Ali Mazhar Rizvi v. State of U. P — 1985 DIGILAW 1050 (ALL)

JUDGMENT S.C. Mathur, J. - A common question of law arising in these three petitions is whether the petitioners, who are employees of the State of Uttar Pradesh, have an alternative remedy of approaching the U.P. Public Services Tribunal constituted under Section 3 of the U.P. Public Services (Tribunals) Act. 1976 (U.P. Act No. XVII of 1976), for short Act, for obtaining the reliefs claimed by them. In all these petitions one of the relief claimed is issuance of a writ of mandamus to command the State or its authorities to do some positive act. The submission of the learned counsel for the petitioners is that while the Tribunal can set aside or quash an order of the State, it has no jurisdiction to issue a positive command in the nature of mandamus or mandatory injunction and, therefore, the remedy prescribed under the Act is not available to the petitioners. Accordingly it is pressed that the only remedy available to the petitioners is to approach this court under Article 226 of the Constitution. 2. The petitioners contention is disputed by Sri K.M.N. Chak, learned counsel for the State, who has submitted that the reliefs claimed by the petitioners through the instant petitions can be granted by the Tribunal if the petitioners are able to substantiate their pleas on merit. 3. We have heard Sri R. Nath, Sri A. Mannan and Sri R.C. Bajpai who have filed these petitions. Although Sri B.C. Saxena is not a counsel in any of the petitions being disposed of by this judgment, we have heard him also as he too had filed certain petitions on the same plea. 4. 3. We have heard Sri R. Nath, Sri A. Mannan and Sri R.C. Bajpai who have filed these petitions. Although Sri B.C. Saxena is not a counsel in any of the petitions being disposed of by this judgment, we have heard him also as he too had filed certain petitions on the same plea. 4. Section 4 of the Act which was relied upon for the ouster of Tribunal's jurisdiction reads as follows : - "If any person who is or has been a public servant claims that in any matter relating to employment as such public servant his employer or any officer or authority subordinate to the employer has dealt with him in a manner which is not in conformity with any contract, or - (a) in the case of Government servant, with the provisions of Article 16 or Article 311 of the Constitution or with any rule of law having force under Article 309 or Article 313 of the Constitution ; (b) in the case of a servant of a local authority or a statutory corporation, with Article 16 of the Constitution or with any rules of regulations having force under any Act or Legislature constituting such authority or corporation ; he shall refer such claim to the Tribunal, and the decision of the Tribunal thereon shall, subject to the provisions of Articles 226 and 227 of the Constitution, be final." (Emphasis supplied). 5. On the basis of the use of the words "dealt with" it is submitted that the Tribunal can be approached only when a specific order is passed by the State Government or its authorities against the employee. "Dealt with", according to the learned counsel, connotes action and this action takes the shape of an order. Mandamus or mandatory injunctions, it is pressed, is claimed only when there is inaction. When there is inaction there is obviously no order and since there is no order, the jurisdiction of the Tribunal is not attracted. So runs the argument. 6. Sri Chak on the other hand submits that the term "dealt with" only means treated and treatment can be by a positive act as well as by inaction. According to him when a specific order is passed, the treatment is by a positive act and when no order is passed the treatment is by inaction. So runs the argument. 6. Sri Chak on the other hand submits that the term "dealt with" only means treated and treatment can be by a positive act as well as by inaction. According to him when a specific order is passed, the treatment is by a positive act and when no order is passed the treatment is by inaction. In either case he submits, the Tribunal can be approached under Section 4 of the Act. 7. The jurisdiction of Tribunal constituted under a statute cannot be determined with reference to a single word, phrase or term used in a section of that statute. The whole scheme of the Act and the background in which the Tribunal has been constituted will have to be considered. 