Ashok Kumar Pathak, A.C. Fitter … vs Union Of India (Uoi) Through … on 8 November, 2007

Central Administrative Tribunal – Delhi
Ashok Kumar Pathak, A.C. Fitter … vs Union Of India (Uoi) Through … on 8 November, 2007
Bench: V Bali, M R Vice-, C A Chitra


ORDER

V.K. Bali, J. (Chairman)

1. The peculiar facts of the present case, coupled with nature of relief, as asked for by the applicant, have necessitated decision of this O.A. by Full Bench, which need to be noted at the very outset. Applicant, Ashok Kumar Pathak, who has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as the 1985 Act), was initially appointed as Khalasi on 9.4.1985 in Air Condition (AC) department and subsequently, after trade tests conducted by the Genral Manager, Northern Railway, respondent No.1, from time to time, was promoted to the grade of Helper Khalasi w.e.f. 1.1.1986, A.C. Fitter Grade-III w.e.f. 1.5.1994, and Highly Skilled A.C. Fitter Grade-II w.e.f. 26.5.1997 -which post he was holding at the time of filing of the present Application. Shri Bijender Singh, the third respondent herein, was initially appointed as Khalasi on 26.5.1988 in Moulding Section, and after trade tests conducted by the first respondent from time to time, he was promoted as Helper Khalasi w.e.f. 28.2.1991, Skilled Moulder Grade-III w.e.f. 2.3.1993, and Highly Skilled Moulder Grade-II w.e.f. 8.8.2000. It is the case of the applicant that Moulding and AC are two separate cadres, and that separate seniority is maintained in both the units. It is for that precise reason that even though the applicant came to be appointed on the post of Khalasi on 9.4.1985, and whereas the third respondent came to be appointed on the same very post on 26.5.1988, as mentioned above, three years after the applicant was appointed, the third respondent was promoted as Skilled Moulder Grade-III w.e.f. 2.3.1993 as compared to the applicant, who, even though senior on the post of Khalasi, was appointed as AC Fitter Grade-III w.e.f. 1.5.1994. It is further the case of applicant that the third respondent was declared surplus and the official respondents instead of giving him marching orders, offered him re-deployment in the cadre where the applicant was working. The third respondent was informed vide letter dated 18.4.1995 that as a result of survey by Staff Inspection Unit he had been rendered surplus. His option was invited for re-deployment as would be made out from order Annexure A-3 dated 18.4.1995, which reads as follows:

You have already been intimated vide this office letter dated 6.2.95 for submitting the option of Bottom Seniority for the post of SK AC Fitter Gr.III in AC Section, as the post of SK Moulder Gr.III have been declared Surplus. But the same has not been received in this office.

Once again, you are informed to submit your option of Bottom Seniority for the post of SE AC Mech. Gr.III otherwise, you will be transferred to other Division being a Surplus Staff. Your option should be submitted within 8 days from the receipt of this letter.

The third respondent in the manner aforesaid came to be re-deployed in AC department and as per condition of the option given to him was placed at bottom seniority in the said department. Feeling aggrieved, despite his having been rendered surplus and re-deployed in the manner aforesaid, he filed an Original Application bearing No.1359/1995 in this Tribunal for correction of his seniority and promotion, which was partly allowed. Concededly, neither the applicant nor anyone else who might have been adversely affected was arrayed as party respondent in the said OA. The operative part of the order of this Tribunal in the aforesaid OA reads thus:

In result, the OA is partly allowed. The Applicant will be entitled to his old seniority. The respondents are directed to fix the applicant’s seniority as AC Fitter Gr.III on the basis of his date of promotion as Moulder Gr.III within three months from the date of receipt of a copy of this order.

2. In consequence of the directions given by the Tribunal as reproduced above, the seniority of the applicant was changed. The official respondents vide letter dated 6.1.2001 issued a seniority list under Technical Grade-II and the name of the applicant stood at serial No.5, whereas the name of respondent No.3 was shown at serial No.4. On perusal of the list aforesaid the applicant came to know that he has been assigned seniority below respondent No.3. Constrained under the circumstances, the applicant made representations for correction of seniority on 25.1.2001 and 13.3.2001. The applicant in the application had produced a document as Annexure A-5 collectively.

