Union of India vs K.A. Rahman

D.K. Deshmukh and R.G. Ketkar, JJ.—By this petition the Petitioner Union of India challenges the order passed by the Central Administrative Tribunal dated 26th April 2000 in Original Application No. 695 of 1994, By that order the Central Administrative Tribunal has set aside the order dated 9th July, 1993 and had issued certain directions. The facts that are relevant for deciding this petition are that the respondent had filed Transfer Application No. 37 of 1988 before the Central Administrative Tribunal at Ahmedabad. That application was decided by order dated 28th April, 1989. The operative part of the order reads as under:

(i) The respondents shall interpolate the name of the applicant in. the panel published in their letter No. 1024/5/2 dated 1.8.1972.

(ii) The respondents shall give all such promotion and make ail such payments as the applicant would have been entitled to had he been so empanelled in the 1972 panel, (iii) The requisite action shall be finalized and all the payments involved shall be made within a period of four months from the date of receipt of a copy of this order. (iv) In the circumstances of the case there will be no order as to costs." Certain actions were taken by the petitioner herein for implementing this order. But the respondent was of the opinion that the order of the Tribunal has been disobeyed therefore he filed Contempt Application No. 2 of 1990 before the Central Administrative Tribunal, Ahmedabad Bench. That application was decided by order dated 12th October, 1993. The Tribunal in its order made a reference to the affidavit of the Deputy Chief Personnel Officer, Western Railway stating that the amounts to which the respondents was entitled according to the order of the Central Administrative Tribunal, have been paid to him. The Tribunal noted that, if, according to the Respondent, he is entitled to certain additional amounts pursuant to the order of the Tribunal, he can file the representation before the Government seeking additional amount. The Tribunal has also granted liberty to the Respondent to file original application before the Tribunal claiming interest on the amount paid to him. According to Respondent, there was inordinate delay in paying the amounts. It appears that while Contempt Application No. 2 of 1990 was pending, memorandum dated 9th July, 1993 was issued by the Petitioner promoting the respondent, but, it was clearly stated in that order that his promotion is in proforma manner and that he will not get promotion on actual basis. Feeling aggrieved by the order of promotion, the respondents filed original application No. 695 of 1994 before the Central Administrative Tribunal at Mumbai. There were three prayers made in the application. They reads as under:

(a) Respondents be directed to implement the order of Hon''ble Tribunal dated 24.4.1989.

(b) Hon''ble Tribunal to quash and set aside the order passed date 9.7.1993 and that respondents be directed to issue fresh order of promotion by deleting the word proforma before word promotion in the letter No. E(0)838/5 dated 9.7.1993.

(c) Respondent be directed to make all payment as an (1) Asstt Engineer from 26.7.1972 to 16.11.1980, as (2) Executive Engineer from 17.11.1980 to 30.9.1988 and consequential benefit thereof, with 18% interest p.a. thereof from the date of Hon''ble Tribunal order dated 28.4.1989.

It is, thus, clear from the prayers quoted above that the Petitioner was seeking implementation or execution of the order of the Ahmedabad Tribunal dated 24th April, 1989 and he was also seeking setting aside the order dated 9th July, 1993 because according to him that order was contrary to the order of Ahmedabad Tribunal dated 24th April, 1989. O.A. No. 695 of 1994 was decided by the Tribunal at Mumbai by its order dated 26th April, 2000. The Tribunal has by that order allowed the O.A. and set aside the promotion given to the respondent by order dated 9th July, 1993, Operative part of the order reads as under:

In the result of the above, we allow the OA by setting aside the impugned order dated 9.7.1993. The Applicant will be allowed the due promotions as covered in this order on actual basis and not on notional basis. Additional arrears as become due accordingly are to be paid to the applicant within a period of 4 months from the date of receipt of the order. The Applicant will be not entitled for payment of any interest on the arrears. No order as to costs.

The learned Counsel appearing for the Petitioner-Union of India submits that if at all the petitioner had any grievance about the order dated 9th July, 1993, he could have challenged the said order in the Contempt Petition pending before the Ahmedabad Tribunal. The Ahmedabad Tribunal did not grant liberty to the applicant to approach the Tribunal by filing Original Application challenging the promotion order. The liberty that was granted was for approaching the Government for any additional amount and the Tribunal for payment of interest. There is no liberty granted for approaching the Tribunal to challenge the promotion order. It was also submitted that the Petitioner has implemented the earlier order passed by the Tribunal. If according to the applicant, the order of the Tribunal was not implemented the remedy available to him is to approach the Ahmedabad Tribunal.

The learned Counsel appearing for the Respondent, on the other hand, submits that the Tribunal while deciding the Contempt Petition had granted liberty to the applicant to challenge the promotion order in any case. He submits that the promotion order gave him a fresh cause of action and therefore, he could have filed the fresh O.A. The learned Counsel submits that if the promotion order is contrary to the directions issued by the Tribunal, it can be challenged by filing afresh original application.

