B.G. Gurupatham vs The State Administrative Tribunal and Others

V.S. Sirpurkar, J.—The petitioner herein challenges the order of the Tamil Nadu Administrative Tribunal (hereinafter called as the Tribunal)

in the Contempt Application No. 564/1994, whereby the Tribunal practically set aside the earlier order passed on 3.12.1993 in O.A. No.

570/1990.

In this case the facts are rather peculiar. The petitioner who was working as Deputy Superintendent of Police, was suspended on 6.3.78 for

some irregularities. A Departmental Enquiry was ensued and he was ordered to be dismissed on 3.9.1981. He, thereafter filed a Writ Petition

before this court in W.P. No. 353/1982, which came to be allowed on 4.2.1988 holding that the dismissal as also the findings of the enquiry officer

were incorrect and that the petitioner was entitled to be exonerated of all the charges. The age of retirement at the time when the petitioner was

suspended was 55 years, as per which, the petitioner would have been superannuated by 30.9.1978. However, since he was suspended he was

not allowed to retire and was retained in the service till 3.9.1981, when he was ordered to be dismissed. However, in the mean time, on

25.4.1979 by a G.O. the age of retirement was extended from 55 to 58, according to which the petitioner would have had the advantage of three

more years since he was in service. Then, if that advantage was available to him, he would have retired on 30.9.1981. Since the Government did

not pay him his back wages, the petitioner filed O.A. No. 570/90 and that came to be allowed on 3.12.1992. In that O.A. the petitioner had

sought the salary from the date of suspension that is 6.3.78 to the date of dismissal that is 3.9.1981 and had also sought for interest at 18% p.a.

This O.A. came to be allowed with the following directions:

....now we direct the respondents to pay the applicant the back salary from 6.3.78 to 3.9.1981 ie., from the date of suspension to the date of

dismissal and other retirement benefits like D.C.R.G., with interest at 12% for the delayed payment. If this is not paid within two months from the

date of receipt of this order, the interest on the delayed payment will be increased from 12% to 15% p.a. Even thereafter if there is any complaint

of non-compliance of this Tribunal will view the matter as contempt of court and action will be proceeded under the provisions of law.

We will not go into the merits of this order. But, the fact remains that this order remained un-challenged and became final as against the

Government. The petitioner therefore filed Contempt Application No. 564/94 before the Tribunal. The Tribunal however took the view that the

earlier order passed by the Tribunal in O.A. No. 570/90 was as a result of mis-representation and suppression of vital facts on the part of the

petitioner and therefore, the said order was not an order in law and so void ab initio. The Tribunal therefore deduced that the applicant was not

entitled for the advantage of that order and could not file contempt application for disobeying such order. The learned Members of the Tribunal

went ahead and observed that such conduct of the applicant far from being appreciable, deserves condemnation. It is this order, which is

challenged before us in this writ petition.

Mr. A. Jeenasenan, learned counsel appearing for the petitioner points out that the order passed by the Tribunal in O.A. No. 570/90 had

attained finality, as it throughout remained unchallenged. He further argues that there was no question of any dearth of jurisdiction in the Tribunal

when the Tribunal passed an order in O.A. 570/90. It was not as if the subject matter was beyond the jurisdiction of the Tribunal''s powers. The

learned counsel therefore argues that the Tribunal had perfect jurisdiction to pass the order. If that order remained, it was an order within the

jurisdiction of the Tribunal which remained unchallenged and became final against the Government. Then, it was bound to be complied with and the

non-compliance thereof, would certainly has resulted in the contempt of court on the part of the Government and it was precisely the cause for the

petitioner to move the contempt application before the Tribunal. Learned counsel would further contend that under such circumstances under its

contempt jurisdiction, the Tribunal could not have annulled or invalidated the order earlier passed by it. Learned counsel argues that rightly or

wrongly, an order came to be passed which was binding against the Government and its non-compliance was patently contemptuous and

therefore, the Tribunal which was approached subsequently for the contempt of court could not have invalidated the order.

As against this, learned Special Government Pleader tries to suggest that the original order passed by the Tribunal while disposing of O.A. No.

