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2005 DIGILAW 543 (CAL)

UNION OF INDIA v. LACHMAN SINGH

2005-08-18

ASOK KUMAR GANGULY, JOYTOSH BANERJEE

body2005
ASOK KUMAR GANGULY, J. ( 1 ) THIS case raises a few interesting questions. ( 2 ) THE respondent Nos. 1-20 were initially appointed as Chowkidars and mazdoors in the Military Engineering Services in the pay scale of Rs. 196-232/-on diverse dates between 1960-1978. ( 3 ) PURSUANT to a circular issued by the Government on 11. 05. 1983 the industrial Workers in the Military Engineering Services were classified in the following categories: a) Unskilled Workers in the pay scale of Rs. 196-232/-, b) Semi-skilled workers in the pay scale of Rs. 210-290/-, c) Skilled workers in the pay scale of rs. 260-400/- d) Highly-skilled Grade-II Workers in the pay scale of Rs. 330-480/- and e) Highly-skilled Grade-1 Workers in the pay scale of Rs. 480-560/ -. As a consequence of so many categories of workers the obvious question which arose was one of fitment. All unskilled Mazdoors and Chowkidars who passed the test were initially classified into 'skilled' category, but later on it was discovered that such classification was wrong and consequently directions were issued to fit such workers into semi-skilled categories and directions were also issued sometime in 1987 to recover the excess amount paid to such workers during period 1984 to 1986. ( 4 ) INITIALLY an original application being O. A. 382 of 1987 was filed before the Central Administrative Tribunal, (hereinafter called CAT) Cuttack Bench. The CAT, Cuttack Bench by its judgment and order dated 07. 11. 88 dismissed such petition and allowed the respondent's plea of placing the petitioner in the pay scale of Rs. 210-290/- but held that there should not be any recovery of excess payment made to the petitioner in the scale of Rs. 260-400/- till 14. 12. 87, the period upto which he worked. ( 5 ) SOME employees filed an application before CAT, Calcutta Bench, which was numbered as O. A. 796 of 1987. O. A. 796 of 1987 was disposed of quashing two impugned letters dated 12th March, 1987 and 4th July, 1987 by which pay scale was reduced from Rs. 260-400/- to Rs. 210-290/ -. In the said order CAT, calcutta Bench, while quashing the aforesaid two letters allowed the applicants to continue in the scale of Rs. 260-400/- without break till 31. 12. 1985 and the bench directed that applicants will be entitled to the corresponding revised scale after the recommendation of the Fourth Pay Commission. 260-400/- to Rs. 210-290/ -. In the said order CAT, calcutta Bench, while quashing the aforesaid two letters allowed the applicants to continue in the scale of Rs. 260-400/- without break till 31. 12. 1985 and the bench directed that applicants will be entitled to the corresponding revised scale after the recommendation of the Fourth Pay Commission. The said judgment of C. A. T. , Calcutta Bench was delivered on 24th April, 1989. Against the said judgment a Special Leave Petition was filed before the Hon'ble Supreme court. The Hon'ble Supreme Court was pleased to dismiss the SLP by an order dated 22nd February, 1991 which was not a speaking order. ( 6 ) ANOTHER original application being O. A. 946 of 1987 was filed before C. A. T. , cuttack Bench and that was disposed of by the Cuttack Bench on 28. 01. 1991 with the observation that the authorities would not make any recovery from the salary of the applicants on the ground of overdrawal in the scale of pay of rs. 260400/- for the period they worked in the post of Motor Pump Attendants till 8th December, 1986 but the pay should be fixed in the scale of Rs. 210-290/ -. ( 7 ) IN 1992 the present respondents filed an application before C. A. T. , Calcutta bench being O. A. 501 of 1992 praying for promotion and seniority and all other benefits at par with the applicants who filed original application being O. A. 796 of 1987. ( 8 ) IN the year 1995, two special leave petitions were filed by the concerned employees against the order of CAT, Cuttack Bench, in O. A. 382 of 1987 and the order in O. A. 946 of 1987 of Calcutta Bench. Both the special leave petitions were heard together by the Hon'ble Supreme Court and by a reasoned judgment the Hon'ble Supreme Court was pleased to observe that the decision of CAT, calcutta Bench in O. A. 796 of 1987, is erroneous and the Supreme Court was pleased to observe that the later views of CAT, Calcutta Bench and of Cuttack bench are clearly consistent and correct and upheld the later view of CAT, calcutta Bench, which decided O. A. 946 of 1987 as also the view of CAT, Cuttack bench in O. A. 382 of 1987. ( 9 ) AFTER the said judgment of the Supreme Court in 1995, CAT, Calcutta bench in O. A. 501 of 1992 passed an order on 25. 11. 99 which is contrary to the order of the Hon'ble Supreme Court dated 30. 11. 95. By the impugned order dated 25. 11. 99 the CAT, Calcutta Bench gave the following direction:"accordingly the O. A. is disposed of with a direction upon the respondent authorities to consider the representation of the petitioner No. 1. as per annexure - A/7 dated 22. 7. 