Kerala High Court

C. Manmadhan Pillai vs Union Of India on 20 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                  &

                 THE HONOURABLE MR. JUSTICE T.R.RAVI

  WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                        OP (CAT).NO.4 OF 2021

    AGAINST THE ORDER DATED 2.12.2020 IN OA NO. 127/2019 OF
      THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

PETITIONER:

               C. MANMADHAN PILLAI, 61 YEARS,
               S/O. LATE A. CHELLAPPAN NAIR,
               RETIRED SENIOR ACCOUNTANT, PA-V/VI SEC,
               O/O. DIRECTOR OF ACCOUNTS (POSTAL), KERALA CIRCLE,
               THIRUVANANTHAPURAM,
               RESIDING AT KEDHARA, SRA-142A, SREENAGAR,
               MANIKANDESWARAM POST, VATTIYOORKAV,
               THIRUVANANTHAPURAM-695013.

               BY ADVS.SRI.SAJITH KUMAR V.,SRI.A.V.VIVEK
               SHRI.GODWIN JOSEPH, SMT.APARNA CHANDRAN

RESPONDENTS:

      1        UNION OF INDIA,
               REPRESENTED BY SECRETARY TO GOVERNMENT,
               DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS,
               GOVERNMENT OF INDIA, NEW DELHI-110001.

      2        THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE,
               DEPARTMENT OF POSTS, TRIVANDRUM-695033.

      3        THE DIRECTOR OF ACCOUNTS,KERALA CIRCLE (POSTAL),
               KERALA CIRCLE, THIRUVANANTHAPURAM-695001.

      4        THE DDG (PAF),POSTAL ACCOUNTS WING,
               IV FLOOR, DAK BHAVAN, NEW DELHI-110116.

               SRI.P.VIJAYAKUMAR, ASG OF INDIA
               SRI.SUVIN.R.MENON, CGC FOR ASGI


     THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 20.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(CAT) No. 4 of 2021

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              ALEXANDER THOMAS & T.R.RAVI, JJ.
  --------------------------------------------------------------------------
                         O.P.(CAT) No. 4 of 2021
     (arising out of the impugned interim order dated 2.12.2020 in
       R.A. No. 7 of 2020 in O.A. No. 127 of 2019 on the file of the
           Central Administrative Tribunal, Ernakulam Bench)
  ---------------------------------------------------------------------------
                Dated this the 20th day of January, 2021

                                 JUDGMENT

The prayers in the afore captioned Original Petition

(CAT) filed under Articles 226 & 227 of the Constitution of India,

are as follows: (See page 13 of the paper book of this O.P. )

I. To set aside the Exhibit P10 Order dated 02.12.2020 in R.A.

No.7/2020 in O.A. No. 127/2019 of the Central Administrative Tribunal, Ernakulam Bench and allow the O.A. as prayed for, II. Grant such other reliefs as may be prayed for and as the Court may deem fit to grant and, III. Grant the cost of this Original Petition (CAT)."

2. Heard Sri.V.Sajith Kumar, learned counsel appearing for

the petitioner in the O.P./respondent in the R.A./original applicant

and Sri.P.Vijayakumar, learned Assistant Solicitor General of India,

instructed and assisted by Sri.Suvin R.Menon, learned Central

Government Counsel appearing for the respondents in the

O.P./review applicants/respondents in the O.A. before the Tribunal. O.P.(CAT) No. 4 of 2021

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3. Shorn of all the factual details, the factual core of the

case to the extent it is relevant for consideration of the present

O.P. is that, the petitioner in the O.P. had filed Ext.P-1 O.A. No.

127/2019 before the Central Administrative Tribunal (CAT),

Ernakulam Bench with the following prayers: (See pages 20 & 21 of

the paper book of this O.P. )

         i.     To quash Annexure A4.
         ii.    To direct the Respondents to permit the Applicant to retire

voluntarily from the Cadre of Assistant Accounts Officer with effect from the forenoon of 28.09.2018 and to grant him all consequential benefits.

iii. Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and iv. Grant the cost of this Original Application."

4. The Central Administrative Tribunal, Ernakulam

Bench, after hearing both sides had passed Ext.P-7 final order

dated 29.1.2020 disposing of O.A. No.127/2019 with the following

directions as contained in para 6 thereof. (See page 91 of this paper

book)

"6. This Tribunal see no reason why the same treatment cannot be given to the applicant as there is no monetary benefits to him. Accordingly, this Tribunal finds merit on the side of the applicant and the O.A. is allowed. The applicant be allowed to retire from the post of Assistant Accounts Officer like other two officers were allowed to retire on the same post. There shall be no order as to costs."

