TMI Blog2003 (1) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... r: The U.P. Public Services (Tribunal) Act, 1976 ( for short the Act ) was promulgated relating to public servants of the State Government and the employees of the government undertakings, local bodies etc. having power to grant interim relief as well. Before the coming into force of the Act the public servants were approaching civil courts for redressal of their grievances arising out of their service matters by filing civil suits before the civil court of competent jurisdiction or by approaching the High Court under Article 226 of the Constitution of India. After the coming into force of the Act the jurisdiction of the Civil Court was taken away. The decision to have a separate service Tribunal was taken by the State Government after considering the increasing workload of the civil courts and the delay in disposal of the service matters. The purpose for creating the Tribunal has been indicated in the statement of objects of the Act, which reads as under: The number of cases in the courts pertaining to the employment matters of the Government servants was constantly on the increase. This, besides increasing the workload in the courts also delayed considerably the disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enacted by the Parliament under Article 323-A of the Constitution providing a Central Administrative Tribunal with benches for adjudicating disputes in respect of recruitment and conditions of service of persons appointed under the Central Government and its undertakings in connection with the affairs of the Union. Under Section 5(1) of the said Act Tribunal was to consist of a Chairman, Vice-Chairman, Judicial and Administrative Members. Under Section 6(1)(c) of the said Act a person who had held the post of Secretary to the Government of India or any other post under Central or State Government carrying a scale of pay which was not less than that of a Secretary to the Government of India could be appointed as the Chairman of the Tribunal. The original Act vested the entire power of appointment of Chairman, Vice-Chairman, Administrative Judicial Members of the Tribunal in the Central Government without providing for their appointments being made in consultation with the Chief Justice of India. Writ Petition No. 12437 of 1985, S.P. Sampath Kumar v. Union of India and other connected cases were filed in this Court under Article 32 of the Constitution of India challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll. As was pointed out by us in S.P. Sampath Kumar v. Union of India, the disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that an adequate number of judges of the appropriate level should man the Services Tribunals. This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunal and the institution as well would command the requisite confidence of the disputants. We have indicated in the connected matter that steps should be taken to replace the Services Tribunals by Tribunals under the Administrative Tribunals Act, 1985. That would give the Tribunal the necessary colour in terms of Article 323-A of the Constitution. As a consequence of setting up of such Tribunals, the jurisdiction of the High Court would be taken away and the Tribunals can with plenary powers function appropriately. The disputes which have arisen on account of the Services Tribunals not having complete jurisdiction to deal with every situation arising before it would then not arise. We have pointed out that notice has been issued in a later case for the State's response to the question of Tribunals to be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has under the provisions of the Contempt of Courts Act. Thereafter in 1993 Sri S.Venkat Ramani, an IAS officer was appointed by the State Government as Chairman of the Tribunal. Sanjai Kumar Srivastava filed writ petition No.1619(MB) of 1993 before the Allahabad High Court challenging the appointment of Sri Venkat Ramani as Chairman of the Tribunal as well as challenging the constitutional validity of the provisions of section 5(3) (c) and 5(4)(c) of the Act as amended in 1992 whereby an IAS officer could be appointed as Chairman and Vice-Chairman of the Tribunal. A Full Bench of the Allahabad High Court by its judgment dated 26th May, 1995 struck down the provisions of Section 5 (3) (c) and 5(4) (c) of the Act and quashed the appointment of Sri Venkat Ramani an IAS officer as Chairman of the Tribunal. In 1994 the U.P. Public Services (Tribunal) (Amendment) Ordinance (U.P. Ordinance No. 23 of 1994) was promulgated whereby sub-section 5-C was inserted to section 5 of the Act divesting the Tribunal from passing any interim order in respect of an adverse entry awarded to a public servant and providing that all interim orders passed in respect of any such adverse entry before the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the legislative competence of the State Legislature. Shri Afzal Ahmad Siddiqui, a practising advocate filed writ petition No. 748 (MB) of 1999 challenging the constitutional validity of Section 3(5), (7) and (8) of the Act with a prayer to annul the above sections in order to remove the infirmities of the Act as pointed out by this Court in S.P.Sampath Kumar's case (supra). The same advocate Shri Afzal Ahmad Siddiqui filed another writ petition No. 1636 (MB) of 1999 challenging the constitutional validity of the U.P. Ordinance No. 17 of 1999. After the coming into force of the U.P. Act No. 5 of 2000 replacing the Ordinance No.17 of 1999 Shri Afzal Ahmad Siddiqui filed writ petition No. 871 (MB) of 2000 challenging the provisions of the U.P. Act No. 5 of 2000. Relief