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2009 DIGILAW 301 (CAL)

UNION OF INDIA v. R Velumurugan

2009-04-09

AMIT TALUKDAR, SANJIB BANERJEE

body2009
JUDGMENT 1. THE employer has carried an order of the Central administrative Tribunal to this Court on the ground that a mistaken conferment of an undeserving benefit on the employee has been perpetuated by the order of July 2, 2008. 2. A preliminary point has been taken by the respondent. The respondent relies on an order of November 5, 2008 passed by the Tribunal that speaks of an application having been filed by the writ petitioners herein before the Tribunal for extension of time for compliance with the order dated July 2, 2008. The respondent says that implicit in the writ petitioners applying for extension of time was the petitioners' acceptance of the order and the present belated challenge is barred by the principles of acquiescence or principles analogues thereto. The respondent insists that upon the petitioners obtaining the benefit of extension of time for compliance with the order dated July 2, 2008 by a period of one month from November 5, 2008 the petitioners herein had abrogated their right to challenge the original order. The respondent was engaged as a Chowkidar on casual basis on September 26, 1994 and continued to be employed as such till January 21, 2005 with intermittent breaks. The respondent's services were regularized on January 21, 2005 and by a writing of February 10, 2005 he was granted pension under the old scheme. The petitioners refer to the letter issued in connection with the respondent's regularization. The initial words of the letter dated February 10, 2005 read as follows:- "appointed as Chowkidar on regular basis w. e. f. 10th February, 2005 vide HQANC letter ANC/266/6/3/civ/ckd dated 21st January, 2005 in the Pay scale of Rs. 2550-55-2660-60-3200/- against on existing vacancy of INS Kardip. " 3. THE petitioners say that it was only in course of the papers being scrutinized that it was noticed that a mistake had been made committed in the respondent having been offered the old scheme of pension though he was only entitled to the new scheme of pension in accordance with the guidelines issued by the Ministry of Defence on January 31, 1991. The petitioners rely on Clause 3 (g) of the 1991 notification that says that services rendered on casual basis prior to appointment in regular establishment shall not be counted for the purpose of pay fixation etc. The petitioners rely on Clause 3 (g) of the 1991 notification that says that services rendered on casual basis prior to appointment in regular establishment shall not be counted for the purpose of pay fixation etc. According to the petitioners, the mistake was corrected on September 27, 2006 and the order by which the petitioner was appointed was amended by substituting the sentence, "new pension scheme is entitled" in place and stead of the following:- "old scheme is entitled, since the individual was appointed as Casual Chowkidar w. e. f 26 September, 1994. His Casual service will be regularized from the date of initial appointment as per rules in force. " 4. THE Tribunal recorded that it sought a letter dated June 26, 1995 issued by the Ministry of Defence to the Chief of Naval Staff, New Delhi, from the petitioners herein. The Tribunal quoted from such letter of June 26,1995 to conclude that the Notification of January 31,1991 was not sacrosanct and that exceptions had been made in other cases. The tribunal held that the cancellation of the old pension scheme in respect of the respondent was arbitrary and illegal and set aside such decision and restored the conditions accorded to the respondent in the writing of February 10, 2005. The petitioners say that the fact that an exception was made elsewhere or that the provisions of the guidelines were breached, would not entitle the respondent herein to take advantage of an apparent mistake in the writing of February 10, 2005. It is submitted on behalf of the petitioners that since the opening words of the writing of February 10, 2005 provided that the respondent was being appointed as Chowkidar on regular basis with effect from February 10, 2005, neither could the respondent have been offered the old pension scheme nor could his services have been regularized from the date of his initial casual appointment. 5. ON behalf of the respondent, it is submitted that the ruse of a mistake that is cited by the petitioners is specious; the respondent had been fighting a battle for survival for a substantial period of time. An order dated October 8, 2002 passed by the Tribunal in O. A. No. 61 of 2002 is placed. 