Madhukar Sukdeo Sangale And Ors vs Union Of India Through Secretary, ...
2021 Latest Caselaw 16258 Bom

                                                            9.wp.7955-21

PMB
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION
                    WRIT PETITION NO.7955 OF 2021

      Madhukar Sukdeo Sangale and Ors.      ..Petitioners
          vs.
      Union of India and ors.               ..Respondents

      Mr. Rahul Walia for petitioners.
      Mr. T.J. Pandian a/w T.C. Subramanian and Dheer Sampat
      for respondents.

                        CORAM : DIPANKAR DATTA, CJ &
                                M. S. KARNIK, J.

DATE: NOVEMBER 24, 2021 P.C.:

1. This writ petition, at the instance of the original

applicants in Original Application No. 557 of 2021 on the file

of the Central Administrative Tribunal, Mumbai Bench,

Mumbai (hereafter "the Tribunal"), is directed against an

order dated November 16, 2021. By such order, the Tribunal

vacated interim protection granted to the original applicants

(hereafter "the petitioners") on September 22, 2021 and

thereby allowed the application (Miscellaneous Application

No. 579 of 2021) filed by the respondents seeking vacation

of the interim order.

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2. The only question that we are tasked to decide is,

whether the Tribunal acted legally on facts and in the

circumstances to vacate the interim order dated September

22, 2021.

3. With the consent of the parties, this writ petition is

taken up for final hearing at this stage.

4. The petitioners are employed as 'khalasi' under the

Central Railway. They were empaneled pursuant to a

selection process and on lateral movement, transferred

from Mumbai to Nashik in 2013. On the basis of a vigilance

report hinting at mal-practices in preparation of the panel in

which they figured, the petitioners were sought to be re-

transferred to Mumbai by orders dated November 15, 2014

and January 16, 2015. Aggrieved thereby, the petitioners

had the occasion to approach the Tribunal by instituting

Original Application No. 83 of 2015. By an order dated

February 5, 2015, the Tribunal stayed the operation of the

impugned orders. Ultimately, by a judgment and order

dated May 1, 2019, the Tribunal allowed O.A. No. 83 of

2015 in part by setting aside the impugned orders.

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However, the respondents were granted liberty to proceed

in the matter after serving a copy of the relevant vigilance

report, based whereon the orders impugned before the

Tribunal were issued, to the petitioners. In terms of the

liberty granted by the Tribunal, a fresh exercise was

undertaken to re-transfer the petitioners to Mumbai.

Apprehending re-transfer to Mumbai from Nashik, the

petitioners instituted O.A. No. 557 of 2021. A specific

statement appears to have been made in the application

that copy of the vigilance report, despite the directions of

the Tribunal, have not been made over to the petitioners.

5. O.A. No. 557 of 2021 was moved before the Tribunal

on September 9, 2021. A Single Bench of the Tribunal,

comprised of the Member (Administrative), declined ad-

interim relief as prayed for but issued notice to the

respondents with direction to file a short reply on interim

relief by September 21, 2021. The Tribunal intended to hear

the petitioners on the question of interim relief on

September 22, 2021.

6. While O.A. No. 557 of 2021 was pending before the

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Tribunal, two orders dated September 18, 2021 and

September 20, 2021 were issued by the Chief Workshop

Manager, Traction Machine Workshops, Nashik Road, Nashik

(Exhibit 'U'). By such orders, it was sought to be conveyed

that empanelment of the petitioners as 'khalasi' stood

cancelled by an order of the competent authority.

7. On September 21, 2021, two applications were filed

by the petitioners. First, Miscellaneous Application No. 540

of 2021 was filed being an application for amendment of

O.A. No. 557 of 2021; whereas the second application,

being Miscellaneous Application No. 541 of 2021, prayed for

stay of operation of orders, inter alia, dated September 18,

2021 and September 20, 2021. A prayer was also made for

direction on the respondents to permit the petitioners to

continue to render services at Nashik.

8. The Tribunal heard Mr. Walia, learned advocate for the

petitioners on September 22, 2021 and by the order passed

on that date, proceeded to stay the operation of the orders

dated September 18, 2021 and September 20, 2021.

Despite notice having been served on the respondents, they

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were not represented before the Tribunal.

9. On October 4, 2021, M.A. No. 579 of 2021 came to be

filed by the respondents urging that the ex-parte ad-interim

order dated September 22, 2021 ought to be vacated.

10. We may record at this stage that although none of the

two miscellaneous applications filed by the petitioners [M.A.

Nos. 540 of 2021 and 541 of 2021] were listed on

November 16, 2021, the application of the respondents

being M.A. No. 579 of 2021 came to be listed on that date,

and the impugned order, as noted above, was passed by the

Tribunal upon hearing the parties.

11. The primary reasons for which the Tribunal proceeded

to vacate the order dated September 22, 2021 are that (i)

interim relief came to be granted erroneously without

hearing M.A. No. 541 of 2021 and (ii) the Chief Workshop

Manager, Traction Machine Workshops, Nashik Road, Nashik,

who issued the impugned orders dated September 18, 2021

and September 20, 2021, had not been impleaded as

respondent in the original application.