570/90 was in itself an erroneous order, as there could be no question of paying any back wages to a person like the petitioner herein, who would

have ordinarily retired on 30.9.1978. Therefore, the learned Special Government Pleader argued that even if it was held that the petitioner was

exonerated of all the charges, he would have ordinarily served only upto the date of his superannuation which was on 30.9.1981. He further argues

that since by that date the Departmental Enquiry could not be completed, the petitioner was kept under suspension and thus, he was kept in the

service and that by itself would not give him the advantage of three years of extended age. Learned Government Pleader points out that even

otherwise, the advantage of three years was available only to the persons who were to retire on or after 1.4.1978. In that view, he points out that

in fact the petitioner could have been paid the back wages only upto 30.9.1978 and the Tribunal in allowing his O.A. had completely ignored the

order passed by the State Government on 6.6.1989 by which the petitioner was paid all his backwages upto 30.9.1978. Learned Government

Pleader also points out Para-3 of the said Government Order whereby the Government had passed specific order that the period from the date of

superannuation to the date of this order 6.6.89 would be treated as ''freezed'' for all purposes. From this the learned Government Pleader suggests

that since the order passed by the Tribunal in O.A. No. 570/90 was passed in complete ignorance of this order , that order was non-est in law and

therefore , the Tribunal was right in dismissing the contempt application and in invalidating the order.

Considering the rival submissions, it has to be said that the question that came up for consideration before the Tribunal in the contempt matter,

had been approached in an erroneous manner. By way of the said contempt application, the Tribunal was requested to enforce its earlier order

passed in O.A. No. 570/90. At that time, there was no application pending before the Tribunal even for the review of the earlier order passed. We

have gone through the records which would go to show that the Government did not ask for the review of the earlier order. All that was pointed

out to the Tribunal was, that the Government had already passed an order, to which we have already made reference and had already paid all the

amounts to which the petitioner was entitled to. Therefore, it was the case of the Government before the Tribunal that the order passed by the

Tribunal in O.A. No. 570/90 was non-est and had jurisdiction. In our considered opinion such cannot be the position. An erroneous order is not

necessarily an order without jurisdiction in all the matters. In this present set up, there is nothing to suggest that the Tribunal lacked power to

consider the O.A. 570/90 or that the subject was that which was beyond its jurisdiction u/s 17 of the Administrative Tribunals Act. If the Tribunal

failed to consider voluntarily or otherwise the particulars actually found or did not consider the prior order passed by the Government, at the most

that order could be called an erroneous order. But that order could not have been termed as an order without jurisdiction. We are not in a position

to know, as to whether the order referred to by us dated 6.6.1989 was at all presented before the Tribunal by the Government. In the absence of

any such material, it cannot be said that the Tribunal deliberately did not consider that order. We do not think therefore that the order of the

Tribunal was non-est or without jurisdiction as the case may be. A mere non-consideration of a particular fact or situation does not take away the

jurisdictional force behind an order which is passed. Once that order was found to be a valid order, in the sense the order was passed with

jurisdiction, the question then comes is, as to whether the Tribunal was justified in setting that order at naught and whether the Tribunal in its

contempt jurisdiction could have invalidated or annulled that order. In our opinion, that could not have been done under the contempt jurisdiction at

all. At the most, the Tribunal could have viewed the inaction on the part of the Government as not contemptuous and could have refused to punish

the Government for contempt. However, the Tribunal could not have invalidated the order by giving a declaration that the said order is non-est. In

such circumstances, though the Tribunal had the power to review the order, it has not used its power to review and particularly so, because there

was no application before it on the part of the Government.

Therefore in our view, on the contempt petition filed by the petitioner, the Tribunal could not have turned around to invalidate the order , the

non-enforcement of which was being complained of. In these circumstances, we are of the opinion that the Tribunal''s order in setting at naught its

previous order is without jurisdiction and is liable to be set aside and accordingly it is set aside.

Learned Special Government Pleader expressed that the Government be given three months time to comply with the order of the Tribunal made

in O.A. No. 570/90. Such time is granted. The Writ Petition stands allowed and the Rule is made absolute in the terms indicated above. No costs.

Consequently connected WMPs are closed.