Mysore Cements Ltd. and Anothe r v. Assistant Labour Commissioner

Legal Reasoning

THE HONBLE JUSTICE MR L.S.JAMIR Heard Mr. M.Bhuyan, learned Counsel appearing on behalf of the petitioner as wel l as Mr. K.C, Paul, learned C.G.C, appearing for the respondents. Mr. Bhuyan, learned Counsel for the petitioner submits that the 1. petitioner has retired as M.E.S 225049 Electrician (Skilled). The petitioner had approached the Central Administrative Tribunal, Gauhati, (CAT in short) by way of Original Application No. 448/1999, praying for certain financial benefits. Th e Learned CAT, Guwahati Bench by order dated 03.02.2000 had disposed of O.A No. 448/1999 with a direction to the concerned respondents to take decision on the matter of granting financial benefits to the petitioner within a period of two(2 ) months from the date of receipt of the order. The petitioner approached CAT, Guwahati, Bench by another applic 2. ation being O.A. No. 375/2000 praying for promotion to the post of Electrician H S - II from the date of promotion of his junior. The said O.A.No. 375/2000 was d ismissed by order dated 09.10.2001. 3. The petitioner preferred a review application on 13.07.2005 befo re his Excellency, the president of India under Rule 29 A of the CCS (CCA Rules, 1965. By communication dated 31st October 2005 the petitioner was informed By t he Secretariat that the Union of India, Ministry of Defence, has been directed t o take appropriate action. Due to the inaction of the concerned respondent, the petitioner approached the Hon’ble Division Bench of this Court by filing WP(C) N o. 2110/2006. By order dated 13.04.2006 the said WP(C) No. 2110/2006 was dismiss ed by the Hon’ble Division Bench. However, it also so directed that the first re spondent - Union of India shall not be precluded to dispose of the review petiti on, if any, filed by the writ petitioner on its own merits un-influenced by dism issal of the writ petition. 4. The learned Counsel for the petitioner submits that the impugned orders dated 05.09.2006 and 20th September 2006, were thereafter issued by the EE(SG) Officiating DIR, EE(SG) Shillong Zone, Spread Eagle False Shillong -LM 1 1, disposing the review petition. He further submits that the impugned orders d ated 05.09.2006 and 20.09.2006, were passed without any authority and jurisdicti on inasmuch as the Hon’ble Division Bench by order dated 13.04.2006 had directed the respondent No. 1 i.e the Ministry of Defence to dispose the review petition . He further submits that the petitioner would be satisfied if a direction is i ssued by this Court directing the respondent No. 1 i.e. Union of India represent ed by the Secretary to the Government of India, Ministry of Defence, New Delhi t o dispose his review petition in terms with the direction passed by the Hon’ble Division Bench. In support of this case the petitioner has placed reliance on th e judgment passed by the Karnataka High Court in (cid:28)Mysore Cements Ltd. and Anothe r v. Assistant Labour Commissioner. 5. Mr. K.C. Paul , Learned CGC, appearing on behalf of the responde nts submits that the respondent No. 5 had passed the orders dated 05.09.2006 and 20.09.2006, as the same was issued under the authority of Army Head Quarter (HQ ), E -IN-C’s Branch, letter dated 14.07.2006. He further submits that the orders were justified and in accordance with law. He also submits that the petitioner has preferred the review petition under Rule 29 A of the CCS,(CCA Rules 1965). T he review application having been made under a wrong provision of law, this cour t may not direct the respondent No. 1 to dispose of the said review application, and therefore, submits that the instant writ petition should be dismissed. 6. I have considered, the rival contentions forwarded on behalf of both the parties. For better appreciation of the case in hand, the letter dated 14th July 2006, is reproduced herein below. (cid:28)Det General (Personnel) Engineer -in- Chief’s Branch Army Headquarters Kashmir House DHQ PO. New Delhi: - 110011. 14th July 2006. (cid:29) (cid:28)90237/7281/EIC (Legal -B) Chief Engineer Eastern Command Fort William Kolkata -21 (cid:29) WP (C) NO. 2110 OF 2006 FILED BY SHRI SURENDRA DEB VS UOI AND OTHERS IN THE G UWAHATI HIGH COURT. Reference your HQ letter No. 131900/375/2000/SR/105/Engr/EI (Legal) date 1. d 04th July 2006. 2. Draft reply appears to be OK except that factual position may be verifie d at your end. Defending court cases and filing reply lies with your HQ or Zonal CE concerned, perusal by this HQ is not required. These are routine legal activ ities which must be done at your end. If your HQ has got any specific legal quar ries then only the case can be forwarded to this HQ for seeking legal advice fro m LA (Def) MOD. (Rishi Kumar) Jt. Director EIC (Legal) For E-in- C. 7. From a consideration of the letter dated 14.07.2006, it cannot b e said that the respondent No. 5 had the authority to dispose of the review appl ication filed by the petitioner, inasmuch as no authority was vested on the resp ondent No. 5 by letter dated 14.07.2006. The said letter pertains to giving auth ority for defending court cases and filing reply within the Headquarter of the C hief Engineer or Zonal CE concerned. No authority was given for disposal of the review application filed by the petitioner. Under the circumstances, this Court has no hesitation to declare that the respondent No. 5 had no authority to pass the orders dated 05.09.2006 and 20.09.2006. Therefore, this Court finds it not n ecessary to discuss the case of Mysore Cements Ltd.(Supra) at this stage. 8. Insofar as the submission of the learned Counsel for the respond ents as regards Rule 29 A of the CCS (CCA Rule) 1965, it appears that this groun d was not taken before the Hon’ble Division Bench and therefore, the respondents are precluded to take this ground at this stage. Further the directions passed by the Hon’ble Division Bench by order dated 13.04.2006 has attended finality. 9. In the facts and circumstances of the case and also in view of t he order dated 13.04.2006 passed by the Hon’ble Division Bench of this court, th e impugned orders dated 05.09.2006 and 20.09.2006 are accordingly set aside and quashed. The respondents, more particularly, respondent No. 1 is directed to dis pose of the review application filed by the petitioner as directed by the Hon’bl e Division Bench by its order dated 13.04.2006 passed in WPC No. 2110/2006. This shall be done within a period of three (3) months from the date of receipt of a copy of this order. 10. Writ petition is accordingly allowed. No costs.