Pramod Kumar Pathak vs State Of U.P. And 3 Others
2017 Latest Caselaw 6095 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 28
 
Case :- WRIT - A No. - 49861 of 2017
 
Petitioner :- Pramod Kumar Pathak
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Suresh Chandra Dwivedi
 
Counsel for Respondent :- C.S.C.,Adarsh Bhushan
 
Hon'ble Saumitra Dayal Singh,J.

Heard Sri Suresh Chandra Dwivedi, learned counsel for the petitioner and Sri Adarsh Bhushan, learned counsel for the respondents.

This writ petition has been filed against the order dated 09/12.06.2017 passed by respondent no. 2 Chairman/General Manager, U.P. State Road Transport Corporation, Lucknow, Uttar Pradesh rejecting the petitioner's revision against the order in appeal dated 19.02.2014 passed by the Regional Manager, U.P. State Road Transport Corporation, Aligarh. By that order, the appellate authority had rejected the petitioner's appeal filed against the penalty order dated 31.07.2013 passed by the Assistant Regional Manager, U.P. State Road Transport Corporation, Aligarh. The penalty awarded is to withhold/stop increments.

At the outset, learned counsel for the respondents has raised a preliminary objection that the petitioner has an efficacious alternative remedy of appeal before U.P. Public Service Tribunal under Section 4 of the U.P. Public Service (Tribunal) Act, 1976 read with Section 2(b) of that Act.

Learned counsel for the petitioner does not dispute the existence of alternative statutory remedy. However, he submits, the penalty order is wholly unsustainable in view of the fact it has been imposed on total non-consideration of his factual reply as to the consumption of diesel being not excessive. He also submits, the petitioner has already availed remedy of appeal and revision and therefore the present writ petition may be entertained. He vehemently contends it would take very long time for the petitioner to avail the remedy before that Tribunal as the only place of sitting of the Tribunal is at Lucknow while disputes arising from all over the State are filed before it, leading to a large pendency of cases. He therefore submits, the alternative remedy is not expedient.

Without making any observation on the merits of the case, it is noted that the remedy under Section 4 of the U.P. Public Service (Tribunal) Act, 1976 (hereinafter to as the Act), is before an independent, specialized, quasi-judicial forum. The Tribunal in question is a very old, specialized adjudicatory authority created about forty years ago. It can be said the Tribunal though was born of the hands of the legislature but has been brought up and has evolved and matured into a full-fledged, independent, expert quasi-judicial body under the care of successive judgements of the Supreme Court and this Court.

The object of creating the Tribunal is stated in the Statement of Objects and Reasons of the Act, which reads as under:

"(1) The number of cases in the courts pertaining to the employment matters of the government servants was constantly on the increase. This, besides increasing the workload in the courts, also delayed considerably the disposal of such cases. Such litigation also involved money and time of the government servants. In these circumstances, it was decided to establish Public Services Tribunals to deal with cases pertaining to employment matters of government servants and also of the employees of the local authorities and government corporations and companies, so that the employees may get quick and inexpensive justice. It was also decided that after the establishment of the Tribunals such suits be barred from being filed in the subordinate courts."

As early as in 1990, in Rajendra Singh Yadav v. State of U.P. reported in (1990) 2 SCC 763 a similar objection was considered by the Supreme Court as to maintainability of writ proceedings in light of remedy provided by the Tribunal. The Supreme Court held as below :

"2. This bunch of cases either by special leave or under Article 32 of the Constitution is by a set of Lekhpals serving in the State of Uttar Pradesh whose services have been terminated. Their writ petitions to the High Court have not been entertained on the ground that alternate relief is available before the U.P. Public Services Tribunals set up under U.P. Act 17 of 1976. In the civil appeal arising out of Special Leave Petition No. 8826 of 1982, the High Court examined the question at length as to whether the jurisdiction of the High Court has been taken away by the setting up of the Services Tribunal under the U.P. Act. We have heard counsel for the parties at some length as apart from this group of cases, some other cases involving the same question have also been heard and those matters have been disposed of excepting this bunch. On merit, we are of the view that the decisions of the High Court should be vacated and in each case, the dispute shall stand transferred to the Services Tribunal for disposal in accordance with law. The Tribunal shall dispose of these cases within six months from the date of the receipt of this order".