3. The relevant averments in the application thereafter appear in Paragraphs 4.15 and 4.16, namely, that he had filed O.A. No. 2360/2001 before the Principal Bench and that the O.A. filed, however, had been rejected by the Tribunal vide Annexure A-9 order dated 25.09.2002. Thereafter, being aggrieved, the applicant sought review of order dated 25.9.2002 by moving Review Application No.42/2003 which was dismissed on 11.2.2003 on the ground that the Tribunal in the matter of Bijender Singh had held that he was not declared surplus and that it was a case where only certain posts had been re-adjusted on administrative grounds depending on administrative exigencies, and it is for that reason that the Tribunal had ordered fixation of his seniority as AC Fitter Grade-III on the basis of his date of promotion as Moulder Grade-III w.e.f. 2.3.1993. Still aggrieved, the applicant approached the Hon’ble Delhi High Court in WP (C) No.2198/2003. The High Court after making a mention of the relevant facts of the case, observed, thus:

We have looked into the original application, out of which the present writ petition arises for our consideration and we find that there was no such prayer before the learned tribunal. In this connection, we may appropriately refer to the decision of the Supreme Court in the case of K. Ajit Babu and Ors. v. Union of India . Para 4 of the said judgment states that ordinarily the right of review is available only to those who are party to a case. It was further held that whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the tribunal, the tribunal necessarily is to take into account the judgment rendered in the earlier case as precedent and decide the application accordingly. The Supreme Court further went on to hold that the tribunal may agree with the view taken in the earlier judgment or may dissent and that if it dissents, then the matter can be referred to a larger Bench/Full Bench.

In the light of the aforesaid decision of the Supreme Court, the petitioner by filing a separate application could have pointed out that the aforesaid judgment and order passed by the tribunal in the earlier case was required to be overruled/set aside. Therefore, in our considered opinion, since the judgment and order in the case of Bijender Singh was not challenged and is operative as of today, the tribunal could not have ignored the ratio of the aforesaid judgment.

At this stage, counsel appearing for the petitioner states that the petitioner may be given the liberty to take recourse to a remedy that may be available to him in accordance with law. While disposing of the present writ petition holding that the impugned order does not suffer from any infirmity, we grant liberty to the petitioner to take recourse to appropriate remedy as may be available to him in accordance with law. It is made clear that in case such remedy is availed of, the petitioner may also move an application for condonation of delay and the learned tribunal may sympathetically consider excluding the period during which this writ petition has remained pending in this Court.

4. When in the wake of facts as mentioned above present Application came to be filed challenging the order of the Tribunal in the matter of Bijender Singh in OA No.1359/1995, the Division Bench seized of the matter passed the following order on 16.4.2007:

We have not gone to the merits of the case of the applicant, but find that the issue as a whole needs to be considered by a Full Bench, principally taking notice of the propriety involved in the matter.

2. By Paragraph 8.3 of the Application, applicant has made a request to set aside the judgment passed by this Tribunal in OA 1359/1995. It was because of the orders passed, according to the applicant, he had to adversely suffer in the matter of his seniority, and so long as the order remains, it may not be possible for him to get round, in an effort to apprise this Tribunal of the injustice that he has suffered. It is submitted that Review Application had been filed, un-successfully and the matter was taken up with the High Court, and the Court had adverted to predicament of the applicant and had observed that the petitioner would be having the remedy of filing a separate petition before Tribunal, and it may not (“not” wrongly mentioned) be possible for the Tribunal to examine his prayer, if necessary, overruling/setting aside the earlier judgment.

3. He had also invited our attention, to an order passed in OA 187/2005, whereby the Bench has taken a view, that it may not (“not” wrongly mentioned) be possible for subjecting an earlier ruling for fresh examination in appropriate cases.

4. Taking into account the totality of circumstances, therefore, we adjourn this application to be heard by a Full Bench.

5. Office is directed to place the file before the Hon’ble Chairman for appropriate orders.

It is in the facts and circumstances as fully detailed above that the present matter is before the Full Bench.