91 alongwith the representations, if any, alleged filed by the other applicants for the same relief treating the instant application as part thereof and to extend the relief granted by the Hon'ble tribunal as per judgment dated 24. 4. 89 passed in O. A. No. 796/1987 provided that the respondent authorities come to the conclusion on consideration of materials on record the present petitioners are similarly circumstanced persons within a period of four months from the date of communication of this order. The respondent authorities are further directed to intimate their decision within la fortnight thereof. No order as to costs. " ( 10 ) IT may be noted that the aforesaid direction of CAT, Calcutta Bench to follow the judgment of CAT, Calcutta Bench in O. A. 796 of 1987 is directly contrary to the judgment of the Hon'ble Supreme Court. Initially the petitioners filed an application before the CAT, Calcutta Bench for extension, of time to consider the representation of the respondents as per the judgment dated 25. 11. 99 passed by Calcutta Bench in O. A. 501 of 1992 and that application was disposed of by C. A. T. , Calcutta Bench by directing the petitioners to comply with the order within one month. ( 11 ) AS the same could not be done, subsequently a writ petition was filed before this Court for extension of time and the said writ petition was also dismissed with costs by this Court. ( 12 ) THEREAFTER, the petitioners filed an application for review the order dated 25. 11,1999 before C. A. T. , Calcutta Bench. The delay in filing the application was condoned by C. A. T. , Calcutta Bench. But ultimately by an order dated 27. 01. 2004 the review petition was dismissed by the C. A. T. , Calcutta Bench by a reasoned judgment. 11,1999 before C. A. T. , Calcutta Bench. The delay in filing the application was condoned by C. A. T. , Calcutta Bench. But ultimately by an order dated 27. 01. 2004 the review petition was dismissed by the C. A. T. , Calcutta Bench by a reasoned judgment. ( 13 ) THIS instant writ petition has been filed impugning the judgment dated 27. 01. 2004 of C. A. T. , Calcutta Bench by which the review petition was dismissed. The learned Counsel assailing the judgment dated 27. 01. 0. 4 (hereinafter called the 'impugned judgment') argued that the learned Judges, while passing the impugned judgment, did not properly appreciate the principles of review in the facts and circumstances of the instant case as also the fact that when the supreme Court has already passed an order on the same question, any direction which runs contrary to the order of the Supreme Court has to be reviewed. In other words, the learned Counsel submitted that the judgment of the Supreme court is valid and binding on all Courts in the territory of India and therefore when it has been brought to the notice of the learned Judges passing the impugned judgment, then that Bench should have reviewed the said judgment. It was also argued that failure on the part of the Bench to review the said judgment amounts to ignoring a valid pronouncement by the Supreme Court and this comes within the principles of an error apparent on the face of the record. ( 14 ) THE learned Counsel for the respondents on the other hand submitted that a review application by the Tribunal has to be dealt with in accordance with the principles of Order 47 Rule 1 of Civil Procedure Code and going by the aforesaid principles of Order 47 Rule 1 of CPC, the learned Judges exercised their review hurisdiction validly and there is no scope for interference with the impugned judgment. The learned Counsel also referred to the scope of section 22 (3) (f) of Central Administrative Tribunals Act. ( 15 ) THE learned Counsel further submitted that the order of the Supreme court dated 30. 11. 95 must be known to the learned counsel for the petitioners. In any event it cannot be urged that despite a diligent search the order of the supreme Court dated 30. 11. ( 15 ) THE learned Counsel further submitted that the order of the Supreme court dated 30. 11. 95 must be known to the learned counsel for the petitioners. In any event it cannot be urged that despite a diligent search the order of the supreme Court dated 30. 11. 95 could not be made available to the party who is now asking for review. Therefore, filing of the review petition now, for review of the order dated 25. 11. 99, is not tenable. These are basically the rival contentions of the parties. ( 16 ) THEREFORE, the main question which falls for decision of this case is whether the review application which has been filed by the petitioners for review of the order dated 25. 11. 99, which disposed of the O. A. 501 of 1992, should be allowed or not. ( 17 ) IN paragraph 14 of the judgment which is challenged before us the learned judges after recording the respected contention, came to a finding that the respondents/authorities did not bring to the notice of the Tribunal the judgment of the Supreme Court dated 30. 11. 1995 and this cannot be disputed. But after that the learned Judges recorded "it is no doubt that had this decision of the hon'ble Supreme Court been brought to the notice of the Tribunal while deciding o. A. 501 of 1992, the decision of the Tribunal could have been otherwise. " ( 18 ) IT is therefore clear that the Judges held that the decision of the Supreme court dated 30. 