The Tribunal had, inter alia, passed an order (date whereof is not too clear) on the original application reading as follows:
"The learned Advocate for the respondents seeks four weeks time to file reply to the OA covering prayer for interim relief. Two weeks thereafter for filing rejoinder, if any. All other forms of pleadings be completed by the next date of hearing.
On the instructions received from the concerned officers, who are present in the Court, the learned Advocate for the respondents submitted that the DPC may not be held before end of March, 2017".
4. However, on 27th April 2017, the Tribunal was informed of breach of the assurance given by the responsible officers who were present before it on the earlier occasion. The Departmental Promotion Committee (hereafter "DPC", for short) had met and had even prepared a panel before the end of March 2017, contrary to what was submitted before the Tribunal. It is in view of such a development that the Tribunal passed the following order:
"Shri Vicky Nagrani, learned Advocate appeared for the Applicant.2
3-aswp6774-2022 It is submitted by the learned Advocate for the applicant that he has already informed Shri R.A. Rodrigues, learned Advocate for the respondents about today's date of hearing. However, he is absent.
Shri Abhishek Tripathi, proxy counsel however appeared for Shri R.A. Rodrigues, learned Advocate for the respondents.
The applicant has filed M.A. 258/2017 on 6.4.2017 for interim order. This was done in pursuance of liberty granted to him in the order dt. 7.2.2017, by this Tribunal.
On the previous date of hearing, this Tribunal had passed the following order:-
'The learned Advocate for the respondents seeks four weeks time to file reply to the OA covering prayer for interim relief. Two weeks thereafter for filing rejoinder, if any. All other forms of pleadings be completed by the next date of hearing.
On the instructions received from the concerned officers, who are present in the Court, the learned Advocate for the respondents submitted that the DPC may not be held before end of March, 2017'.
However, today along with M.A. No. 258/2017, the applicant has produced copy of the DPC recommendation dt. 29.3.2017. It is thus obvious that the respondents indulged in committing breach of the undertaking given by the responsible officers present, by holding the DPC before end of March, 2017 and preparing the panel. In view of this, till the respondents file a reply to the present M.A. No. 258/2017, it is directed that the respondents shall not give effect to the panel for promotion from HSK-I to Master Craftsman Industrial Staff for the year 2017-18 published on 29.3.2017 under Dockyard Notice No. 3/2017 (Annexure-MP-2).
List on 28.6.2017 for filing reply by respondents to M.A. No. 258/2017 and for hearing on it.
Dasti."
5. Post its impleadment in September 2017 as an additional respondent, the petitioning union did not take immediate steps for vacation of the interim order. Several years thereafter, the petitioning union filed an application for vacation of the interim order being Miscellaneous Application 3 3-aswp6774-2022 No. 568 of 2021. Such application was listed for consideration before the Member (Judicial) of the Tribunal on 6th April 2022 when the following order was passed:
"Shri V.A. Nagrani, learned counsel for the Applicants in OA No. 93/2017 & OA No. 497/2017.
Shri Samir Tiwari, proxy counsel for Shri L.C. Kranti, learned counsel for the applicant in OA No. 239/2018. Shri Samir Tiwari, proxy counsel for Shri Sangram Chinappa, learned counsel for Respondent Nos. 4 to 7 in OA No. 93/2017.
Shri J. Sheth, proxy counsel for Shri R.A. Rodrigues, learned counsel for the Respondent No. 1 in OA No. 93/2017. Shri R. R. Shetty, learned counsel for the Respondents in OA Nos. 497/2017 and 239/2018.
These cases pertain to Division Bench. In the interest of justice, list these cases before an appropriate Division on 20.06.2022 for final hearing. Interim relief, if any, to continue till next date of hearing."
6. It is not in dispute that during the pendency of this writ petition dated 9th May 2022, the Member (Judicial) of the Tribunal has passed the following order dated 20th June 2022:
"Shri V.A. Nagrani, learned counsel for the applicants in OA Nos. 93/2017 and 497/2017.
