Legal Question in Employment Law in India

HISTORY

1. I am applicant in O.A. No. 213 of 2013 Before hon,ble CAT, Mumbai bench Before hon,ble CAT, Mumbai bench Verses various Respondents in the Department of Post. Said O.A. was filed for cancellation of transfer order on the basis of guide lines issued by the DoPT vide O.M. dated 30.09.2009 regarding posting of husband and wife at same station. Said O.A. was dismissed on 10.01.2014 with no cost citing various judgments of the Supreme Court of India decided on the same matter.

2. I had submitted application dated 15.01.2014 for granting commuted leave for fifteen days w.e.f. 15.01.2014 to 29.01.2014 on medical ground.

3. I submitted representation dated 23.01.2014 to the Respondent No. 3 submitting that “I am willing to resume the duties at new place of posting for implementation of final order of the tribunal dated 10.01.2014 by compromising with facing inconvenience in going to urinal and answering call of nature”. If (i) Grade Pay or Pay scale as applicable to the post of Sr. Postmaster cadre shall got approved from the competent authority by the Divisional Head. (ii) Status of Gazetted Office to the Karajgi Post office shall be got approved from the competent authority by the divisional Head.

4. The Respondent No. 3 issued show cause notice vide memo No. B1/Unauthorised absence/ADG/14 dated 40/06.02.2014 calling explanation regarding remaining absent from duty.

5. I submitted my explanation dated 08.02.2014 to the Head of the Division i.e. Respondent No. 3. I submitted that as I did not received reply to my representation dated 23.01.2014 therefore I remained absent from duty.

6. Instead of disposing of my representation dated 23.01.2014 the Respondent No. 2 presented Misc. Application before the Hon,ble CAT, Mumbai Bench on 13.02.2014. Said M.A. is admitted and registered with No. 154 of 2014 In O.A. 213 of 2013 by the Registrar of the tribunal for correction in it with prayer that instead of Sr. Postmaster it should be substituted as Sub postmaster.

CONTENTS OF M.A. NO 154

1. Para 3 of M.A, No. 154 the Respondent No. 2 read as, “The Respondents submit that in para no. 31 page no. 23 line no.7 from the top, a mistake has crept in. The said portion of the judgment is reproduced below for quick reference: “..... as such the Respondent No.3 found the applicant most suitable senior Postal assistant to be transferred to the said place as Sr. Post Master.”

2. Para 4 of the Misc. Application No. 154 read as, “ The present M.A. is filed by the Respondents for correction in it with prayer that instead of Sr. Postmaster it should be substituted as Sub postmaster. The Respondent submit that the applicant want to take advantage of the said typographical mistake and hence he has made representation dated 23.01.2014 for posting him as Sr. Postmaster it should be substituted as Sub postmaster. Sr. Postmaster instead of Sub postmaster.

3. Para 5 of M.A, No. 154 the Respondent No. 2 read as, “The Respondent state that the applicant is admittedly a group C Employee as Senior Postal Assistant in Grade Pay of Rs. 4200/- which is equivalent to Sub Post Master Grade Pay of Rs.4200/-. So far as Senior Post Master is concerned, the same is in Grade Pay of Rs. 4800/-and it is Gazetted post. Therefore the applicant is not entitled for posting as Sr. Post Master.

4. Para 6 of M.A, No. 154 the Respondent No. 2 read as, In light of the aforesaid true position, the Respondents have no alternative but to file the present M.A. for correction in the judgment.

BRIEFS OF THE JUDGMENT

1. Para 19 of the judgment dated 10.01.2014 read as, “ On 19.12.2013, when the matter was called on for final hearing, heard the oral submission of Ms. Priyanka Mehendiratta, learned Advocate for the applicant and Shri. V. S. Masurkar, learned Advocate for the Respondents. I have carefully gone through the pleadings of the parties and the material placed on record in support of their rival contentions.

2. Para 31 page no. 23 line no. 7 from the top of the judgment dated 10.01.2014 read as, “..... as such the Respondent No.3 found the applicant most suitable senior Postal assistant to be transferred to the said place as Sr. Post Master.”

3. Reading of para 19 with para 31 of the judgment dated 10.01.2014 reveals that the member (J) of the Hon,ble tribunal has passed said judgment relying on the material placed on record in support by the Respondent No.3.

4. Para 32 page 24 1st line of the judgment dated 10.01.2014 read as “.....It can be said that lack of independent toilet facility can be raised as ground for squashing the transfer order, although the applicant may face some inconvenience in going to urinal and answering call of nature....”

5. Combine reading of para 10, 11 and 32 reveal that the final order of the tribunal whether it had been rightly or wrongly passed on merits; I was supposed to obey it in the same manner even if I may be compelled to face some inconvenience in going to urinal and answering call of nature due to lack of sanitary provision at place and office of posting. As laid down in Section 27 of the CENTRAL ADMINISTRATIVE TRIBUNAL ACT, 1985, I cannot call final order of the Tribunal in question in any court [including a High Court] in question in any court [including a High Court].