11. 1995 has a direct bearing on the Tribunal's decision dated 25. 11. 1999 in O. A. 501 of 1992. But since it was not brought to the notice of the tribunal at the time when the matter was decided, it cannot be brought to its notice subsequently by way of review. The question is whether such an exercise of discretion by the Tribunal, dealing with the review petition, is correct or not. ( 19 ) POWER of review has been granted to the Tribunal under section 22 (3) (f)of the Administrative Tribunals Act, 1985 read with Rule 17 of the rules. Sub-section (3) of section 22 of the Act provides that the Tribunal shall have the powers of a Civil Court while trying a suit in certain matters and one of them is reviewing a decision. Sub-section (3) of section 22 of the Act provides that the Tribunal shall have the powers of a Civil Court while trying a suit in certain matters and one of them is reviewing a decision. Therefore, it is clear that in exercising the power of review, the Tribunal has to follow the same principles as is followed by a Civil Court. ( 20 ) IN the impugned judgment, the learned Judges noted the judgment of the Supreme Court in the case of Ajit Kr. Rath vs. State of Orissa, reported in 2000 SCC (Labour and Services) 192. In the said judgment, the Supreme Court made it clear that the power of review which is granted to the Tribunal is the same as has been given to a Civil Court under section 114 read with Order 47 rule 1 of the Civil Procedure Code. It is also true that the said power is not an absolute power and is hedged in with several restrictions indicated in Order 47. Such power can be exercised only in the following circumstances: a) on the discovery of a new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by the party, seeking review, when the order was made; b) the power of review can also be exercised if the judgment/order to be reviewed is vitiated by on account of some mistakes ; or c) by error apparent on the face of record; or d) for any other sufficient reason. ( 21 ) THE learned Judges while pointing out the power of review further held that the order which was passed by the CAT, Calcutta Bench in O. A. 796 of 1987 was appealed before the Supreme Court by filing a SLP and the SLP was dismissed. Therefore, the learned Judges held that the order passed by CAT, calcutta Bench in O. A. 796 of 1987 had become final and the Tribunal has no power to review the same since that order has been merged with the order passed by the Hon'ble Supreme Court. Apart from that the Tribunal held that there is no error apparently on the face of the record in the decision of the tribunal dated 25. 11. 99 by which O. A. 501 of 1992 was decided. Apart from that the Tribunal held that there is no error apparently on the face of the record in the decision of the tribunal dated 25. 11. 99 by which O. A. 501 of 1992 was decided. ( 22 ) THIS Court is unable to accept the aforesaid finding of the Tribunal for the reasons stated below. ( 23 ) FIRSTLY, there is no question of merger in the instant case when Supreme court subsequently by a reasoned judgment dated 30. 11. 95 clearly held that the judgment of CAT, Calcutta Bench in O. A. 796 of 1987 is erroneous. Now coming to the exercise of the power of review, it is true that the power of review by the Tribunal has to be exercised in accordance with the principles of Order 47 Rule 1 of the Code. Going by the principles of Order 47 Rule 1, it cannot be said, in the facts of this case, that even after exercise of due diligence it was not possible for the respondents in O. A. 501 of 1992 to produce the judgment of the supreme Court dated 30. 11. 95 when O. A. 501 of 1992 was heard and decided on 25. 11. 99. But that is one of the grounds for review mentioned in Order 47 rule 1 of the Code. Review can be made on other grounds also namely when it is pointed out before the Court that the judgment which is sought to be reviewed is vitiated by a mistake or error apparent on the face of the record or for any other sufficient reason. ( 24 ) IN the instant case, it cannot be disputed that this subsequent order of cat, Calcutta Bench dated 25. 11. 99, directing that the representation of the applicants should be considered and relief should be granted according to the judgment of the Tribunal dated 24. 4. 89 passed in O. A. 796 of 1987, is vitiated by errors apparent on the face of record. This is so because the Supreme Court, by its judgment dated 30. 11. 95, clearly held that the decision of CAT, Calcutta bench in O. A. 796 of 1987 is erroneous. 4. 89 passed in O. A. 796 of 1987, is vitiated by errors apparent on the face of record. This is so because the Supreme Court, by its judgment dated 30. 11. 