None for the applicants in OA No.239/2018. Ms. Bhoomika Vyas, proxy counsel for Shri Sangram Chinappa, learned counsel for the respondents in OA No. 93/2017.
Shri R.R. Shetty, learned counsel for the respondents in OA Nos. 497/2017 and 239/2018.
Today the application for vacation of the interim order MA No. 568/2021 is also listed for hearing. Parties are present and are very keen to argue the matter today but due to non- availability of the Division Bench, this Bench cannot hear this matter today.
List for hearing on the MA for vacation of IR or otherwise for final hearing as and when a Division Bench is available. Parties are at liberty to mention the matter when Division 4 3-aswp6774-2022 Bench is available."
7. It is, therefore, clear from the aforesaid orders passed by the Tribunal that because of lack of coram, the application for vacating interim order of the petitioning union being Miscellaneous Application No. 568 of 2021 could not be heard and disposed of. Pertinently, since the official respondents had breached the assurance given to the Tribunal earlier, they have not filed any application for vacating the interim order passed on 27th April 2017.
8. We are informed by the learned advocates appearing for the parties that during the last five (5) years of pendency of the original application, the same has been heard substantially by different benches of the Tribunal but owing to transfer/retirement of the members thereof, final decision on the original application is yet to see the light of day.
9. We place on record the submission of Mr. Shetty, learned advocate for the official respondents that because of continuance of the interim order, not only is the relevant department suffering but also those who are selected for promotion are suffering because of the interim order dated 27th April 2017. The submission of Mr. Shetty is echoed by Mr. Kumar, learned advocate for the petitioning union.
10. It is indeed disturbing that because of an interim order passed by the Tribunal, the panel which has been prepared by the DPC cannot be given effect. However, it is equally disturbing that a submission was made on behalf of the official respondents that the DPC would not meet before the end of March 2017, yet, the DPC did meet and went on to select 5 3-aswp6774-2022 candidates and prepared a panel of such selected candidates prior to the end of March 2017. There cannot be any doubt that the respect that the Tribunal deserved was not shown by the officers of the department who were present before it. In any event, it is the official respondents who are responsible for suffering such an interim order as well as for the impasse that is now created.
11. Be that as it may, it cannot be ignored that the interim order has continued for five (5) years and now the official respondents represented by Mr. Shetty seeks an order from the Court that the panel prepared by the DPC may be allowed to be given effect, subject to the result of the original application. This has also been the prayer of Mr. Kumar.
12. Once we find that the interim order has been in operation for five (5) years and the official respondents have not shown any interest to have such interim order vacated, there is no such immediate urgency for them to make a prayer for vacation of the interim order, without even approaching the Tribunal, or this Court by instituting a substantive application, on the ground that the Tribunal currently lacks the coram. If the Tribunal has been non- operational or non-functional for any reason such as non- availability of members, the responsibility to address the problem must be shouldered by the authority competent to ensure that the Tribunal has requisite members. The impasse not being a creation of the original applicants, this Court cannot be requested to vacate the interim order passed earlier particularly when both the original and the vacating applications are pending for decision before the Tribunal.
63-aswp6774-2022
13. We also do not see reason to accept the request of Mr. Kumar. Indeed, it could be true, that the members of the petitioning union are suffering since long; but such suffering is not because of the original applicants. They have been ready to argue their cases but it is the lack of coram that has prevented the Tribunal from going ahead with hearing of the applications. That apart, there has been no development of worth subsequent to passing of the interim order dated 27th April 2017 touching the merits of the matter, which would warrant us to modify the same.
14. In our view, interest of justice would be sufficiently served if hearing of this writ petition is adjourned for the present till the second week of October 2022. We hope and trust that in the meanwhile, the competent authority will appoint requisite members for the Mumbai Bench of the Tribunal and if such appointments take place, the Tribunal shall make earnest effort to decide the original application together with Miscellaneous Application No. 568 of 2021 at an early date.
Digitally
(M. S. KARNIK, J.) (CHIEF JUSTICE)
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2022.06.23
19:53:06
+0530
7