5. ON behalf of the respondent, it is submitted that the ruse of a mistake that is cited by the petitioners is specious; the respondent had been fighting a battle for survival for a substantial period of time. An order dated October 8, 2002 passed by the Tribunal in O. A. No. 61 of 2002 is placed. The respondent refers to a letter issued by the Commander, Senior staff Officer (Civ) on September 2, 2005 to the Commanding Officer of ins Kardip, evidencing that the petitioner had sought regularization of service from the date of the initial appointment. The respondent refers to a recommendation by the same officer in September, 2005 for regularization of the casual service of the respondent from September 26, 1994 to February 10, 2005. The recommendation bears a reference to the Ministry of Defence letter of June 26, 1995 and a directive issued by Eastern Naval Command on July 6, 1995. It was suggested that the temporary service rendered by the respondent be regularized for service benefits except seniority. The letter details the intermittent breaks, never exceeding three days at a stretch, from September 26, 1994 to February 10, 2005. In all, the petitioner had not worked on casual basis during the nine year period for 115 days. 6. NOTWITHSTANDING the opening words in the order of February 10, 2005, the purport of the order was that the respondent's service was to be regularized from the date of his initial appointment. The amendment that was made on the pretended discovery of an alleged mistake was not a mere correction of the reference to the applicable scheme. There was something more substantial that the respondent was being deprived of, in addition to the pension scheme being altered. The. entirety of what is recorded in the order of February 10, 2005 under SI. No. 2 (1) was sought to be deleted and replaced by the insertion that the new pension scheme would be applicable to the petitioner. The substantive right of the respondent's casual service being regularized from the date of his initial appointment was attempted to be washed away by the amendment upon a feigned discovery of "the mistake". No. 2 (1) was sought to be deleted and replaced by the insertion that the new pension scheme would be applicable to the petitioner. The substantive right of the respondent's casual service being regularized from the date of his initial appointment was attempted to be washed away by the amendment upon a feigned discovery of "the mistake". Since a number of employees had slipped past the robust guidelines issued on January 31, 1991 pursuant to the Ministry of Defence letter of june 26, 1995 that is noticed in the Tribunal's order and since the recommendation of the Commander cited both the letter of June 26, 1995 and Eastern Naval Command directive of July 6, 1995 and suggested that the breaks in service be regularized by grant of earned leave for the period of 115 days covered thereby, there appears to have been a conscious decision that is reflected in the relevant entry in the order of February 10, 2005. It is such conscious decision-the conferment of a substantial benefit -that was attempted to be rescinded on the ground of an alleged mistake having been committed. There is no error apparent in the decision-making process adopted by the Tribunal and in the Tribunal's reference to the letter of June 26, 1995 in the order assailed in the present proceedings. 7. ON the question as to whether any discretion should be exercised in the petitioners' favour upon the petitioners having applied for enlargement of the time for compliance with the order passed by the tribunal, the petitioners contend that the application made by them before the tribunal subsequent to the order dated July 2, 2008 would not stand in the way of this petition being maintained. The petitioners refer to a judgment reported at 2000 (5) SCC 44 (Jagdish Lal v. Parma Nand) and place Paragraph-5 thereof:- "the question was examined by this Court in a subsequent decision in P. R. Deshpande v. Maruti Balaram Haibatti in which it was laid down by a Bench of three Judges of this Court that even if the tenant gives an undertaking in the High Court to vacate the premises, his right to approach this Court under Article 136 of the constitution is not affected. The tenant would still have a right to approach the higher Court and even seek interim relief of stay of eviction despite the undertaking given by him to vacate the premises. This decision, decisively and clearly, has the effect of overruling the earlier decision in Thacker Hariram Motiram case as also two other decisions in Vidhi Shanker v. Heera Lal and in Ramachandra jai Ram Randiv v. Chandanmal Rupchand. The preliminary objection is accordingly overruled. " 8. THE dictum in Jagdish Lai is founded on a reading of the judgment reported at 1998 (6) SCC 507 (P. R. Deshpande v. Maruti Balaram Haibatti ). In P. R. Deshpande, the special leave petitioner had been asked to furnish an undertaking to Court if he required a stay of the operation of the judgment. In such context, it was held that merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. "The undertaking in the P. R. Deshpande case was obtained by Court as a condition precedent for granting a stay of the operation of the order. Though the undertaking furnished in Jagdish Lal appears to have been voluntary and not at the asking of Court, what is held by the Supreme court at Paragraph-5 must necessarily be restricted to the proposition that upon a tenant giving an undertaking to vacate the premises, "his right to approach (the Supreme Court) under Article 136 of the Constitution is not affected. " 9. IN view of the Jagdish Lal judgment interpreting P. R. Deshpande, no distinction can be made between an undertaking voluntarily given to court and an undertaking extracted by Court as a condition for staying the operation of the order. But there is a caveat to the principle laid down at Paragraph-5 of the Jagdish Lal judgment in the supplementing opinion appearing in Paragraphs-21 to 23 of the report. The application of the rule recognised at Paragraph-5 may not be universal in view of the doubt expressed at Paragraph-23 of the report:- "23. There is no gainsaying