5. It is common ground that the said directions issued by O.P.(CAT) No. 4 of 2021

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the Tribunal as per para 6 of Ext.P-7 final order is substantially in

favour of the original petitioner/original applicant. Later, it

appears that the respondents in the O.A./respondents in the O.P.

had filed Ext.P-8 review application R.A. No.7/2020 before the

CAT, Ernakulam Bench, seeking for review and recall of Ext.P-7

final order dated 29.1.2020 rendered by the Tribunal in the said

O.A. No.127/2019.

6. Further it appears that the Tribunal without issuing

notice to the original applicant/sole respondent in the

R.A./original petitioner herein has passed the impugned Ext.P-10

order dated 2.12.2020 allowing the review application filed by the

respondents in the O.A. by setting aside Ext.P-7 order and

restoring Ext.P-1 O.A. No.127/2019 on the file of the Tribunal for

consideration and decision afresh. It will be pertinent to refer to

para 6 of the impugned P-10 order dated 2.12.2020 rendered by

the Tribunal in R.A. No.7/2020, which reads as follows: (See page

117 of this paper book)

"6. The review applicants have filed this RA pointing out an error apparent on the face of the record and this Tribunal is convinced that the other two officials namely Mr. Muraleedharen Nair and Mrs. Sreekumari have not retired from the cadre of Assistant Accounts Officer. Therefore, the RA is allowed and order dated 29.1.2020 is recalled and the matter may be posted for hearing before this Tribunal on 09.12.2020."

O.P.(CAT) No. 4 of 2021

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7. Rule 17 of the Central Administrative Tribunal

(Procedure) Rules, 1987, framed under Secs.35 & 36 of the

Administrative Tribunals Act, 1985, reads as follows:

"17. Application for review.--(1) No application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed.

(2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman may, for reasons to be recorded in writing, direct it to be heard by any other Bench. (3) Unless otherwise ordered by the Bench concerned, a review application shall be disposed of by circulation and the Bench may either dismiss the application or direct notice to the opposite party. (4) When an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same manner.

(5) No application for review shall be entertained unless it is supported by a duly sworn affidavit indicating therein the source of knowledge, personal or otherwise, and also those which are sworn on the basis of the legal advice. The counter affidavit in review application will also be a duly sworn affidavit wherever any averment of fact is disputed."

8. It can be seen that, as per Sub Rule 3 of Rule 17 of the

CAT (Procedure) Rules, unless otherwise ordered by the Bench

concerned, a review application shall be disposed of by circulation

and the Bench may either dismiss the application or direct notice

to the opposite party. In the instant case there is no dispute that

Ext.P-7 final order dated 29.1.2020 in O.A.No. 127/2019 rendered

by the Tribunal was in favour of the petitioner herein. Now, the

Tribunal without issuing notice to the original applicant/original

petitioner herein/respondent in the R.A. has now allowed the plea O.P.(CAT) No. 4 of 2021

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for review by recalling Ext.P-7 order and restoring Ext.P-1 O.A. to

the file of the Tribunal for consideration and decision afresh. In

other words, Ext.P-7 order which is in favour of the petitioner has

been altered to the detriment of the petitioner without hearing

him which would amount to blatant contravention of the

mandatory provisions contained in Rule 17(3) of the CAT

(Procedure) Rules, 1987.

9. Though both sides have made various submissions on

the merits of the matter, we need not advert to any of those

contentions and we need to consider only the legality and propriety

of the impugned Ext.P-10 order which has been passed to the

disadvantage and detriment of the original applicant and without

notice and without affording reasonable opportunity of heard

through his learned counsel. Hence, it is only to be held that the

impugned Ext.P-10 order is a nullity and the matter would require

interdiction, as an order in the nature of Ext.P-10 could have been

passed only after hearing its beneficiary. In that view of the matter

solely on the ground of violation of natural justice, it is ordered

that Ext.P-10 order dated 2.12.2020 rendered by the CAT,

Ernakulam Bench, in R.A. No.7/2020 (arising out of O.A. O.P.(CAT) No. 4 of 2021

..7..

No.127/2019) will stand set aside and quashed. Consequently it is

ordered that, Ext.P-8 review application R.A. No.7/2020 will stand

restored to the file of the Central Administrative Tribunal,

Ernakulam Bench, for consideration and decision afresh.

