IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side

Transcription

1 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present: The Hon ble Justice Harish Tandon And The Hon ble Justice Shekhar B. Saraf R.V.W. No. 159 of 2018 With C.A.N of 2018 in W.P.S.T. 45 of 2017 The State of West Bengal & Anr. Versus Confederation of State Government Employees & Ors. For the Applicants/Respondents For the Respondents/Writ Petitioners : Mr. Kishore Dutta, Learned Advocate General Mr. Joytosh Majumder, Ld. Govt. Pleader Mr. S. Ghosh : Mr. Sardar Amjad Ali, Learned Senior Advocate Mr. Prabir Chatterjee, Mr. Masum Ali Sardar For the Respondent No. 8 : Mr. Bikash Ranjan Bhattacharyya, Mr. Firdous Samim Hearing Concluded on : Judgment on: Shekhar B. Saraf, J.:

2 1. The present memorandum of review filed by the State of West Bengal seeks a review of a judgment and order dated August, 31, 2018 passed by the Division Bench of this High Court comprising of the Hon ble Justice Debasish Kar Gupta and the Hon ble Justice Shekhar B. Saraf in WPST No. 45 of 2017 (Confederation of State Government Employees, West Bengal and Others v- the State of West Bengal and Others) (hereinafter referred to as said judgment ). The said judgment was delivered on a challenge of a judgment passed by the West Bengal Administrative Tribunal (hereinafter referred to as Tribunal ). 2. The Learned Advocate General appearing for the State of West Bengal sought the review on several grounds as enumerated below: a. The Court while passing the said judgment had not put the parties on notice that the matter shall be remanded to the Tribunal for reconsideration. The Learned Advocate General argued that remand could not have been made in a routine manner unless the same had been specifically pleaded and taken as a ground in the writ petition. He relied on the Supreme Court judgment in Syeda Rahimunnisa v- Malan Bi (Dead) By Legal Representatives and Another reported in 2016(10) SCC 315 to support his contention that unless a substantial question of law was framed by the Court, the Court could not have remanded the matter to the Tribunal. b. The Court in the said judgment had relied upon ten judgments that were neither cited by either of the parties nor referred to by the judges during the hearing. He argued that having not put the parties to notice of these ten judgments the court had violated the principles of natural justice, and accordingly, the same amounted to a mistake or error apparent on the record. Such a mistake, in his opinion could

3 very well be corrected in review as the same had made the judgment an irregular judgment. He further relied on a Division Bench judgment of the Calcutta High Court in Delta International Limited v- Nupur Mitra reported in AIR 2018 Cal 8 to support his argument that a decision when made on the basis of a judicial precedent not referred to in course of the argument would amount to a breach of the most elementary canons of natural justice. He further relied on a Privy Council judgment in Grafton Isaacs v- Emery Robertson reported in 3 W.L.R. 705 to draw a distinction between a regular order and an irregular order. c. The third ground for review argued by the Learned Advocate General was that the Court had ignored a binding precedent and relied upon irrelevant judgments having no nexus with the core issue and accordingly had committed a patent error. He argued that ignorance of a binding precedent is fatal and amounts to a manifest and palpable error. To buttress this argument he placed reliance on paragraphs 57 and 76 of A. R. Antulay v- R.S. Nayak and Another reported in (1988) 2 SCC 602 and State of Rajasthan and Another v- Surendra Mohnot and Others reported in 2014 (14) SCC 77. d. The Learned Advocate General thereafter relied on the affidavit in opposition filed on behalf of the respondent nos. 1 and 2 before the earlier Division Bench and placed reliance on paragraphs 6(b) and 6(c) at page 13 of the said affidavit wherein it had been argued by the State of West Bengal that the settled principle of law is that payment of dearness allowance is not a justiciable right and since the same was not a justiciable right no writ of mandamus could be issued by the courts on the State Government for payment of dearness

