The Union Of India through General Manager, EC Railway, Hazipur v. Smt. Barafi Devi

Judgment

3. Divisional Railway Manager, East Central Railway, Sonpur.

3. Senior Divisional Personnel Officer, East Central Railway, Sonpur. Senior Divisional Operating Manager, East Central Railway, Sonpur. ... ... Petitioner/s Versus Smt. Barafi Devi wife of Late Vijay Shankar Pandey applicant of O.A. 738/2001 resident of Village- Shivpura, P.O.- Amiliya Kala, District- Allahabad UP. The Union of India through General Manager, N.E. Railway, Gorakhpur. The General Manager Personnel, N.E. Railway, Gorakhpur.

4. Divisional Railway Manager, N.E. Railway, Sonepur.

6. Senior Divisional Personnel Officer, N.E. Railway, Sonepur. Senior Divisional Operating Manager, N.E. Railway, Sonepur. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : For the Respondent No.1: Mr. Tuhin Shankar, Advocate Mr. Munna Pd Dixit, Advocate Mr. Sanjay Kumar Chaubey, Advocate Ms. Swastika, Advocate Mr. Sanjay Kumar Dixit, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 24-01-2023 In the instant writ petition, Union of India-petitioner feeling aggrieved and dis-satisfied with the order(s) of the Central Administrative Tribunal prayed for following relief(s):- “A. For quashing and setting aside the order/judgment dated 09.05.2013 passed in O.A. No. 738 of 2001 passed by the

Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 learned Central Administrative Tribunal, Patna Bench, Patna, whereby the orders of reversion dated 23.07.2001 has been quashed and the respondents have been directed to absorb the applicant/husband of respondent no.1 herein on the post of Goods Guard in the scale of Rs. 4500-7000/- forthwith with consequential benefits. B. For quashing the order dated 10.01.2013 passed in R.A. No. 16/2006 with M.A. No. 453 of 2012 (arising out of O.A. 738 of 2001) whereby the R.A. was restored and allowed and the OA No. 738 of 2001 which was dismissed on merit vide order dated 31.12.2004 was recalled and ordered to be listed for rehearing. C. For quashing of the order dated 28.04.2016 passed by the learned CAT, Patna Bench in M.A. 050/00063/2014 (arising out of CCPA 139/2013, O.A. 738/2001) whereby the learned Tribunal has rejected the Misc. Applications filed on behalf of the petitioners herein or modification of the above referred order dated 09.05.2013 passed in O.A. No. 738 of 2001 which has been obtained by misrepresentation of the facts. D. For any other relief/s to which the petitioners are found entitled to.”

02. Brief facts of the case are that Vijay Shankar Pandey, who was an employee of the petitioner-Railway Department, filed Original Application No. 738 of 2001 before the Central Administrative Tribunal, Patna Bench, Patna (for short ‘CAT’), questioning the validity of the order dated Patna High Court CWJC No.18237 of 2016 dt.24-01-2023

23.07.2001, by which he has been reverted from the post of Goods Guard to that of Senior Commercial Clerk. Further, he has prayed for absorption on the post of Goods Guard etc. CAT dismissed the O.A. No. 738 of 2001 on 31.12.2004.

03. The Respondent-Vijay Shankar Pandey had filed Review Application on 28.01.2005. Due to office objection or any other administrative difficulties the matter was listed only in the year 2006 and numbered as R.A. No. 16 of 2006. Taking note of certain pleadings, CAT dismissed the R.A. No. 16 of

2006. It is necessary to reproduce Para-4 of the order. Para-4 reads as under:- “As per Rule 17[1] of CAT [Procedure] Rules, 1987, the Review Application should be filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. But we find that the order dated 31.12.2004 was ready for delivery on 07.01.2005 but as per the instant Review Application the affidavit was affirmed on 23.01.2006 which is almost after one year and for which no application for condonation of delay was filed.”

04. Respondent-Vijay Shankar Pandey filed M.A. No. 453 of 2012 to recall the order dated 06.09.2012 passed in R.A. No. 16 of 2006. Patna High Court CWJC No.18237 of 2016 dt.24-01-2023

05. On 10.01.2013, CAT while passing order in M.A. No. 453 of 2012 read with R.A. No. 16 of 2006, passed the following order. Para- 5 to 8 of which reads as under:- “5. Having regard to the submissions made in the MA and at the time of hearing of the MA, we allow the MA and restore the RA. The learned counsel submitted an English translation of the representation (Annexure A/5 of OA) after the hearing of the MA. A perusal of this Annexure A/5 does not indicate that the applicant had not opted. The way the representation was drafted probably may have given room for ambiguity or the interpretation indicated in the order of this Tribunal. There appears to be an error apparent on face of record in the order in OA on this aspect.