(emphasis supplied)

Thus, recognizing the desirability and efficacy of the remedy provided by the Tribunal vis a vis the writ remedy before this Court, the Supreme Court, at the same time provided for expeditious disposal of matters by the Tribunal.

Thereafter U.P. Public Services (Tribunals) (Amendment) Act, 1992 was enacted. It drastically amended some provisions of the original Act. Only one Tribunal with separate division and single-member benches replaced numerous Tribunals constituted under the unamended Act. The Tribunal was to consist of one Chairman, one Vice-Chairman, Judicial and Administrative Members. Also, members of the IAS could be appointed as Chairman and Vice Chairman of that Tribunal. The Tribunal was also vested with the powers to punish for its contempt, in the same manner as the High Court.

Another watershed point was reached in 1993 when a member of the Indian Administrative Service was appointed by the State Government as Chairman of the Tribunal leading to another challenge being raised to constitutional validity of the of the provisions of Sections 5(3)(c) and 5(4)(c) of the Act as amended in 1992. A Full Bench of the Court, by its judgment dated 26.05.1995 struck down the provisions of Sections 5(3)(c) and 5(4)(c) of the Act and quashed the appointment of the IAS officer as Chairman of the Tribunal.

Thus, upon further lending of the judicial hand, the Tribunal evolved on the legislature's wheel of creation. At present, it comprises of a Chairman, Vice-Chairman, and Members, all appointed by the State Government in consultation with the Chief Justice. Recently, upon orders passed by a division bench of the Court at Lucknow, fresh appointments have been made to the posts of Members of the Tribunal. However, the functioning of the Tribunal and its place of sitting continue to be one, at Lucknow only.

Lastly, challenge raised to amendments made to the Act restricting the powers of the Tribunal to grant stay order/s was repelled by a full bench of this Court. Upon appeal, the Supreme Court, in Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 took note of its earlier decisions in Krishna Sahai v. State of U.P., (1990) 2 SCC 673 and Rajendra Singh Yadav v. State of U.P., (1990) 2 SCC 763 and observed as under:

"42. The principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the government corporations and companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial Member and one Administrative Member. Out of them, one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the original Act was amended by U.P. Act 7 of 1992. Sub-sections 3(1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice-Chairman, at least five Judicial Members and five Administrative Members which were to function at different Benches consisting of a single member or two members for the disposal of such references of claims and other matters as may be specified by the Chairman. Under Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkat Ramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava6 in the High Court. It was contended that an Administrative Member could not become a Chairman and the appointment of Chairman, Vice-Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly, Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. The State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special leave petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance 17 of 1999 was promulgated which culminated in the passing of Act 5 of 2000. In Section 3(2) of the principal Act for the words "a Vice-Chairman", the words "a Vice-Chairman (Judicial), a Vice-Chairman (Administrative)" were substituted. From now onwards there are two Vice-Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in sub-section (4)(b) by deleting the words "a judicial or". The new subsection (4-A)(b) was an addition now added in 1999. This is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985 except the words "Additional Secretary" instead of "Secretary" to the Government of India. Sub-section 3(6) is the same as the original Section 3(6) except that for the words: "has adequate experience", the words "has, in the opinion of the State Government, adequate experience" were substituted. Challenge to sub-section (4-A)(b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case6 (sic S.P. Sampath Kumar case2) is unfounded because this sub-section is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. In sub-section (7) in Section 3 the words "State Government" were substituted by the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government". In other words, the power of appointments with the State Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.

43. Appointment of the Chairman, Vice-Chairmen (Judicial and Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appointment of Chairman, Vice-Chairmen (Judicial as well as Administrative) and members is not in conformity with the corresponding provisions of the Administrative Tribunals Act, 1985 has no substance".

Thus the independent judicial character of the Tribunal is now fully established and cannot be doubted.