4 allowance, either at a particular rate or within a particular time frame. He argued that the court had completely ignored these averments made in the affidavit in opposition. He further argued that the ratio laid down in the case of State of Madhya Pradesh v- G. C. Mandawar reported in AIR 1954 SC 493 that dearness allowance is a exgratia payment and no writ of mandamus would lie for the same was completely ignored by the Court. In view of the same, said judgment contained palpable and patent errors that needed to be reviewed. In support of the above argument, he placed reliance on the judgment in G. C. Mandawar (supra) and also the Supreme Court judgments in State of Jammu and Kashmir v- R.K. Zalpuri and Others reported in 2015 (15) SCC 602 and A. K. Kaul and Another v- Union of India and Another reported in (1995) 4 SCC 73 to emphasize on the concept of justiciable right. 3. Sardar Amzad Ali Khan, appearing on behalf of the petitioners supported the judgment passed on August 31, 2018 and submitted that the present review petition is nothing but an appeal in disguise. He submitted that there is no error apparent on the record and the review jurisdiction being extremely limited, as curtailed by Order XLVII, Rule 1 of the Code of Civil Procedure, the present review petition needs to be dismissed with impunity. He submitted that it is crystal clear from the said judgment that having decided the principal issue as to whether dearness allowance is a legally enforceable right, the court was absolutely justified to remand the other issues to the Tribunal. He submitted that this Court on the earlier occasion had put the parties on notice with regard to the issue of remand. He further submitted that the Court had remanded the matter with regard to the second and third issues so that neither of the parties would lose a forum. He placed paragraph 63 to 65 of the said judgment to indicate that G. C. Mandawar (supra) had been specifically dealt with by the Court and

5 distinguished with reasons. Accordingly, the argument of the Learned Advocate General that a binding precedent had been ignored is without any basis whatsoever. He further placed paragraph 83 of the said judgment to indicate that the Court had given reasons as to why the matter needed to be remanded and only after giving those reasons were the second and third issues remanded. To support his argument, that no review lies in the present facts and circumstances he relied on two Calcutta High Court judgment in Makhan Chandra Das v- Parimal Chandra Das reported in (2013) 3 CHN (Cal) 597 (para 7) and Spark Dealers Private Limited v- Official Liquidator reported in (2015) 2 CHN (Cal) At the very threshold, it would be apt to discuss the jurisdiction of this court in review of its own judgment. On a reading and comprehension of the Supreme Court judgments on this issue the following principles emerge:- A. The power to review is inherent in the High Court and the High Court can review its own order/judgment passed in a writ petition. B. This power of review is a limited power and would be governed by the principles of Section 151 read with Order XLVII Rule 1 of the Code of Civil Procedure. C. Firstly, a court can review its own judgment when there is discovery of new and important matter or evidence that was in spite of exercise of due diligence not within the knowledge or could not be produced due to cogent reasons by the party seeking a review. Secondly, the court may review its order or judgment on account of some mistake or error apparent on the face of the record. Thirdly, a residuary

6 clause in Rule 1 of Order XLVII provides for a review for any other sufficient reason. It is to be noted that the Apex Court on several occasions has held that the third condition for any other sufficient reason has to be read within the four corners of the first two conditions. D. An error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record. E. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. There is a sharp distinction between an erroneous decision that can be only appealed against and an error apparent on the face of the record that is subject to review. [See Sasi (D through LRs -v- Aravindakshan Nair reported in (2017) 4 SCC, paras 6-9; Haridas Das -v- Smt. Usha Rani Banik reported in (2006) 4 SCC 78, paras 15-18; Parsion Devi -v- Sumitri Devi reported in 1997 (8) SCC 715, paras 7-10; Aribam Tuleshwar Sharma -v- Aribam Pishak Sharma reported in (1979) 4 SCC 389, para 3] 5. One more aspect of the matter needs to be kept in mind regarding finality of judgments being left in suspense and the same has been exquisitely described by Justice Krishna Iyer in P. N. Eswara Iyer v- The Registrar, Supreme Court of India reported in 1980 (2) SCR 889; 1980 (4) SCC 680 wherein he laments and states:. unchecked review has never been the rule. It must be supported by proper grounds. Otherwise, every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of

