Naresh Kumar Jain vs State Public Services Tribunal And Others

Ramesh Ranganathan, CJ

This writ petition was initially filed in the Allahabad High Court in the year 1994 questioning the order passed by the State Public Services Tribunal, Lucknow in Claim Petition No. 290/F/III/1992 dated 07.05.1994. The State Public Services Tribunal had, by its order dated 07.05.1994, quashed the termination order of the petitioner dated 11.09.1980 as illegal and void. The opposite parties (respondents) were directed to re-instate the petitioner forthwith, and were directed to pay him salary from the date of his joining till the date of his superannuation, if he had not already retired on attaining the age of superannuation. The Tribunal, however, observed that no orders were being passed for payment of salary to the petitioner, for the intervening period, on account of his continued absence from duty; and it was open to the opposite party to regularize the period of absence if deemed proper, and in accordance with the Rules.

The Government of Uttar Pradesh questioned the order, passed by the State Public Services Tribunal, before the Allahabad High Court to the extent the earlier order of termination dated 11.04.1980 was quashed. The petitioner-employee filed the present writ petition before the Allahabad High Court questioning the order passed by the State Public Services Tribunal to the extent he was denied salary from the date of his termination till he was permitted to join duty. While the Writ Petition filed by the Government of Uttar Pradesh, against the order of the State Public Services Tribunal, continued to remain on the file of the Allahabad High Court, the Writ Petition filed by the employee (petitioner) was transferred to this Court and was renumbered as Writ Petition (S/B) No. 149 of 2007 (Old No. 36190 of 1994).

A Division Bench of this Court in its order dated 10.11.2010, after taking note of the fact that the challenge to the order of the Tribunal, to the extent the termination order of the petitioner was set aside, was still pending before the Allahabad High Court, which had granted stay of the operation of the order passed by the State Public Services Tribunal, held that, consequently, hearing of this writ petition should await the decision of the Allahabad High Court. The matter was directed to be adjourned with liberty to the petitioner to request for an early date of hearing as soon as the writ petition, pending before the Allahabad High Court, was decided.

This order of the Division Bench of this Court dated 10.11.2010 has resulted in this writ petition being kept unheard for the past more than 08½ years. Since this Writ Petition relates to the year 1994, and as we are satisfied that this Writ Petition can be heard and decided independent of the Writ Petition filed before the Allahabad High Court, we have examined the matter on merits. Neither is Mr. Chetan Joshi, learned counsel for the petitioner, present in Court nor is there any representation on his behalf. We see no reason to defer hearing of the Writ Petition awaiting the presence of the learned counsel, since the matter has been pending, either before the Allahabad High Court or this Court, for around twenty five years.

Facts, as noted in the order passed by the State Public Services Tribunal, are that the petitioner was appointed as a Panchayat Mantri on 27.07.1968 and, in the year 1971, Panchayat Mantries were declared to be Government servants. The petitioner applied for casual leave from 19.04.1978 to 27.04.1978 and, thereafter, continued to seek extension of his leave, the last of which was for a period of 15 days from 13.07.1978. The respondents directed the petitioner to undergo a medical checkup, and produce a medical certificate to be issued by the Chief Medical Officer. The petitioner, however, failed to secure such a certificate initially contending that his serious illness disabled him from appearing before the Chief Medical Officer; and, thereafter, on the ground that, though he had appeared before the Medical Officer, no such report was furnished to him. The petitioner's services were terminated by order dated 11.04.1980 with retrospective effect from 24.04.1978, i.e. on completion of the initial period of the casual leave sought by the petitioner. Questioning the said order of termination, among others, on the grounds of violation of principles of natural justice, the petitioner invoked the jurisdiction of the State Public Services Tribunal, 12 years after his termination, in the year 1992.

In the order, impugned in this Writ Petition, the State Public Services Tribunal held that the petitioner had absented himself from duty; he did not appear before the Chief Medical Officer despite repeated directions, to which he did not even submit a reply; he continued to apply for leave; he had appended a certificate, issued by an Ayurvedic Doctor, without undergoing a medical checkup by the Chief Medical Officer; and the impugned order of termination had been passed after issuing a show-cause notice to the petitioner. On the sole ground that the impugned order of termination dated 11.04.1980 had been passed with retrospective effect i.e. w.e.f. 20.04.1978, the State Public Services Tribunal quashed the said order, holding that the order of termination cannot be passed with retrospective effect, and this circumstance alone rendered the termination order dated 11.04.1980 void. While holding that the petitioner had been absent from duty throughout, and had filed the Claim Petition on 25.08.1992 after a period of more than 12 years, the State Public Services Tribunal observed that, since the order of termination was void, the law of limitation had no application on void orders; and the impugned order of termination was, therefore, liable to be quashed. However, on the ground that the petitioner had absented himself from duty, and had also violated the directions issued by the second opposite party from time to time for undergoing a medical checkup, the State Public Services Tribunal, while directing reinstatement of the petitioner, declined to pass any order for payment of salary for the intervening period because of the petitioner's continued absence from duty, but, however, left it open to the opposite party to regularize the period of absence of the petitioner, as they deemed proper, and in accordance with the Rules.

