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  Judgement - 07KLC-2227
 
   
   
 

(Before K.S.Radhakrishnan & M.N.Krishnan, JJ)
Monday, the 20th December, 2004/ 29th Agrahayana, 1926

Party Array / Case No.


WP(C).No. 18238 of 2004(S)

OA. 820/2001 of Central Administrative Tribunal, Ernakulam Bench

                   The Administrator & anr        :              Petitioner

Vs.

                                       Naderkoya & ors :            Respondents

 

Judgement



     

     

    JUDGMENT(Full Text)

     

    K.S.Radhakrishnan, J:_

     

    1.   Whether the Central Administrative Tribunal while giving the following directions has exceeded is jurisdiction conferred on it under Section 14 of the Administrative Tribunals Act, 1985 and misconducted itself in ignoring its earlier orders some of which were confirmed by a Division Bench of this court is the question posed. Following are the direction given by the Tribunal apart from various observations and findings contained in its order.

          1. The second respondent i.e, the Lakshadweep Administration would adopt the Department of Personnel & Training Casual Labourer (Grant of Temporary Status and Regularization) Scheme 1998 and prescribe it prospectively to the Panchayat for granting temporary status to casual labourers, as per the parameters of the scheme.

          2.            The first respondent i.e, the Union of India in the ministry of Personnel, Public Grievances and Pension would ensure that the appropriate legal and technical formalities are completed and the Scheme is made applicable expeditiously.

          3.            From the date of issue of these orders and until the Lakshadwwp Administration prescribes the scheme to the Panchayat for regularization of eligible casual workers, no regular appointments would be made by the Panchayats in respect of at least two third of the regular vacancies in Group D which would be kent reserved for the regularization of the casual workers under the scheme.

          4.            No casual workers, including the applicants, who are in the service of the Panchyats on the date of issue of these orders would be retrenched on the face of availability of work or for making way for fresh recruits without considering them for the grant or temporary status if eligible as per the scheme.

          Lakshadweep Administration is aggrieved by the above mentioned directions as well as the order passed by the Tribunal in unsettling the previous orders passed by the Tribunal some of which were confirmed by a Division Bench of this court in O.P. 2876 of 2001 and 35164 of 2001. The Tribunal has given positive direction to the Lakshadweep Administration to adopt the Department of Personnel and Training Casual Labourer (Grant of Temporary Status and Regularization) Scheme 1993 and prescribe it prospectively to the Panchyats for granting temporary status to casual labourers as per the parameters of the scheme. Further direction was also given to the Union of India, Ministry of Personnel, Public Grievances an Pension to ensure that the appropriate legal and technical formalities are completed and the scheme is made applicable expeditiously. Direction was also given to Dweep Panchayat in the Lakshadweep not to effect any regular appointments in respect of at least tow third of the regular vacancies in Group D until Lakshadweep Administration prescribes the scheme to the Panchayat for regularization of eligible casual workers. Further orders have also been issued to the Dweep Panchayats that no casual workers who are in service would be retrenched on the face of availability of work or for making way for fresh recruits without considering them for the grant of temporary status if eligible as per the scheme. Positive direction has also been given to complete the entire exercise within two months from the date of issue of the final order.

    2.   Counsel appearing for the Lakshadweep Administration Sri. S.Radhakrishnan submitted that the above mentioned directions are without jurisdiction and beyond the scope of Section 14 of the Administrative Tribunals Act and also does contrary to the previous orders passed by the Tribunal which were confirmed by this court.

    3.   Before examining the legality of these orders and the jurisdiction, authority and powers of the Tribunal giving those directions, we may examine a few facts. Applicants before the Tribunal are working as casual labourers in the water supply scheme of the Dweep Panchyat of Agatti Island. They are aggrieved by the failure of the Union of India and the Lakshadweep Administration in not granting them temporary status on the basis of the scheme for Temporary Status and Regularization issued by the Administration as O.M.No. 51016/86/Estt (C) dated 10.9.1993 by the Union of India and also aggrieved by the notification F.No. 2/6/121-97-C1 dated 13.2.2001 issued by the Lakshadweep Public Works Department calling for candidates for the post of Helper. Water Quality Testing Laboratory without considering their candidature.