7 the virgin dockets waiting in the long queue for preliminary screening or careful final hearing.. Justice Iyer goes on to further state as follows: Frivolous motions for review would ignite the gambling element in litigation with the finality of judgments even by the highest court, being left in suspense. If, every vanquished party has a filing at review lucky dip and if, perchance, notice were issued in some cases to the opponent the latter- and, of course, the former, - would be put to great expense and anxiety. The very solemnity of finality, so crucial to judicial justice, would be frustrated if such a game were to become popular. 6. I now proceed to deal with the grounds raised by the Learned Advocate General in this review petition seriatim. The first argument is that the court before delivering the said judgment did not put the parties on notice with regard to the issue of remand. If my memory serves me right this is factually incorrect. In fact, on going down memory lane, the exchange between the Bench and the Advocate General is quite fresh in my mind today. The Court had indicated that the second and third issues require a further proper examination by the Tribunal below. In reply, the Advocate General had stated that an affidavit had been filed by the State before the High Court and the issues could be decided based on the same. In reply, the Bench had stated that the State had not filed any affidavit before the Tribunal and it would be proper for the State to file a detailed affidavit therein, if the matter was so remanded. It was also remarked that deciding the matter at the High Court would denude one or either of the parties of a forum. Be as that may, the argument put forth that a remand cannot be directed by the writ court unless the same has been specifically pleaded or the parties have been put to notice is not a acceptable argument. The judgment relied on by

8 the Learned Advocate General in Syeda Rahimunnisa (supra) related to a second appeal under Section 100 read with Order 42 of the CPC, 1908 that requires that the High Court shall formulate the substantial questions of law, and thereafter, answer the same. In light of the same, the Supreme Court had held that without there being a substantial question of law on whether a remand should take place, the High Court could not have remanded the matter. It is axiomatic that the jurisdiction of the High Court in writ jurisdiction is far wider and expansive than the jurisdiction in second appeal where only substantial questions of law are addressed by the High Court. In view of the same, the first ground of review raised by the Advocate General is rejected. 7. The second issue relates to ten judgments that were quoted in the said judgment having not been alluded to by the Bench at the time of hearing. The argument of the Learned Advocate General was that these ten judgments should have been referred to by the judges during the hearing and an opportunity should have been given to the parties to distinguish these ten judgments. On a close analysis of the said judgment it is clear that nine out of these ten judgments were referred to by the author of the said judgment between paragraphs 31 to 48, where the author, as a prelude, has discussed (a) the relationship between the government and its employees, (b) the right of government employees to get remuneration, (c) introduction of the concept of payment of dearness allowance to the government employees and (d) the mode of performing the function of fixing and revising the remuneration of the government employees by the government. It is only from paragraph 49 that the author goes on to discuss each of the three issues decided in the said judgment. As would be palpably clear, the above nine judgments are not directly linked in any manner to addressing and answering the issues. The tenth judgment has been referred to at paragraph 62 of the said judgment and the observation of

9 the Apex Court has been quoted that simply states that observations of courts must be read in context in which they appear and that judgments are not to be construed as statutes. As would be evident from the paragraph that was cited, the author was only referring to the judgment to lay down the rules of interpretations of judgments. Accordingly, it is clear that the tenth judgment also did not deal with the issue to be answered and was only used for the purpose of laying down the law on interpretation of judgments. In light of the above, I am unable to agree with the Advocate General that there has been a breach of the principles of natural justice. 8. Furthermore, the judgment referred to by him in relation to the above issue is distinguishable on both facts and law. In Delta International (supra), the appellants had advanced three arguments to establish their case. The third argument was that the trial court had referred to several judgements, which were not cited in the course of the limited argument to seek leave under Clause 12 of the Letters Patent. The trial court referred to a judgement, without giving notice to the parties, while deciding the entire case. Additionally, a later judgement had modified the position taken in the judgement cited by the trial court. Thus, in Delta International (supra), the appellant was unduly prejudiced, because had it known of the judgement being used against it, it would have had the opportunity to bring forward any contrary or recent judgements to counter it. This led the Court to note that it is generally undesirable that judicial precedents be referred to or made the basis for any finding in a judgement without notifying the parties before it. The instant case is, thus, distinguishable from Delta International (supra) as none of the 10 judgments referred to by the State had formed the basis to decide the issue at hand.

