Saturday, November 3, 2012

*** RA No.01/2012 on 28-03- 2012



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)

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


            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)


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