V.D. Chavan (Dr.) vs State Of Maharashtra And Ors.
2002 Latest Caselaw 429 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition the petitioner Dr. V.D. Chavan has challenged the order passed by the Maharashtra Administrative Tribunal on 4th May, 2001, allowing the petition of respondent No. 4 herein, quashing the order of superannuation passed in relation to respondent No. 4 by the State and consequently directing her reinstatement in the post on which she was working prior to 25-5-2001.

2. Brief facts giving rise to the present petition are that both, the petitioner in this Court and the respondent No. 4 in this petition are working in the Sir J.J. hospital run by the Government of Maharashtra. The respondent No. 4 is working in a Honarary capacity whereas the petitioner is working as a full time professor of cardiology. The petitioner has admitted that he is next senior most professor to respondent No. 4. The petitioner has also admitted that respondent No. 4 has been reinstated as Director and Professor in the head of the department of cardiology in the J.J. Group of hospitals in obedience of the order of 4-5-2001. He will be made head of the department and director of the cardiology department on superannuation of the respondent No. 4. Factually according to the petitioner he did work as head of the department and on reinstatement of the respondent No. 4, was again put as professor. He therefore, has a right to claim superannuation of the respondent No. 4 in accordance with law.

3. The respondent No. 4 Dr. Pathak while joining the services of the Government of Maharashtra, declared on certain forms as required by the Government Rules and Regulations her date of birth, which was according to her 7th May, 1944. This declaration remained unchallenged for, several years till about 1998 when a complaint was made by some individual informing the Government that the date of birth of Dr. Pathak was 7-5-1940 and not 7-5-1944 as given and recorded by Dr. Pathak. Probably some enquiries were made by the State and holding her date of birth to be 7th May, 1941, she was retired from Government service with effect from 22-12-2000 i.e. the date of the issue of the order of retirement. Admittedly no notice was issued to the respondent No. 4 asking her to show-cause why after accepting the date of birth as 7-4-1941 she be not retired from service, though she was asked earlier to supply additional proof in support of her date of birth.

4. This order dated 22-12-2000 was challenged by respondent No. 4 Dr. Pathak by filing original Application No. 69/01 before the Maharashtra Administrative Tribunal, Bombay. She had made the petitioner herein as respondent No. 4 in that original application. By her original application Dr. Pathak claimed violation of principles of natural justice by the order dated 22-12-2000 as she was never given any opportunity to show-cause against her retirement on a date earlier than her normal date of superannuated birth date being 7-5-1944. Another ground of attack raised by her in the application before the Tribunal was that the order of retirement was void ab initio, she being appointed by the Government, the retirement order which is in the present case the order of compulsory retirement ought to have been issued by the Government of Maharashtra and not by the Dean of J.J. group of hospitals. It is pertinent to note that the Maharashtra Administrative Tribunal is a Tribunal of original jurisdiction established for the purpose of adjudicating grievances brought before it by the employees of the Government of Maharashtra. It has all the powers necessary for effective exercise of original jurisdiction. It is an effective remedy created for the purposes of giving quick redressal to the Government Employees in the matters where there is complaint against the State Government Employees or the subordinate officers. The Maharashtra Administrative Tribunal therefore took up adjudication of this application immediately. Before the Tribunal, several submissions were made on behalf of the present petitioner, several documents were filed pointing out that the real date of birth of the petitioner is 7-5-1940 and not 7-5-1944 as claimed by the petitioner. Alternatively it was submitted that even if it was considered to be 7-5-1941 the petitioner was rightly superannuated by the order dated 22-12-2000. It was the contention of the petitioner before the Tribunal as also here that superannuation in accordance with law being the operation of law, question of giving any notice to show-cause as to why such superannuation should not be taken, does not arise. The Tribunal on appreciation of several contentions accepted the legal submissions on behalf of the respondent No. 4 that the order of retirement dated 22-12-2000 was violation of the principles of natural justice or has admittedly no notice to show-cause was given to the respondent No. 4 i.e. the original applicant therein, the Tribunal also accepted the contention of the respondent No. 4 original petitioner before it that the order of retirement dated 22-12-2000 was void having been issued by the Dean and not by the Government of Maharashtra. However the Tribunal took a view that since it is setting aside the order of retirement on legal submissions it need not go into the disputed question of facts namely what is the exact date of birth of the petitioner before it and respondent No. 4 before us. The Tribunal has noted in its order that there is such a dispute and has then stated that it need not decide that question. It is this order of the Tribunal passed on 4th May, 2001 which is impugned by the present petitioner herein, on the ground mentioned in the petition and also put forth by the learned Counsel appearing on behalf of the petitioner, is challenged in this petition. The main thrust of the argument of the petitioner was that the Tribunal erred in not considering and deciding the controversy regarding the exact date of birth of the respondent No. 4 and therefore the Tribunal has committed a jurisdictional error. According to the learned Counsel appearing on behalf of the petitioner that the Tribunal being a Tribunal established as an authority adjudicating original dispute, was duty bound to adjudicate upon the disputed question of fact and failure on the part of the Tribunal to do so is a failure pertaining to jurisdiction vested by law and therefore the order of Tribunal is liable to be quashed. It was then submitted by the learned Counsel that the Tribunal ought have taken into consideration the very short term available to it as also to all the parties concerned because the respondent No. 4, according to her claim that the date of birth is 7-5-1944, is liable to be retired on 7-5-2002. When the Tribunal decided the matter in May 2001 it was therefore hardly a period of one year. According to the learned Counsel therefore the abdication of jurisdiction by the Tribunal has adversely affected the petitioner and the Tribunal therefore ought to have decided the question of date of birth itself. Grave injury has been caused to the petitioner by the refusal of the Tribunal to do so and this abdication of jurisdiction is liable to be reconsidered by this Court and this Court in the peculiar circumstances of this case take up the adjudication of the disputed facts also.

