Union Of India & Ors. vs All India Census Employees ...
2008 Latest Caselaw 1375 Del

*         HIGH COURT OF DELHI : NEW DELHI

+         Writ Petition (Civil) No. 5610 of 2002

                     Judgment reserved on: July 14, 2008

%                    Judgment delivered on: August 19, 2008

1.   Union of India
     Ministry of Home Affairs
     North Block
     New Delhi - 110001
     (Through: The Secretary)

2.   The Registrar General of India
     2/A, Man Singh Road
     New Delhi - 110001

3.   Union of India
     Ministry of Personnel, PG & Pensions
     Department of Personnel & Training
     New Delhi
     (Through: The Secretary)                       ...Petitioners

          Through    Ms. Purbali Vora, Advocate for Mr. Rakesh
                     Tiku, Advocate

                     Versus

1.   All India Census Employees Association
     Office of Director of Census Operations
     Unit 9, Janpath
     Bhubaneshwar - 751022

2.   O.P. Shara, President
     All India Census Employees Association
     Office of Director of Census Operations
     M.P. Janganana Bhawan,
     Jail Road, Arera Hills
     Bhopal - 462002

WP (C) No.5610/2002                                        Page 1 of 13
 3.   M.M. Samal, Secretary General
     All India Census Employees Association
     Office of Director of Census Operations
     Unit 9, Janpath
     Bhubaneshwar - 751022

4.   S.K. Sen (Computor)
     Now re-designated as Senior Compiler
     All India Census Employees Association
     Office of Director of Census Operations
     M.P. Janganana Bhawan,
     Jail Road, Arera Hills
     Bhopal - 462002                               ...Respondents

           Through    Mr. Sandeep Sethi, Sr. Advocate with
                      Ms. Shikha Tandon, Mr. Narotam Vyas and
                      Mr. Vikram Jeet, Advocates

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                              Yes

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported                      Yes
   in the Digest?

MADAN B. LOKUR, J.

The primary issue in this case is the interpretation of

paragraph 6 of the Office Memorandum dated 10th June, 1998 as

modified by paragraph 2 of the Office Memorandum dated 20 th

February, 1989. These two paragraphs concern the Scheme for Joint

Consultative Machinery and Compulsory Arbitration for Central

Government Employees, and the procedure for processing cases relating

to arbitrable issues. The question is whether the period of six months

prescribed in the office memoranda for placing the arbitral Award for its

modification or rejection by Parliament is peremptory and binding. Our

answer is in the negative.

2. The Respondents (hereinafter referred to as the Association)

sought parity of pay scales for its members working as Computors in the

office of the Registrar-General of India with the pay scales being given

to Investigators of the National Sample Survey Organization and UDCs

of the National Tuberculosis Institute, Bangalore. Since equivalent pay

scales were not being given, the Association preferred O.A. No. 170 of

1988 in the Central Administrative Tribunal (the Tribunal). The O.A.

was disposed of on 1st June, 1993 with the direction, inter alia, that the

departmental council of the Department of Personnel and Training

should hold negotiations in this regard and if they do not succeed, then

the issue be referred for compulsory arbitration before the Board of

Arbitrators under the Scheme for Joint Consultative Machinery.

3. As one would expect, the negotiations failed and the issue

was referred for compulsory arbitration. The Board of Arbitrators gave

its Award on 18th October, 1999 in which it was held:

"The pay scale of the Computors of the Office of the Registrar-General of India be revised so as to bring the same at par with the pay scale of Investigators of National Sample Survey Organization and National Tuberculosis Institute, Bangalore."

4. The Award was neither accepted by the Central Government

nor recommended for modification or rejection by Parliament, for a

period of six months. This led the Association to file O.A. No. 1196 of

2001 in the Tribunal seeking implementation of the Award. By its

judgment and order dated 22nd April, 2002 the Tribunal directed the

Union of India to implement the Award within a period of three months

and to release all arrears of pay and allowances with interest @10% per

annum for a specified period.

5. Feeling aggrieved by the order of the Tribunal, the Union of

India (Petitioner) is before us.

