Full Judgment Text
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CASE NO.:
Appeal (civil) 441 of 2001
PETITIONER:
E.S.P.RAJARAM & ORS.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 01/01/2001
BENCH:
G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL
JUDGMENT:
JUDGMENT
DELIVERED BY:
D.P.MOHAPATRA, J
MOHAPATRA, J.
Leave granted.
The appellants who were appointed as Traffic
Apprentices in Southern Railway prior to May 15, 1987, have
filed this appeal challenging the judgment of the Madras
Bench of the Central Administrative Tribunal (for short the
CAT) dated October 4, 1996 in OA No. 1096 of 1996
dismissing the case with the observation that it would be
appropriate for the applicants to approach the Supreme Court
for any clarification/review of the judgment in the case
titled Union of India and others vs. M. Bhaskar and others
1996 (4) SCC 416. The controversy which arose in that case
was regarding the claim of Traffic Apprentices appointed
prior to 15-5-1987 that they should be given the scale of
pay of Rs.1600-2660, benefit of which was available to
Traffic Apprentices recruited after 15-5-1987. Similar
claims were raised before different benches of the CAT.
There had been divergence of opinion between the different
benches, some accepting the claim of pre 1987 Traffic
Apprentices for the higher scale of pay, some other benches
taking a contrary view. The Ernakulam bench of CAT had
quashed the memorandum dated 15-5-1987 issued by the Railway
Board in which it was provided that the higher scale of pay
would be admissible only to the Traffic Apprentices
recruited after the date of the memorandum. These
conflicting views taken by different benches of the CAT came
up for consideration by this Court in the case of Union of
India and others vs. M. Bhaskar and others (supra), in
which a Bench of three learned Judges held inter alia (i)
that Rule I-A of the Indian Railway Establishment Code which
had come to be made pursuant to the power conferred by the
proviso to Article 309 of the Constitution permitted the
Railway Board to issue necessary instructions regarding
recruitment in the lowest grade and the memorandum dated
15-5-1987 having been issued in exercise of that power, the
Board had valid authority to issue the memorandum; ii) that
since the recruitment of apprentices under the impugned
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memorandum was to man the posts, not of Assistant Station
Masters, Assistant Yard Masters etc. as before, but of
Station Masters and Yard Masters and the standard of
examination for the apprentices to be recruited after
15-5-1987 was required to be higher than that which was
prevailing, giving them higher pay scales or reducing the
period of their training, could not be said to be d
iscriminatory, arbitrary or unreasonable. iii) That the cut
off date 15-5-1987 is not arbitrary since the court felt
satisfied that the date is of relevance and the memorandum
as given came to be issued in the circumstances noticed in
the judgment. This Court upheld the validity of the
memorandum. The conclusions arrived at by this Court were
summed up in paragraph 17 of the judgment which reads as
follows:
"17.All the appeals, therefore, stand disposed of by
setting aside the judgments of those tribunals which have
held that the pre-1987 Traffic/Commercial Apprentices had
become entitled to the higher pay scale of Rs.1600-2660 by
the force of memorandum of 15-5-1987. Contrary view taken
is affirmed. We also set aside the judgment of the
Ernakulam Bench which declared the memorandum as invalid;
so too of the Patna Bench in appeal @ SLP (C) No. 15438 of
1994 qua Respondent 1. We also state that cases of
Respondents 2 to 4 in appeals @ SLPs (C) Nos. 2533-35 of
1994 do not stand on different footing."
In paragraph 18 of the judgment this Court considering
the hardship which may be caused to the appellants concerned
directed Union of India and its officers not to recover the
amount already paid. The said paragraph is quoted herein
below: 18. Despite the aforesaid conclusion of ours, we
are of the view that the recovery of the amount already paid
because of the aforesaid judgments of the Tribunals would
cause hardship to the respondents/appellants concerned and,
therefore, direct the Union of India and its officers not to
recover the amount already paid. This part of our order
shall apply (1) to the respondent/appellants who are before
this Court; and (2) to the pre-1987 apprentice in whose
favour judgment had been delivered by any CAT and which had
become final either because no appeal was carried to this
Court or, if carried, the same was dismissed. This benefit
would be available to no other."