10 9. Further, one would also have to keep in mind that the erstwhile principles relating to breach of natural justice have been curtailed to a large extent and cannot be applied in a vacuum without reference to the relevant facts. The principles of natural justice are no unruly horse and cannot be put in a straight jacket formula. The law has developed such that one has to show that such a violation of principles of natural justice has resulted in prejudice having been caused. In A.S. Motors Pvt. Ltd. v- Union of India reported in (2013) 10 SCC 114, the Supreme Court at paragraph 8 held as follows: A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. The Advocate General has failed to demonstrate as to how prejudice was caused to the State by reference to any of these 10 judgments in the said judgement. Accordingly, this argument holds no water and is therefore rejected. 10. The next argument of the Learned Advocate General relates to ignorance of a binding precedent (G. C. Mandawar (supra)). It is to be noted that paragraphs 49 to 65 of the said judgment deals specifically with the first issue of whether the employees serving under the Government of West Bengal have a legally enforceable right for claiming dearness allowance. After referring to various provisions of the ROPA Rules, 2009 and the Memorandum bearing no F and 1692-F, both dated February 22, 2009, the author held that the said memorandums created a right of dearness allowance in favour of the employees. After holding this, the author distinguished G. C. Mandawar (supra) at paragraph 63 and held that the said case was distinguishable in the facts and circumstances as the above case was

11 decided in the light of the Fundamental Rules. In G. C. Mandawar (supra), Rule 44 of the Fundamental Rules states that, a Local Government may grant such allowance to any Government servant under its control Thus, under this provision, grant of dearness allowance and how much was a matter of discretion with the local Government, which is why no right accrued to the Government servants and no duty was cast on the State. However, in the present case, the grant of dearness allowance was not discretionary and a Government employee was entitled to the same. Having specifically distinguished a particular judgment, rightly or wrongly, cannot bring the said judgment under the purview of review. In the event G. C. Mandawar (supra) had been wrongly distinguished, the only right available to the State of West Bengal was to file an appeal. A review cannot lie on this ground. The judgment referred to by the Learned Advocate General in Surendra Mohnot (supra) related to a case where a wrong authority had been cited by one party and such authority had been wrongly conceded by the other side. Furthermore, an existing binding precedent had been completely ignored. Such is not the case here, and therefore, Surendra Mohnot (supra) is clearly distinguishable and has no precedential value to the present review petition. Ergo, this ground raised on behalf of the State stands rejected. 11. The Advocate General cited A.R. Antulay (supra) and Grafton Isaacs (supra) to submit that if there is a violation of the principles of natural justice while giving an order, such order is irregular and can be set aside by the same court that passed such order. It need not be appealed. On the other hand, a regular order has to be set aside by an appellate court. In the instant case, there has been no violation of the principles of natural justice as has already been held above. Thus, the said judgement is not irregular and no circumstances arise, which will warrant the setting aside of the said judgement in review.

12 12. The last issue relates to the averments made in the affidavit in opposition filed by the State before the High Court at paragraphs 6(b) and 6(c) that submit that dearness allowance is not a justiciable right and since dearness allowance is not a justiciable right no writ of mandamus can be issued. The Learned Advocate General argued that the court should have first looked into the aspect as to whether a writ of mandamus could lie against the State for payment of dearness allowance. He argued that the right of an employee to get dearness allowance was not a justiciable right as the payment of such dearness allowance was an ex gratia payment. He relied heavily on paragraph 12 of A. K. Kaul (supra). The said paragraph is delineated below: 12. It is, therefore, necessary to deal with this question in the instant case. We may, in this context, point out that a distinction has to be made between judicial review and justiciability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions o the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as nonjusticiable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable.