5. The learned Counsel for the petitioner therefore vehemently argued that by a proper appreciation of the entire documentary evidence on record, the only conclusion that can be drawn is that the date of birth of the respondent No. 4 is 7-5-1940. However, several documents filed on behalf of the respondent No. 4 point out that her date of birth would be 7-5-1944. This obviously is a disputed fact and can be properly decided by the Court of original jurisdiction i.e. the Maharashtra Administrative Tribunal. It may be that in certain peculiar and extra-ordinary circumstances, this Court may venture to decide complicated disputed facts but as we pointed out that the present is not such case, and therefore interference by this Court is not possible. It will be seen that the respondent No. 4 has produced the following documents.

(i) her attestation form dated 13-10-1977 (7-5-1944).

(ii) xerox copy of date of birth as 7-5-1944.

(iii) Certificate 724-Mahakoshal Medical Council (7-5-1944).

6. The Government has produced two documents and the petitioner has produced three documents. It appears that the respondent No. 4 and the petitioner dispute the correctness of the document tendered by either side. This dispute will have to be therefore resolved by appropriate appreciation of the documents on record. In our opinion it can be done by the Maharashtra Administrative Tribunal and it should be done by 30th April, 2002. We are unable to take up the adjudication by ourselves in the principal reason that in so doing we will be depriving either of the parties of a substantial remedy of approaching this Court against an unfavourable decision of the Tribunal. From the manner in which this litigation has been contested, defended and prosecuted, it is obvious that the parties will not rest either in this Court or in Tribunal and for that reason in the Supreme Court also. In this situation to adjudicate upon a disputed fact in this Court, one of the parties would be denied the benefit of jurisdiction of this Court over the order or adjudication of the Tribunal. In our opinion this is a substantial right and this Court should not trample such right merely because this Court can in a given situation decide the disputed facts also. From the documents cited above, interpretation whereof will decide the fate of parties and the right of scrutiny of the order of Tribunal if and when passed should remain intact instead driving the parties to the Supreme Court against the decision of this Court. In our opinion this is sufficient ground and reason, to refuse to interfere in the present case. We also find that there has been abdication of jurisdiction by the Tribunal, and the Tribunal ought to have decide the question of exact date of birth of respondent No. 4 when the matter first went before the Tribunal. In the result therefore the petition partially succeed and is allowed. The order of Tribunal is set aside. The matter be remitted back to the Tribunal to consider afresh the question as to which is the exact date of birth of respondent No. 4. Taking into consideration the fact that respondent No. 4 will retire on 7-5-2002 the Tribunal is requested to dispose of the matter latest by 30-4-2002, and till the disposal of the matter on merits by the Maharashtra Administrative Tribunal, status quo as of today in relation to the working of respondent No. 4 shall be maintained.

7. In view of the above direction, the parties are directed to approach the Tribunal immediately and they are requested to act on the authenticated copy of this order.