SRI KHAGENDRALAL BAISHYA Vs. STATE OF ASSAM AND ORS.
HIGH COURT OF GAUHATI
Sri Khagendralal Baishya
STATE OF ASSAM And ORS.
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(1.)THIS is an application under Article 226 of the Constitution of India directed against the order dated 12.3.82 passed by the Deputy Commissioner of Kamrup dismissing the Petitioner from his service as Mouzadar; order dated 17.12.82 passed by the appellate authority, i.e. the Commissioner of Lower Assam Division, Gauhati; and the order dated 20.10.84 passed by the State Government dismissing the review application of the Petitioner.
(2.)THERE is no dispute that Mouzadar is a civil servant. As such by the impugned order dated 12.3.82 a civil servant was dismissed from service. There is no wrangle at the Bar that the dismissal order was incompetent and/or the Deputy Commissioner bad no jurisdiction to make the order. The Commissioner of Lower Assam Division, Gauhati the appellate authority, bad the jurisdiction to hear and dispose of the appeal. After the appeal had been dismissed by the appellate authority, the Petitioner went to the Assam Administrative Tribunal against the impugned orders. It appears that the learned Tribunal held that it had no jurisdiction to entertain the appeal since review/revision lay to the Government against the appellate order. The learned Tribunal farther held that It could not entertain the appeal since the Petitioner had not exhausted the remedies, Accordingly the appeal preferred by the Petitioner was allowed to be withdrawn. Thereafter the Petitioner preferred a revision review to the State Government which has been turned down;
(3.)IT appears that in exercise of the powers under Section 4(2) of the Assam Administrative Tribunal Act, 1977 (hereinafter referred to as 'the Act') the Tribunal bad no jurisdiction with respect to any order passed, when civil servant had not availed of all the remedies available to him under the relevant service rules, executive instructions or orders. However, the proviso to Sub -section (2) of Section 4 of the Act provides that if any appeal, revision petition or representation filed ponds before the competent authority for a period of six months, notwithstanding the pungency of such appeal, revision, representation, the Tribunal has jurisdiction to entertain the appeal. Section 4(1) of the Act outlines the jurisdiction of the Tribunal to entertain an appeal. It has jurisdiction to entertain and dispose of appeals preferred by civil servants as defined in Section 2(b) of the Act and no other class of civil servant. The Petitioner is admittedly a civil servant' as defined in Section 2(b) of the Act. As such there is an order rendered against a civil servant and it is the common case of the parties that the Deputy Commissioner as well as the other authorities were competent to make the revisional order, appellate order and order in review, The Petitioner, a civil servant, complains against the orders and not against inaction. An order rendered by an incompetent authority may not be appeal able to the Administrative Tribunal. In the instant case al1 the orders were passed by competent authorities. However, the orders must be in respect of "any conditions of service". The expression 'conditions of service' has been defined In Section 2(e) of the Act. This expression 'conditions or service' may not be the same with those provided in Article 16 of the Constitution of India. Only matters relating to appointment, seniority, confirmation and termination of service of civil servant as well as censure, withholding of increments or promotion, recovery from pay of any loss to the Government, reduction to a lower service, grade or post, or to a lower time scale, or to a lower stage in a time scale, denial or variation of pension or denial of the maximum pension are included. The rest of the service conditions do not fall within the definition of 'conditions of service'. In the instant case the Petitioner claims illegal termination of service and as such the Tribunal had jurisdiction to entertain the appeal against the impugned orders under Section 4 of the Act. However, the jurisdiction of the Tribunal, as outlined, may not be exhaustive, in casts covered by Section 4(3) of the Act the Tribunal may not exercise jurisdiction to entertain and dispose of appeal. However, the instant case is not a case covered by Sub -section (3) of Section 4 of the Act.
It is stated at the Bar that the Petitioner was wrongly advised to come up before this Court under Article 226 of the Constitution of India. Mr. Medhi, the learned Counsel for the Petitioner, submits that there are sufficient grounds to condone the delay in preferring appeal beyond the period of limitation and, as such, prays for a direction that the appeal may be entertained by the Tribunal after condoning the delay under proviso to Section 5 of the Act. Mr. Medhi further submits the Tribunal is a high powered body and it performs judicial functions. We do not propose to give any direction to the Tribunal. If the Tribunal is satisfied that the Petitioner was wrongly advised it shall dispose of the application in accordance with law.
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