Dismissed

Union of India v. C.B.Lalithakumari

Kerala HC4 Nov 2020OP (CAT)/156/2020

Case brief

AI extract

What is this about?

The Court allowed an original petition challenging a CAT order that granted regularity and arrears to a retired employee. The Court held that since the employee had already been regularized under a scheme based on a Supreme Court stay, she could not claim extended benefits from a later Tribunal order explicitly barred as non-precedential by the Supreme Court.

What did the court decide?

OA No.685/2018 is set aside and the original application filed before the CAT is dismissed.

Union of India Vs C.B.Lalithakumari — Company and Corporate | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

¶5

THE HONOURABLE MR. JUSTICE GOPINATH P.

¶6

WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942

¶7

OP (CAT).No.156 OF 2020

¶8

AGAINST THE ORDER IN OA 685/2018 DATED 03-10-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

¶9

PETITIONERS/RESPONDENTS:

¶10

1 UNION OF INDIA

¶11

REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF COMPANY AFFAIRS, (NOW MINISTRY OF CORPORATE AFFAIRS) , SHASTRI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI-110 001

¶12

2 THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF COMPANY AFFAIRS, (NOW MINISTRY OF CORPORATE AFFAIRS), SHASTRI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI-110 001

¶13

3 THE REGIONAL DIRECTOR(SR) DEPARTMENT OF COMPANY AFFAIRS, (NOW MINISTRY OF CORPORATE AFFAIRS), SHASTRI BHAVAN, BLOCK-I, VTH FLOOR, HADDOWS ROAD, CHENNAI-600 006

¶14

BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

¶15

RESPONDENT/APPLICANT:

¶16

C.B.LALITHAKUMARI

¶17

W/O. A.P. VISWANATHAN, RESIDING AT HOUSE NO. 16/2027, T AND R CROSS ROAD, THOPPUMPADY, KOCHI-682 005

¶18

R1 BY ADV. SRI.ARJUN S.RAJ

¶19

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 27-10-2020, THE COURT ON 04-11-2020 DELIVERED THE FOLLOWING:

OP(CAT) No.156/2020

-:2:-

J U D G M E N T

Dated this the 4^th day of November, 2020

¶24

Shaffique, J.

¶25

The respondents in OA No.685/2018 are the petitioners herein viz., the Union of India and its officers and they are challenging order dated 3/10/2019 by which the Central Administrative Tribunal, Ernakulam Bench has allowed the Original Application and directed that the applicant, respondent herein, should be absorbed and regularized in service w.e.f. 1/6/1987.

¶26

The short facts of the case would indicate that the applicant contended that she was initially appointed as an Estate Clerk in the office of the official liquidator, High Court of Kerala on 1/3/1984 and thereafter she continued to work in the said office as a regular employee. The applicant along with certain others filed OP No.9732/1990 before the High Court seeking for a relief to absorb them as regular employees from the date of their initial appointments. By judgment dated 27/8/1993, this Court directed

¶27

OP(CAT) No.156/2020

¶28

-:3:-

¶29

to absorb the petitioners therein as regular Lower Division Clerks in the office of Regional Director, Department of Company Affairs from the date of their respective appointments as Estate Clerks. It was further directed to grant them benefits of pay fixation and all admissible allowances, arrears of salary etc. The matter was taken up before the Apex Court which resulted in judgment dated 27/8/1999 in CA No.5642/1994. The Apex Court having observed that the orders of the High Court does not call for any interference, dismissed the appeals. However, at paragraph 25 of the judgment, it is stated as under:-

¶30

“25. However, we want to give an opportunity to the appellants in the interest of justice and to balance the equities between the parties to come forward to accept and act on the first option given in the additional affidavit, as extracted above, and absorb the company-paid staff working both under the Court Liquidator in the Calcutta High Court and the Official Liquidator in other High Courts by framing a scheme modelled on the 1978 Scheme within six months. In other words, we stay the operation of the judgment of the High Courts under appeal and the order in WP (C) No. 473 of 1988 for a period of six months to enable the appellants to frame the Scheme as suggested above and to give effect to it, failing which the judgments under appeal and the order in

¶31

OP(CAT) No.156/2020

¶32

-:4:-

¶33

WP (C) No. 473 of 1988 will stand confirmed.”