claimed in writ petition No. 871 (MB) of 2000 was the same as had been claimed in writ petition Nos. 748 (MB) of 1999 and 1636 (MB) of 1999 filed by him in which he had challenged the provisions of the Ordinance. The provisions of the Act which are under challenge and other relevant provisions are reproduced below for reference: Section 3. Constitution of the Tribunal -(1) As soon as may be after the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment:Provided that no person shall assume the Office of Chairman, Vice-Chairman or other member, as the case may be, unless he has resigned or retired from, as the case may be, the Judgeship of the High Court, or the Indian Administrative Service or the Uttar Pradesh Higher Judicial Service or any other service in which he was serving except the service as Vice-Chairman or Member. Section 4. Reference of claim to Tribunal-(1) Subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance. Explanation - For the purpose of this sub-section order means an order made by the State Government or a local authority or any other Corporation or company referred to in clause (b) of Section 2 or by an officer, committee or other body or agency of the State Government or such local authority or Corporation or company: Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incumbent could not approach the Civil Court for the reason that the jurisdiction of the Civil Court had already been barred under Section 6 of the Act. That by the amendments made in the impugned Act the powers of the Tribunal regarding judicial review of administrative in-action deprives the litigants of their valuable right. Divesting of power of judicial review too was ultra vires to the Constitution of India. Judicial review being basic and essential feature of the Constitution as held by this Court in Minerva Mills Ltd. vs. Union of India reported in 1980 3 SCC 625. The object of the Act was not to leave a public servant without any remedy. It was further averred that initially there were provisions in the Act conferring powers upon the Tribunal to grant interim relief. However, in due course of time on one pretext or the other the jurisdiction of the Tribunal to grant interim reliefs has gradually been taken away. Firstly embargo was put with respect to grant of interim relief in certain matters. Subsequently the jurisdiction with respect to transfer was taken away and lastly the power to make interim order in respect of an adverse entry made by an employer against a public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental torture. Another submission made was that judgment and orders of the Tribunal before the promulgation of the amended Act could be executed after issuance of a certificate by the Tribunal to the principal civil court under sub-section (7) of Section 5 of the Act. However, by the amendment made in the impugned Act by U.P. Act No. 7 of 1992, sub-section (7) of Section 5 was substituted by the following provisions:-- (7) The order of the Tribunal finally disposing of a reference shall be executed in the same manner in which any final order of the State Government or other authority or officer or other person competent to pass such order under the relevant service rules as to redressal of grievances in any appeal preferred or representation made by the claimant in connection with any matter relating to his employment to which the reference relates would have been executed. In view of the aforesaid substituted sub-section (7) of Section 5, the orders and judgment of the Public Services Tribunal cannot be executed as a decree of civil court and they are executable only as orders of the State Government or other authority or officer or other person competent to pass such orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. Public Services (Tribunal) Act as well as to carry out the amendments in it in exercise of its legislative power. In regard to challenge of sub-section (1) of Section 4 that only an 'order' passed by the authority could be challenged and not the 'in-action' on the part of the government to pass an order, it was submitted that order also would mean omission and inaction on the part of the authority concerned for which a public servant could move the Tribunal. Advocate General who had appeared before the High Court on behalf of the State very fairly stated that the 'inaction' or 'omission' to Act could also be challenged before the Tribunal. Since no explanation/clarification had come in the Act, the High Court observed: Now it is certain that there is no remedy provided in the Act to the Government employee to approach the Services Tribunal as far as non-action of the State Government is concerned. Therefore we are of the considered opinion that now the remedy open to such incumbent is under Article 226 of the Constitution of India. It could be a blessing in disguise to such employees as this Court can even grant interim relief under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is precluded from going into the dispute on merits at the first instance which practically leaves the litigant from getting any immediate relief against an order of transfer, termination, suspension, removal, dismissal etc. It also results in additional expenses to the litigant thus defeating the purpose of the Act itself. For the said reasons, according to him, sub-section 5B and 5C are violative of Article 14 and 16 of the Constitution being arbitrary. Shri Ranjit Kumar, learned senior advocate appearing in Civil Appeal Nos. 3947 3948 of 2001 contended that object of the amendments was to bring the U.P. Public Services (Tribunal) Act, 1976 in tune with the Administrative