12. We have failed to comprehend as to why these

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reasons were considered sufficient by the Tribunal to vacate

the interim order that was passed on September 22, 2021,

without even attempting to hear and pass orders on M.A.

Nos. 540 of 2021 and 541 of 2021. It is not the case of any

of the parties that the orders dated September 18, 2021

and September 20, 2021, which were issued subsequent to

institution of O.A. No. 557 of 2021, were not sought to be

challenged by the petitioners at all. It is not also the case

that the petitioners made no attempt to bring on record the

Chief Workshop Manager, Traction Machine Workshops,

Nashik Road, Nashik as a respondent. Since M.A. Nos. 540

of 2021 and 541 of 2021 had been filed and must have

been there in the records of O.A. No. 557 of 2021, the

Tribunal ought not to have taken a hyper-technical view of

the matter for the purpose of vacating the interim order by

recording that it had erroneously passed the same. That

apart, absence of the Chief Workshop Manager was also not

crucial, in the sense that although the Chief Workshop

Manager had issued the orders dated September 18, 2021

and September 20, 2021, perusal thereof would reveal that

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he merely sought to convey the decision of the competent

authority canceling the empanelment of the petitioners. The

Central Railway and the General Manager, Central Railway

being on record, we are of the view that mere absence of

the Chief Workshop Manager was not fatal so as to warrant

vacation of the interim order dated September 22, 2021.

13. That apart, the Tribunal also seems to have erred in

failing to notice that the respondents, despite being put on

notice that the Tribunal intended to consider the prayer for

ad-interim relief on September 22, 2021, went

unrepresented. Indeed, the order dated September 22,

2021 was passed after hearing only Mr. Walia, but it is an ex

parte order passed on notice. The petitioners ought not to

suffer if the respondents did not choose to appear and

oppose the prayer for ad-interim relief. The reason assigned

in the application for vacating interim order, being M.A. No.

579 of 2021, is that the name of the advocate was not

printed on the board. Having regard to the admission in

such application that the number of the original application

together with the names of the parties were rightly

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described on the board, the absence could not possibly be

justified; more so, when one finds a statement in the said

application that only a couple of days before, the advocate

engaged by the respondents had filed his memo of

appearance before the Tribunal.

14. Be that as it may, while considering a prayer for

interim relief, the Courts/Tribunals are required to consider

whether the three factors of a prima facie case for

consideration having been set up, the balance of

convenience/inconvenience being in favour of grant of

interim relief and the possibility of irreparable loss, injury

and prejudice being suffered by the party, if interim relief

were not granted, are satisfied or not. We are of the

considered view that the Tribunal while vacating the interim

order overlooked that the harm and injury that the

petitioners are likely to suffer if ad-interim relief were

declined/vacated would be much more than the harm and

injury that is likely to be caused to the respondents if their

prayer had not been granted. All the factors were

overwhelmingly in favour of continuance of the interim

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order.

15. Over and above this, having regard to the fact that the

petitioners had filed M.A. Nos. 540 of 2021 and 541 of 2021

on September, 2021, nothing prevented the Tribunal from

taking such applications on board before considering M.A.

No. 579 of 2021.

16. We are, thus, satisfied that the Tribunal has exercised

its jurisdiction illegally. While setting aside the order dated

November 16, 2021 and restoring the interim order passed

on September 22, 2021, which we direct would continue till

the end of December, 2021 or until further orders to the

contrary are passed by the Tribunal, we direct that M.A.

Nos. 540 of 2021 and 541 of 2021 shall be heard at the first

instance as early as possible but not later than two weeks

from date of receipt of a copy of this order. After

consideration of M.A. Nos. 540 of 2021 and 541 of 2021,

the Tribunal may proceed to hear M.A. No. 579 of 2021

afresh. After the prayer for grant of interim relief and/or its

vacation is considered in accordance with law, we would

expect the Tribunal to fix an early date of hearing of O.A.

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No. 557 of 2021 bearing in mind the fact that the dispute

has its origin in a process initiated in 2013 as well as in the

light of the specific allegation made by the petitioners that

despite the Tribunal's earlier order dated May 1, 2019, the

respondents are yet to supply the vigilance report to the

petitioners.

17. The writ petition stands allowed for the reasons

mentioned above. No costs.

18. Reasons assigned/observations made above are only

for the purpose of disposal of this writ petition and may not

influence the Tribunal while it proceeds to hear the parties

in terms of this order. All contentions are left open for the

parties to urge before the Tribunal for a proper decision by

it.

                      (M. S. KARNIK, J.)                        (CHIEF JUSTICE)



         Digitally
         signed by
         PRADNYA
PRADNYA  MAKARAND
MAKARAND BHOGALE
BHOGALE  Date:
         2021.11.25
         11:09:48
         +0530