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Madhya Pradesh High Court · body

2008 DIGILAW 1431 (MP)

N L SHRIVASTAVA v. STATE OF M P

2008-12-11

A.K.PATNAIK, AJIT SINGH

body2008
Judgment ( 1. ) IN this writ petition filed under Article 226 of the Constitution, we are called upon to decide whether on the abolition of the Madhya Pradesh administrative Tribunal (for short, "the Tribunal") the petitioner, who was the vice Chairman of the Tribunal, was entitled to any compensation and, if so, what amount of compensation. ( 2. ) THE facts briefly are that by order dated 3. 10. 2000 the petitioner was appointed as Vice Chairman of the Tribunal constituted under the Administrative tribunals Act, 1985 (in short, "the Tribunals Act" ). The tenure of appointment of the petitioner was five years from the date of taking charge of the post or till the age of 65 years, whichever was earlier. Pursuant to the order dated 3. 10. 2000, the petitioner assumed charge as Vice Chairman of the Tribunal and started working. On 17. 4. 2003, however, the Central Government issued a notification to abolish the Tribunal with immediate effect on the request of the State Government. Thereafter, a writ petition was filed before this Court by Shri A. K. Shrivastava, who was an Administrative Member of the Tribunal and a Division Bench of this court in its judgment reported in A. K. Shrivastava Vs. Union of India 2002 (3)M. P. H. T. 1 held inter alia that the Chairman, Vice Chairman and Members of the tribunal while entering into a contract of employment under the State had legitimate expectation that they would continue to serve as such till the last date of stipulated period of contract and if the State Government decides to abolish the Tribunal, they cease to function with immediate effect and therefore they are legally entitled to get compensation for their unexpired period of contract. The Division Bench accordingly directed that the details of such compensation shall be worked out by the State Government. The State Government then worked out the compensation equivalent to 25% of the basic salary for the period for which the Chairman, Vice chairman and Members of the Tribunal would have continued had the Tribunal not been abolished, i. e. from 17. 4. 2003 to 9. 10. 2005. Since the petitioner was of the opinion that the compensation determined is much lower than what was due to him, he has filed this writ petition under Article 226 of the Constitution for appropriate reliefs. ( 3. ) MR. 4. 2003 to 9. 10. 2005. Since the petitioner was of the opinion that the compensation determined is much lower than what was due to him, he has filed this writ petition under Article 226 of the Constitution for appropriate reliefs. ( 3. ) MR. Rohit Arya, learned senior counsel appearing for the petitioner, submitted that in Sri Justice S. K. Ray Vs. State of Orissa 2003 AIR SCW 402 Sri Justice s. K. Ray, who was holding the Office of Lokpal claimed compensation on account of the abolition of Office of Lokpal by an Ordinance which was subsequently replaced by the Orissa Lokpal and Lokayuktas (Repeal) Act (in short, "the repealing Act") and the Supreme Court held that although no compensation was payable to Sri Justice S. K. Ray on abolition of the Office of Lokpal for the remaining tenure of the Office of Lokpal, compensation was payable because of the disqualification that Sri Justice S. K. Ray had incurred under Section 5 (3) of the Orissa Lokpal and Lokayuktas Act (for short, "the Orissa Act" ). Mr. Arya explained that under Section 5 (3) of the Orissa Act, a Lokpal on ceasing to hold office was ineligible for further employment under the State Government or for any employment under or office in any local authority, corporation, Government company or Society as referred to in Clause (k) of Section 2 of the Orissa Act and the Supreme Court held that even on repealing of the Orissa Act by the repealing Act, Sri Justice S. K. Ray had to suffer the disqualification in Section 5 (3) of the Orissa Act and for such disqualification, adequate compensation will be loss of his salary for the remaining tenure for which he would have held the office of Lokpal. He submitted that Section 11 (d) of the Tribunals Act similarly provides that on ceasing to hold the office, the Vice Chairman of a State administrative Tribunal shall not be eligible for any employment either under the government of India or under the Government of a State except for appointment as the Chairman of the State Administrative Tribunal or as the Chairman or Vice chairman of the Central Administrative Tribunal or of any other State Administrative tribunal or Joint Administrative Tribunal. He submitted that since the petitioner continued to incur the disqualification as provided under Section 11 (d) of the tribunals Act, he is also entitled to a compensation equivalent to the salary payable to him for the remaining period of his tenure of the Office of Vice Chairman of the Tribunal. ( 4. ) MR. V K. Shukla, learned Deputy Advocate General appearing for the respondents, on the other hand, submitted that there was a difference in the disqualification attached to the office of Lokpal as provided under the Orissa Act and the disqualification attached to the Office of Vice Chairman under the Tribunals act and this will be clear on a comparison of the provisions of Section 4 of the orissa Act and Section 11 (d) of the Tribunals Act. He submitted that while under section 4 of the Orissa Act, the Lokpal or a Lokayukta shall not be a member of parliament or a member of the Legislature of any State and shall not hold any office of trust or profit (other than his office as the Lokpal or, as the case may be, a Lokayukta) or be connected with any political party or carry on any business or practice or any profession, under Section 11 (d) of the Tribunals Act a Vice chairman of the Tribunal cannot accept any employment under the Government of India or under the Government of a State. He further submitted mat the language of Section 11 (d) of