    4.   The  up keep maintenance and distribution of drinking water to the local residents of Agatti island were originally undertaken by the P.W.D. Later it was entrusted to AVAM Society. Grants in aid was provided to meet the additional expenditure. From the year 1996 onwards AVAM Society and the Society used to manage the Scheme. Society was meeting the expenditure for distributing the drinking water. Later Island Councils were brought into existence as per the Island Councils Act. Island Councils were abolished as the lakshadweep Island Regulation 1988 was repealed by Section 88 of the Lakshadweep Panchayat Regulation 1994 and during the year 1995 all the assets and liabilities of the Island Council. Agatti were transferred to Vigilance (Dweep) Panchayat, Agatti. All the labouers under the programme of the up keep, maintenance and distribution of drinking water came under the Village (Dweep) Panchayat. The applicants are now under the service of Village (Dweep) Panchayat and  their wages are being paid from the Panchayat Fund. The Union Territory Administration or the P.W.D are not in  any way connected with the engagement of the applicants under the AVAM Society or Island Council or Panchayat. The applicants had sought for regularization of their services by the Union of India and the Administrator even though they were appointed by the Chairman of the island Council or Panchayat. They also wanted the Lakshadweep Administration to adopt the Department of Personnel and Training Casual Labourer (Grant of Temporary Status and Regularization) Scheme 1993 and to prescribe it prospectively to the Panchayat for granting temporary  status. Such a plea was raised by the applicants before the Tribunal and before this court on various occasions. O.A.No.803 of 1995 was filed for the said relief which was disposed of directing he applicants therein to file representation before the authorities. Yet another application. O.A.No. 137 of 1998 was filed by the applicants for identical relief which was also disposed of by the Tribunal without granting relief but directed consideration of the representation. On similar relief another set of applications O.A.No.9 of 1998 etc were filed which were also disposed of with a direction to consider the request. O.A.No.839 of 1998 was also disposed of on similar lines. Later another set of employees approached the Tribunal in O.A.No. 497 of 1999 claiming identical reliefs which was rejected holding that they are not the employees of union Territory of Lakshadweep and the Tribunal has no jurisdiction to grant the reliefs prayed for. Writ Petition O.P.No.18246 of 2002, 26144 of 2000, 33390 of 2000 and 12301 of 2002 were filed before this court and they are pending consideration. Earlier two other applications O.A.Nos 1297 and 218 of 1998 were filed before the Tribunal claiming identical reliefs. Matter was considered by the Tribunal elaborately and the Tribunal held as follows:

          "We have carefully perused the pleadings and other material on record. We have also given our anxious consideration to the rival submissions. We find that in both these O.As under consideration, the applicants were engaged by the Island Council of Androth/Minicoy. They might have continued to be engaged subsequently by the succeeding local self Government body, namely the Village (Dweep) Panchayat of Androth/Minicoy. The chairpersons of the respective Island Council might have with to without proper authority from the Councils issued what are purported to be appointment orders and the subsequent service certificates. We have good reason to reject the same as those do not reveal the applicants nexus with the Administration of U.T. of Lakshadweep in order that they might have a cause of action before us. The applicants have not adduced any evidence to show that they were appointed against any posts sanctioned or approved by the Lakshadweep Administration……………………….. In the case on hand, the applicants were not employed against any posts sanctioned by the administration and that would make all the difference. The Island Council or the Chairpersons, as the case may be, for reasons best known to them, seem to have accommodated these people. They might rightly come under the wage employment programme as a poverty alleviation measure under the DRDA or they might have been employed since the Village (Dweep) Panchayat authorities considered it expedient to give employment to them. It probably might have offered some succor by way of daily rated wages to the unemployed local persons………………………………………………………………………………………………………………………………………………………………….

          Neither the Panchayat authorities (respondents 4 and 5) nor the applicants have shown how the posts created/retained in addition to those sanctioned by the Administration could be considered regular. As matters stand the Administration of U.T of Lakshadweep has no accountability as far as the matter of regularization of the applicants are concerned. The anxiety of he U.T. Administration to prevent misapplication of funds granted to the Village/District Panchayat for developmental purposes towards expenditure on account of wanton appointments of staff against posts neither created or sanctioned nor approved is legitimate.

          Applicants were dismissed by the Tribunal holding that the U.T. Administration has no accountability to regularize the applicants in the service of the Panchayat. The order in O.A.No. 1297 of 1998 was challenged before this court in O.P.No. 28776 of 2001 and a Division Bench of this court gave approval to the order as per judgment dated 5.10.2001. Later another O.A.No. 1008/97 was filed before the Tribunal which was heard by the Tribunal along with O.A.No. 571 of 1998 those applications were dismissed fully accepting the stand of the Union Territory of Lakshadweep against which writ petition No.35164 of 2001 was filed before this court. A Division Bench of this court gave approval to the order passed by the Tribunal.