6. Paragraph 6 of the Office Memorandum dated 10 th June,

1998 reads as follows:

"After the decision (Award) of the Board of Arbitration is received, the Award would either be implemented or Statements laid on the Table of both the Houses of Parliament within six months (proposing modification/ rejection of the Award)."

7. Paragraph 2 of the Office Memorandum dated 20 th February,

1989 modified paragraph 6 above in the following terms:

"It has now been decided that in respect of awards of the Board of Arbitration (JCM) which are proposed to be rejected/modified after obtaining Cabinet approval a formal Resolution may be moved in Parliament to seek the approval of Parliament for rejection/modification of the award in question instead of just placing the statement of modification/rejection on the Tables of both the Houses. The instructions in paras 5, 6 and 7 of the O.M. of even number dated 10-6-1988 may be treated as suitably modified to the extent mentioned above."

8. The question is: What if the approval of Parliament is not

sought for rejection or modification of the Award for a period of six

months? Does the Award become automatically enforceable? According

to the Tribunal, ordinarily a proposal for modification or rejection of the

Award should be laid before Parliament within six months, but if that is

not possible, then the period may be extended by another three months

(at the most). In the present case, no steps were taken by the Petitioner

to place the Award before Parliament even within a period of nine

months, and therefore, according to the Tribunal, it became

automatically enforceable. Accordingly, as mentioned above, a direction

was issued for its implementation.

9. The Tribunal seems to have overlooked Clause 21 of the

Scheme for Joint Consultative Machinery and Compulsory Arbitration

for Central Government Employees. This clause gives overriding

authority to Parliament to modify and even reject an Award.

10. Clause 21 of the Scheme reads as follows:

"Subject to the overriding authority of Parliament, recommendations of the Board of Arbitration will be binding on both sides.

If, for reasons to be recorded in writing, the Central Government is of opinion that all or any of the recommendations Board of Arbitration should on grounds affecting national economy or social justice be modified, the Central Government shall, as soon as may be, lay before each House of Parliament the report of the Board containing such recommendations together with the modifications proposed and the reasons, therefor, and thereupon Parliament may make such modifications in the recommendations as it may deem fit. Modification may extend to the rejection of a recommendation."

11. No time limit is prescribed for either laying the Award before

Parliament or for Parliament to take a decision. The time limit for laying

the Award before Parliament (which is what we are concerned with) has

been prescribed by the two office memoranda mentioned above. Neither

of these memoranda tells us what would happen if the Award is not laid

before Parliament for a period of six months. Is the Award automatically

liable to be implemented or is it automatically liable to be rejected?

12. A situation such as this, where no sanction is provided for

non-compliance, arose for consideration before the Supreme Court in

Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

That case concerned itself, inter alia, with the interpretation of Order

VIII Rule 1 of the Code of Civil Procedure (CPC) which provides that

on service of summons, a written statement in a suit should be filed

within 30 days or within a maximum period of 90 days. The

consequence of failure to file a written statement within 90 days has not

been provided for. The Supreme Court held, under these circumstances,

that it would be worth referring to the provisions of Order VIII Rule 10

of the CPC. Thereafter, it was held,

"In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the

defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory." (Emphasis given).

13. Much later, the same view was expressed, though in a

different context in Chairman, Indore Vikas Pradhikaran v. Pure

Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 in which it was

held:

"Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefor it would be construed to be mandatory in character. (Emphasis given).

14. A similar view was also expressed in Vidyawati Gupta v.

Bhakti Hari Nayak, (2006) 2 SCC 777 and several other decisions,

which we need not catalogue.

15. In our opinion, therefore, it cannot be said, in the absence of

any consequence for non-compliance, that the period of six months

provided for in the two office memoranda is peremptory - the period is

not mandatory but only directory.

16. Does this mean that the Petitioner can take its own time in

processing the Award for placing it before Parliament? The answer is

clearly in the negative. The Supreme Court has said, times without

number, that where no time limit is prescribed for doing an act, it must

be done within a reasonable period of time. What is a reasonable period

of time would depend upon the facts of each case. In this regard, it may

be useful to refer to Pune Municipal Corporation v. State of

Maharashtra, (2007) 5 SCC 211wherein it was held,

"We may only state that broad contention of the landowners that when no period of limitation is prescribed, revisional jurisdiction can be exercised at any time cannot but be rejected. If the law prescribes period of limitation, the action must be taken within such period. But where the law does not prescribe limitation, the court would import the concept of "reasonable time". We may, however, hasten to add that what is the length of the reasonable time would depend upon the facts and circumstances of each case and no rule of universal application can be laid down."