In pursuance of the directions issued by this Court in
the judgment, the departmental authorities gave appropriate
placement in the scale of pay to the appellants who were
recruited as Traffic Apprentices prior to 15-5-1987. They
were given the pay of scale of Rs. 455-700 which stood
revised as Rs.1400-2300 on the recommendation of the 4th Pay
Commission and not the scale of Rs.550-750 which was revised
to Rs.1600-2660. Feeling aggrieved by the said order the
appellants filed OA No.1096/96 which was disposed of by the
judgment dated 4th of October, 1996 of the Madras Bench of
the CAT in the manner noted earlier. Thereafter the
appellants filed SLP No. 5373 of 1997 giving rise to this
appeal. In the said SLP a bench of three learned Judges of
this Court by the Order passed on 6-11-1997 directed that
the matter be placed before a constitution bench, since the
judgment in M. Bhaskar’s case (supra) was delivered by
co-equal bench. The referral order is quoted hereunder;
"In this special leave petition the grievance of the
petitioners is against the Direction No.2 contained in Para
18 of the judgment of this court in Union of India & Ors.
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Vs. M. Bhaskar & Ors., 1996 (4) SCC 416 passed by the
Bench of Three learned Judges whereby it has been directed
that the order contained in para 18 would apply to pre-1987
apprentices (Traffic) in whose favour judgment has been
delivered by any CAT and which had become final either
because no appeal was carried to this Court or, if carried,
the same was dismissed. The learned counsel for the
petitioners has challenged the correctness of these
directions on the ground that finality of the orders passed
in the case of the petitioners as a result of the special
leave petition filed against the order of the CAT having
been dismissed by this Court, could not be reopened as a
result of the said directions. Since the judgment in M
Bhaskar’s case (supra) was delivered by a Bench of three
learned judges of this Court, we consider it appropriate
that the matter be placed before the Constitution Bench. It
is directed that the matter may be placed before the Hon’ble
Chief Justice for directions in this regard.
In the meanwhile, it is directed that the Status quo
with regard to reversion in rank and reduction in pay scales
shall be maintained, as it exists today."
The main thrust of the arguments of learned counsel
appearing for the appellants was that the observations and
directions given by this Court in M. Bhaskar’s case (supra)
particularly in paragraph 18 thereof are unsustainable since
it was passed without giving any notice to the appellants
and/or other similarly placed employees who were seriously
prejudiced by such directions. Elucidating the contentions,
the learned counsel submitted that the appellants who had
been given fitment in the higher scale of pay, Rs.1600-2660
and on that basis some of them had got further promotions
should not have been subjected to the directions in the
judgment of this Court particularly when the special leave
petition filed by the Union of India and the Railways
against the judgment of CAT (Madras Bench) dated 4th of
December, 1989 in OA No. 322 of 1988 and 488 of 1987 (the
appellants were applicants in OA 322 of 1988) accepting
their claim for the higher scale of pay had been dismissed
in limine by this Court. In any view of the case, submitted
the learned counsel, the principle of natural justice
required that the appellants should have been given notice
and afforded an opportunity of hearing before the order
prejudicially effecting their interest was passed. The
learned Additional Solicitor General appearing for the
respondents on the other hand contended that in the context
of the facts and circumstances of the case and the nature of
the controversy raised, this Court rightly passed the order,
issuing the directions in paragraph 18 of M. Bhakar’s case
(supra) for the purpose of bringing about uniformity amongst
all the employees similarly placed, that is, those who were
recruited as Traffic Apprentices prior to 15-5-1987. The
further submission of the learned Addl. Solicitor General
was that this Court taking note of the hardship which may be
caused to the appellants and other similarly placed
employees issued the further direction that no recovery
shall be made of the amount which they might have received
in the higher scale of pay. In the submission of the
learned Addl. Solicitor General, the directions in
paragraph 18 of the judgment were issued with a view to do
complete justice between all pre-1987 Traffic Apprentices
and therefore calls for no interference.
Since, the thrust of the arguments of the learned
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counsel appearing for the petitioners and the intending
interveners was that the observations in paragraphs 17 & 18
of the judgment in M.Bhaskar’s case (supra) by which they
have been seriously prejudiced were not made without giving
notice to them, we specifically asked the learned counsel to
place their arguments on the merits of the directions
contained in the said paragraphs for the purpose of
satisfying ourselves if a re-look at the said decision is
necessary. The learned counsel could not raise any
contention of substance questioning the correctness of the
decision in the aforementioned case except stating that many
of the persons who were parties in the cases decided by the
Tribunal taking the contra- view and some others had been
given benefit on the basis of the decision of the Tribunal
and some of them have even got further promotions which have
become vulnerable in view of the decision of this Court in
M. Bhaskar case (supra). It was their contention that this
Court should have made it clear that the decision in M.
