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1993 (0) MPLJ 628
Gulab C. Gupta, P Chauhan J.
Moti Marry
vs
Superintendent, Lady Elgin ...
Decided on : 25 June, 1993
ADMINISTRATIVE TRIBUNALS ACT, 1985 - SECTIONS 28 AND 29 - INTERPRETATION - JURISDICTION OF CIVIL COURTS AND HIGH COURTS - SERVICE MATTERS - REMAND OF APPEAL - POWER OF SUPERINTENDENCE UNDER ARTICLE 227 OF THE CONSTITUTION.
Fact of the Case:
The appellant, a contingency paid employee at the Lady Elgin Hospital, Jabalpur, challenged the termination of her services by filing a suit before the Civil Judge. The trial court dismissed the suit, and the appellant preferred an appeal to the District Judge, who also dismissed the appeal. The appellant then filed an application under Order 41, Rule 27, Civil Procedure Code, seeking permission to adduce additional evidence. The lower appellate court dismissed the application. The appellant preferred a second appeal to the High Court, which allowed the application and remanded the appeal to the State Administrative Tribunal for decision. The Tribunal held that it had no jurisdiction to entertain the appeal, as it was not pending before the Civil Court on the date of its establishment. The appellant then filed a review application in the High Court, which was referred to a Division Bench for consideration.
Finding of the Court:
The Division Bench held that the jurisdiction of the Civil Court is excluded under Section 28 of the Administrative Tribunals Act, 1985, only from the date the Tribunal is established, and not before that. Since the appeal was pending in the High Court on the date of establishment of the Tribunal, the jurisdiction of the High Court was not affected by Section 28. The Division Bench also held that the remand of the appeal to the Tribunal was not in accordance with the provisions of the Civil Procedure Code, but could be given in exercise of jurisdiction under Article 227 of the Constitution. However, the Division Bench clarified that the learned Single Judge had not exercised that jurisdiction and could not, in view of the Rules of the High Court, exercise the said jurisdiction. The Division Bench answered four questions referred to it for consideration, holding that the High Court's power to pass any order on the appeal, including the order of remand, was unaffected by the provisions of the Act; that the bar created by Section 28 of the Act does not affect pending appeals in the High Court; that the High Court has the power to review its own orders; and that the jurisdiction of the High Court under Article 227 is unaffected by Article 323A of the Constitution and the Administrative Tribunals Act, 1985.
Issues: 1. Whether the appeals pending in the High Court on service matters saved by the proviso to Sub-section (1) of Section 29 of the Administrative Tribunals Act, 1985 would include proceedings remanded by the High Court, in its appellate jurisdiction, to Civil Courts subordinate to it after the establishment of the Tribunal? 2. Whether the bar on jurisdiction imposed on Civil Courts contained in Section 28 of the Act of 1985 shall apply to such proceedings of subordinate Courts, received by them as a result of an order of remand passed by the High Court in its appellate jurisdiction after the establishment of the Tribunal? 3. Whether the High Court having finally disposed of the second appeal by making it over to the Tribunal for further proceeding with it, is denuded of its jurisdiction or can deal with the appeal afresh on retransfer of the same by the Tribunal to it? 4. Whether the order of the Tribunal retransferring the appeal to this Court can be subject matter of consideration and interference by this Court in exercise of its constitutional power of superintendence under Article 227 of the Constitution of India?
Ratio Decidendi: 1. The jurisdiction of the Civil Court is excluded under Section 28 of the Administrative Tribunals Act, 1985, only from the date the Tribunal is established, and not before that. 2. Since the appeal was pending in the High Court on the date of establishment of the Tribunal, the jurisdiction of the High Court was not affected by Section 28. 3. The remand of the appeal to the Tribunal was not in accordance with the provisions of the Civil Procedure Code, but could be given in exercise of jurisdiction under Article 227 of the Constitution. 4. The High Court has the power to review its own orders. 5. The jurisdiction of the High Court under Article 227 is unaffected by Article 323A of the Constitution and the Administrative Tribunals Act, 1985.