17. More recently, a similar view was taken in Delhi

Development Authority v. Joint Action Committee, Allottee of SFS

Flats, (2008) 2 SCC 672 (in a case pertaining to the Delhi Development

Authority [DDA]) to the effect that,

"What would be a reasonable time would, however, depend on the facts and circumstances of each case. No hard-and-fast rule can be laid down therefor. In a given case, it may be a few months but in another having regard to the conduct of DDA, it may be one year or more."

18. In our opinion, in view of the clear law laid down by the

Supreme Court, the Tribunal was in error in arbitrarily fixing a „grace

period‟ of a maximum of three months (beyond the six months period)

for the Petitioner to place the Award before the Parliament. As held by

the Supreme Court, the reasonableness of the „extended‟ period would

depend upon the facts of each case.

19. In so far as the present case is concerned, is the delay

reasonable? In our opinion, the question has today been rendered

academic. This is because now the admitted position is that the Award

was placed before the Rajya Sabha on 11th March, 2003 and before the

Lok Sabha on 12th March, 2003 with a recommendation to reject it.

Parliament is, therefore, seized of the matter and has overriding

authority on the Award. We do not think it proper to effectively

„withdraw‟ the matter from Parliament or encroach upon its authority by

holding, as the Association wants us to do, that there was an

unreasonable delay on the part of the Petitioner in dealing with the

Award and making its recommendation to Parliament. This is now

entirely left to the wisdom of Parliament.

20. It is worth noticing a rather interesting and apposite case on

the subject. In Union of India v. Scientific Workers' Association, 1994

Supp (2) SCC 159 the Board of Arbitrators gave its Award on 12 th

August, 1985 effective from 22nd September, 1982. Since the Award

was not being implemented, an Original Application was filed in the

Tribunal by the Scientific Workers‟ Association seeking its

implementation. During the pendency of that application, the

Government of India decided to implement the Award, but with effect

from 1st January, 1988. The Tribunal took the view that this was

impermissible and directed implementation of the Award with effect

from 22nd September, 1982.

21. Thereafter, the Government moved resolutions in both

houses of Parliament (which were accepted) that the Award be

implemented from 1st January, 1988 and not from 22nd September, 1982.

The Government then moved a review application before the Tribunal

which held that the resolutions adopted by Parliament could not modify

the order of the Tribunal. Under these circumstances, the issue that

reached the Supreme Court was whether the Tribunal was correct in

rejecting the review application. The Supreme Court held,

"In the present case the award given by the Board had not achieved finality in the sense that it was open to the Government of India to have invoked the procedure envisaged under clause 21 of the JCM Scheme. The judgment of the Tribunal directing the implementation of the award could only mean that the Government of India was bound to implement the award subject to its power to have it modified in terms of clause 21 of the JCM Scheme. The judgment of the Tribunal could not be read to mean that the Government of India was precluded from proceeding under clause 21 of the JCM Scheme." (Emphasis given).

22. We find that in the present case, the Government is on a

much better wicket. The decision of the Tribunal to implement the

Award has not attained finality in as much as the issue remained

pending in this Court. Additionally, and more importantly, learned

counsel for the Association has assured this Court that he would not

press the contempt petition filed in the Tribunal for non-implementation

of its order. There was, therefore, an „effective stay‟ of the operation of

the order of the Tribunal. During this period, the Petitioner has taken

steps before Parliament to have the Award modified, which steps the

Petitioner was entitled to take. That being so, and the matter being alive

before Parliament, we do not think it appropriate to interfere in favour

of the Association.

23. Accordingly, the writ petition is allowed and the order dated

22nd April, 2002 is set aside. The Petitioner will, quite naturally, be

obliged to abide by the decision taken by Parliament.

MADAN B. LOKUR, J.

August 19, 2008                              J.R. MIDHA, J.
ncg

Certified that the corrected copy of
the judgment has been transmitted
in the main Server.