5. Before we may proceed any further, we may mention that the third respondent vide order recorded by this Tribunal on 29.5.2006 was proceeded ex parte. He is not present today as well, nor any representation has been made on his behalf. It is unfortunate that even though the matter is before a Full Bench, the official respondents in spite of service and though have filed their counter reply, have chosen not to appear. The third respondent having been proceeded ex parte by an order of the Tribunal, there would be no need to further take steps to secure his presence. We deliberated as to whether the presence of official respondents should be secured before finally deciding the matter, but on consideration, we find that there would be no need to do so inasmuch as, the official respondents contested the cause of Bijender Singh (third respondent) in OA No.1359/1995, and in the counter reply filed by them even now the only defence projected by them is that seniority of the applicant and the third respondent has been re-fixed on directions issued by this Tribunal in the matter of Bijender Singh in OA No.1359/1995.

6. The matter was heard on 24.10.2007 and reserved for judgment. However, in the course of deliberations, we found that the applicant had not at all highlighted certain aspects, which were highly relevant and as well part of the records. An Original Application filed as OA 1939/2001 at the instance of the applicant had been disposed of in the following lines, a copy of which was produced by the respondents as Annexure R-1 to the counter reply dated 20.11.2005:

Applicant was appointed as a Khalasi in the AC Section w.e.f. 5.4.1985, whereas Shri Bijender Singh was later appointed as a Khalasi in the Moulding Section on 26.5.1988. Said Shri Bijender Singh was rendered surplus in the Moulding Section and was transferred as Khalasi to the AC Section. However, in the seniority list of Khalasies of AC Section, he has been shown senior to the applicant. Aforesaid seniority list at Annexure A-3 shows that the same has been prepared as per a decision of the Tribunal in a case filed by the aforesaid Bijender Singh. In view of this, we do not find that aforesaid seniority which appears to have been accorded on the basis of a judgment of this Tribunal can be interfered with by us.

2. Present OA, in the circumstances, is dismissed in limine.

This resulted in an order being passed by us on 26.10.2007. In Paragraphs 2 and 3 of the said order, we had dealt with the development in the following manner:

2. While giving narration of facts, the learned Counsel representing the applicant has not brought to our notice the decision of this Tribunal in OA No.1939/2001. We do not find even a mention of the said decision in the narration of facts given in the OA as well. It is no doubt true that the applicant sought review of order dated 25.9.2002 recorded in OA No.2360/2001, and on dismissal of the same, carried a writ petition before the Hon’ble Delhi High Court, which decided the matter by giving liberty to the applicant to take recourse to appropriate remedy as may be available to him in accordance with law. Even before the High Court, we find the factum of dismissal of earlier OA No.1939/2001 had not been mentioned. In the judgment recorded by it, the High Court considered the contention raised by the learned Counsel for the petitioner that he was not a party-respondent in OA No.1359/1995 in which Bijender Singh (third respondent herein) had got the relief disturbing his seniority and became senior to him, and, therefore, the said decision could not be said to be binding on him. The High Court on the aforesaid contention of the learned Counsel, while relying upon the judgment of the Hon’ble Supreme Court in K. Ajit Babu and Ors. v. Union of India , observed that the petitioner by filing a separate application could have pointed out that the aforesaid judgment and order passed by the Tribunal in OA No.1359/1995 was required to be overruled/set aside. This is in wake of the observation made above that the applicant, on prayer made by him, was given liberty to take recourse to appropriate remedy.

3. This third Application has been filed in wake of the facts and circumstances as mentioned above, and in particular, the liberty given to applicant by the Hon’ble High Court for filing fresh Application. The obvious prayer now in the present Application is to set aside the order passed by this Tribunal on 25.9.2002 in OA No.2360/2001. There is no prayer to set aside the order passed by this Tribunal in the first OA No.1939/2001. It is further seen that the said order was not challenged in any forum and has thus attained finality. Once the said order has attained finality, even if the present Application is allowed and the order of this Tribunal recorded in OA No.2360/2001 is set aside or quashed, the order passed by this Tribunal in OA No.1939/2001 would still hold the field and would be operative. It prima facie appears to us that while filing OA No.2360/2001, or for that matter, in the writ petition before the Hon’ble Delhi High Court, the factum of dismissal of OA No.1939/2001, which is the first in the series of cases, was not disclosed by the applicant. Surely, as far as the present Application is concerned, the said fact has not been disclosed.

