Union of India (UOI) and Others vs Nirmal Singh Sandhu and Another

G.S. Singhvi, J.—This is a petition for quashing orders Annexure P-1 dated 19.12.1996 and Annexure P-2 dated 12.11.1997 passed by Central Administrative Tribunal, Chandigarh Bench (for short, ''the Tribunal) in O.A.No. 509-CH of 1995 and R.A. No. 39/97 respectively.

A perusal of the record shows that application filed by respondent No. 1 Nirmal Singh Sandhu for issuance of a direction to the non-applicants (petitioners herein) for gram of JST Grade - Rs. 1640-2925 with effect from the date of issuance instructions vide letter No. 9/9/79-FR(2)/143 dated 19.2.1979 read with letter No. 3873/DPI-UT-84-11(146) 80-90-Vol.II dated 13.11.1992 by the Director, Public Instruction(s), Chandigarh was registered as O.A.No. 509-CH of 1995. Respondent No. 1 claimed the benefit of JST Grade by invoking the doctrine of equal pay for equal work. The petitioners controverted the claim of the applicant (respondent No. 1 herein) by asserting that being a re-employed ex-serviceman, he was not entitled to the benefit of JST Grade in terms of the instructions contained in letter dated 13.11.1992.

At the hearing of the application, no one appeared on behalf of the writ petitioners. After hearing the counsel for the applicant, the Tribunal allowed the application vide dated 19.12.1996 by making the following observations:-

"The only issue to be adjudicated is whether the applicant is entitled to the pay scale of the JST Grade on the basis of the qualifications acquired by him prior to 19.2.1979 while he was in the Military Service. Admittedly, the applicant had joined the UT Administration in 1987 and as per A-11 dated 13.11.1992, scales of pay on the Punjab Pattern were adopted by the UT Chandigarh retrospectively in regard to JBT teachers who were appointed prior to 19.2.1979 and had also improved their qualifications prior to 19.2.1979. The claim of the applicant is that he improved his qualification in terms of this order the Military Service itself and he should, therefore, be given the benefit of the improved qualification. Since the issue regarding the benefit of Military Service has been settled by the order of the Hon''ble Supreme Court, the only fact remains to be decided is that he had acquired qualification when he was in the military service. When all benefits of civil service of the UT have been allowed as per the Hon''ble Supreme Court order given in September, 1995, denial of the benefit of this higher qualification does not arise now. The increments which the applicant had been given on the basis of the military service is a separate issue and cannot be mixed up with acquiring of higher qualification. In view of this, we hold that the applicant is entitled to the higher grade of JST as per Annexure A-1 dated 13.11.1992."

The petitioners could have challenged that order by filing an appeal under Article 136 of the Constitution because in view of Section 28 of the Administrative Tribunals Act, 1985. (for short the Act) (as interpreted by the Supreme Court in S.P. Sampat Kumar v. Union of India JT 1986 (2) S.C 996 , the High Courts did not have the jurisdiction to entertain petitions Hinder Article 226 of the Constitution against orders passed by the Tribunals constituted under the Act. However, they did not choose to challenge order dated 19.12.1996 by filing an appeal in the Supreme Court. Instead, they filed an application u/s 22(3) of the Act on 1.4.1997 for review of that order. The same was registered as R.A.No. 39/97. After hearing the parties, the Tribunal held that the application was barred by time. On merits also, it found that the petitioners had failed to make put a case for review order dated 19.12.1996.

No one has appeared on behalf of the petitioners.

Sh. N.P. Mittal, counsel for respondent No. 1 argued that the writ petition should be dismissed qua order dated 19.12.1996 because this Court does not have the jurisdiction to adjudicate upon the legality of orders passed by the Tribunal before 18.3.1997 i.e. the date on which 7 Judges Bench of the Supreme in L. Chandra Kumar v. Union of India JT 1997 (3) 589 declared that bar contained in section 28 of the Act against the entertaining of writ petitions by the High Courts adversely affect the basic structure of the Constitution and held that the High Courts can entertain petitions under Article 226 of the Constitution of India against the orders passed by the Tribunals. He submitted that this Court can, at the best, entertain petition against order dated 12.11.1997, but as the same does not suffer from any jurisdictional infirmity or error of law, the writ petition should be dismissed.