    5.   The members of the Tribunal were well aware with the previous orders passed by the Tribunal and the dismissal of the writ petitions approving the orders passed by the Tribunal, in fact those facts are stated in the impugned order of the Tribunal as well. The Tribunal has ignored the various orders passed by the Tribunal in various O.As and also the judgments of this court and has opined as follows:

          "We have heard the learned counsel and have very carefully examined the facts, records and views presented keeping in view all along, the long history of this litigation and the issues successively raised irrespective of the outcomes. We believe, the persistence of certain core issues despite a host of very competent adjudications in individuals cases in evidence that the principles underlying the governance system itself remain unaddressed and it would be required of this forum to do precisely that by relating the specific to the universal for arriving at a satisfactory resolution of the matter.

    Later the Tribunal opined as follows:

          "We are certain that properly advised, the administrative Ministry would not have failed to uphold its own decision in the matter, In a surprising move the Administrator committed yet one more act of indiscretion. By A-11 order dated 9.4.2001 he transferred the scheme of maintenance of water supply itself to the Panchayat presumably under ill-advised calculation that with the transfer of the scheme to the local Government, he would be spared the responsibility of dealing with the vexatious problem of regularization of casual labourers. The explanation that the scheme stood already transferred to the Panchayat and A-11  order was only a communication by way of reassurance is to say the least brazen".

    After stating so, the Tribunal held as follows:

          "We are not inclined to declare that the applicants be considered as casual labourers of the PWD, as it has already been settled that the applicants are not employed by the PWD and hence are not entitled to that status. In regard to the grant of temporary status on the basis of A-14 scheme w.e.f 1.9.1993, we hold that the Government of India scheme would have to be made specifically applicable in order to be effective, in this case from a prospective date".

          After holding so, various directions, which were already extracted above, were issued. The Tribunal in our view has exceeded its jurisdiction "conferred on it under section 14 of the Act as well as committed grave error in unsettling the various settled issues by the orders of the Tribunal and confirmed by this court on various occasions. In our view, the Tribunal has no jurisdiction to issue such direction apart from its judicial propriety in unsetting the orders of the Bench of coequal jurisdiction. The scope of Section 14 has been considered by the apex court in various decisions. The apex court in L.Chandakumar v. Union of India (1997(3) SCC 261) held as follows:

          "The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty they cannot act as substitute for the High Courts and the Supreme court, which have under our constitutional set up being specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of Tribunal will be subject to scrutiny before a Division Bench of the respective High Court. All other decisions of these Tribunals rendered in cases where they are specifically empowered to adjudicate upon by virtue of their present statutes, will also be subject to scrutiny before a Division Bench of the respective High Court. We may add that the Tribunal will however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted"

          In T.Sudhakar Prasad v. Govt. of A.P. (2001(1) SCC 516), the apex court held as follows:

          "Jurisdiction should not be confused with status and subordination. Parliament was motivated to create new adjudicatory forum to provide new, cheap and fast track adjudicatory systems an permitting them to function by tearing off the conventional shackles of the strict rule of pleadings, strict rule of evidence, tardy trials, three/four – tier appeals, endless revisions and review – creating hurdles in the fast flow of the stream of justice. The Administrative Tribunals as established under Article 323 – A and the Administrative Tribunals Act. 1985 are in alternative institutional mechanism or authority designed to be not less effective than the High Court. Consistently with the amended constitutional scheme but at the same time not to negate judicial review jurisdiction of constitutional courts. Transfer of jurisdiction in specified matters from the High Court to the Administrative Tribunal  equates the Tribunal with the High Court in so far as the exercise of judicial authority over the specified matters is concerned. That, however, does not assign the Administrative Tribunal a status equivalent to that of the High Court nor does that mean that for the purpose of judicial review of judicial superintendence they cannot be subordinate to the High Court. It has to be remembered that what has been conferred on the Administrative Tribunal is not only jurisdiction of the High Court but also of the subordinate courts as to specified matters. The High Courts are creatures of the Constitution and they Judges hold constitutional office having been appointed under the Constitution. The tribunals are creatures of statue and their members are statutorily appointed and hold statutory office".