¶34

Pursuant to the aforesaid direction at paragraph 25, the applicant was given appointment w.e.f. 8/5/2000 in the office of Registrar of Companies, Bangalore as a fresh hand with minimum pay scale of Lower Division Clerk. She was promoted as Upper Division Clerk on 20/6/2011 and retried from service on 31/3/2017. Out of the 14 petitioners in OP No.9732/1990, 9 of them were not absorbed in service. They filed OA No.249/2002 before the Tribunal and the Tribunal directed them to be absorbed in service from the date of their initial appointment placing reliance on the judgment in OP No.9732/1990. The said order was challenged by filing WP(C) No. 22810/2004, which came to be dismissed as per judgment dated 28/2/2008. The respondents filed Civil Appeal No.5564/2010 before the Apex Court, which resulted in judgment dated 16/5/2017. The Apex Court did not interfere with the order passed by the Tribunal and the High Court. However, the following order came to be passed:-

¶35

“Heard learned counsel for the parties and perused the relevant material.

¶36

OP(CAT) No.156/2020

¶37

-:5:-

¶38

In the peculiar facts and circumstances of the case, we do not see any reason to interfere in exercise of our jurisdiction under Article 136 of the Constitution.

¶39

The Civil Appeals are dismissed leaving the question of law open. However, this may not be taken as precedent for future cases.”

¶40

After retirement from service, the applicant filed the above OA inter alia seeking for a relief to absorb and regularize her service from 1/3/1984 and to provide her all consequential benefits.

¶41

In the reply statement filed by the respondents in the OA, they contended that as far as the applicant is concerned, the decision in OP No.9732/1990 have attained finality in its order dated 27/8/1999 in CA No.5642/1994 and connected cases permitting the Government to frame a scheme to absorb the staff who were working in the office of the Official Liquidator in various High Courts modelled on the 1978 Scheme. It is contended that as far as OA No.249/2002 is concerned, the same had attained finality on orders passed by the Apex Court. But the applicant was not a party to the same and the Apex Court had clearly indicated that it should not be a precedent for future cases. It is therefore contended that the applicant was not

¶42

OP(CAT) No.156/2020

¶43

-:6:-

¶44

entitled to any benefit and a person appointed in the year 2000 has approached the Tribunal in the year 2018 which itself amounts to gross delay and laches in approaching the Tribunal. The Tribunal however taking note of the fact that though the applicant was not a party in OA No.249/2002, which was finally decided by the Apex Court, in its order dated 16/5/2017 in Civil Appeal No.5565/2010, held that insofar as the applicant was a litigant in OP NO.9732/1990, the applicant will be entitled for the benefits that had accrued to the applicants in OA No.249/2002.

¶45

The learned ASG while impugning the aforesaid order of the Tribunal inter alia contended that in terms with the order passed by the Apex Court in CA No.5642/1994 and connected cases, a scheme was framed by the Government within the time specified by the Apex Court. A copy of the scheme was also placed before us for perusal. It is based on the said scheme that the applicant was employed on regular basis effective from 2000. She did not claim any benefit until she retired from service and it is after retirement, only on 30/1/2018, that she had sent a letter

¶46

OP(CAT) No.156/2020

¶47

-:7:-

¶48

seeking the benefit given to applicants in OA No. 249/2002. It is pointed out that the applicant's case had already been concluded long back by interference of the Apex Court and therefore, she cannot claim benefit of the order in OA No.249/2002.