6. In para 11 of the order in the OA, this Tribunal said as follows:

11. As regards the fulfilling of the passing of requisite training prior to cut off date, it is admitted that the applicant has passed the said training after the cut off date. Whether that would suffice and fulfil the requirement promotional benefit or not, would ramin a question of academic interest, since we have come to specific conclusion that the very first condition was not fulfilled by the applicant. Therefore, remaining issue is not required to be adjudicated and can be safely left open.” getting

7. In view of the finding indicated in para 5 above, the second issue which had Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 been left open by this Tribunal in the OA will also need to be adjudicated.

8. In the light of the position set out above, the order in the OA is recalled and the OA ordered to be listed for rehearing. With this the RA with MA stands disposed of.

06. In M.A. no. 453 of 2012, the CAT recalled the order passed in RA No. 16 of 2006 and restored the Original Application No. 738 of 2001.

07. Thereafter, Original Application No. 738 of 2001 was allowed on 09.05.2013, hence the present petition filed by the petitioner-Union of India-Railway Department.

08. Learned counsel for the petitioner-Department submitted that the CAT has committed error in entertaining MA No. 453 of 2012 while invoking Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 (for short ‘Rules, 1987’). It is submitted that MA No. 453 of 2012 is not maintainable and the respondent had the remedy of filing writ petition before the jurisdictional High Court in the light of Apex Court decision in the case of L. Chandra Kumar Vs. Union of India and Ors., reported in, (1997) 3 SCC 261. Further, deciding restoration of OA No. 738 of 2001 and deciding the same is without jurisdiction of the CAT. In support of aforesaid Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 contention, learned counsel for the petitioner relied on a decision of the High Court of Allahabad, reported in 2014 SCC OnLine All 5645, (Ramjeet and Ors. Vs. Central Administrative Tribunal Thru Registrar and Ors.) [Para-14 to 20].

09. Per-contra, learned counsel for the respondent resisted the aforesaid contentions of the petitioner and submitted that the Tribunal has committed error while deciding RA No. 16 of 2006 in not appreciating the factual aspect of the matter, therefore, they have realized their mistake while passing the order in RA No. 16 of 2006, in the result, they have entertained the MA No. 453 of 2012 while invoking Rule 24 of Rule, 1987. Therefore, there is no error committed by the CAT in entertaining MA No. 453 of 2012 and allowing the same while recalling the order dated 06.09.2012. Thereafter, CAT has taken note of error committed, hence no interference is called for. In support of exercising power under Rule 24 of Rules 1987 by the CAT, the learned counsel for the respondents relied on Apex Court decision in the case of S. Nagaraj vs. State of Karnatka, reported in, 1993 Supp 4 SCC 595 [Para-18].

10. Heard the learned counsels for the respective parties. Patna High Court CWJC No.18237 of 2016 dt.24-01-2023

11. Question for consideration in the present writ petition is whether CAT is empowered to review its own order passed in Review Application No. 16 of 2006 decided on

06.09.2012 and further recalling the order passed in Review and restoration of Original Application and further deciding Original Application once again or not?

12. Respondent's Original Application 738 of 2001 was decided on 31.12.2004 while rejecting the Respondent's Original Application. Respondent feeling aggrieved by the order passed in O.A. No. 31.12.2004 preferred R.A. No. 16 of 2006 and it was dismissed on the ground of delay. To recall the order passed in R.A. No. 16 of 2006, M.A. No. 453 of 2012 was filed. M.A. No. 453 of 2012 was allowed on 10.01.2013 while recalling the order passed in R.A No. 16 of 2006 and reviewing the order dated 31.12.2004 passed in O.A. 738 of 2001 by a single order on 10.01.2013 while restoring the Original Application 738 of 2001 and it was decided on 09.05.2013.

13. In order to understand whether MA 453 of 2012 is maintainable or not, it is necessary to reproduce Rule 24 of Rules, 1987. Rule 24 of Rules, 1987 reads as under:-

24. Order and directions in certain cases.—The Tribunal may make such orders or give such directions as may be necessary Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.”