7. As a consequence the matter was listed for further hearing on 31.10.2007. There was no presence of the respondents even on this adjourned date but we had opportunity to hear Mr. Behera appearing on behalf of the applicant. The submission of the learned Counsel was that in view of the orders passed by the Division Bench of the High Court, perhaps the impact of the order of the Tribunal dated 03.08.2001 could be ignored, as the basic issue was as to whether a person could have successfully urged contentions which he was entitled to urge as of right, in a fresh proceedings before the Tribunal de novo although observations as against his interests had come to be incorporated in an order, which had attained finality, but to which he had not been made a party. Since disposal of O.A. No. 1939/2001 was not on merits but only noticing the earlier decision of the Tribunal, in the larger interest of justice, technicalities were to be ignored, and a decision in these proceedings on the merits as required by the judgment of the High Court would have been eminently justified. Essentially, we feel that we are required to examine the propriety and maintainability of the present application on the basis of the facts, which have presently surfaced. Of course, if there was no such an order as one passed in OA 1939/2001, there would not have been any difficulty to agree with the submissions initially raised by the applicant, nor to examine his rights, in terms of the decisions of the Supreme Court, that a redeployed hand should have only been given bottom seniority in a new unit. But the issue of res judicata stands glaring.

8. Legally, decision in OA 1939/2001 bound the applicant therein, who is the applicant before us. The decision, which was adverse to the applicant, had not been subjected to challenge at any point of time. It has attained finality. It binds the applicant as well as the respondents in no uncertain terms. It is the settled position that it may be possible for a Tribunal to adjudicate an issue presented before it on its merit, and validly, if no contention had been raised by the respondents that such adjudication was barred by principles of res judicta or constructive res judicata. This essentially also is a matter of pleadings. In the counter reply filed on behalf of respondents 1 and 2, the issue of res judicata had been specifically pleaded. It has been pointed out that “it is pertinent to mention that the order of this Hon’ble Tribunal which holds the field even today having not been set aside or reversed in review or set aside, reversed or overruled by a higher forum”, still holds good. When such a stand is taken, we have necessarily to take cognizance of the above.

9. Coupled with the above, we are distressed to note that the applicant had not bothered to refer to this binding order any where in his application. After referring to his representations, he had made mention of OA 2360/01 alone. There is an evident suppression, as an inconvenient situation is attempted to be kept back from the notice of the Tribunal. We also note that when the issue had been disposed of by the High Court, which, in due course, gave rise to this application, the Hon’ble High Court had observed that the applicant might present reasons for condoning the delay as might be relevant. Miscellaneous Application for condonation of delay, in fact, had been filed dated 04.10.2005, but we note that there is no mention of the application filed by the applicant as OA No. 1939/2001 there also. The rules specifically require that an applicant is to disclose as to whether the matter had been taken up earlier or was pending with any other court. In paragraph 7 of the application, excepting to refer to OA No. 2360/2001; the review application and the writ petition, there is no reference to any other adverse order suffered by him. In fact, there is no explanation forthcoming as to why such a vital factor had not been disclosed. It is obvious that if it had been divulged, even OA 2360/2001 would have been rejected at the threshold in view of the circumstances that the issue had been already subjected to adjudication. We also have to take serious notice of the circumstances that in Para 7 of OA 2360/2001, the record of which we have called for, the applicant had unabashedly declared that he had not previously filed any application, writ petition or suit regarding the matter in respect of which the said application had been made.

10. A party is expected to come to the Court with clean hands. It is not as if there is no opportunity given to him to give a clear picture of the matter because there is specific format prescribed for filing applications before this Tribunal. When essential and relevant disclosure is not there, we are obliged to come to the conclusion that there was absence of bonafides, on the face of the records. Considerable delay was there on the part of the applicant in agitating the matter, and part of the delay has arisen directly from the circumstances that an application filed by him was not favourably considered. When the High Court directed that adequate reasons were to be set forth for condoning the delay when a fresh application was contemplated, the applicant had the duty to refer to all the relevant circumstances. As the application for condonation of delay itself was defective, when viewed from this background, we do not think it will be justified to condone the delay in the present application. A position settled in the year 1999 is attempted to be reviewed and reworked and we do not think, as presently advised, it may be proper to unsettle the issue especially in a defective petition, which is not maintainable on principles of res judicata pleaded but not controverted.

11. The very foundation of the application is on shaky grounds. The application for condoning the delay is rejected. Consequently, the Original Application also is dismissed. There will be no order as to costs.

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