¶49

On the other hand, learned counsel appearing for the applicant/respondent submitted that applicant was one among the candidates who had filed OP No.9732/1990 before this Court which resulted in the judgment dated 27/8/1993. In the said judgment, there was a clear finding that the petitioners were to be absorbed as regular employees from the respective dates of their appointments as Estate Clerks. In CA No.5642/1994 and connected cases, the Apex Court had dismissed the appeals filed against the said judgment. It is pointed out by the learned counsel that in paragraph 25 of the said judgment, an opportunity had been granted to the Government to frame a scheme modelled on the 1978 Scheme within a specified period. It is further pointed out that those persons who were not appointed in the year 2000 had again filed OA No.249/2002

¶50

OP(CAT) No.156/2020

¶51

before the Tribunal and the Tribunal after referring to the judgment in OP No.9732/1990 and the judgment of the Apex Court in CA No.5642/1994 and connected cases, having observed that the applicants were not absorbed in service pursuant to a scheme dated 1/10/1999, directed the said applicants to be absorbed in the service and to grant them benefits of pay fixation and all admissible allowances including arrears of pay and allowances, the arrears being limited from the date of filing OP No. 9732/1990. It is pointed out that the order in OA No.249/2002 was challenged before this Court by filing WP(C) No. 22810/2004 and the same came to be dismissed against which appeals were filed before the Apex Court resulting in the order dated 16/5/2017 in Civil Appeal Nos.5564 & 5565/2010. Learned counsel pointed out that when the Apex Court has clearly stated that the said order shall not be treated as a precedent for future cases, it necessarily means that the said judgment can be applied to earlier claims, in which event, the applicant is entitled for the benefit of the said judgment.

¶52

OP(CAT) No.156/2020

¶53

-:9:-

¶54

Having heard the learned ASG and the counsel for the respondent/applicant, two things are clear. One is that though a positive direction was issued by this Court in OP No.9732/1990 to absorb the petitioners in service from the date of their appointments, when the matter was taken before the Apex Court, after rejecting the appeals filed by Union of India, the Government was permitted to frame a scheme for their absorption, pursuant to which the applicant was absorbed in service in the year 2000. OP No.249/2002 came to be filed by persons who were not absorbed, but who were parties in OP No.9732/1990 seeking for a direction to absorb them in service, which came to be allowed based on the direction in OP No.9732/90. The said order was confirmed by this Court. The Apex Court did not interfere with the said order, but the Apex Court observed “Civil Appeals are dismissed leaving the question of law open. However, this may not be taken as precedent for future cases.” It is thereafter the appellant had approached the Tribunal seeking for the aforesaid reliefs. Apparently the

¶55

OP(CAT) No.156/2020

¶56

judgment in Civil Appeal Nos.5564 and 5565/2010 cannot be treated as a precedent for future cases. The applicant is a person who was already given a benefit based on a scheme formulated by the Government pursuant to directions issued by the Apex Court. She was absorbed in service with effect from the year 2000, but she did not challenge either the scheme or her absorption for the last several years and she attempted to seek benefits only after her retirement. Two aspects stand against the applicant for claiming such benefits. One is the delay and laches in prosecuting the matter. Secondly, she was granted a benefit based on the decision of the Apex Court and the consequential scheme or the order of appointment was not under challenge. The benefit of order in OA No.249/2002 cannot be claimed by the applicant as she is not a party to the said proceeding and the Apex Court had clearly stated that it will not apply to future cases. The contention of the counsel for applicant is that future cases do not indicate cases which are decided earlier. We do not agree with the said submission. Future cases means that the said

