Union Of India & Ors vs . Vinod Kumar Nautiyal & Ors
2022 Latest Caselaw 238 Meg

      Serial No.07
      Regular List

                       HIGH COURT OF MEGHALAYA
                           AT SHILLONG
WP (C) No.472/2020
                                                 Date of Order: 25.05.2022
Union of India & ors              Vs.        Vinod Kumar Nautiyal & ors
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioners            : Dr. N. Mozika, ASG with
                                 Ms. K. Gurung, Adv
For the Respondents            : Mr. M. Chanda, Adv

i) Whether approved for reporting in                    Yes
   Law journals etc.:

ii) Whether approved for publication
    in press:                                           Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) The matter brings out the sometimes atrocious quality of

adjudication in the quasi-judicial tribunal system that is the flavour of the

day in this country.

2. This is the fifth or sixth round of litigation between the same

parties and a relatively simple issue as to whether or not the respondent

employees in this case are entitled to the same benefits as Translators in

the Central Secretariat has not been conclusively decided over a protracted

period of time.

3. The judgment and order impugned in this case is dated March

15, 2019 and runs into five pages after discounting the cause-title pages.

In the eight paragraphs of the order spread over five pages, the first five

paragraphs narrate the history of the litigation before the sixth and seventh

paragraphs indicate the result, without any modicum of the adjudication

that ought to have been undertaken apparent therefrom, apart from the

careless manner in which it is expressed:

"6. We have considered the issue. It is not subject matter of examination of the issues at this stage so far as this Bench is concerned. The issues have already examined, considered and passed orders more than once in favour of the applicants. Accordingly, Fresh Speaking Order No. A/Legal/Vinod Kr. Nautiyal/2016/1390 dated 19.12.2016 is hereby set aside and quashed. The applicants shall be granted pay parity as demanded by them as ordered by this Bench in O.A. No. 295/2010 and O.A. No. 040/00379/2014.

"7. In this connection, the applicants had brought out similar judgments in favour of similarly situated persons delivered by Co-ordinate Bench of Central Administrative Tribunal, Principal Bench in O.A. No.402/2006 (Suman Lata Bhatia & Ors. Vs. Union of India and Ors.) and Central Administrative Tribunal, Calcutta Bench, Kolkata in O.A. No.615/2006 (Sri Dinesh Kr. Rai & Ors. Vs. Union of India & Ors.)".

4. There is no doubt that there is a sentence in the sixth paragraph

to the effect that the issues had already been "examined, considered and

passed orders (sic) more than once in favour of the applicants". However,

nothing in the preceding five paragraphs indicate how the issues may have

been previously considered or conclusively pronounced upon. Indeed, the

impugned notification of December 19, 2016 was issued upon a previous

order requiring the appropriate authorities to consider the matter afresh and

pass a speaking order. It was such speaking order which was reflected in

the impugned communication of December 19, 2016. There was no

previous adjudication of such speaking order, nor of the reasons contained

therein for the Tribunal in this case to observe that the issues involved had

"already examined, considered and passed orders (sic) more than once in

favour of the applicants".

5. Even the seventh and penultimate paragraph of the impugned

judgment and order does not reveal any application of mind as it merely

records certain judgments where there may have been orders passed in

similar situations. However, it is elementary that when the ratio decidendi

in another matter is to be applied to a present matter, there are certain

parameters which are to be followed and the most basic of them is the

finding as to the applicability of the ratio to the case in hand. The

applicability of the legal principle laid down in a previous judgment

depends on the facts and the law to be applied to the facts. Except in the

very exceptional case where the applicability of the decided principle is

obvious, the matter calls for a minimum discussion which is absent in this

case.

6. The matter has lingered for more than a decade. The initial order

on the issue as to whether Translators in Assam Rifles ought to be covered

by the pay-scale offered to Translators in the Central Secretariat was

decided by a rather cryptic and equally unreasoned order of the Central

Administrative Tribunal, Guwahati Bench passed on September 9, 2011.

Upon the Union challenging the order before the Gauhati High Court, the

Tribunal's order of September 9, 2011 was, in effect, set aside by directing

the Union Ministry of Home Affairs to take an appropriate decision in the

matter in consultation with the Government of India in the Finance

Department and "consistently" with the stand taken before the Tribunal in

paragraphs 13 and 18 of the written statement that was quoted in the order.

There are two aspects to such order of April 1, 2014 passed by the Gauhati

High Court: that by virtue thereof, the Tribunal's order of September 9,

2011 was effectively set aside; and, the Union was required to decide the

matter upon taking into consideration the stand reflected in certain

paragraphs of a specified affidavit. The relevant affidavit had been filed by

or on behalf of the Director-General of Assam Rifles and there can be no

doubt that the DGAR supported the demand of the Assam Rifles

employees. As is evident from the subsequent orders passed, there was no

mandate for the Gauhati High Court to accept that the affidavit filed by the

DGAR in support of the employees in the same organisation was the

considered stand of the Union, whether of the Ministry of Home Affairs or

the Finance Department.

7. The order dated April 1, 2014 resulted in the matter being

reconsidered and a fresh order being passed on July 17, 2014. The opening

lines of such speaking order referred to the Gauhati High Court order of

April 1, 2014 and the case of the 35 Translators in Assam Rifles. The

speaking order alluded to the differences, inter alia, in the qualifications at

the entry- level in the Central Secretariat and those in Assam Rifles, the

varying natures of the work undertaken and the fact that employees in the

Central Secretariat could not be compared with employees in a

paramilitary force.

