CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH, BANGALORE
REVIEW
APPLICATION NO.01/2012
IN
ORIGINAL
APPLICATION NO.373/2009
DATED THIS
THE 28 th DAY OF March. 2012
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER(A)
1. Union of India
by
Secretary,
Department of Posts,
Dak
Bhavan,
New Delhi
– 110 001.
2. The Postmaster General,
South
Kanara Region,
Bangalore
– 560 025.
3. The Superintendent of Post Offices
Tumkur
Division, Tumkur. ... Review Applicants
(By
Advocate Shri M. Vasudeva Rao,
Sr.
Central Govt. Standing Counsel)
Vs.
S. Kalpana,
W/o B.K. Srinivasan,
Aged 49 years, Working as
Postal Assistant, Tumkur Division,
R/at "Vivek", Indira College Road,
Upparahalli, Someshwarapuram.
Tumkur. ... Respondent
O R D E R
This R.A. is filed under Section
22(3)(1) of the Administrative Tribunals Act, 1985, seeking review of the order
dated 19.09.2011 passed in OA No.373/2011.
2. The OA was filed with the prayer
for quashing the order dated 13.5.2011, under which the request of the
applicant for grant of CCL (Child Care Leave) was rejected. It was mentioned in the OA tht the CCL can be
taken by her to take care of her son before he completes the age of 18. Any child in the age group of 14-18 generally
needs care and support for her/his studies for this is the time for the crucial
examination for the 10th and 12th standard which are so
essential in our educational system.
There is also a reasoning given by the VI Pay Commission which is to
take care of the younger generation and to facilitate women employees for
taking care of their children at the time of need. The OM dated 18.11.2008 has been issued by
the Govt. of India for the purpose of maintaining the spirit of pay
commission's recommendations and harmonising the smooth functioning of the
office. As such, it clarifies that CCL
cannot be demanded as a matter of right, but, it can be availed when there is
no EL to the credit of the women employee. As such, the applicant claims that she had
requested for the CCL in view of the fact that her son needed support in his
studies and health and the same was rejected by the office on the ground of
heavy work-load in view of the Core Banking preparations. As such, the applicant prayed for atleast the
indications as to when the respondents would be in a position to allow her CCL
after the contingency of Core Bank preparation is over.
3. However, Section 20 of the AT Act
categorically mentions that a Tribunal shall not ordinarily admit an
application unless all the remedies available to the the applicant are
exhausted. Admiting any OA even when
there is a scope for remedy by the concerned administrative machinery would be
only frivolous and lead to spurious cases.
It is, therefore, within the right of the Bench to dispose of the OA at
the stage of admission, but, with a direction to the respondents to consider a
particular grievance and redress it within the framework of law within a
stipulated time. Such a time stipulation
has been necessitated in a whole catina of cases in the past for the simple
reason of delay and non action by the administrative department who, on many
occassions tend to keep the staff issues in a state of pendency. Hence, there is no apparent mistake on the
face of the order and there was no need to issue notices to the
Respondents. A direction is given to
them to consider a particular matter pending with them, such a direction is not
in the nature of pre-concluded decision, but, only a direction to consider
several relevant aspects of the matter and come to a conclusion and pass a
speaking order. This is also what is a
normal administrative duty required under good governance.
4. The Review Application has been filed
mentioning several grounds and the first among them is the ground that a
certain direction has been given to the Respondent without hearing. The above stated position takes care of this
ground. The order that has been passed is only a direction to the respondents to
consider the request of the applicant for grant of CCL as per the provisions of
Rules and entitlements mentioned in OM dated 7.9..2010 and pass a speaking
order within 3 weeks. It further
directed that in case the leave had to be rejected, the respondent department
was to indicate the months in which they will grant the leave. Thus, the order was passed on the first
hearing itself. However, it is important
to note that the order was passed only for the department to consider her
application and it was not passed for sanctioning the leave. Many orders are passed in the same manner at
the stage of admission and without insisting on the notices to the other
side.
5. The 2nd ground mentioned in
para 6 this ground raises a question on the authority of the Member
(Administration) to finally dispose of the OA.
It mentions the decision of the Hon'ble High Court of Karnataka in the
case of "The Divisional Railway Manager, South Central Railway, Hubli
& Ors. Vs. Smt. Gangavva Laxman Patil" – Writ Petition No.9551/2003,
in support of the respondents' claim.