¶57

OP(CAT) No.156/2020

¶58

judgment shall not be treated as a precedent for future claims. Under such circumstances, the Tribunal committed serious error in applying the principle in OA No.249/2002 and directing benefits to be granted to the applicant. Applicant had an opportunity to challenge the scheme dated 1/10/1999 and her order of appointment immediately after she was appointed. No attempt was made by her to challenge the same for the last 17 years and after she retired from service, on 31/3/2017, she had filed a representation, which came to be rejected. Tribunal therefore committed serious error in allowing the application based on an order which should not have been treated as a precedent. That apart, there is justification on the part of the Tribunal in placing reliance on the judgment in OP No.9732/1990 while considering OA No.249/2002 since despite the directions issued by the Apex Court in Civil Appeal No.5642/1994 and connected cases, as far as the said applicants were concerned, the department did not regularize their service. Therefore, they were entitled for the benefit of the judgment in OP No.9732/1990. The applicant is a

¶59

OP(CAT) No.156/2020

¶60

-:12:-

¶61

person who was regularized on the basis of a scheme prepared by the Government pursuant to the direction issued at paragraph 25 of the judgment dated 27/8/1999 in Civil Appeal No.5642/1994 and derived its benefit.

¶62

We therefore allow the Original Petition. The impugned order dated 3/10/2019 in OA No.685/2018 is set aside and the OA is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

OP(CAT) No.156/2020

-:13:-

APPENDIX

PETITIONERS' EXHIBITS:

¶74

EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00685/2018 FILED BY THE RESPONDENT DATED 03.10.2019 BEFORE THE CAT, ERNAKULAM BENCH.

¶75

ANNEXURE A10 TRUE COPY OFTHE REPLY NO. PFR/823 DATED 15.03.2018 OF THE 3RD RESPONDENT IN OA.

¶76

ANNEXURE A1 TRUE COPY OF JUDGMENT IN O.P.NO. 9732 OF 1990-H DATED 27.08.1991.

¶77

ANNEXURE A2 TRUE COPY OF THE JUDGMENT OF THE HON'BLE APEX COURT DATED 27.08.1999 IN C.A.NO. 5642 OF 1994.

¶78

ANNEXURE A3 TRUE COPY OF THE ORDER IN O.A.NO. 249 OF 2002 DATED 31.03.2004 OF THIS HON'BLE TRIBUNAL.

¶79

ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.22810 OF 2004 DATED 28.02.2008.

¶80

ANNEXURE A5 TRUE COPY OF THE JUDGMENT OF THE HON'BLE APEX COURT IN CIVIL APPEAL NO. 5564 OF 2010 DATED 16.05.2017.

¶81

ANNEXURE A6 TRUE COPY OF JUDGMENT OF THE HON'BLE APEX COURT IN R.P. NO. 451OF 2018 DATED 21.02.2018.

¶82

ANNEXURE A7 TRUE COPY OF THE OFFICE ORDER NO. F.NO.I (48)/2017 DATED 08.03.2018 OF THE 3RD RESPONDENT IN OA.

¶83

OP(CAT) No.156/2020

¶84

-:14:-

¶85

ANNEXURE A8 TRUE COPY OF THE REPRESENTATION FILED BY THE APPLICANT DATED 23.08.2017 TO THE 3RD RESPONDENT IN OA. ANNEXURE A9 TRUE COPY OF THE REMINDER LETTER DATED 30.01.2018 ISSUED BY THE APPLICANT TO THE 3RD RESPONDENT. ANNEXURE A11 TRUE COPY OF THE ORDER IN THE C.P. NO. 180/00089/2008 DATED 22.01.2018 OF THE HON'BLE TRIBUNAL. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA 180/00685/2018 DATED 02.07.2019 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM BENCH.

¶86

EXHIBIT P3 TRUE COPY OF THE ORDER IN OA 180/00685/2018 DATED 03.10.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.

Union of India v. C.B.Lalithakumari

Case brief

What is this about?

What did the court decide?

Union of India v. C.B.Lalithakumari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Sidique Mannan Vs the State of Kerala

Kerala Public Service Commission Vs Jisha I.

Kerala Public Service Commission, Vs Rani M.H.

Vegetable and Fruit Promotion Kerala - Vfpck Vs Ratheesh Chandran

Employees State Insurance Corporation Vs Sushama N.

T.R. Molly Vs Union of India