Bhaskar case (supra) will not affect the parties in whose
favour judgments have been delivered by any bench of CAT and
which had become final either because no appeal was carried
to this Court or if carried the same was dismissed and
further the benefit should have been extended to others who
though not parties in any proceeding before any bench of CAT
had been given service benefit on the basis of the judgment
delivered by a bench of the CAT taking the view which was
rejected by this Court in M. Bhaskar case (supra). We have
carefully perused the judgment in M. Bhaskar’s case
(supra). The decision in that case has been taken on a
detailed analysis of the relevant provisions of the Indian
Railway Establishment Code and the Indian Railway
Establishment Manual (1968 Edn.), and in the light of
certain general principles of law relating to recruitment
cogent reasons have been given in support of the findings
and conclusions arrived at in the judgment. As noted
earlier no contention was advanced before us pointing out
any serious error in the decision therein. We are satisfied
that in the facts and circumstances of the case placed
before their Lordships the decision is correct and warrants
no interference.
If it is necessary to trace the source of power of
this Court to issue the directions and pass the order as in
paragraph 18 of M Bhaskar’s case (supra) one can
straightaway look to Article 142 of the Constitution. The
said provision vests power in the Supreme Court to pass such
decree or make such order as is necessary for doing complete
justice in any case or mater pending before it. The
provision contains no limitation regarding the causes or the
circumstances in which the power can be exercised nor does
it lays down any condition to be satisfied before such power
is exercised. The exercise of the power is left completely
to the descretion of the highest court of the country and
its order or decree is made binding on all the Courts or
Tribunals throughout the territory of India. However, this
power is not to be exercised to override any express
provision. It is not to be exercised in a case where there
is no basis in law which can form an edifice for building up
a super structure. This Court has not hesitated to exercise
the power under Article 142 of the Constitution whenever it
was felt necessary in the interest of justice. In the case
of M S Ahlawat vs. State of Haryana and another (2000) 1
SCC 278) a bench of three learned Judges of this Court
considering the power of the Court to recall its own order
in a criminal case referred to the relevant observations in
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Supreme Court Bar Association v. Union of India (1998) 4
SCC 409) and held that under Article 142 of the Constitution
the Supreme Court cannot altogether ignore the substantive
provisions of a statute and pass orders concerning an issue
which can be settled only through a mechanism prescribed in
another statute. The following passage from the headnote of
the case of Supreme Court Bar Association v. Union of India
(supra) was quoted with approval : "However, the powers
conferred on the Court by Article 142 being curative in
nature cannot be construed as powers which authorise the
Court to ignore the substantive rights of a litigant while
dealing with a cause pending before it. This power cannot
be used to ’supplant’ substantive law applicable to the case
or cause under consideration of the Court. Article 142,
even with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject and
thereby to achieve something indirectly which cannot be
achieved directly. The very nature of the power must lead
the Court to set limits for itself within which to exercise
those powers and ordinarily it cannot disregard a statutory
provision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating
parties by ’ironing out the creases’ in a cause or matter
before it. Indeed the Supreme Court is not a court of
restricted jurisdiction of only dispute-settling. The
Supreme Court has always been a law-maker and its role
travels beyond merely dispute settling. It is a
’problem-solver in the nebulous areas’ but the substantive
statutory provisions dealing with the subject-matter of a
given case cannot be altogether ignored by the Supreme
Court, while making an order under Article 142. Indeed,
these constitutional powers cannot, in any way, be
controlled by any statutory provisions but at the same time
these powers are not meant to be exercised when their
exercise may come directly in conflict with what has been
expressly provided for in a statute dealing expressly with
the subject."
In the case of R.C.Sahi and others vs. Union of India
and others (1999) 1 SCC 482 concerning applicability of
certain service rules to officers of the CRPF this Court
relying on the power vested in Article 142 "for doing
complete justice in any cause or matter" issued the
following directions: "There are two petitioners in WP(C)
No.211 of 1997. Out of these two, it is stated that one has
already retired from the service. In the light of the
interim orders dated 19.1.1998 and 27.1.1998, the first
petitioner (C.M Bahuguna) is still in service in the
promoted post. In the circumstances, we are of the view
that notwithstanding the dismissal of the writ petition, the
petitioner, viz. C.M Bahuguna who is still in service in
the promoted post, should be allowed to continue in the said
promoted post, if necessary, by creating a supernumerary
post. However, we make it clear that all further promotions
shall be made in the light of this order."
