Federatin Of Central Govt. ... vs Union Of India (Uoi)
2007 Latest Caselaw 494 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties, this writ petition is taken up for final hearing. This writ petition challenges the order of the Central Administrative Tribunal (hereinafter referred to as the "CAT") dated 1st October, 2004 in O.A. 700/2004. It is not in dispute that the impugned order has been pronounced only by Mr. S. A. Singh, Member (Administrative) CAT.

2. The issue involved in the present writ petition is the illegality and validity of determination of an issue of which according to the petitioner under Section 2(e) of the Payment of Gratuity Act, 1972, cannot be decided by the learned administrative member of the CAT. Mr. Gupta, the learned Counsel for the petitioner, has submitted that the issue involved in the present writ petition stands settled by the following judgments of the Hon'ble Supreme Court on which he has placed reliance:

(a) S.P. Sampath Kumar v. Union of India and Ors.

5. ---That is the reason why at the time of the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member and one administrative member and there should be no preponderance of administrative members on any bench. Of course, the presence of the administrative member would provide input of practical experience in the functioning of the services and add to the efficiency of the Administrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative tribunal as compared to the High Court.---

(b) Amulya Chandra Kalita v. Union of India and Ors.

3. Part XIV-A containing Articles 323A and 323B was introduced in the Constitution by the 42nd Amendment Act, 1976. Article 323A enables Parliament to make law providing for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect of recruitment and conditions of service of persons or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. It permits the exclusion of the jurisdiction of all courts except the jurisdiction of this Court under Articles 136 of the Constitution. The Parliament then enacted the Administrative tribunals Act, 1985, providing for the adjudication of such disputes and complaints through the Tribunals established under Section 4 of the said Act. Section 5(1) sets out the constitution of the Tribunal and adds that 'the jurisdiction, powers and authority of the Tribunals may be exercised by benches thereof'. Sub-section (2) of that section next provides that 'a bench shall consist of one Judicial Member and Administrative Member'. No provision to the contrary is shown to us. It is, therefore, statutorily recognized that every bench of the Tribunal must consist of a Judicial Member and an Administrative Member. It is, therefore, obvious that the Administrative Member alone could not have heard and decided the matter.

(c) L. Chandra Kumar v. Union of India and Ors. :

98. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provisions was not in question in Dr. Mahabal Ram case, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a Single Member Bench of the Administrative tribunal, the proviso to Section 5(6) will automatically apply consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a Single Member Bench or a Bench which does not consist of a Judicial Member. So constructed, Section 5(6) will no longer be susceptible to charges of unconstitutionally.

3. The Hon'ble Supreme Court has clearly emphasized the need and necessity of having the presence of a Judicial Member particularly, by making reference to part XIVA of the Constitution containing Article 323(a) and (b) of the Constitution. In S.P. Sampath Kumar's case (supra) it was observed that every Bench of the Administrative Tribunal shall consist of one Judicial Member and one Administrative Member and there should be no preponderance of administrative members on any bench.

4. Ms. Monica Garg, learned Counsel for the respondent has contended that there was no question of interpretation of any statutory provision involved in the impugned judgment dated 1st October, 2004 as the provisions were crystal clear. We are unable to agree with her plea, for the reason that the bare perusal of the impugned judgment shows that interpretation of Section 2(e) of the Payment of Gratuity Act, 1972, was clearly involved in the O.A. as is discernible from the following passages of the judgment:

The relevant portion of the Payment of Gratuity Act, 1972 reads as follows:

Section 2(e) - "employees" means any person (other than an apprentice) employed on wages in any establishment, factory, mine, oil field, plantation, port, railway company or shop to do any skilled, semiskilled or un-skilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government and is governed by any other Act or any rules providing the payment of gratuity.

The pointing issue finds the answer in the definition of term ('Wages') given in the Payment of Gratuity Act, 1972 which is reproduced below:

Wages means all emoluments, which are covered by an employee, while on duty, or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance, but does not include any bonus, commission,House Rent Allowance, overtime wages or any other allowance.

As per above reproduced definition of wages, the dearness allowance is included in the wages. The issue is, therefore, answer accordingly in affirmative. Allowing the application the respondent is directed to calculate the amount of gratuity accordingly for payment to the applicant.

4. The above portion clearly demonstrates eloquently that the question of interpretation of Section 2(e) of the Payment of Gratuity Act, 1972 was involved and as per the judgment delivered in the case of L. Chandra Kumar (supra) no matter involving the interpretation of a statutory provision or rule in relation to the Constitution is to be adjudicated by the Administrative Member only. Accordingly, the impugned judgment dated 1st October, 2004 is quashed and set aside. The matter is remanded to the CAT for disposal in accordance with law by a bench consisting of at least one Judicial Member. The parties to appear before the CAT on 2nd April 2007 and the dispute in O.A. shall be determined and disposed of not later than three months from first date of hearing before the CAT.

5. With the above directions, writ petition stands disposed of.