95, clearly held that the decision of CAT, Calcutta bench in O. A. 796 of 1987 is erroneous. ( 25 ) THEREFORE, the order of CAT, Calcutta Bench in O. A. 501 of 1992 with the direction to follow the said judgment, held erroneous by the Supreme court, is opposed to the Constitutional mandate of Article 141. So, the Court exercising review should have considered it necessary to correct this evident error. It is immaterial how the error has occurred. It has been judicially construed that an error apparent on the face of record must be such an error as can be seen by any one who reads the record. In other words, the error must be an obvious and patent one and not one which has to be established by a long-drawn process of reasoning. In the instant case, the fact that the decision of O. A. in 796 of 1987 is an erroneous one need not be established by long-drawn process of reasoning inasmuch as Supreme Court has held it to be erroneous in its judgment dated 30. 11. 95. Therefore, going by these principles of Order 47 Rule 1 of the Code the learned Judges should have allowed the review petition. ( 26 ) APART from that the principles of Article 141 of the Constitution of India, should have been kept in mind by the Tribunal while dealing with the review petition. ( 27 ) ARTICLE 141 of the Constitution of India has provided that the law declared by the Supreme Court shall be binding on all Courts within the territory of india. Article 141 of the Constitution therefore holds out an inexorable command over all Courts, except of course the Supreme Court and the command is in clear terms. When something is pronounced by the Supreme Court, that pronouncement becomes the law of the land and thus the judgments of the supreme Court constitute a major source of our law. One of the main features of our judicial system is that it is based on a scheme of hierarchy of Courts and the Supreme Court, being the Apex Court, its decision has the character of a binding precedent. One of the main features of our judicial system is that it is based on a scheme of hierarchy of Courts and the Supreme Court, being the Apex Court, its decision has the character of a binding precedent. This is one of the cornerstone of the Indian Judicial System. ( 28 ) ARTICLE 141 therefore gives a Constitutional status to the doctrine of precedent. Following this principle even an obiter dicta of the Supreme Court, unless it is a casual observation, is binding on all Courts. It is of course true than when the Supreme Court summarily dismisses a SLP, the order of summary dismissal, if it is a non-speaking one, does not become a binding precedent for the purposes of Article 141. But when reasons are given, as have been given in the decision of the Supreme Court dated 30. 11. 95, that decision attracts the mandate of Article 141. ( 29 ) EXPLAINING the binding nature of Article 141 various decisions have been rendered by the Apex Court. Reference in this connection may be made to a recent decision of the Supreme Court in the case of Director of Settlements, A. P. and Ors. vs. M. R. Apparao and Anr. , reported in 2002 (4) SCC 638. Explaining the importance of Article 141, the Apex Court in para 7 at page 651 of the report observed as follows: "a judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High court which had been set aside by the Supreme Court is a nullity. " ( 30 ) IN view of such clear pronouncement of law, the reliance placed by the learned Counsel for the respondent on the decision of the Supreme Court in the case of Haryana Financial Corporation vs. Jagadamba Oil Mill, reported in air 2002 SCW 500 is not of much consequence. In Haryana Financial corporation (supra), the Apex Court held that a judgment of Court cannot be read as a statute or as Euclid's theorems. It has to be read in the context. There can be no dispute with these principles. Accepting these principles, this Court finds that the pronouncement by the Supreme Court that the decision of CAT, calcutta Bench in O. A. 796 of 1987 is erroneous is a clear and unequivocal pronouncement. It has to be read in the context. There can be no dispute with these principles. Accepting these principles, this Court finds that the pronouncement by the Supreme Court that the decision of CAT, calcutta Bench in O. A. 796 of 1987 is erroneous is a clear and unequivocal pronouncement. ( 31 ) IN its judgment and order dated 30/11/95, the Supreme Court has clearly held that "the view of the first Bench of CAT, Calcutta is clearly erroneous in law" and it is not in dispute that by the view of the first Bench of CAT, Calcutta, supreme Court has meant the decision of CAT, Calcutta Bench in O. A. 796 of 1987. This Court is therefore of the opinion that the refusal to review the judgment in the facts and circumstances of the instant case would amount to refusal to accept the finding of the Hon'ble Supreme Court in deciding the same controversy between the parties. ( 32 ) SO in the facts and circumstances of this case the review petition should have been allowed by the Tribunal and for the reasons aforesaid we are of the view that the review petition should be allowed and we do hereby allow the same. ( 33 ) THIS Court therefore directs that the order dated 25/11/99 passed in o. A. 501 of 1992 being opposed to the aforesaid order of the Supreme Court is vitiated by errors apparent on the face of the record and is set aside on review. The O. A. 501 of 1992 should be reheard by the Tribunal in accordance with law. ( 34 ) THIS writ petition is thus allowed. The judgment and order dated 27/1/04 is thus set aside. There will be no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties expeditiously. Writ petition allowed.