13 13. The Learned Advocate General argued that no judicial review could lie on an issue that is not justiciable by the courts. I first want to elucidate the meaning of the word justiciable. According to Black s Law Dictionary (Tenth Edition), justiciable means capable of being disposed of judicially and justiciability means the quality, state, or condition of being appropriate or suitable for adjudication by a court. According to Jowitt s Dictionary of English Law, Volume 2: J-Z (Fourth Edition), justiciable means a matter, which is proper to be examined in courts of justice or determining whether a matter which should be examined before the English courts (or some foreign court). Lastly, in Corpus Juris Secundum, Volume 36, 268, a justiciable controversy is one that is susceptible of judicial enforcement according to accepted principles of common law or equity. 14. I have examined A. K. Kaul (supra) in great detail and find that this judgment is of no assistance whatsoever to the Advocate General. The contention of the learned Advocate General that the said judgement has not considered the issue of justiciability is unfounded and baseless. In fact, the judgment in A. K. Kaul (supra) goes completely against the argument placed by the Advocate General before us. In A. K. Kaul (supra), the appellants were officers of the Intelligence Bureau. On , the employees of the Bureau formed a trade union and the appellants got elected as office-bearers thereof. By a circular, the Joint-Director of the Bureau warned that disciplinary action would be taken against employees partaking in the trade union s activities. This circular was impugned in the Supreme Court, which by an interim order, restrained its implementation. Subsequently, the appellants were dismissed from service by orders passed under Article 311 (2) (c) of the Constitution of India. The appellants filed writ petitions, which were transferred to and ultimately dismissed by the Central Administrative Tribunal, and they

14 preferred an appeal against the Tribunal s decision. The question that arose in appeal was whether an order passed under Article 311 (2) (c) of the Constitution is subject to judicial review or not. The Apex Court held that it is subject to judicial review and the principles laid down in the S.R. Bommai v- Union of India reported in AIR 1994 SC 1918 case governing the justiciability of the satisfaction of the President in the matter of exercise of power under Article 356 would be applicable to the present case. 15. While arriving at this conclusion, the Court espoused on judicial review and justiciability of matters before it. The Court held that the judiciary is vested with the power to check the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that powers conferred by the Constitution on that authority are not transgressed. On account of want of judicially manageable standards, some matters may not be within the purview of the judicial process and such matters are regarded as non-justiciable. 16. The judgment clearly states at paragraph 12 that the power of judicial review is explicit in a written Constitution and, unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of Constitution. The court went on to hold that justiciability relates to a particular field falling within the purview of the power of judicial review. It is only in certain specific cases that for want of judicially manageable standards certain matters may not be susceptible to the judicial process; those matters may be regarded as non-justiciable. On a reading of the entire judgment, it is clear that the Supreme Court held in the said case that even in cases wherein the satisfaction of the President is involved, the same would be subject

15 to judicial review if the said satisfaction was mala fide or based on extraneous and irrelevant grounds. 17. Further, the learned Advocate General cited the case of R.K. Zalpuri (supra) to submit that a palpable error had been committed by the Division Bench in not deciding the issue of justiciability and the same deserved to have been addressed. In R.K. Zalpuri (supra), the Single Bench and thereafter the Division Bench of the High Court had not taken note of the issue of delay and laches, which was put forward by the State. Neither the Single Judge nor the Division Bench had addressed the issue of delay and laches and the Supreme Court held this to be a palpable error since the principal stand of the State was not addressed. However, in the instant case, there is no such palpable error since the issue of justiciability has been duly addressed. 18. The fact that the Court held that the grant of dearness allowance is a legally enforceable right meant that the Court considered the issue of such grant of dearness allowance to be justiciable and then proceeded to render the decision therein. Had the Court considered the grant of dearness allowance to be a non-justiciable right, the Court would not have pronounced a decision on this matter. It is implicit in the said judgment that the author regarded dearness allowance to be a justiciable right and, accordingly, held it to be legally enforceable. Thus, there was no need for the Court to separately enunciate that the matter before the Court was justiciable or that dearness allowance is a justiciable right. The question had been addressed and it cannot be now argued that the issue of justiciability had not been decided. 19. The argument put forward by the Advocate General that the court should have first decided whether a justiciable right was present and