5. I have perused the said order of the Hon'ble High
Court. It quotes the judgment of the
Apex Court in the case of "State of Madhya Pradesh Vs. B.R. Thakare &
Ors. – AIR 2002 SC 2431 and holds that in the light of the said judgment, the
impugned order having been passed by the learned Administrative Member of the
Tribunal is set aside and the matter is remanded back. This order does not state whether it is an
universal application or whether it is applicable only to the referred Writ
Petition No.2551/2003. Is it an order in
rem or in personem? I refer to Sec.5(6)
of the AT Act, 1985 which reads as under:
"5. Composition of Tribunals and Benches
thereof:- (1) Each Tribunal shall
consist of a Chairman and such number of Judicial and Administrative Members as
the appropriate Government may deem fit and, subject to the other provisions of
this Act, the jurisdiction, powers and authority of the Tribunal may be
exercised by Benches thereof.
6.
Notwithstanding anything contained in the
foregoing provisions of this section, it shall be competent for the Chairman or
any other Member authorised by the Chairman in this behalf to function as a
Bench consisting of a single Member and exercise the jurisdiction, powers and
authority of the Tribunal in respect of such classes of cases or such matters
pertaining to such classes of cases as the Chairman may by general or special
order specify;"
This question of a single Member disposing of cases has been dealt with
in detail by the Hon'ble Apex Court in the following 3 cases:
1.
Dr. Mahabalram Vs. ICAR – (1994) 2 SCC 401
2.
L. Chandrakumar Vs. Union of India & Ors. -
JT
1997 (3) SC 589; and
3. State of Madhya Pradesh Vs. B.R.
Thakare & Ors.
2001(1)
SCSLT 25.
The Hon'ble Apex Court in L. Chandrakumar's case has said:
"100. 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 provision was not in question in Dr. Mahabal
Ram's 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 and the Chairman or the Member concerned shall
refer the matter to a Bench 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
construed, Section 5(6) will no longer be susceptible to charges of
unconstitutionality."
Since, the OA No.373/2009 does not involve any question of statotory
provision, but, only a question of giving a direction to the administrative
department, there does not seem to be any bar for an Administrative Member
sitting in single Member Bench to dispose of the OA.
In my
view, in this judgment, their lordships have gone by the view of the
Constitutional bench in L. Chandra Kumar Vs. Union of India & Ors. (1997),
in reiterating that there is no distinction between the powers of a member (J)
and member (A) while sitting as a single member, when care is taken as per the
proviso of sec 5(6).
It is
pertinent to note that their lordships have recorded that the quashing of the
orders is not merely on the ground that the Chairman had not authorized the
Administrative Member but also on the questionable action of passing on
wholesale delegation to a Single Member.
On the other hand, in the
notification issued for Single Member Bench in CAT, no distinction has ever
been made between a Member (Judicial) and a Member (Administration) and this
position has been upheld in the Chandrakumar case. However, relying on the
above judgment and especially para 3, the Hon'ble High Court of Karnataka
& the High Court of West Bengal at Kolkata have remanded the cases decided
by an Administrative Member sitting as a single member bench, questioning their
competency to decide a matter. With due respect to the HC bench, it is our
considered opinion that their lordships have gone beyond the view held by the
Constitutional bench of the Apex court and further ignored that even if
Thakare case is to be construed as rejecting the jurisdiction of member (A),
the facts were peculiar only to that case. It was thus a case in persona
and not in rem.
In view of the above, there is no
apparent mistake in disposing of this matter especially, when it is seen as a
pre-mature matter under Sec. 20 of the Act, in which the respondent department
has a duty to fulfil their administrative tasks.
Now, coming to the issue of review,
it has been held in many cases that the review has to be held only when there
is an error apparent on the face of the record or if there is any ground/points
taken in the OA affecting the merit of the case is left out/ignored. Hence, I do not find any reason to deal with
the other grounds raised in the Review Application at Paras 7 to 13, which are
the grounds specific to the instance of the case and have been covered in the
order dated 19.09.2011. The RA is
therefore, dismissed.
(LEENA
MEHENDALE)
MEMBER (A)
psp.
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