Then, as to steps considered necessary to improve its efficacy and efficiency, the Supreme Court had in Krishna Sahai v. State of U.P. reported in (1990) 2 SCC 673, observed:

"5. In case the Uttar Pradesh Services Tribunal set up under the U.P. Act 17 of 1976 is continued, it would be appropriate for the State of Uttar Pradesh to change its manning and a sufficient number of people qualified in Law should be on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribunal. We find that in Writ Petition No. 373 of 1988 relating to the selfsame question a bench of this Court has issued notice wherein the proposal for additional benches at places like Allahabad, Meerut and Agra apart from the seat at Lucknow have been asked to be considered. We are of the view that if the Services Tribunal is to continue, it is necessary that the State of Uttar Pradesh should plan out immediately diversification of the location of the benches for the Tribunal so that service disputes from all over the State are not required to be filed only at Lucknow and on account of a single tribunal disputes would not pile up without disposal".

(emphasis supplied)

At the same time, it may be noticed, in respect of service litigation arising with reference to the members in service of the Union of India, Tribunals were established under the Central Administrative Tribunals Act, 1985, enacted under Article 323-A of the Constitution of India. In the case of S.P.Sampath Kumar Vs UOI reported in (1985) 4 SCC 458, while dealing with the validity of the Central Administrative Tribunals Act, 1985, the Supreme Court speaking through Justice Ranganath Mishra noted:

"..... a challenge was also raised against the taking away of the jurisdiction of the High Court under Articles 226 and 227. It was further canvassed that establishment of Benches of the Tribunal at Allahabad, Bangalore, Bombay, Calcutta, Gauhati, Madras and Nagpur with the principal seat at Delhi would still prejudice the parties whose cases were already pending before the respective High Courts located at places other than these places and unless at the seat of every High Court facilities for presentation of applications and for hearing thereof were provided the parties and their lawyers would be adversely affected. The interim order made on October 31, 1985, made provision to meet the working difficulties. Learned Attorney-General on behalf of the Central Government assured the court that early steps would be taken to amend the law so as to save the jurisdiction under Article 32, remove other minor anomalies and set up a Bench of the Tribunal at the seat of every High Court. By the Administrative Tribunals (Amendment) Ordinance,1986, these amendments were brought about and by now an appropriate Act of Parliament has replaced the Ordinance. Most of the original grounds of attack thus do not survive and the contentions that were canvassed at the hearing by the counsel appearing for different parties are these:

(1) Judicial review is a fundamental aspect of the basic structure of our Constitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in Section 28 of the Act cannot be sustained.

(2) Even if the bar of jurisdiction is upheld, the Tribunal being a substitute of the High Court, its constitution and set up should be such that it would in fact function as such substitute and become an institution in which the parties could repose faith and trust.

(3) Benches of the Tribunal should not only be established at the seat of every High Court but should be available at every place where the High Courts have permanent Benches.

(4) So far as Tribunals set up or to be set up by the Central or the State Governments are concerned, they should have no jurisdiction in respect of employees of the Supreme Court or members of the subordinate judiciary and employees working in such establishments inasmuch as exercise of jurisdiction of the Tribunal would interfere with the control absolutely vested in the respective High Courts in regard to the judicial and other subordinate officers under Article 235 of the Constitution".

(emphasis supplied)

It was then noted:

"11. After oral arguments were over, learned Attorney-General, after obtaining instructions from the Central Government filed a memorandum to the effect that Section 2(q) of the Act would be suitably amended so as to exclude officers and servants in the employment of the Supreme Court and members and staff of the subordinate judiciary from the purview of the Act. In the same memorandum it has also been said that Government would arrange for sittings of the Benches of the Tribunal at the seat or seats of each High Court on the basis that "sittings" will include "circuit sittings" and the details thereof would be worked out by the Chairman or the Vice-Chairman concerned."

