IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09/08/2005
CORAM
THE HON'BLE MR.JUSTICE P.SATHASIVAM
and
THE HON'BLE MR.JUSTICE AR.RAMALINGAM
W.P.No.6080 of 2001
1. Union of India rep. by the
Chief Secretary, Government
of Pondicherry, Pondicherry.
2. The Secretary to Government (Education)
Government of Pondicherry
Pondicherry.
3. The Director
Education Department
Government of Pondicherry
Pondicherry.
4. The Principal
Bharathidasan Govt. College
for Women, Pondicherry. .. Petitioners
-Vs-
1. The Central Administrative Tribunal
Madras Bench rep. by its Registrar
Chennai.
2. M. Jaisankar .. Respondents
Petitions filed under Article 226 of the Constitution of India
praying for an issuance of a writ of certiorari as stated therein.
For petitioners : Mr. Syed Mustafa
for Mr. T. Murugesan
Govt., Pleader (Pondy)
For respondents : Mr. K. Chandru, Sr. Counsel
for Mr. D. Saravanan
:ORDER
(ORDER of the Court was made by P.SATHASIVAM,J.)
Aggrieved by the order of the Central Administrative Tribunal,
Madras Bench dated 08.02.2001 made in O.A.P.No.18/99, the Government of
Pondicherry (Education Department) has filed the above writ petition.
2. Heard Mr. Syed Mustafa, learned counsel for the
petitioners and Mr. K. Chandru, learned senior counsel for the second
respondent.
3. For convenience, the parties are referred as arrayed
before the Tribunal. The applicant, Jaisankar was appointed as Lower Division
Clerk (LDC) in Bharathidasan Government College for Women, Pondicherry,
temporarily on 28.12.1989 and he was placed on probation for a period of two
years with effect from 30.12.1989. It is further seen that on 28.09.1991, he
availed leave for 12 days, during the said period, he was transferred from
Bharathidasan Government College for Women, Pondicherry to the Electricity
Department, Pondicherry. On 10.10.199 1, he was relieved from duty, with
instruction to report for duty before Superintending Engineer, Electricity
Department, Pondicherry. When he made a representation on 2.12.1996 seeking
permission to rejoin duty, the relieving order dated 10.10.1991 was cancelled
and the applicant rejoined duty. Thereafter, he was placed under suspension.
The Principal, Bharathidasan Government College for Women, issued a memorandum
proposing to hold enquiry on the charge of misconduct and misbehaviour. The
applicant through his representation admitted the charges and explained the
reasons for his absence. He was asked to submit explanation, why penalty of
break in service should not be awarded. Taking into account the explanation
of the applicant, the Principal of Bharathidasan Government College for Women,
imposed a punishment of “dies non” for the period of unauthorised absence and
the punishment of ‘not spent on duty’ for the period of suspension.
Thereafter, an order revoking the suspension was issued on 14.11.1997. When
he reported for duty on 14.11.1997, there was no vacancy in the College and
the stalemate continued. Since his representation was not considered and even
his request for creation of supernumerary post was not accepted, he approached
the Tribunal for necessary direction.
4. It is the case of the Pondicherry Administration that
since there was no vacancy in the grade of LDC to accommodate the applicant in
the Institution, the applicant was not given posting.
5. The Tribunal, after finding that once the order of
suspension is revoked, the applicant is entitled to have a posting, directed
the Department to give posting immediately or at least create a supernumerary
post to accommodate the applicant and also directed for payment of salary and
allowances with effect from 14.11.1997.
6. The learned counsel appearing for the writ petitioners /
Pondicherry Administration would submit that the punishment, viz., “dies non”
to the applicant is not in consonance with the Rules and accordingly, steps
have been taken for imposition of higher penalty. He further contended that
the Tribunal committed an error in giving direction that all benefits should
be given on the basis that once suspension was revoked, the applicant was
entitled to the posting with due salary. According to him, where there was no
work at all performed by the applicant, there could be no pay for him.
7. We are unable to accept the above contentions for the
simple reason that based on punishment of “dies non” to the applicant, as
rightly observed by the Tribunal and argued by the learned senior counsel for
the second respondent, the Department ought to have given posting to the
applicant. Further, it is also not in dispute that his suspension was also
revoked. Inasmuch as the Administration has not responded to his
representation, the applicant has rightly approached the Tribunal, which
granted relief, and we do not find any error or infirmity for interference.
8. For the above said reasons there is no difficulty in
dismissing the writ petition filed by the Pondicherry Administration.