8. Prior to the Constitution of the Tribunal an employee of the State Government could file a suit in the ordinary Civil Court for the redress of grievances. The jurisdiction of the Civil Court in the entertainment of such suits, it is not disputed, was plenary. It is conceded that the Civil Court could be approached not only when an order adverse to the employee had been passed but also when there was omission to pass an order in favour of the employee. When a positive adverse order had been passed, the employee could claim a decree for declaring the order to be void or for quashing it or for setting it aside. When there was no order, the court could he approached complaining of inaction and praying for a decree of mandatory injunction. Where even after an employee had worked, salary was not paid to him the could file suit claiming a decree for the amount of salary due against the State. We may now proceed to examine whether any part of this jurisdiction has been retained with the Civil Court or it has been completely abrogated and if completely abrogated, what provision has been made with respect to the matters which, according to the petitioners' learned counsel, cannot be taken to the Tribunal. Section 5 of the Act deals with the powers and procedure of the Tribunal. It does not provide for the nature of the claims which may be preferred before the Tribunal. Section 6 bars the filing of suits. Section 5 of the Act deals with the powers and procedure of the Tribunal. It does not provide for the nature of the claims which may be preferred before the Tribunal. Section 6 bars the filing of suits. Sub-section (1) of this section provides as follows :- "No suit shall lie against the State Government or any local authority or any statutory, corporation or company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in clauses (a) to (e) of sub-section (4) of Section 1." What is barred under sub-section (1) is all suits "in respect of any matter relating to employment at the instance of any person who is or has been a public servant." The bar of suit is not dependent either on the nature of the relief claimed or on the nature of the service dispute raised. It is dependent upon "employment". Once the dispute is related to employment with the State Government, the bar comes in. In other words in respect of disputes between State Government employees and the State Government, the jurisdiction of the Civil Courts has been completely taken away. The Civil Court can neither entertain a plea for quashing an order nor for passing a decree for arrears of salary nor for issuing a mandatory injunction requiring the State Government to do for the employee that which it is under legal obligation to do and which it has failed to do. Now if the contention of the petitioner is accepted, an employee has been provided a forum for relief only in respect of first of the three matters mentioned herein and in respect of the latter two he is left without a forum and consequently without a remedy. Such does not appear to have been the intention of the legislature. Rather from the preamble of the Act the intention appears to be to take away the entire jurisdiction of the Civil Court in respect of disputes relating to employment between the State employees and the State Government and vests the same in the Tribunal. Such does not appear to have been the intention of the legislature. Rather from the preamble of the Act the intention appears to be to take away the entire jurisdiction of the Civil Court in respect of disputes relating to employment between the State employees and the State Government and vests the same in the Tribunal. The preamble reads thus : - "An Act to provide for the Constitution of Tribunals to adjudicate disputes in respect of matters relating to employment of all public servants of the State." It does not speak of curtailment of any right or redress available to the State Government employee immediately before the Constitution of the Tribunal. We are accordingly of the opinion that Tribunal constituted under the Act is vested with the entire jurisdiction that was previously available to the Civil Court. 9. Sri B.G. Saxena submitted that the Government servants have not been completely deprived of forum for the redress of their grievances as they are still entitled to approach this Court under Article 226 of the Constitution. Article 226 of the Constitution does not create a forum for relief. It confers extraordinary jurisdiction upon this Court to grant relief in appropriate cases. It has to be remembered that the exercise of jurisdiction under this Article is discretionary. This Court may refuse to entertain a petition filed under Article 226, if the petitioner has been guilty of laches or has not approached this Court with clean hands. The jurisdiction of this Court under Article 226 of the Constitution cannot be equated with the jurisdiction of a Civil Court or of an ordinary Tribunal. 10. It the petitioners' contention is accepted, anomalous results will follows. The jurisdiction of the Tribunal will not depend either on the nature of the dispute or on the nature of the reliefs claimed. It will depend on the factum of passing an order by the State Government or its authorities. If there is an order, the Tribunal will have jurisdiction and if there is no order, the Tribunal will have no jurisdiction. Titus in respect of identical disputes the Tribunal will have jurisdiction and it will not have jurisdiction depending on the fact whether there was action on the part of the State Government or mere inaction or omission. If there is an order, the Tribunal will have jurisdiction and if there is no order, the Tribunal will have no jurisdiction. Titus in respect of identical disputes the Tribunal will have jurisdiction and it will not have jurisdiction depending on the fact whether there was action on the part of the State Government or mere inaction or omission. Thus where an employee's claim for payment of salary is rejected by the State Government by a positive order, the Tribunal will have jurisdiction but it will have no jurisdiction if instead of rejecting the claim by positive order the State Government has just not paid the salary. The same will be the position in respect of a large number of disputes. The Tribunal was constituted with a view to have expeditious disposal of service disputes by an expert body. This purpose of constituting the Tribunal will be frustrated if the interpretation suggested by the petitioners is accepted. 