Then Chief Justice P.N. Bhagwati concurring with Justice Ranganath Mishra, in his concurring judgment further observed:

"8. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court. I would, therefore, direct the government to set up a permanent Bench and if that is not feasible having regard to the Vol. of work, then at least a circuit Bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before March 31, 1987. That would be necessary if the provisions of the impugned Act are to be sustained. So far as rest of the points dealt with in the judgment of Ranganath Misra, J. are concerned, I express my entire agreement with the view taken by him".

(emphasis supplied)

The aforesaid reasoning given by the Supreme Court read with the observations made by the Supreme Court in the case of Krishna Sahai v. State of U.P. (supra) appear necessary to be given effect, to help the Tribunal become a more effective institution to fulfill its object of creation better and more completely.

Otherwise, it is cannot be the object and purpose of the Act to create a remedy in addition to the extraordinary writ remedy to be availed at the choice of the 'public servant'. To give full effect to the Act, in the spirit of its incorporation, the Tribunal has to be recognized as the general forum created to provide redressal of the grievances of the public servants, arising from their engagement, with the exception of availability of an extraordinary remedy under writ jurisdiction in exceptional cases. For that reason, it appears the aforesaid reasoning of the Supreme Court is fully applicable to the facts of the present case as well.

Then, recently, in the case of Madras Bar Assn. v. Union of India reported in (2014) 10 SCC 1, the Supreme Court has in respect of another similar situation arising under a Parliamentary enactment seeking to establish a National Tax Tribunal, with a single place of sitting, came to be considered. It then observed as under:

"123. We shall first examine the validity of Section 5 of the NTT Act. The basis of the challenge to the above provision has already been narrated by us while dealing with the submissions advanced on behalf of the petitioners with reference to the fourth contention. According to the learned counsel for the petitioners, Section 5(2) of the NTT Act mandates that NTT would ordinarily have its sittings in the National Capital Territory of Delhi. According to the petitioners, the aforesaid mandate would deprive the litigating assessee the convenience of approaching the jurisdictional High Court in the State to which he belongs. An assessee may belong to a distant/remote State, in which eventuality, he would not merely have to suffer the hardship of traveling a long distance, but such travel would also entail uncalled for the financial expense. Likewise, a litigant assessee from a far-flung State may find it extremely difficult and inconvenient to identify an Advocate who would represent him before NTT, since the same is mandated to be ordinarily located in the National Capital Territory of Delhi. Even though we have expressed the view, that it is open to Parliament to substitute the appellate jurisdiction vested in the jurisdictional High Courts and constitute courts/tribunals to exercise the said jurisdiction, we are of the view, that while vesting jurisdiction in an alternative court/tribunal, it is imperative for the legislature to ensure that redress should be available with the same convenience and expediency as it was prior to the introduction of the newly created court/tribunal. Thus viewed, the mandate incorporated in Section 5(2) of the NTT Act to the effect that the sittings of NTT would ordinarily be conducted in the National Capital Territory of Delhi, would render the remedy inefficacious, and thus unacceptable in law. The instant aspect of the matter was considered by this Court with reference to the Administrative Tribunals Act, 1985 in S.P. Sampath Kumar case and L. Chandra Kumar case, wherein it was held that permanent Benches needed to be established at the seat of every jurisdictional High Court. And if that was not possible, at least a Circuit Bench required to be established at every place where an aggrieved party could avail of his remedy. The position on the above issue is no different in the present controversy. For the above reason, Section 5(2) of the NTT Act is in clear breach of the law declared by this Court."

(emphasis supplied)

Again aforesaid observations apply relevant to the U.P. Public Service (Tribunal) Act, 1976 that has created a Tribunal, to provide the remedy to 'public servant' as defined under that Act. Persons falling within the cover of the Act and for whose benefit the Tribunal has been constituted serve and reside in different parts of this large and populous State. They cannot be expected to be offered effective & expeditious remedy under the Act with the only sitting of the Tribunal at Lucknow.