          Above mentioned decision would show that powers of the Central Administrative Tribunal is circumscribed by Section 14. The Tribunal has got jurisdiction powers and authority only in matters of recruitment, concerning recruitment to All India Service or persons appointed to any civil service or civilians appointed to any Defence Service. So far as the present case is concerned, we have already indicated that the direction by the Tribunal to the Lakshadweep Administration to adopt the Department of Personnel and Training Casual Labourer (Grant of Temporary Status and Regularization) Scheme 1993 is clearly beyond their powers. We fail to see how the Tribunal could give such a direction since they are not determining the character relating to recruitment or modes concerning recruitment. Further, the Tribunal has clearly misunderstood the scope of Regulation 37(4) of the Lakshadweep Panchayat Regulations. 1994 which is laid down for regulating the mode of recruitment either by holding examination or otherwise and conditions of service of persons appointed to the Panchayat and the powers in respect of appointments, transfer and promotion of officers and employees in Panchayat and disciplinary action against such officers and employees. Lakshadweep Administration has no jurisdiction to frame Scheme for absorption of casual employees in the service of the Panchayat, a matter which the Dweep Panchayat to consider taking into consideration its financial status and various other administrative policies. In any view of the matter; such a legal question has been settled by various orders of the Tribunal itself which were confirmed by this court. Neither the Tribunal nor the courts has any role in the matter since claims raised by the applicants fall within the domain of the Panchayat and other authorities. Apex court in Mallikariuna Rao v. State of A.P. (1990(2) SCC 707) held as follows:

          "It is neither legal nor proper for the High Courts or Administrative Tribunals to issue directions or advisory sermons to the exclusively within the domain of the executive under the Constitution".

    In Asif Hameed v. Jammu and Kashmir (AIR 1989 SC 1899) the apex court held as follows:

    "The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitutional lies with in the sphere of legislative or executive, provided these authorities do not transgress their constitutional powers or statutory powers".

    In B.N.Sinha v. Union of India (1998(3) SCC 157) the apex court held that the Tribunal has committed a manifest error of law by attempting to legislate on a subject which has no business.

    6.   In view of the above mentioned circumstances. We have no hesitation to hold that the Tribunal has committed a grave error in giving direction to the Lakshadweep Administration to adopt the Department of Personnel & Training Casual Labourer (Grant of Temporary Status and Regularization) Scheme 1993 and prescribe it prospectively to the Panchayats for granting temporary status to casual labourers. The direction given to the Panchayat not to effect any appointments till the Lakshadweep Administration frames Scheme, is illegal and do not fall within the jurisdiction of the Tribunal. Further direction given to the Panchayat that no casual workers would be retrenched on the face of availability of work falls within the domain of the Administration. In such circumstances, the order passed by the Tribunal in O.A.No. 820 of 2001 would stand set aside.

    7.   We have already found that on merits also the Tribunal was not justified in giving various direction to the Lakshadweep Administration. Union of India and to the Panchayat. We may hasten to add that the Tribunal has committed a grave error in not following its earlier decisions which were confirmed by this court. The action of the Tribunal is opposed to all principles of judicial discipline. Coordinate Bench of the Tribunal cannot pronounce judgment contrary to the declaration of law made by another Bench. In this connection we may refer to the decision of the apex court in Sub Inspector Rooplal and another v. Lt. Governor through Chief Secretary (2000)(1) SCC 644), wherein the court held as follows:

          "At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal as incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system".

          We are sorry to note that in spite of the several judicial pronouncements of the apex court and this court, the Tribunal has not acted on those judicial pronouncements. Subsequent Bench of the Tribunal "in their wisdom" shall  not think that the earlier pronouncements of the Coordinate Bench of the Tribunal are always wrong and their decisions are only correct decisions. Tribunal in its order has stated that they believe the persistence of certain core issues despite a host of very competent adjudication in individual cases is evidence that the principles underlying the governance system itself remain unaddressed and it would be required of this forum to do precisely that by relating the specific to the universal for arriving at a satisfactory resolution of the matter. Indirectly the Tribunal is stating that the Coordinate Bench of the Tribunal could not address the issue rightly and did not answer the specific question to the universal for arriving at a satisfactory resolution of the dispute. This approach of the Tribunal is gross indiscipline to say the least.

    8.   Counsel for the Lakshadweep Administration submitted that due to threat of contempt Lakshadweep Administration has passed an order on 8.7.2004 though they have no jurisdiction to pass such an order. We are of the view, since we have  set aside the direction given by the Tribunal in O.A.No. 820 of 2001, the order passed by the Lakshadweep Administration on 8.7.2004 will have no legal effect.

     

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