10. To obviate any further delay it is ordered that, Ext.P-8

review application should be treated to have been admitted and

notice issued to the respondent therein/original petitioner

herein/original applicant in the O.A.

11. Sri.V.Sajith Kumar, learned counsel who has appeared

for the original applicant before the Tribunal, has submitted that

he would take notice for the sole respondent in Ext.P-8 R.A. No.

7/2020, and that he may be given breathing time to file reply

statement to the said R.A. within 10 days or so.

12. The learned Central Government Counsel has

expressed an apprehension that, in the meanwhile there is a

likelihood of the petitioner herein initiating and pressing for

contempt proceedings for enforcement of the impugned Ext.P-7

order in the O.A., pending consideration of the R.A.

13. Sri.V.Sajith Kumar, learned counsel for the original

petitioner herein/original applicant before the Tribunal, would O.P.(CAT) No. 4 of 2021

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submit that the petitioner will not press for contempt proceedings

till the final disposal of Ext.P-8 R.A. No. 7/2020, but that the

interest of the original applicant may also be protected by ensuring

that the R.A. is disposed of without any further delay.

14. The learned Central Government Counsel submits that

the review applicants/respondents in the O.A. will fully co-operate

with the Tribunal for the early disposal of the R.A., and that in case

the original applicant is filing reply to the R.A., and if it is found

that rejoinder thereto by the review applicants is necessary, then

they would file such rejoinder within 1 week from the date of

receipt of copy of reply statement that may be filed by the

petitioner herein in the R.A.

15. The submissions made by both sides are recorded.

Accordingly, we request the Tribunal to ensure that Ext.P-8 R.A.

No. 7/2020 is disposed of without much delay after giving

minimum necessary time to both sides to complete the pleadings

in the R.A. if required, and after affording reasonable opportunity

of being heard to both sides.

16. We make it clear that we have not entered into the

merits of the controversy in any manner, and the sole ground for O.P.(CAT) No. 4 of 2021

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interdiction in this proceedings of judicial review and judicial

superintendence is on account of the decision making process in

the R.A. order being vitiated by not issuing notice to the original

applicant and not providing reasonable opportunity being heard to

him through his learned counsel.

17. The Registry will forward a copy of this judgment to

the Central Administrative Tribunal, Ernakulam Bench, who is

dealing with R.A. No. 7/2020 (arising out of O.A. No. 127/2019)

for necessary information and further action.

With these observations and directions, the above

Original Petition will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R.RAVI, JUDGE

MMG O.P.(CAT) No. 4 of 2021

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE O.A.NO.127/2019 FILED BY THE PETITIONER.

ANNEXURE A4 A TRUE COPY OF THE ORDER NO.O.O.NO.71/ADMIN.I/E.I/C-53A/VOL- VI/2018-19 DATED 12.12.2018 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

ANNEXURE A1 A TRUE COPY OF THE REQUEST DATED 27.6.2018 SUBMITTED BY THE APPLICANT TO THE DIRECTOR OF ACCOUNTS, KERALA CIRCLE.

ANNEXURE A2 A TRUE COPY OF THE REPRESENTATION DATED 7.9.2018 SUBMITTED BY THE APPLICANT BEFORE THE DIRECTOR OF ACCOUNTS (POSTAL).

ANNEXURE A3 A TRUE COPY OF THE LETTER T.R.NO.1614/ADMIN.I/EI/C-53B/2018-19 DATED 24.9.2018 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

ANNEXURE A5 A TRUE COPY OF THE REVERSION ORDER NO.O.O.NO.250/ADMIN.E.I./C-10B/VOL- VI/2018-19 DATED 28.9.2018 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT DATED 24.5.2019 FILED BY THE RESPONDENTS IN O.A.NO.127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

ANNEXURE R3(A) TRUE COPY OF THE LETTER NO.301(21)/2017/PA ADMN.III/PART/121 TO 174 DATED 2.4.2018.

ANNEXURE R3(B) TRUE COPY OF THE ORDER O.O.NO.49/ ADMN.I/E.I/C-10B/VOL-V/2015-16 DATED 9.12.2015.

ANNEXURE R3(C) TRUE COPY OF THE ORDER O.O.NO.93/ADMN.I/E.I./C-10B/VOL-V/2016-17 DATED 6.6.2016.