While it is debatable whether the State Public Services Tribunal could have granted the relief sought for in the Claim Petition, despite the employee having invoked its jurisdiction 12 years' after the order of termination was passed, it would be wholly inappropriate for us to examine this aspect since the Government of Uttar Pradesh has filed a Writ Petition before the Allahabad High Court questioning the very same order passed by the State Public Services Tribunal, albeit to the extent the order of termination was quashed and the petitioner was re-instated into service. We have, therefore, confined our examination in this Writ Petition to the action of the State Public Services Tribunal in denying the petitioner salary for the period between the date of his termination from 11.04.1980 till the date on which the petitioner was required to join duty.

As noted hereinabove, the petitioner had approached the State Public Services Tribunal only in the year 1992, and the order of termination was set aside two years after he invoked the jurisdiction of the State Public Services Tribunal in the year 1994. Having approached the State Public Services Tribunal after a period of 12 years, the petitioner cannot be heard to contend that he should also be paid his salary for the intervening period from the year 1980 to 1992 when he approached the Tribunal, even though it was he who had slept over his rights for around 12 years. The State Public Services Tribunal has also refused to grant the petitioner back-wages, even for the period 1992 to 1994, on the ground that the petitioner had absented himself from duty and had also violated the directions issued by the respondents to undergo a medical checkup before the Chief Medical Officer. The petitioner's interests has been, adequately, safeguarded by the State Public Services Tribunal leaving it open to the opposite parties to regularize the period of absence as they deemed proper, and in accordance with the Rules.

The parameters of judicial review, in the exercise of the certiorari jurisdiction under Article 226 of the Constitution of India, is limited. A writ of certiorari can be issued for correcting errors of jurisdiction such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477) as it is in the province of a court of appeal.

If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477).

Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that other possible view, canvassed before it, is more attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477).

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; and Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477). A writ of certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the face of the record, which can be corrected, (Shri Ambica Mills Co. Ltd. Vs.S.B. Bhatt and Anr. : AIR 1961 SC 970; R. Vs. Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs. Commr. of Hills Division : AIR 1958 SC 398), and not every error either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs. The Standard Vacuum Oil Company Madras and Ors. : AIR 1965 SC 111; Bachan Singh and others Vs. Gaurishankar Agarwal and Others : (1972) 4 SCC 257; and Nagendra Nath Bose Vs. Commr. of Hills Division : AIR 1958 SC 398).

Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970), or require a detailed examination or an elaborate argument to establish it (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors. : AIR 1955 SC 233; Batuk K. Vyas Vs.Surat Borough Municipality and Ors. : AIR 1953 Bom 133). An error cannot be said to be apparent if one has to travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. : (2010) 13 SCC 336).

The order passed by the State Public Services Tribunal, to the extent the petitioner was denied back-wages from the date of his termination order dated 11.04.1980 till the order passed by it on 07.05.1994, does not suffer from any such manifest error as to require us to exercise our certiorari jurisdiction. We see no reason, therefore, to interfere with the order of the Tribunal dated 07.05.1994 denying the petitioner salary from the date of his termination till the date of his reinstatement. Suffice it to make it clear that, in terms of the order passed by the State Public Services Tribunal, it is always open to the respondents to regularize the period of absence of the petitioner as they deem proper, and in accordance with the Rules. We also make it clear that the order now passed by us is confined only to the petitioner's claim for back-wages, during the intervening period, on the premise that the order of the Tribunal dated 07.05.1994, quashing the termination order of the petitioner dated 11.04.1980 as void, is valid. Needless to state that in case the Writ Petition, filed by the Government of Uttar Pradesh before the Allahabad High Court, were to be allowed, the petitioner would not be entitled for any of the reliefs granted by the State Public Services Tribunal in its order dated 07.05.1994.

The Writ Petition fails and is, accordingly, dismissed. No costs.