16 to see whether writ of mandamus could be issued by the court before deciding on the legally enforceable right of the employees seems a case of putting the cart before the horse. The said judgment was dealing with an order passed by the Tribunal that had held that dearness allowance cannot ever be a legal right of an employee and was subject to the discretion of the employer. The court in the said judgment clearly dealt with this issue and reversed the finding of the Tribunal on facts as well as on law. In the present case, whether a particular component of remuneration is payable to government employees can by no means be a non-justiciable issue. The sophistry of the arguments placed by the Learned Advocate General, though innovative and enticing, they are absolutely fallacious and without any basis in law. 20. It is to be noted that today when the matter was fixed for delivery of the judgment the Learned Advocate General after seeking leave of this Court brought to the notice of this Court a very recent Supreme Court judgment passed on February 13, 2019 by the Division Bench comprising of R. Banumathi, J. and Indira Banerjee, J. in Tamil Nadu Electricity Board Rep. By Its Chairman v- TNEB- Thozhilalar Aykkiya Sangam by its General Secretary reported in 2019 SCC OnLine SC 189. He submitted that the Supreme Court in the above judgment had held that there is no rule or obligation on the State Government to always adopt the dearness allowance as revised by the Central Government. He, accordingly, submitted that the said judgment was required to be reviewed in the light of the latest judgment of the Supreme Court. He placed reliance on paragraphs 2, 12, 24 and 25 of the above Supreme Court judgment to highlight that the State Government is not required to adopt the dearness allowance rates fixed by the Central Government and has to fix the rates depending upon its own financial position.

17 21. The above submission again holds no merit for two reasons. Firstly, subsequent events and judgments cannot be taken into account for the purposes of review of a judgment. This principle is settled by a catena of judgments of the Supreme Court and our High Court. Secondly, it is to be noted that the said judgment never decided on the issue as to whether the State Government was required to adopt the dearness allowance as revised by the Central Government. The said judgment, in fact, has remanded this issue to the Tribunal for consideration after completion of exchange of affidavits. The very fact that the issue as to whether the State Government was required to adopt the dearness allowance as revised by the Central Government is now required to be decided by the Tribunal after considering various factors such as the financial ability of the State Government and whether any arbitrary action has been taken by the State Government means that the issue was not decided in the said judgment. In light of the same, it is clear that the Supreme Court judgment relied on by the Learned Advocate General has no application to the said judgment as the issue itself was never decided by the said judgment. 22. In light of the observations and reasons provided above, I am of the view that this is not a fit case for review. Accordingly, the Memorandum of Review (RVW 159 of 2018) and the interim application (CAN 8729 of 2018) are dismissed. 23. I would go amiss if I do not acknowledge the assistance provided to this Court during the hearing of this matter by the Learned Advocate General, Mr. Kishore Dutta; the Learned Government Pleader, Mr. Joytosh Majumder and Senior Advocates, Mr. Sardar Amjad Ali and Bikash Ranjan Bhattacharyya.

18 24. On a prayer made by the Learned Advocate General, the time to file the affidavit in opposition before the Tribunal is extended by a period of three weeks from date, reply if any, one week thereafter. The Tribunal is requested to expeditiously hear and decide the matter, preferably within a period of two months from date. I agree (Harish Tandon, J.) (Shekhar B. Saraf, J.)