11. Sri B.C. Saxena submits that Section 4 does not lay down the parameters of the jurisdiction of the Tribunal and it only prescribes matters in respect of which claim would be maintainable. Even if the submission of the learned counsel is accepted, the matters referred to in Section 4 are wide enough to cover the entire field of service disputes. 12. It was also submitted by Sri Saxena that the Tribunal has been created under a statutory provision and, therefore, its jurisdiction is limited and has to be confined within the four corners of the Act. We have no doubt about the proposition propounded by Sri Saxena but in our opinion the powers conferred upon the Tribunal are wide and are not restricted as pleaded by the petitioners. 13. Sri Saxena relied upon sub-sections (6) and (7) of Section 5 for the purpose of submitting that the Tribunal can only grant declaratory reliefs and, therefore, under the Scheme of the Act it is debarred from issuing positive directions. 13. Sri Saxena relied upon sub-sections (6) and (7) of Section 5 for the purpose of submitting that the Tribunal can only grant declaratory reliefs and, therefore, under the Scheme of the Act it is debarred from issuing positive directions. Sub-section (6) provides as follows : - "(6) A declaration made by the Tribunal shall be binding on the claimant and his employer as well as on any other public servant who has, in respect of any claim affecting his interest adversely, been given an opportunity of making a representation against it, and shall have the same effect as a declaration made by a court of law." Sub-section (7) provides as follows : - "(7) Where the Tribunal makes any other order in favour of the claimant and against his employer or any other public servant, and such order remains complied with for a period of three months, the Tribunal may, on his application, issue a certificate for recovery of the amount awarded or, as the case may be, for other relief granted by it, and any person in whose favour such certificate is issued may apply to the principal civil court of original jurisdiction in Uttar Pradesh, within the local limits of whose jurisdiction he has for the time being been serving or last served such employer, for execution of the order of the Tribunal, and such court shall thereupon execute the certificate cause the same to be executed in the same manner and by the same procedure as if it were a decree for like relief made by itself in a suit." (Emphasis supplied). In our opinion the inference pressed by Sri Saxena cannot be drawn from the language of the two sub-sections. Sub-section (6) deals with a specific relief that may be granted by a Tribunal namely, declaration. In view of the provision contained in sub-section (6) the declaration made by a Tribunal is binding on the employer, as well as on the employee and other public servants who had opportunity of hearing before the Tribunal. This provision makes a declaration given by a Tribunal equivalent to a declaration given by Civil Court. Just as a declaration given by Civil Court is binding on the parties to the suit, in the same manner a declaration given by Tribunal in a dispute brought before it is binding on the parties before it. This provision makes a declaration given by a Tribunal equivalent to a declaration given by Civil Court. Just as a declaration given by Civil Court is binding on the parties to the suit, in the same manner a declaration given by Tribunal in a dispute brought before it is binding on the parties before it. The use of the words "any other order" in sub-section (7) indicates that the said sub-section refers to orders other than declaratory orders. From this provision it is clear that the Tribunal is competent to pass not only declaratory orders but also other types of orders. Sri Saxena, however, (sic stresses) that sub-section (7) is a consequential provision and has no independent existence. We are unable to accept the submission of the learned counsel. 14. It was also contended that the jurisdiction of the Tribunal can be determined only with reference to Section 4 and not with reference to other provisions of the Act. The argument is entirely misconceived as in determining the jurisdiction of a Tribunal other provisions of the Act, including the provision taking away the jurisdiction of the ordinary courts, cannot be ignored. It is well settled that the intention of the legislature has to be gathered from the entire Act and not from one or other section contained therein. 