EXPLANATION:

1. I have not obtained said judgment dated 10.01.2014 by practicing fraud on the Court/Tribunal.

2. Provision/facility of latrine is basic need of human body as such it is directly relates with the health and strength of workers. Article 39 (e) of the Constitution of India stipulates that the health and strength of workers, men and women are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Hence I decided to compromise with article 39 (e) of the Constitution of India for my economic necessity. Hence submitted representation dated 23.01.2014 to the Respondent No.3.

3. I had registered complaint regarding violation of human right by not providing facility of latrine is basic need of human body on the portal of National Human Right Commission. It was registered. Said grievance was disposed of by NHRC (Law division) vide case No. 1985/13/28/2013/OC dated 12.08.2013 with reason that, “on perusal of the complaint, it is seen that the complaint relates to the matter which is sub judice before a court/Tribunal, hence the complaint is not entertainable by the Commission, as per Regulation 9 (xi) of the N.H.R.C. (Procedure) Regulation, 1997. The complaint is filed and the case is closed.”

4. It was also disposed of by NHRC (Law division) by another letter vide case No. 1958/13/28/2013/OC dated 23.08.2013 with reason that, “on perusal of the complaint, it is seen that the complaint the issue relates to the service matter, hence the complaint is not entertainable by the Commission, as per Regulation 9 (viii) of the N.H.R.C. (Procedure) Regulation, 1997. The complaint is filed and the case is closed.”

PRESENT STATUS OF M.A. NO. 154.

Hearing of MA 154 dated 14.03.2014 was adjourned to 28th March, 2014 it was again adjourned and heard on 10.04.2014. My advocate not appeared for hearing dated 10.04.2014. The typographical mistake in the final order is likely to be corrected.

EXSISTING PROVISION OF LAW OF CAT

1. Rule 2 (c) of the CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987 read as, “applicant” means person making an application to the Tribunal under section 19.

2. Rule 8 clauses 3 of the CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987 read as, “an applicant may subsequent to the filing of an application under section 19 of the Act apply for an interim order or direction. Such an application shall so far as possible be in Form III.”

3. A combine reading of Rule 2 (C) and Rule 4 (1) with Rule 8 (3) of the CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987 reveals that provision of filing Misc. Application is anticipated for seeking an interim order or direction from the tribunals by the “applicant”.

4. Therefore in my opinion, provision/procedure or Rule for filing Misc. Application by the Respondent for seeking correction in the judgment does not exist in the CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987.

5. As per 27 of the CENTRAL ADMINISTRATIVE TRIBUNAL ACT, 1985 the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court [including a High Court] and such order shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-section (2) of section (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.

6. The DoPT vide its O.M. No. 11019/69/87-AT dated 20th August, 1987 issued direction to all Ministries/Departments of the government of India that the judgment of the Central Administrative Tribunals should be complied with a prompt as possible within a minimum period of time.

7. The Cabinet secretaries vide D.O. No. P 26012/2/94-AT dated 19th January, 1994 has passed comments that in the cases before Central Administrative tribunal, Governments in some instances have handled such cases in a very casual manner. This is not a happy situation. And issued direction to the Secretaries of all Ministries/Departments of the Government of India/Union territories that the parties to the proceedings act with their requisite promptitude and diligence.

8. Section 22 (1) of the CENTRAL DMINISTRATIVE TRIBUNAL ACT, 1985 read as, A Tribunal shall be guided by the principles of natural justice.

CLARIFICATION OR LEGAL QUERY

A. Whether any procedure exists in the CENTRAL ADMINISTRATIVE TRIBUNAL PROCEDURE RULES1987 for suo motu conversion of the Respondent into the Applicant for filling M.A. in O.A.?

B. Which format is prescribed and what is the specific Rule exist

in the CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987 for filling the Misc. Application No 154 of 2014 IN O.A. 213 of 2013 by the Respondents for seeking correction in the Judgment dated 10.01.2014?

C. Whether Misc. Application by the Respondent for seeking correction in the judgment is maintainable?

D. The in word between “ENTRAL DMINISTRATIVE RIBUNAL” and CENTRAL ADMINISTRATIVE TRIBUNAL may be said typographical mistake. But how can the typographical mistakes in word “Sr. Postmaster” and between “Sub Postmaster” could be determined when both post and designations are in existence?

I have not resumed duty at my new place of posting till today due to non reply of the Respondents to my representation dated 23.01.2014. My Pay has been withheld due to non implementation of the said judgment dated 10.01.2014. The Respondents previously had also filed M.A. for modification of final order dated 03.08.2012 passed in my previous O.A. No. 384 of 2012. In this way they are playing tactics of delaying justice.

I am eager to know that if the final order of the Tribunal is called

in question by the respondents by suo motu converting oneself from the Respondent into the Applicant for filling M.A. by ignoring section 27 of the CAT Act, 1985 and if final order dated 10.01.2014 of the tribunal remains unexecuted for three months and if I am deprived from my pay then whether said judgment can be said as judgment guided and decided by the tribunal by applying law of principles of natural justice?

I do not bother about pay but I want to now what would be the possible legal consequences if the correction is made in the judgment and what would be the legal remedy?

I have registered my grievance on CPGRAM portal addressing to the competent Authority of DoPT. It is registered vide No. DOPAT/E/2014/01019

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