The High Court itself has its permanent seat at Allahabad and in addition, it has a seat at Lucknow. Also, undeniably, in respect of the division of work, barring the districts specified in The United Provinces High Court (Amalgamation) Order, 1948, the jurisdiction of the permanent seat at Allahabad is much larger, both in terms of the number of districts as also the number of filings made. Then, an anomaly clearly exists in so far as the Act though, the success of the Tribunal relies on exercise of jurisdiction by it as an alternative to writ jurisdiction of this Court and to work as a filter to that jurisdiction exercised by this Court, but, at present, it chooses to assign the same to the benches of the Tribunal, all sitting at present, only at Lucknow, to the exclusion of Allahabad.

In this regard, it may be further noted, the litigants before the Tribunal are 'public servants', who by very nature of their employment serve at different places in the State. Opposition to be made to a petition before the Tribunal necessarily requires other public servant/s to travel to the Tribunal to file counter affidavit etc., involving consumption of more government time. The longer distance they have to travel to reach the Tribunal, more government time and money is wasted, a factor which works to defeat the object of establishing the Tribunal.

Also, in respect of practicality, in view of the fact that the Tribunal has no or very limited power to grant stay, a 'public servant' intending to challenge an adverse order passed against him, and who may be serving in any of the districts falling within the exclusive territorial jurisdiction of the permanent seat of the Court at Allahabad, is, almost by default, likely to first visit Allahabad to consult and engage a lawyer and institute appropriate proceedings. In absence of a bench of the Tribunal being established at Allahabad, the remedy of approaching the Tribunal is made that much more difficult or impractical to avail and this circumstance does work to tempt such 'public servant' to directly approach this Court at Allahabad without availing his remedy before the Tribunal. Perhaps, for this reason, also, the Court at Allahabad is faced with a large number of writ filings though they may be first handled by the Tribunal had that been available at Allahabad.

Thus, it is desirable for the Government to urgently consider all relevant factors and establish additional benches of the U.P. Public Services Tribunal at Allahabad. Thereafter, if further required benches may be established in other parts of the State to make the remedy provided under the U.P. Public Service (Tribunal) Act, 1976 that much more effective, real, expedient and convenient, in light of decisions of the Supreme Court noted above.

It also cannot be lost sight of, whether it is the Board of Revenue or the Commercial Tax Tribunal, such quasi-judicial, specialized bodies have been established in the State of U.P. with benches/sittings at more than one place. However, with regard to the U.P. Public Service Tribunal, it is seen, no bench has been provided even at Allahabad, the permanent seat of the High Court of the State though, it is also a fact, a lot of litigation required to be dealt with by the Tribunal pertains to class III and class IV public servants who are at the lowest rung on the ladder of government machinery and for that reason to whom legal expenses matter that much more.

That apart, however, as on date statutory alternative remedy exists against the order impugned in this writ petition. In that view of the matter, the instant writ petition is disposed of with a request to the U.P. Public Service Tribunal at Lucknow that, in case petitioner files an appropriate reference application before the Tribunal within a period of three weeks from today, the same may be entertained by the Tribunal and dealt with as expeditiously as possible.

Also, in view of the specific provisions of the Act, it is desirable for the government to consider to establish additional bench/es of the U.P. Public Service Tribunal at Allahabad in view of the decision of the Supreme Court in the cases of S.P. Sampath Vs. UOI (supra) and Madras Bar Assn. v. Union of India (supra) read with the earlier judgement of the Supreme Court that is specially with reference to the provisions of the Act in the case of Krishna Sahai v. State of U.P. (supra) under section 3 of the Act read with Rule 6-A of the Uttar Pradesh Public Services (Tribunal) Rules, 1975, (hereinafter referred to as the Rules). Also in the meanwhile, it is requested the Tribunal may itself, subject to any general or specific direction issued by the State Government under Rule 7 of the Uttar Pradesh Public Services (Tribunal) Rules, 1975 consider to hold its sittings at Allahabad in addition to its present sittings at Lucknow, so as to render it's existence more meaningful to numerous litigants.

A copy of this order may be supplied to learned standing counsel free of cost for communication for appropriate consideration and necessary decision and action by the Government of U.P. as observed above.

The writ petition is disposed of. No order as to costs.

Order Date :- 01.11.2017

A. Singh