15. Sri R. Nath has relied upon Rule 18 of the U.P. Public Services (Tribunals) Rules, 1975 framed under Section 7 of the Act for submitting that the intention was to make available the jurisdiction of the Tribunal only in those cases where a positive order was passed. Clause (c) of this rule requires sufficient number of copies of the petition and the documents referred to in Rule 17 to be served on the public servants who are likely to be affected by any order that may be passed by the Tribunal and whose names and addresses are required under clause (a) to be mentioned in the claim petition. Rule 17 prescribes the enclosures to the claim petition. It reads as follows : - "17(1) Every reference under Section 4 shall be addressed to the Tribunal having jurisdiction and shall lie through a petition containing brief facts of the case. Rule 17 prescribes the enclosures to the claim petition. It reads as follows : - "17(1) Every reference under Section 4 shall be addressed to the Tribunal having jurisdiction and shall lie through a petition containing brief facts of the case. The petition shall be accompanied by the following documents : (a) Copy of the order or decision of the Government, local authority, corporation or company against which the claim is referred : ......................" Once it is held that a grievance of inaction can also be raised before the Tribunal, the words "if any" will have to be read after the words "order or decision". Rules framed under a statute have to be subordinate to the statute and, therefore, rules cannot be read so as to limit the scope and ambit of the statute. Rules 17 and 18 are contained in Chapter V which bears the heading "procedure of making reference". By such procedural provision the meaning of substantive provisions cannot be restricted. 16. With reference to the definition of the term "deal with" in 9 Webster's Third New International Dictionary Sri A. Mannan submitted that "deal with" contemplates mutuality and, therefore, unilateral action is excluded. The learned counsel pointed out that the term "deal with" has not been defined in the said Dictionary but the word "dealt" is described as past tense of "deal". The term "deal" is defined as - "a reciprocal arrangement or agreement................ an often clandestine arrangement to gain mutual advantage for those interested ; a negotiated settlement of an issue..........." We are unable to appreciate the advantage that the learned counsel derives from this argument, because even in the passing of an order there need not necessarily be mutuality. In fact invariably there si no mutuality in the passing of orders by the State Government in respect of its employees. The employee may prefer a representation but in the passing of the order there is no participation of the employee. It is nobody's case that an order passed unilaterally by the State Government will not be challenge able before the Tribunal. 17. Websters dictionary itself contains this meaning also of the term "deal" - "treatment received in a transaction from another ...................", Treatment may be by a positive act of it may consist in mere inaction. It is nobody's case that an order passed unilaterally by the State Government will not be challenge able before the Tribunal. 17. Websters dictionary itself contains this meaning also of the term "deal" - "treatment received in a transaction from another ...................", Treatment may be by a positive act of it may consist in mere inaction. Therefore the term "deal with" would cover both the situations, namely, when an order has been passed by the State Government as also when no order has been passed. 18. In Words and Pharoses Judicially Defined (Permanent Edition) Volume II it is observed at page 275 under the heading "dealt with by the plan" - "under section of Bankruptcy Act providing that application for confirmation of wage earner plan may be filed with Court only after it has been accepted in writing by secured creditors whose claims are dealt with by the plan, where no provision was made in plan for payment to non-assenting secured creditor in accordance with terms of its contract and non-assenting creditors would have been precluded from asserting its contract rights independently of bankruptcy court, non-assenting secured creditors' claim was "dealt with by the plan" and entering order of confirmation prior to written acceptance was improper" From this it would appear that inaction is also covered by the term "dealt with". In our opinion Sri Chak is right in submitting that the term "dealt with" means treated. Treatment may be by passing a positive order against an employee or it may be mere inaction causing prejudice to the employee. 