that jurisdiction of this Court under article 136 of the Constitution cannot be impinged upon. The application of the rule recognised at Paragraph-5 may not be universal in view of the doubt expressed at Paragraph-23 of the report:- "23. There is no gainsaying that jurisdiction of this Court under article 136 of the Constitution cannot be impinged upon. But then the Court has absolute discretion in the matter to grant leave to appeal to it under this article. The judgment in P. R. Deshpande case in my view, cannot be read as laying down a universal rule that this Court in a petition under Article 136 cannot, while exercising its discretion, examine the circumstances under which undertaking was given - as to whether the petitioner has not misled the Court or duped the other party. This Court cannot close its eyes to a solemn undertaking given by a party to the Court. Two things come to mind. Take the case where order of eviction has been passed against the tenant. On the request of the tenant the Court grants him time to approach the higher Court and meanwhile stays the operation of the judgment on undertaking given by the tenant. In the other case the tenant requests the Court to grant him time to vacate the premises, which could be for a longer period than the period prescribed for filing the appeal, the Court grants time on the tenant giving the usual undertaking. In the latter case it would be a moot question if the Court will still exercise its discretion in granting leave to appeal under Article 136 of the Constitution. " 10. JUDICIAL precedents are guiding lights for future decisions on an aspect covered by a previous verdict of a superior or a coordinate forum. Since there can be no binding precedent on facts and judgments are never read as statues, the core proposition has only to be gleaned as the grain from the chaff. On a reading of Paragraph-5 of the Jagdish Lal case alongside Paragraph-23 thereof, it does not appear that there is any absolute proposition of the nature that the petitioners seek to propound. With respect, the respondent has unnecessarily elevated the contention to the status of a point of maintainability; The petitioners have also sought to answer the question of maintainability of the present petition by citing Paragraph-5 of the Jagdish Lal decision. It is not an issue of maintainability at all. With respect, the respondent has unnecessarily elevated the contention to the status of a point of maintainability; The petitioners have also sought to answer the question of maintainability of the present petition by citing Paragraph-5 of the Jagdish Lal decision. It is not an issue of maintainability at all. There is a distinction between a suit or petition not being maintainable and a suit or petition being liable to be dismissed on merits. For a petition to be not maintainable, it has to be demurrable. There are only a few instances where a writ petition complaining of breach of fundamental rights by a State or authority answering the description under Article 12 of the Constitution, would be demurrable. The existence of an alternative remedy, for instance, would not make a writ petition not maintainable; an express statutory bar as in matters that have to be carried to say, the administrative Tribunal, would. 11. THAT a party cannot approbate and reprobate is inherent in the doctrine of election which is based on the rule of estoppel. By the rule of estoppel in pais, or equitable estoppel, a person may be precluded by his acts or conduct from subsequently adopting a particular course of action. The principle of estoppel is of no application when statutory rights are involved, it operates not if a constitutional remedy is pursued. 12. WHETHER or not the petitioners applied for enlargement of time to comply with the order of July 2, 2008, they would be entitled to maintain this petition. It is an entirely different matter as to whether the writ Court would receive the petition or exercise the discretion, which is forever at large in such jurisdiction, in favour of the petitioners. There is merit in the respondent's assertion that the present petition should not be received. Though the petitioners' version of the contents of the subsequent application may be accepted, the very making of such application would tantamount to acceptance of the order. The petitioners say that they had not indicated in such application that they would accept the order, but had merely cited procedural difficulties in completing the formalities. But upon a party against whom an order is made applying to the same forum for enlargement of the time granted by the final order, there is tacit acceptance of the order. The petitioners say that they had not indicated in such application that they would accept the order, but had merely cited procedural difficulties in completing the formalities. But upon a party against whom an order is made applying to the same forum for enlargement of the time granted by the final order, there is tacit acceptance of the order. That is enough for the writ Court to be no longer minded to exercise any discretion in the petitioners favour. 13. W. P. C. T. No. 097 of 2009 is devoid of any merit and is dismissed. The petitioners will pay costs assessed at 100 GM to the respondent employee. Urgent certified photostat copies of this judgment be supplied to the parties, if applied for, subject to compliance with requisite formalities.