UNION OF INDIA Vs. JUGAL KISHORE SAMAL

JUDGEMENT

(1.) The above appeals have been filed against the orders of the Central Administrative Tribunal dated 4.5.1995 in the main OA No. 382 of 1990 as well as dated 20.3.1996 in RA No. 16 of 1995 rejecting the application for review. The Tribunal below, on a reappreciation of the materials placed on record and files stated to have been produced before it, has come to its own independent conclusion that till 1980 no adverse entry could be found in the service record, that subsequent to 1980 the entry was with reference to the respondent's punctuality only and the remarks between 1984-85 were only with reference to some unspecified throat trouble and lack of voice clarity. It also observed that proceedings in which some punishment came to be imposed have been set aside and that certain remarks about the respondent's attitude towards his superiors were all not sufficient to deny him the promotion under one time-bound promotion scheme when according to it what remained finally was only a censure. On that view of the matter, the Tribunal while declaring that the respondent was eligible for promotion to the next higher grade under the scheme noticed above from the year of its inception i.e. 1983, directed that the order so promoting him should be issued within thirty days with all consequential financial benefits arising from such promotion which shall be calculated and disbursed within sixty days thereafter. The appellants moved a review application bringing to the notice of the Tribunal that the assumption about the absence of positive or concrete adverse remarks or no justifying material to deny the promotion claimed by the respondent was not justified and in the review application the relevant instances about the adverse entry made in 1987 as well during the period 1988-89 which were said to have been sustained even by the Appellate Authority were disclosed in support of the claim of the department. In spite of it, the Tribunal without adverting to the correctness or otherwise of the said factual details and materials has summarily rejected the review application observing that there is no error apparent on the face of the record. Hence these appeals.

(2.) Mr Pramod Swarup, learned counsel for the appellants invited our attention to the contents of the review application to contend that relevant facts brought to the notice of the Tribunal were unjustifiably ignored and in the teeth of such materials on record the Tribunal could not have countenanced the claim for promotion and at any rate ought not to have directed the promotion as has been done in this case by purporting to reassess and reappreciate the materials as if it were the Appellate Authority. Reliance has been placed by learned counsel for the appellants in support of his claim on a decision of this Court in State of T.N. V/s. S. Subramaniam wherein it has been indicated that the Tribunal is not a court of appeal in exercising powers akin to the power of judicial review which alone has been invested with the Administrative Tribunals under the Administrative Tribunals Act, 1985 and that the Tribunal will have no power to reappreciate the materials to arrive at its own conclusion different from that of the competent departmental authority as if it is an Appellate Authority.

(3.) Per contra, the learned counsel for the respondent while trying to justify the directions of the Tribunal vehemently contended that the Tribunal was well within its rights in going through the materials and relevant records produced by the department before it and arrive at a proper conclusion, if it was found to its satisfaction that there had been no proper consideration of the materials available on record by the authority concerned. It was urged that the claim being of a benefit under a time-bound promotion scheme, in the absence of any concrete materials sufficient to deny promotion under the scheme, the Tribunal was well within its power to direct the grant of promotion from 1983. Reliance was also placed by the learned counsel for the respondent on the decision in U.P. SEB V/s. Kharak Singh. In our view, this decision does not help either the case of the petitioner or laid down any principle of law as such except that the learned Judges have declined to interfere with the order of the Tribunal directing promotion in the background of facts disclosed therein and noticed by the Tribunal that all the adverse remarks on the basis of which the case of the employee for promotion was denied were set aside and thereby justified the order of the Tribunal without adjudicating or declaring any general or particular proposition or principle of law. The decision next relied upon in Badrinath V/s. Govt. of T.N in our view, centres around the peculiar and concrete facts noticed therein from which the Court was able to infer legal bias in the teeth of a specific plea of bias against the committee itself. As a matter of fact, even in the said judgment we find reference to the position of law that it is not the province of the court to promote an employee or officer making an assessment of its own or by issuing a mandamus to promote the officer, except in some rare situation. The learned Judges in the said decision found that the case presented before them fell within the category of "rare situation", having regard to the patent illegalities noticed and legal bias which were said to have been substantiated, vitiating thereby the orders in that case. We do not find any such alarming factual position having been found even by the Tribunal except making an observation that the service record does not contain any substantial and subsisting adverse remarks to deny the respondent his promotion under the scheme which observation itself seems to be contrary to real facts disclosed from records. In our view it is this type of independent exercise undertaken to reappreciate and arrive at one's own conclusion by the Tribunal or courts that have been often frowned upon as not permissible in law. In this case, the Tribunal instead of squarely meeting and answering the grievance pointed out in the review petition about the subsisting remarks which remained on the record of the respondent, but overlooked by the Tribunal when the order in the main OA was passed has chosen to summarily reject the review application. The exercise undertaken by the Tribunal, both in passing order dated 4.5.1995 as also the manner of disposal of the review application, in our view, is seriously vitiated in law and against the well-settled norms or parameters laid down for such Tribunals in dealing with the order of the departmental authorities and cannot have our approval. The Tribunal, in our view, exceeded its permissible limits in straightaway ordering the promotion from the inception of the scheme in 1983. The Tribunal exceeded its permissible limits of powers in not only undertaking its own independent assessment and consideration of the claim for promotion as it affected it but in straightaway ordering that the promotion be accorded with retrospective effect and monetary benefits, without remitting the same for fresh consideration. The orders of the Tribunal dated 4.5.1995 and 20.3.1996 are hereby quashed. At the same time we direct the authority concerned, which has the power to consider the claim for promotion of the respondent to consider afresh the same in the light of all or any of the subsisting materials or remarks on record pertaining to a proper assessment of the claim of the respondent and pass appropriate orders afresh in the light thereof. As the matter has already been considerably delayed, the authority concerned shall consider and pass appropriate orders within three months from the date of receipt of a copy of this order. The appeals are allowed in the above terms. No costs.