Tribunals Act, 1985 whereas it is to the contrary. That the impugned judgment does not deal with the question regarding holding of the post of a Vice-Chairman by a non judicial member. In other respects he adopted the submissions made by Shri Venugopal. Shri P.P.Rao, learned senior counsel appearing for the respondents contraverted the submissions made by the respective counsels appearing for the appellants in the two sets of appeals. It was contended by him that a litigant is not left without any remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions. In State of Andhra Pradesh v. McDowell Co. others, 1996 (3) SCC 709, this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 41 confers upon a State Legislature the power to make State Public Services: State Public Services Commission. Under this Entry, a State Legislature has the power to constitute State Public Services and to regulate their service conditions, emoluments and provide for disciplinary matter etc. The State Legislature had enacted the U.P. Public Services Tribunals Act, 1976 in exercise of the power vested in it by Entry 41 of List II of seventh schedule. Power to enact would include the power to re-enact or validate any provision of law in the State Legislature provided the same falls in a entry of List II of the VII Schedule of the Constitution with the restriction that such enactment should not nullify a judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application (para 17). In the same paragraph the Court further observed as follows: The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognizes and gives effect to the concept of equality between the three wings of the State and the concept of checks and balances inherent in such scheme. In the light of what has been stated above, we proceed to examine the challenge to the various provisions of the Act. The newly added sub-section (1) of Section 4 contemplates that subject to the provisions of the Act a person who is and has been public servant being aggrieved by an order pertaining to the service matters within the jurisdiction of the Tribunal may make a reference to the Tribunal for redressal of his grievances. Counsel appearing for the respondents fairly stated before us as had been stated by the Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Sub-sections (5-B) and(5-C) of Section 5 independently of what had been held by the High Court in Writ Petition No. 4255 of 1978. Before we make a reference to the various provisions of that Act under challenge and examine their validity it would be useful to refer to certain decisions of this Court wherein the grant of interim stay in cases of dismissal, termination or suspension has been examined. In Delhi Cloth and General Mills Co. Ltd. case (supra) this Court examined the point as to whether a workman could be ordered to be reinstated as an interim measure pending final adjudication by the Tribunal under the Industrial Disputes Act. In the said case the employer dismissed the workman for disobeying the orders of the managing authority. The workman filed an application before the Industrial Tribunal under Section 33-A of the Industrial Disputes Act, 1947 contesting his dismissal on various grounds, whereupon the Tribunal passed an order to the effect that as an interim measure the workman be permitted to work and if the management failed to take him back his full wages be paid from the date he reported for duty. The employer challenged the order of the Tribunal by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner. From the above quoted decisions, it is evident that this Court has consistently been of the view that by way of interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court. Sub-section (5-B) provides that the Tribunal shall have not the power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant. Dismissal, removal, termination and compulsory retirement puts an end to the relationship of employer and employee. In case of suspension,, reduction in rank or reversion the relationship of employer and employee continues. Interference at the interim stage with an order of dismissal, removal, termination and compulsory retirement would be giving the final relief to an employee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be compensated by adequately moulding the relief while giving the relief at the final stage. Power of the Tribunal to grant interim relief has been taken away qua certain matters not completely. The power has been taken away in matters where the grant of said relief at the interim stage would result in giving the relief which would normally be given while disposing of the case finally. Simply because in a rare cases of microscopic number a case is made out for stay of orders of suspension, transfer, reduction in rank, reversion or termination, dismissal and compulsory retirement and the employee is liable to approach the High Court for interim stay by itself is no ground to strike down the law enacted by a Legislative which is within its competence to enact. Sub-section (5-C) of Section 5 contemplates that the Tribunal shall have no power to make an interim order in respect of an adverse entry. Adverse entry in the confidential report does not affect the conditions of service of a public servant. Making of an entry in the confidential report is an administrative act based on the subjective satisfaction of the superior officer done on the objective criteria. It is an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2) (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as may be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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