Now perusal of the records, in the light of the rival submission, shows that the respondent had approached the Tribunal in Mumbai precisely for implementing the order of the Ahmedabad Tribunal dated 28th April, 1989. The statement in paragraph 1 of the O.A. filed by the Respondents makes the position dear beyond any doubt. It reads as under:

Subject matter in brief: Hon''ble Tribunal Ahmedabad by its order dated 28.4.1989, directed respondents to interpolate the name of applicant in panel published and shall give all such promotion and shall make all such payments as applicant would have been entitled to had he been so empanelled in 1972 panel. Respondent had failed to comply with the above order applicant had made representation which also fall on deaf ears. Hence the present application.

The prayer clause of the O.A. which is quoted above also shows that basically the first prayer in the application was for the directions to the Petitioner to implement the order passed by the Ahmedabad Tribunal dated 28th April, 1989 and the promotion order dated 9th July, 1993 was also challenged on the ground that it is contrary to the order of the Ahmedabad Tribunal dated 28th April, 1989. In our opinion, the remedy of the Respondent was to execute the order dated 28th April, 1989 and not to file a fresh O.A. The provisions of the Administrative Tribunal Act and the Rules framed thereunder provide a remedy for getting the orders passed by the Tribunal executed. The provisions are to be found in section 27 of the Administrative Tribunal Act, 1985 and Rule 24 of the Central Administrative Tribunal (Procedure) Rule, 1987. Section 27 reads as under:

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) of 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.

Perusal of the above provisions shows that the order passed by the Tribunal can be executed in the same manner as final order made by the Government, which is referred to in sub-section (2-A) of section 20 Rule 24 of the Procedure Rule reads as under:

Order and directions in certain cases--The Tribunal may make orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.

Rule 24 also vests jurisdiction in the Tribunal to make suitable orders to give effect to its own order and to prevent abuse of the process and to secure the ends of justice. In our opinion, therefore, if according to the respondent the Government was not implementing the order of the Tribunal dated 28th April, 1989 or was implementing the order in the wrong manner, the Respondent would have to file an application under Rule 24 before the Ahmedabad Tribunal and secure appropriate orders. In our opinion, entertaining successive original applications for implementation of the order of the Tribunal is not proper procedure. Once the Tribunal makes an order, the remedy to the litigant is to file proceeding for the execution of that order and not file successive application asking the Tribunal to reiterate its order.

Further we find that even on merits the O.A. was not maintainable before the Mumbai Tribunal. It is found from the record that when the Contempt Petition was decided by the Ahmedabad Tribunal, order dated 9th July, 1993 was already issued. Obviously, that order was before the Ahmedabad Tribunal when the Contempt Application was being decided.

If it was the intention of the Ahmedabad Tribunal to grant liberty to the respondent to challenge the promotion order dated 9th July, 1989, it would have specifically said so. Perusal of the below quoted paragraph No. 20 of the order ol the Ahmedabad Tribunal dated 12th October, 1993 make the position clear.

The present contempt application is, therefore, disposed of keeping it open to the applicant to approach the respondents for payment of additional amount, if according to him, anything more is still required to be paid to him over and above the amount of two cheques, pursuant to the judgment of the Tribunal. It will also be open to the applicant to file a fresh application if so thought by him for claiming interest on the ground of unreasonable delay or on the ground of non-compliance with an rules as to the period within which the payment of retirement benefit should be made to him pursuance to the judgment of the Tribunal.

It is clear from the above quoted paragraph that the Respondent was already paid pursuant to the order of the Tribunal. It was the case of the Respondent that he was entitled to additional payment therefore, liberty was granted to him to approach the Government for additional payment. He was not granted liberty to approach either the Government or to file the O.A. to challenge the validity of the promotion order dated 9th July, 1993. If the Tribunal had found that the promotion order dated 9th July, 1993 is contrary to its order dated 28th April, 1989, it would have said so. It is clear from the order of the Ahmedabad Tribunal dated 12th October, 1993 that it found nothing wrong with the promotion order dated 9th July, 1993. In our opinion therefore, the Mumbai Tribunal totally misread the order of the Ahmedabad Tribunal made in the Contempt Application. It is common ground that O.A. has been filed by the Respondent claiming interest and that O.A. had already been decided. In our opinion, therefore, the Tribunal was not justified in making the order.

In the result, therefore, the petition succeed and is allowed. Rule is made absolute in terms of prayer clause "a" with no order as to costs.

The petitioner has deposited the amount in this Court because of the interim order that has been passed by the Court. The Registrar (O.S.)/Prothonotary & Senior Master, High Court, shall permit the Petitioner to withdraw the amount.