We have given serious thought to the arguments of the learned counsel and agree with him that the petitioners prayer for quashing order dated 19.12.1996 cannot be entertained in view of the bar contained in Section 28 of the Act. We also agree with the learned counsel that order dated 12.11.1997 does not suffer from any jurisdictional infirmity or error of law warranting issuance of a writ of certiorari.

A perusal of order dated 12.11.1997 reveals that copy of order dated 19.12.96 sent by the Tribunal was received by the petitioners on 21.1.1997 and application for review was filed on 1.4.1997. The period of limitation prescribed for filing of review application u/s 22(3) of the Act is 30 days. Rule 17(1) of the Central Administrative Tribunal (Procedure) Rules, 1987 declares that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of copy of the order sought to be reviewed. In view of this mandatory provision, the application filed by the petitioners on 1.4.1997 for review of order dated 19.12.1996 must be treated as barred by limitation. They could have filed such application within 30 days from 21.1.1997 i.e. the date on which copy of order dated 19.12.1996 was received. However, the fact of the matter is that the application was filed on 1.4.1997 i.e. one month and ten days of the expiry of period of 30 days counted from the date of receipt of the Tribunal''s order. The petitioners did not make any effort to explain the delay in filing of the review application and after considering this aspect of the matter, the Tribunal dismissed the same with the following observations:-

"On our query from the learned counsel for the respondents (applicants in the RA) Mr. Bhardwaj was not able to state the reasons for delay in filing this review application. All that Mr. Bhardwaj brought to our notice was that since letter dated 13.11.1992 stood withdrawn, the judgment could not have been passed in the present form. While going through the proceedings of this matter, we find that the respondents have not been appearing before this Bench in spite of several opportunities given to them on several occasions provided to them for participating in the proceedings. Reading of daily orders dated 16.11.95, 1.12.95, 5.7.95, 13.9.96 and 7.11.1996 would indicate carelessness on the part of the respondents that they have never bothered to participate in the proceedings and none appeared for the respondents. The question of respondents, therefore, not coming to know about the proceedings seems to be natural. However, the Tribunal on its own in required to supply a copy of a judgment free of cost to the parties concerned after an order is passed. Though the registry in this case has failed to supply a copy to the respondents but that does not assist the respondents in filing delayed R.A. in view of their own submission they had come to know about outcome of this application on 27.1.1997 and yet they have filed the R.A. only on Ist April, 1997. We, therefore, find that the objection raised by Mr. N.P. Mittal, learned counsel for the applicant in the O.A. is valid and the R.A. is required to be dismissed on this ground alone."

Notwithstanding its conclusion that the review application was barred by time, the Tribunal examined the plea of the petitioners on merits and held that they had failed to make out a case for review. The observations by the Tribunal on this aspect of the matter are extracted below:-

"However, we also heard Mr. N.K. Bhardwaj on merits. When we pointed out that the judgment was delivered on the basis of written submissions made by the respondents in the O. A. and if the respondents had chosen not to argue out this matter on their own, it was their decision and that cannot be having any binding force on the Bench''s power to adjudicate any matter and an adverse inference can always be drawn against a party which does not participate in the proceedings, there was no reply. As a matter of general rule the oral arguments during hearings are only to substantiate or supplement the written statement. !t is left to the Tribunal to decide matters even without oral arguments if the Bench choses to do so, when parties do not participate in the proceedings. When the respondents have failed to take part in the proceedings in spite of several opportunities, the decision rendered by the Tribunal cannot be faulted through a Review Application. If the respondents are not happy with the judgment, they were at liberty to file a review of appeal against order passed by this Bench before a Superior Court like the Supreme Court or High Court, available at the relevant time. The other ground taken by the respondents that the letter dated 13.11.1992 was withdrawn, was never mentioned in the written statement filed by them earlier. Mr. Bhardwaj also brought to notice that letter was withdrawn by order dated 28.11.1996 for which no notice was given either to the applicant or to the Court. In view thereof, we find the contention of the respondents totally unacceptable and fit for rejection."

We approve the reasons assigned by the Tribunal for declining the petitioners prayer for review of order dated 19.12.1996 and held that order Annexure P-2 does not call for interference by this Court. We are further of the view that order dated 28.11.1996, which is administrative in character, cannot operate retrospectively so as to affect the rights acquired by the employees on the basis of instructions issued vide letter dated 13.11.1992, and, therefore, there could be no justification to deny the benefit acquired by the petitioners in terms of that letter.

For the reasons mentioned above, the writ petition is dismissed.

Sd/- M.M. Kumar, J.