Final Decision: The Division Bench answered the four questions referred to it for consideration, holding that the High Court's power to pass any order on the appeal, including the order of remand, was unaffected by the provisions of the Act; that the bar created by Section 28 of the Act does not affect pending appeals in the High Court; that the High Court has the power to review its own orders; and that the jurisdiction of the High Court under Article 227 is unaffected by Article 323A of the Constitution and the Administrative Tribunals Act, 1985.
Gulab C. Gupta, J.
1. This appeal, which is within the jurisdiction of Hon'ble Single Judge of this Court under High Court Rules and Orders, has been placed for consideration of this Division Bench under special circumstances and as a result of reference made by the Hon'ble Single Judge on 3-11-1992.
2. The appellant was a contingency paid employee at the Lady Elgin Hospital, Jabalpur and her services were terminated by order dated 28-9-1978 as no longer required. The appellant challenged the legal validity of the said termination by filing a Civil suit before First Civil Judge Class I, Jabalpur where it was subject matter of Civil Suit No. 116-B/79. In her suit, the appellant prayed for a decree declaring her terminatiton illegal and granting all consequential bonefits. The learned trial Judge by its judgment and decree dated 24-12-1982, dismissed the said suit on a finding that the order of termination was not illegal. The appellant thereafter preferred an appeal under Section 96, Civil Procedure Code before first Addl. Judge to the Court of District Judge, Jabalpur (later on transferred to 8th Addl. Judge to the Court of District Judge, Jabalpur) where it was subject-matter of Civil Appeal No. 1-B/85. The learned lower appellate Court by its judgment and decree dated 12-3-1985 affirmed the judgment and decree of the learned Trial Court. It appears that during the pendency of this appeal, the appellant filed an application on 9-11-1992 under Order 41, Rule 27, Civil Procedure Code seeking permission to adduce additional evidence consisting of a letter dated 22-3-1980 which, according to the appellant, was sufficient to indicate that the order of termination was punitive in nature. The said letter of respondent No. 1 sought to communicate letter dated 5-3-1980 of the Dean, Medical College, Jabalpur, the Respondent No. 2, of certain terms of compromise of the dispute. The learned lower appellate Court found no justification for admitting this additional evidence and dismissed the said application. The appellant, undaunted by the aforesaid failure, preferred the present second appeal under Section 100, Civil Procedure Code in this Court. This Second Appeal was heard by Hon'ble Shri Justice D.M. Dharmadhikari, who, by his judgment dated 29-11-1990, held that the application of the appellant under Order 41, Rule 27 was illegally and unjustifiably dismissed. According to the learned Judge, the documents sought to be introduced in evidence were relevant to the decision of the most vital question involved in the appeal and hence, the application under Order 41, Rule, 27 Civil Procedure Code should have been allowed. Learned Judge therefore held that "the application under Order 41, Rule 27, Civil Procedure Code filed by the appellant is allowed and the documents filed with the application be taken on record." The learned Judge thereafter noticed Sections 28 and 29 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act) and held that the jurisdiction of the first Appellate Court for dealing with this appeal after remand has been taken away and conferred on the State Administrative Tribunal, Jabalpur. The learned Judge therefore transferred the appeal to the said Tribunal for decision in accordance with law.
3. When the record of the appeal went to the learned Administrative Tribunal, it was placed before the Chairman of the Tribunal for consideration. The learned Chairman, by his order dated 15-7-1992, held that only cases which were pending before Civil Courts on 2-8-1988 alone were liable to be transferred under Section 29 of the Act and since the present case does not fall in that category, the Tribunal has no jurisdiction to entertain and decide the appeal. The learned Chairman however examined the matter further in the context of appellant's running from pillar to post since long and observed that the proper course was to remand the appeal to the lower appellate Court for taking additional evidence and d
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