14. Before adverting to the rule 24 of Rules 1987, it is necessary to take note of how an aggrieved person could approach CAT, under the Administrative Tribunal Act, 1985 (for short ‘the Act, 1985’). Aggrieved person is entitled to make Original Application under Section 19 of the Act, 1985. If he is not satisfied with the order of the CAT, he has a remedy of filing writ petition before the jurisdictional Court under Article 226 of Constitution of India, in the light of the Apex Court decision in the case of L. Chandra Kumar Vs. Union of India and Ors. (supra). He has also remedy of filing Review Application under Section 22(3)(f) of the Act, 1985, Section 22 of which reads as under:-

22. Procedure and powers of Tribunals.— (1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 (2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and 1 [after hearing such oral arguments as may be advanced]. (3) A Tribunal shall have, for the purposes of 2 [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witness or documents; (f) reviewing its decisions; (g) dismissing a representation for default or deciding it ex parte; (h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government.” (under line supplied)

15. In this backdrop Rule 24 would not spring into Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 action so as to recall the order passed with reference to review application filed under Section 22(f) of the Act, 1985 cited supra. Rule 24 of Rules, 1987 cannot over-ride provisions of the Act, 1985. If Rule 24 of Rules, 1987 is to be operated, in that event, there would be no end in litigation before the Central Administrative Tribunal. Even reading of Rule 24 of Rules, 1987, it is not on an application like Miscellaneous Application or Review Application by an aggrieved person. On the other hand, it empowers suo moto power to the CAT. In this regard, it is necessary to take note of cited decision on behalf of the petitioner-Department in the case of (Ramjeet and Ors. Vs. Central Administrative Tribunal Thru Registrar and Ors., 2014 SCC OnLine All 5645), Para-14 to 24 of which reads as under:

14.The Central Government has framed Central Administrative Tribunal (Procedure) Rules, 1987 in exercise of powers conferred by clauses (d), (e) and (f) of sub-Section (2) of Section 35 and clause (c) of Section 36 of the Administrative Tribunals Act, 1985. Rule 24 of the said Rules reads as under: “24. Order and directions in certain cases.-The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.”

15. In this context reference may be Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 made to the pronouncement of the Supreme Court in the case ofUnion of India v. J.R. Dhiman reported in (1999) 6 SCC 403, where their Lordships of the Supreme Court had an occasion to consider the scope of Rule 24 of the Rules of 1987. They observed as under: “4. The contention put forth before us is that under Rule 24 of the Central Administrative (Procedure) Rules, 1987, the Tribunal may make such orders or give such direction as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. A perusal of the order made by the Tribunal on the application for contempt goes far beyond the original order and issued directions to the revisional authority the manner in which the order has to be made when originally the order made by the revisional authority was set aside and the matter was remitted for fresh consideration after taking into note of the pleadings raised in the original application before the Tribunal and any fresh contention that may be advanced. It is clear that the order made by the Tribunal is that it could not have passed an order other than what had been passed earlier, namely, one of a penalty reducing the time scale of pay of the two stages for a period of two years and certain other directions. It is not permissible at all for the Tribunal to direct the revisional authority to pass such a punishment alone and any higher punishment could not be imposed. When the order made by the revisional authority had been set aside and the matter was remitted for fresh consideration consideration of all aspects of the matter it certainly, Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 could pass an appropriate order in accordance with law.

5. In that view of the matter, the Tribunal has no justification to give direction as made in the order under appeal. Such an order does not fall within the scope of Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987. Hence, the order made by the Tribunal to this extent shall stand quashed. It is made clear that if any order is made in any other proceedings initiated by the respondent it will not be affected by this order.”

16.The aforesaid provision is somewhat similar to the provision contained under Section 151 of the Civil Procedure Code, which reads as under: “151. Saving of inherit powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

17. The Supreme Court in the case of Dwaraka Das v.State of Madhya Pradesh reported in (1999) 3 SCC 500 while considering the scope of the powers of the civil court under Sections 151 and 152, C.P.C. in a matter where a judgment and decree was altered in exercise of the powers under the said provisions observed as under: “6. …………………………….The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. ……………………………. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can, under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. …………….”

18. In the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, their Lordships of Supreme Court considered the scope of inherent powers of the civil court under Section 151 of the Civil Procedure Code and observed as under: “19……………………………It common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies relates……………………………………… ………”

19. In the case of K.K. Velusamy v. N. Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 Palanisamy, (2011) 11 SCC 275, it was held as under: “12………………………….. (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy Patna High Court CWJC No.18237 of 2016 dt.24-01-2023 or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.”