However, Mr. K. Chandru, learned senior counsel appearing for the second
respondent has brought to our notice that after the impugned order of the
Tribunal dated 08.02.2001 in O.A.P.No.18 of 1999 was passed, without setting
aside the same by the appropriate forum/Court, the Secretary to Government,
Education Department, Gover nment of Pondicherry has issued a show cause
notice on 16.04.2001, directing the applicant to show cause within 5 days from
the date of receipt of the said notice, as to why the order dated 09.05.1997
of the Principal, Bharathidasan Government College of Women, Pondicherry
should not be revised and appropriate further orders passed. It is further
brought to our notice that pursuant to the said notice, the applicant offered
his explanation on 23.04.2001. By order dated 24.04.2001, the Secretary to
Government, Education Department, by exercising revisional power, set aside
the order of the Principal, Bharathidasan Government College for Women,
Pondicherry, dated 14.11.1997, awarding penalty of “dies non” to the applicant
and dismissed him from service. It is also brought to our notice that against
the said order of dismissal, the applicant / second respondent herein has
filed Original Application No.722 of 200 1 before the Central Administrative
Tribunal, Madras Bench and the same is pending.
9. In this regard, learned senior counsel for the second
respondent submitted that after the order of the Tribunal in OAP.No.18 of 1999
dated 08.02.2001, the State Government, here, the Union Territory of
Pondicherry has no power to interfere and meddle with the said order without
properly setting aside the same by this court. In other words, the State
Government / Union Territory cannot vary or modify the judicial decision of
the Administrative Tribunal. He brought to our notice that the Constitutional
amendment (32nd amendment) Act 1973, giving power to the State Government for
modification or annulling order of the Administrative Tribunal has been held
by the Supreme Court as unconstitutional.
10. In the case of P.Sambamurthy vs. State of A.P. reported
in AIR 1987 SC 663, the Hon’ble Supreme Court has held that the proviso to
Article 371-D (5) conferring power on State Government to modify or annul the
order of Administrative Tribunal is unconstitutional and void. In the case of
N.J. Prabhakar vs. State of A.P. reported in AIR 19 88 SC 334, it is held
that the annulment of the order of Tribunal reinstating employee by the State
Government under Article 371-D(5) of the Constitution is a nullity. In the
case of Union of India vs. K.M. Shankarappa reported in 2001 (1) MLJ 146
(SC), the following conclusion of their Lordships is relevant:
“7. We are unable to accept the submission of the learned counsel. The
Government has chosen to establish a quasi-judicial body which has been given
the powers, inter alia, to decide the effect of the film on the public. Once
a quasi-judicial body like the Appellate Tribunal, consisting of a retired
Judge of a High Court or a person qualified to be a Judge of a High Court and
other experts in the filed, gives its decision that decision would be final
and binding so far as the Executive and the Government are concerned. To
permit the Execute to review and / or revise that decision would amount to
interference with the exercise of judicial functions by a quasi-judicial
Board. It would amount to subjecting the decision of a quasi-judicial body to
the scrutiny of the Executive. Under our Constitution the position is
reverse. The Executive has to obey judicial orders. Thus, Sec.6(1) of the
Cinematograph Act is a traversity of the rule of law which is one of the basic
structures of the Constitution. The Legislature may, in certain cases,
overrule or nullify the judicial or executive decision by enacting an
appropriate legislation. However, without enacting an appropriate
legislation, the Executive or the Legislature cannot set at naught a judicial
order. The Executive cannot sit in an appeal or review or revise a judicial
order. The Appellate Tribunal consisting of experts decides matters
quasi-judicially. A Secretary and/ or Minister cannot sit in appeal or
revision over those decisions. At the highest, the Government may apply to
the Tribunal itself for a review, if circumstances so warrant. But the
Government would be bound by the ultimate decision of the Tribunal. ”
11. The above decisions make it clear that the executives
have no power to review or revise the decision of the Administrative Tribunal.
In our case, as rightly pointed out by Mr. K. Chandru, learned senior
counsel, after the order of the Tribunal dated 08.02.2001, giving positive
direction for the posting of the applicant, the Secretary to Government
(Education Department) has issued a show cause notice on 16.04.2004 and
finally the applicant was dismissed from service on 24 .04.2001. Though the
said order is the subject matter of O.A. pending before the Tribunal, we hold
that the approach and the steps taken by the Education Department cannot be
appreciated. Their decision is contrary to law, particularly with reference
the above referred to decisions of the Supreme Court.
In the light of our discussion, while dismissing the writ
petition filed by the Pondidcharry Administration, they are directed to
implement the order of the Tribunal within a period of four weeks from the
date of receipt of a copy of this order. Though we are not appreciating the
conduct of the applicant / second respondent herein, in view of the order of
the Tribunal granting relief, inasmuch as the Education Department without
waiting for an order from the appropriate forum, namely, this Court,
intervened and passed an order of dismissal ignoring the order of the
Tribunal, we are constrained to award costs of Rs.3,000/- (Rupees three
thousand only) payable to the second respondent herein within the same period
as directed above.
Index:Yes
Internet:Yes
kh
To
The Central Administrative Tribunal
Madras Bench rep. by its Registrar
Chennai.