O.P.(CAT) No. 4 of 2021

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ANNEXURE R3(D) TRUE COPY OF THE ORDER O.O.NO.120/ADMN.I/E.I/C-10B/VOL-V/2016-17 DATED 3.11.2016.

ANNEXURE R3(E) TRUE COPY OF THE ORDER O.O.NO.154/ADMN.I/E.I./C-10B/VOL-VI/2016- 17 DATED 23.3.2017.

ANNEXURE R3(F) TRUE COPY OF THE ORDER O.O.NO.193/ADMN.I/E.I/C-10B/VOL-VI/2016-17 DATED 19.10.2017.

ANNEXURE R3(G) TRUE COPY OF THE ORDER O.O.NO.213/ADMN.I/E.I/C-10B/VOL-VI/2018-19 DATED 5.4.2018.

EXHIBIT P3 A TRUE COPY OF THE REJOINDER DATED 16.9.2019 SUBMITTED BY THE PETITIONER IN OA 127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P4 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 29.10.2019 SUBMITTED BY THE RESPONDENTS IN OA 127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

ANNEXURE R3(H) THE COPY OF DIRECTORATE LETTER NO.301(21)/2017/PA ADMN.III/121 TO 174 DATED 2.4.2018.

ANNEXURE R3(I) THE COPY OF ORDER O.O.NO.213/ADMN.I/E.I./C-10B/VOL-VI/2018- 19 DATED 5.4.2018.

ANNEXURE R3(J) THE COPY OF THE OFFICE ORDER O.O.NO.250/ADMN.I/E.I/C-10B/VOL-VI/2018-19 DATED 28.9.2018.

ANNEXURE R3(K) TRUE COPY OF LEAVE APPLICATION SUBMITTED BY THE APPLICANT.

ANNEXURE R3(L) TRUE COPY OF THE OFFICE ORDER NO.271/ADMN.I/E.I./C-53A/VOL.VI/2018-19 DATED 12.12.2018.

O.P.(CAT) No. 4 of 2021

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EXHIBIT P5 A TRUE COPY OF THE ADDITIONAL REJOINDER DATED 19.11.2019 IN THE OA 127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

ANNEXURE A6 A TRUE COPY OF THE APPLICATION DATED 18.9.2019 SUBMITTED BY THE APPLICANT TO THE DIRECTOR OF ACCOUNTS.

ANNEXURE A7 A TRUE COPY OF THE REPLY ISSUED AS PER LETTER NO.1177/ADMN.I/EIII/RIA/F65/C/50/2019-20 DATED 17.10.2019 ALONG WITH THE DOCUMENTS RELEASED.

EXHIBIT P6 A TRUE COPY OF THE SECOND ADDITIONAL REPLY STATEMENT DATED 10.12.2019 FILED BY THE RESPONDENTS IN OA 127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P7            A TRUE COPY OF THE ORDER DATED 29.1.2020
                      IN    OA   127/2019    OF    THE   CENTRAL

ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P8 A TRUE COPY OF THE REVIEW APPLICATION NO.7/2020 FILED ON 27.2.2020 BY THE RESPONDENTS IN OA 127/2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

ANNEXURE RA1 A TRUE COPY OF THE ORDER DATED 29.1.2020 IN O.A.NO.127/2019 OF THE HON'BLE TRIBUNAL.

ANNEXURE RA2 TRUE COPY OF REPLY NOTICE GIVEN TO MR.MURALEEDHARAN NAIR DATED 24.9.2018.

ANNEXURE RA3 THE COPY OF REPLY NOTICE TO MS.SREEKUMARI SREEKUMAR DATED 24.9.2018.

ANNEXURE RA4 THE COPY OF OFFICE ORDER DATED 11.10.2018.

ANNEXURE RA5 THE COPY OF OFFICE ORDER DATED 10.5.2019.

EXHIBIT P9 A TRUE COPY OF THE MA NO.599/2020 DATED 20.3.2020 FILED BY THE PETITIONER IN RA O.P.(CAT) No. 4 of 2021

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7/2020 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

ANNEXURE RR1 A TRUE COPY OF THE MEMO NO.906/ADMN.I/E.I./C-53B/VOL-I/2018-19 DATED 3.8.2018 ISSUED BY THE 3RD RESPONDENT TO ASSISTANT DIRECTOR (STAFF & VIGILANCE).

ANNEXURE RR2 A TRUE COPY OF THE O.O.NO.244/ADMN.I/EI/C-