8. The speaking order of July 17, 2014 was challenged before the

CAT and it culminated in an order of May 30, 2016. At the end of the

detailed order, the operative portion was as follows:

"23. In view of the above observations, the order No.A/Legal/Sashi Kumar Barman/2014/132 dated 17.07.2014 is set aside and quashed as suffering from malice of law. The Ministry of Home Affairs is directed to issue a fresh speaking order in the matter at the earliest but not later than 6 months from the date of receipt of this order keeping in view the above observations and also Hon'ble High Court's order dated 01.04.2014 in Writ Petition (C) No.226/2012".

9. In course of the order, the Tribunal noticed the reference to

paragraphs 13 and 18 of an affidavit filed by the DGAR and quoted a

Gauhati High Court order to the following extent:

"From the records of O.A. No.295 of 2010 it is not clear to this court as to how the written statement filed by the Lt. Col.SO1(A), Directorate General Assam Rifles, Shillong has been found sufficient to represent both the Ministry of Home Affairs as well as Ministry of Finance without any authorization issued and filed on behalf of Ministry of Home Affairs and Ministry of Finance, Department of Expenditure ...".

10. In the light of the previous order passed by the Tribunal on May

30, 2016, the matter was again considered afresh and a further speaking

order was passed by the DGAR on December 19, 2016, obviously upon

obtaining the views of the Union. Notwithstanding the affidavit previously

filed by the DGAR, the speaking order of December 19, 2016 referred to

several points of distinction between Translators in the Assam Rifles and

Translators in the Central Secretariat. The speaking order observed that the

comparison between the two "is unfounded and no parity can be drawn for

the purpose of emoluments between the holders of the same post from

different streams since the work environment, job profile and different

employability conditions render the two appointments incomparable". The

order of December 19, 2016 was issued with the approval of the Ministry

of Finance and the Ministry of Home Affairs as would be reflected from

the final paragraph thereof. Thus, the reasons furnished and the ultimate

rejection of the pay parity sought by the respondent employees herein have

now to be seen to have been endorsed by the DGAR in accordance with

the views in such regard expressed by the Union Home Ministry and the

Union Ministry of Finance.

11. In the light of the aforesaid, even if the speaking order of

December 19, 2016 assailed before the Tribunal had to be set aside or

invalidated, due reasons therefor had to be indicated upon applying the

Tribunal's mind to the matters in issue. Quite plainly, since the speaking

order of December 19, 2016 was not subjected to any previous

adjudicatory proceedings, the observations made in the previous orders of

the Tribunal or of the Gauhati High Court could not, stricto sensu, be

applicable. Even assuming that the reasons indicated in the speaking order

of December 19, 2016 were identical to the reasons indicated in the

previous orders passed in such regard and which may have been found to

be bad or invalid by any order of an appropriate forum, the same had to be

dealt with and indicated in greater detail than is evident from the cursory

and rather cavalier exercise undertaken by the Tribunal as reflected from

its terse order of March 15, 2019 impugned herein.

12. So that the present order does not prejudice the respondents

herein, it is clarified that it is possible that the reasons furnished to decline

the request or reject the demand raised by the respondent employees may

be baseless. However, a process of adjudication has to take place

culminating in the reasons furnished in the speaking order of December

19, 2016 being invalidated upon cogent grounds being indicated therefor.

The detailed reasons in the speaking order of December 19, 2016 cannot

be wished away by the mere wave of a hand as appears to have been done

in a most imperious manner by the Tribunal in the order impugned dated

March 15, 2019.

13. A process of adjudication in a system governed by the rule of law

requires due reasons to be furnished to reflect the journey of the mind from

the facts to the result of the adjudication upon sifting the relevant facts in

the sieve of the applicable law. It is such exercise that appears to be

singularly lacking in the order impugned as no assessment or adjudication

appears to have been undertaken in course thereof.

14. There is no doubt that if it is ultimately held that the respondents

herein are entitled to the enhanced pay as sought, they would have suffered

serious prejudice. However, such prejudice may be undone by awarding

adequate compensation by way of interest. But merely because of the

colossal delay in the matter, a completely unreasoned order which reveals

no signs of adjudication would not pass muster nor would the Court in

exercise of its authority under Article 226 of the Constitution assess the

matter as the Tribunal ought to have done.

15. For the reasons aforesaid, the order impugned dated March 15,

2019 cannot be sustained as it is completely bereft of reasons and does not

reveal any exercise of adjudication having been undertaken. The Tribunal

should do better and decide the matter afresh within three months of the

receipt of a copy of this order. It is needless to say that due reasons have

to be furnished by the Tribunal in support of whatever its final opinion may

be.

16. WP (C) No.472 of 2020 succeeds to the above extent. There will,

however, be no order as to costs.

17. It is reiterated that the observations here should not prejudice

either set of parties in course of the fresh adjudication before the Tribunal

in accordance with law.

       (W. Diengdoh)                                   (Sanjib Banerjee)
           Judge                                         Chief Justice

Meghalaya
25.05.2022
"Lam DR-PS"