Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 375 (CAL)

UNION OF INDIA v. Maya Biswas

2008-04-07

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT:- (1) THIS application initially is directed against three orders, namely, first one is dated 1st February 1999 passed by a Division Bench, second one is dated 27th of August 1999 passed by a learned single member, being the Honble Chairman and the last order is dated 10th November 2006, passed in a contempt application. The first two orders were passed in the original applications, being O.A. 172 of 1995 and O.A. 626 of 1995. At the admission stage, on 12th of June 2007, we made it clear that we are not going to examine the legality and validity of the two orders dated 1st February 1999 and 27th of August 1999 as those orders were passed on contest by both the parties. This application was admitted for hearing to examine legality and validity of the last order which was passed on a contempt application. Upon perusal of the order dated 10th of November 2006 we find that while exercising contempt jurisdiction, no punishment was imposed and merely some directions were given. However, whether such directions were lawful or not will be examined little later as Mr. Das submitted that such order is a nullity as this order is arising out of an order passed in connection with the second order dated 27th of August 1999. In order to appreciate properly, we are to recapitulate the facts briefly hereunder. (2) THE original application was decided by a Division Bench by an order dated 1st February 1999 when both the Members differed on one point whether the post held by the applicant is Ex-Cadre or not in order to release retiral benefit. On the same very order Administrative member held that it was Ex-Cadre while Judicial Member held otherwise. As such, the matter was sent to the Chairman for resolving the aforesaid differences. (3) MR. Das submits, drawing our attention to section 26 of the administrative Tribunals Act, 1985 (hereinafter referred to as the said Act) that this order of reference itself is invalid and illegal and the chairman had no jurisdiction to decide the matter in which there exists difference between two Members as the Division Bench did not formulate the points of their differences. According to him, formulation of points of differences on issue is sine qua non for taking up the matter by the Chairman either by himself or by sending the same to a Larger bench. According to him, formulation of points of differences on issue is sine qua non for taking up the matter by the Chairman either by himself or by sending the same to a Larger bench. Judicial Member, in the Division Bench, observed that the matter should be placed before the Larger Bench so it was not open for the Chairman to take it upon himself. As such, the order passed by the chairman whereby the dispute has been resolved in favour of the applicant is a nullity as such question of implementation of the same did not arise. Mr. Das, in support of legal proposition, has cited two decisions; one reported in AIR 1954 SC 340 (Kiran Singh and Ors. v. Chaman Paswan and Ors.) and the other reported in (2004) SCC 759 (Ramphal Kundu v. Kunal Shanna). The later decision has been relied on the point that if a thing is required to be done in accordance with a particular provision of law, the same must be done in accordance with that provision of law or not at all. Here order of reference has not been passed in consonance with the provision of section 26 of the said Act. (4) NOW with regard to the question of jurisdiction, Mr. Das has referred to the decision reported in AIR 1954 SC 340 (Kiran Singh and Ors. v. Chaman Paswan and Ors.) to explain the analogy that the last order, passed in the contempt jurisdiction, should be set aside by this Court holding that the same is a nullity and not an order because it is an off shoot of a null and void order. In substance, we should declare the order of the chairman, deciding the differences between the two Members, as null and void. (5) LEARNED counsel for the respondents submits that Union of India is estopped from challenging the order passed by the Chairman as this point was not agitated; rather they participated before the Chairman and the Chairman decided the matter. Moreover, even after elapse of long time, no appeal was preferred. He submits that there cannot be any reason of inherent lack of jurisdiction; at the highest it could be termed as mere irregularity. He further contended that formulation of point of differences is not contemplated for making reference. Moreover, even after elapse of long time, no appeal was preferred. He submits that there cannot be any reason of inherent lack of jurisdiction; at the highest it could be termed as mere irregularity. He further contended that formulation of point of differences is not contemplated for making reference. According to him, this order is perfectly valid and lawful and the judgments relied upon by Union of India have no applicability on the facts and circumstances of this case. (6) SINCE the question of jurisdiction has been raised, we think that this matter should be examined by us, therefore, we are to examine whether the order passed by the Chairman for reference is a lawful and valid order or not, In other words, whether the Chairman had jurisdiction to pass such order or not. To conclude this issue, we think it proper to set out section 26 of the said Act as under: "Section 26 Decision to be by majority-If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it. " (7) UPON careful reading of section 26 of the Act, it appears to us that if the Bench, consisting of two Members or more than two Members, differs on any point they should make a reference to the Chairman. Therefore, only requirement is that Member Bench must make a reference to the Chairman. The said section nowhere states, as rightly urged by the learned counsel for the respondents, that formulation of the point is required for reference. Taking the analogy of order 42 rule 2 read with order XLI Rule II of the Code of Civil Procedure, where formulation of the substantial question. The said section nowhere states, as rightly urged by the learned counsel for the respondents, that formulation of the point is required for reference. Taking the analogy of order 42 rule 2 read with order XLI Rule II of the Code of Civil Procedure, where formulation of the substantial question. If law is sine qua non to assume jurisdiction by the second appellate authority, here we do not find any such requirement intended by the legislature; only requirement is that such reference shall be made to the Chairman and before making reference in the order there shall be an indication of point or points of difference. We find that the Judicial Member has expressly differed on a particular point as to whether the post is Ex-Cadre or not. While recording difference, he has referred the matter to the Chairman for sending the same to a Larger Bench. According to him, the Division bench had no jurisdiction to ask the Chairman to set up a Larger Bench or single Bench. It is for the Chairman to take decision whether the point or points of difference should be heard by a Larger Bench or by himself. Perusing the record, the Chairman thought it fit that the matter should be decided by himself so he had taken up the matter himself. Before deciding the matter, he has formulated the point of difference; rather, if the judgment of the Division Bench is read properly and minutely, section 26 of the said Act has sufficiently been compiled with for reference and for this reason there is no error in assumption of jurisdiction by the Chairman. The Chairman has rightly taken up this matter and did not lack any jurisdiction whatsoever so that we can hold that the earlier order of the Chairman is null and void. Accordingly contention of Mr. Das fails. The legal proposition decided by the Supreme court is not disputed and it is well settled but on the fact findings narrated above, we do not find the said decisions are of any assistance whatsoever. The principle decided in the case reported in AIR 1954 SC 340 , has no manner of application; hence we hold that order passed by the Chairman subsequently and direction given by him earlier in 1999 is perfectly just and lawful. Consequently, initiation of the contempt proceedings is also justified and lawful. The principle decided in the case reported in AIR 1954 SC 340 , has no manner of application; hence we hold that order passed by the Chairman subsequently and direction given by him earlier in 1999 is perfectly just and lawful. Consequently, initiation of the contempt proceedings is also justified and lawful. (8) NOW coming to the merit of the order passed in contempt jurisdiction, we find that the learned Tribunal has become little soft and not proceeded in proper manner; rather gave chance to the government to comply with the order. The issue in question is pending since 1999 and even after lapse of nine years, the same is remaining outstanding. So we record our own understanding that the learned tribunal has been very kind to the officials of the department and passed this order and we do not see any reason to interfere with the same. This application accordingly fails. There will be no order as to costs.