the Tribunals Act would show that the Vice Chairman of the state Administrative Tribunal is eligible for appointment as Chairman of that State administrative Tribunal or as the Chairman or Vice Chairman of the Central administrative Tribunal or of any other State Administrative Tribunal or Joint administrative Tribunal. He submitted that the petitioner would, therefore, not be entitled to the basic salary for the remaining tenure of his office as Vice Chairman of the Tribunal but to a much lesser amount as compensation and for this reason the State Government has determined the quantum of compensation at 25% of the basic salary for the remaining period of his tenure as Vice Chairman of the tribunal. ( 5. ) WE are unable to accept the submission of Mr. ( 5. ) WE are unable to accept the submission of Mr. Shukla that the Lokpal or lokayukta under the Orissa Act is subjected to the disqualification mentioned in section 4 of the Orissa Act on his ceasing to be a Lokpal or Lokayukta. On a reading of Section 4 of the Orissa Act we find that the section states that the lokpal or Lokayukta shall not be a member of Parliament or a member of the legislature of any State and shall not hold any office of trust or profit (other than his office as the Lokpal or, as the case may be, a Lokayukta) or be connected with any political party or carry on any business or practice or any profession. Section 4 of the Orissa Act, therefore, does not deal with a disqualification that is attached to the Office of Lokpal or Lokayukta on the Lokpal or Lokayukta ceasing to be a Lokpal or Lokayukta but deals with the Offices which the Lokpal or lokayukta cannot hold during the period he is functioning as Lokpal or Lokayukta. It is only Section 5 (3) of the Orissa Act which provides that on ceasing to hold the office of the Lokpal or a Lokayukta, the Lokpal or Lokayukta shall be ineligible for further employment under the State Government or for any employment under or office in any local authority, corporation, Government company or Society. ( 6. ) UNDER Section 11 (d) of the Tribunals Act, the disqualification attached to the Office of Vice Chairman of the Tribunal is not very much different from the disqualification attached to the Office of Lokpal under the Orissa Act. ( 6. ) UNDER Section 11 (d) of the Tribunals Act, the disqualification attached to the Office of Vice Chairman of the Tribunal is not very much different from the disqualification attached to the Office of Lokpal under the Orissa Act. Section 11 (d) and the explanation under Section 11 of the Tribunals Act are extracted hereinbelow: "11 (d) the Vice-Chairman of a State Administrative Tribunal or a Joint Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of that Tribunal or as the Chairman or Vice-Chairman of the central Administrative Tribunal or of any other State administrative Tribunal or Joint Administrative Tribunal, but not for any other employment either under the Government of India or under the Government of a State; explanation.- For the purposes of this section, employment under the Government of India or under the Government of a State includes employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the government. " ( 7. ) IT will be clear from the language employed in Section 11 (d) and the explanation under Section 11 of the Tribunals Act that the Vice-Chairman of the state Administrative Tribunal will not be eligible for any employment either under the Government of India or under the Government of a State including employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the Government. The only exception provided in Section 11 (d) is that the Vice chairman of the Tribunal can be eligible for appointment as Chairman of the State administrative Tribunal or as a Chairman or Vice Chairman of the Central administrative Tribunal or of any other State Administrative Tribunal or Joint administrative Tribunal. In our considered opinion, this eligibility for appointment as Chairman of the State Administrative Tribunal or Chairman or Vice Chairman of the Central Administrative Tribunal or of any other State Administrative Tribunal or Joint Administrative Tribunal will not make a material difference to the quantum of compensation to which the petitioner will be entitled on account of the disqualification provided in Section 11 (d) read with the explanation under Section 11 of the Tribunals Act. The fact remains that by virtue of what is provided in section 11 (d) of the Tribunals Act. even after the abolition of the Tribunal, the petitioner could not have accepted any employment either under the Government of India or under the Government of a State including employment under any local or other authority within the territory of India or under the control of the government of India or under any corporation or society owned or controlled by the Government. The petitioner, who accepted the Office of Vice Chairman of the Tribunal, knew that on acceptance of the Office of Vice Chairman he will not be eligible to any employment either under the Government of India or under the government of a State including employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the Government as provided in Section 11 (d) of the Tribunals Act and he had accepted the Office of the Vice Chairman of the Tribunal with the expectation that this loss on account of the disqualification would be adequately compensated by the basic salary that he will get during the period of his tenure as Vice Chairman. Hence, if the post of vice Chairman is also abolished and the petitioner had to go out of the office, reasonable and adequate compensation will be the loss of basic salary that he has suffered for the remaining period of his tenure as Vice Chairman. ( 8. ) WE accordingly allow this writ petition and direct the respondents to pay the basic salary for the period from 17. 4. 2003 to 9. 10. 2005 within a period of three months from the date of receipt of the copy of this order. There shall be no order as to costs. Petition allowed.