19. Now a few authorities cited at the bar may be noticed. In Writ Petition No. 3122 of 1982, Virendra Singh v. State of U.P. and Another, decided on 9-3-1983 by K.N. Goyal and R.C. Deo Sharma, JJ., a mandamus was issued to the State to give effect to the declaration given by the Tribunal in a claim petition preferred before it. The Tribunal had granted the declaration that the petitioner would be entitled to all the benefits accruing from the promotion on the post of District Cane Officer in 1968. These benefits were not given by the State Government to the petitioner which led to the filing of writ petition in this Court. The Tribunal had granted the declaration that the petitioner would be entitled to all the benefits accruing from the promotion on the post of District Cane Officer in 1968. These benefits were not given by the State Government to the petitioner which led to the filing of writ petition in this Court. The Division Bench observed that the Tribunals order was binding on both the parties and it was unfortunate that the State had not given effect to the declaration given by the Tribunal. By holding that the declaration given by the Tribunal was binding between the parties, the Division Bench was obviously referring to Section 5(6) of the Act. This judgment was relied upon for the proposition that the Tribunal is competent merely to grant declaration and for obtaining compliance thereof mandamus has be applied for in this Court under Article 226 of the Constitution. We are unable to agree with the submission of the learned counsel. In this case no such law has been laid down. Of course noticing that the Tribunal's order was binding on both the parties, this Court issued a mandamus without going into the question whether the declaration obtained by the petitioner could be executed under the provisions of the Act. 20. 1980 Lawyer Law Times Services 43 - Ram Adhar Singh v. U.P. Public Services Tribunal and Others - was relied upon on behalf of the petitioners for the submission that the Tribunal is not competent to entertain a petition when no order has been passed by the State Government. In this judgment the Division Bench, after reproducing Section 4 of the Act, observed thus; - ".............. The Tribunal thus gets jurisdiction in all those cases where the claimant alleges that he is aggrieved by any order passed by the Government impugning Article 16 or Article 311 of the Constitution or any rules framed under Article 309 or Article 313 of the Constitution. The Tribunal thus gets jurisdiction in all those cases where the claimant alleges that he is aggrieved by any order passed by the Government impugning Article 16 or Article 311 of the Constitution or any rules framed under Article 309 or Article 313 of the Constitution. The subject-matter of the petition must relate to his employment as a public servant and the cause of action would accrue to the claimant if the order by which he is aggrieved is alleged to be no in conformity with Article 16 or Article 311 or the rules framed under Article 309 of Article 313 of the Constitution..............." This judgment is not authority for the proposition that the Tribunal is net competent to grant mandatory injunction which is another word for mandamus. In this case the dispute related to retirement of a Government servant. This Government servant, whose claim was that he had been retired contrary to rules, filed claim petition before the Tribunal. The Tribunal refused to entertain the claim petition. From the judgment it appears that the Tribunal refused to entertain the petition on the ground that the petitioner had failed to make out that any rule had been violated. The Tribunal appears to have observed that prima facie the Uttar Pradesh Recruitment to Services Determination of Date of Birth Rule, 1974 had been complied with and hence there was no violation of any rule or law. The Division Bench observed that an order of retirement had been passed in respect of the petitioner and the claim petition was maintainable. There is no observation in this judgment that a relief in the nature of mandamus or mandatory injunction cannot be granted by the Tribunal. This authority is, therefore, of no assistance to the petitioners. 21. Sri K.M.N. Chak learned counsel for the State placed before us 1984 Labour and Industrial Cases 1602 - Prem Shanker Lal v. State of Uttar Pradesh and Another. In this case it was held that the mere fact that the Tribunal will take a long time to decide the dispute was no a sufficient ground for by passing the alternative remedy of preferring claim petition before the Tribunal. In this case it was held that the mere fact that the Tribunal will take a long time to decide the dispute was no a sufficient ground for by passing the alternative remedy of preferring claim petition before the Tribunal. In respect of the petitioner's contention that the alternative remedy was not efficacious inasmuch as the Tribunal was not competent to grant specified interim reliefs, the Division Bench observed that the High Court would not normally entertain writ petitions for granting interim relief when Section 5(5-B) clearly says that no interim relief should be granted. This judgment also does not deal with the controversy involved in this present case. 22. Sri A. Mannan relied upon Randhir Singh v. Union of India and Others, AIR 1982 Supreme Court 879 for the purpose of indicating the wide jurisdiction that is available to the High Court and the Supreme Court in the grant of mandamus. In this case the petitioners before their Lordships had claimed parity in pay scales which the members of service working in a different department but performing identical nature of work. Their Lordships upheld the plea and issued a mandamus to grant the parity. This was done taking into account the provision of Articles 14, 16 and 39(d) of the Constitution. Article 16 is specifically available to the Tribunal. Article 39(d) is not involved in any of the petitions before us and it is, therefore, not necessary for us to make any observation in respect thereof. 23. Another authority relied upon by Sri A. Mannan is People's Union for Democratic Rights and Others v. Union of India and Others, AIR 1982 SC 1473 . This authority is also wide off the mark so far as the question involved in the present case is concerned. 24. Now we may deal with the individual petitions. In Writ Petition No. 5207 of 1985 the mandamus claimed is to command the authorities to promote officers of Group B in the U.P. Finance and Accounts Service to Group A posts of Senior Finance and Accounts Officer in accordance with the rules and after consideration of the case of the petitioners and others of their batch. In Writ Petition No. 5207 of 1985 the mandamus claimed is to command the authorities to promote officers of Group B in the U.P. Finance and Accounts Service to Group A posts of Senior Finance and Accounts Officer in accordance with the rules and after consideration of the case of the petitioners and others of their batch. Another mandamus claimed is to command the authorities to dispose of the petitioner's representations and till then not to promote any ad hoc promotee officer in Group B pursuant to the Selection held on 4/5-9-1985 and not to give effect to any such order if issued in the meanwhile and by a writ, order or direction in the nature of certiorari call for the same and quash the said order. The Tribunal is fully competent to grant these relief in view of our findings recorded herein above. In this case an application for interim relief has also been made with the prayer to restrain the authorities from promoting any ad hoc promotee officer, viz., Treasury Officer and Accounts Officer in Group B to the post of Service Finance and Accounts Officer in Group A of U.P. Finance and Accounts Service pursuant to the Selection held on 4/5-9-1985 and not to give effect to any such order if issued in the meanwhile during the pendency of the writ petition. Under sub-section (5-B) of Section 5 of the Act Tribunal is incompetent to stay the operation of an order of termination of service, dismissal or removal from service, reduction in rank, compulsory retirement suspension and reversion. These are the only matters in respect of which the Tribunal is incompetent to pass interim orders. Accordingly the Tribunal is not incompetent to grant the reliefs prayed for by the petitioner in the application for interim relief, if on merits the Tribunal is satisfied that an interim order is called for. 25. In Writ Petition No. 5077 of 1985, the mandamus claimed is to command the opposite parties to make promotions on all available vacancies of Assistant Engineers (Electrical & Mechanical) in the Public Works Department Strictly on the principle of seniority subject to the rejection of unfit considering the petitioners too in accordance with their seniority in the cadre of Junior Engineers. In this case too an application for interim relief has been made. In this case too an application for interim relief has been made. The prayer in the application for interim relief is that the opposite parties be directed not to make any promotion reversion without following the criteria of seniority subject to the rejection of unfit. No order of reversion has so far been passed and, therefore, obviously there is no question of passing any interim order in respect of reversion. So far as promotions are concerned, the Tribunal is not debarred from passing interim order if the same is required on merits. 26. In Writ Petition No. 5210 of 1985 the mandamus claim is to command the State of U.P. to consider and promote the petitioners for appointment on the post of Accounts Officers on posts out of the 52 posts in respect of which the State has permitted double ad hoc promotion. In the application for interim relief the prayer is that the State by directed not to promote the respondents 2 to 8 to the post of Accounts Officer till the pendency of the writ petition. This interim relief the Tribunal is not prohibited from granting. Of course the Tribunal will have to apply its mind to the justification for granting or not granting the relief. 27. From the above it would be seen that neither in respect of the main reliefs nor in respect of the interim relief the Tribunal is debarred from considering the petitioners' case. There is, therefore, no justification to allow the petitioners to by pass the alternative remedy available to them under the Act. 28. In view of the availability of the above alternative remedy the petitions are dismissed and interim orders, if any, shall stand discharged.