In the case of Gaurav Jain vs. Union of India and
others (1998) 4 SCC 270) considering the petition for
review, a Bench of three learned Judges of this Court
interpreting Article 142(1) held that the provision does not
and cannot override Article 145(5) and observed that the
decrees or orders issued under Article 142 must be issued
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with concurrence of the majority of the Judges hearing the
matter. This Court referred to the following observations
made by the Court in Prem Chand Garg vs. Excise
Commissioner U.P.1963 Supp.(1) SCR 885 : "It does not and
cannot override Article 145(5). The decrees or orders
issued under Article 142 must be issued with the concurrence
of the majority of Judges hearing the matter. In the case
of Prem Chand Garg v. Excise Commnr. U.P. a Bench of five
Judges of this Court considered a Rule made by this Court
providing for imposition of terms as to costs and as to
giving of security in a petition under Article 142 were very
wide and could not be controlled by Article 32. Negativing
this contention, this Court said :
"The powers of this Court are no doubt very wide and
they are intended to be and will always be exercised in the
interest of justice. But that is not to say that an order
can be made by this Court which is inconsistent with the
fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in order
to do complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the
substantive provisions of the relevant statutory laws.
Therefore, we do not think it would be possible to hold that
Article 142(1) confers upon this Court powers which can
contravene the provisions of Article 32."
Similarly, powers conferred by Article 142(1) also
cannot contravene the provisions of Article 145(5). Article
142 would not entitle a Judge sitting on a Bench of two
Judges, who differs from his colleague to issue directions
for the enforcement of his order although it may not be the
agreed order of the Bench of two Judges. If this were to be
permitted, it would lead to conflicting directions being
issued by each Judge under Article 142, directions which may
quite possibly nullify the directions given by another Judge
on the same Bench. This would put the Court in an untenable
position. Because if in a Bench of two Judges, one Judge
can resort to Article 142 for enforcement of his directions,
the second Judge can do likewise for the enforcement of his
directions. And even in a larger Bench, a Judge holding a
minority view can issue his order under Article 142 although
it may conflict with the order issued by the majority. This
would put this Court in an indefensible situation and lead
to total confusion. Article 142 is not meant for such a
purpose and cannot be resorted to in this fashion."
In the case of State of Punjab and others vs.
Bakshish Singh (1998) 8 SCC 222) concerning a departmental
proceeding against a police constable this Court rejecting
the contention raised by the appellant that the Supreme
Court could not cure inconsistency because the respondent
had not filed any cross appeal, this Court removed the
inconsistency by invoking Article 142 of the Constitution
and by referring to Order 41, Rule 33 and Section 107(1)(a)
of the Code of Civil Procedure, 1908. This Court referring
to the decision of the Constitution Bench in Supreme Court
Bar Association case (supra) reiterated the position that
while exercising power under Article 142 of the Constitution
the Court cannot ignore the substantive right of a litigant
while dealing with a cause pending before it and can invoke
its power under Article 142. The power cannot however be
used to supplant substantive law applicable to a case. This
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Court further observed that Article 142 even with the width
of its amplitude, cannot be used to build a new edifice
where none existed earlier, by ignoring express statutory
provisions dealing with a subject and thereby achieve
something indirectly which cannot be achieved directly. In
the case of Spencer & Company Ltd. and another vs.
Vishwadarshan Distributors Pvt. Ltd. and others (1995)1
SCC 259 this Court dealing with the binding nature of the
orders issued by the Supreme Court to the High Court
referring to the provisions of the Articles 141, 142 and 144
of the Constitution made the significant observations: "The
afore-narrated words, we think, presently, are enough to
assert the singular constitutional role of this Court, and
correspondingly of the assisting role of all authorities,
civil or judicial, in the territory of India, towards it,
who are mandated by the Constitution to act in aid of this
Court. That the High Court is one such judicial authority
covered under Article 144 of the Constitution is beyond
question. The order dated 14.1.1994 of this Court was
indeed a judicial order and otherwise enforceable throughout
the territory of India under Article 142 of the
Constitution. The High Court was bound to come in aid of
this Court when it required the High Court to have its order
worked out. The language of request oftenly employed by
this Court in such situations is to be read by the High
Court as an obligation, in carrying out the constitutional
mandate, maintaining the writ of this Court running large
throughout the country."
In the case of Ram Krishna Verma and others vs. State
of U.P. and others (1992) 2 SCC 620 a case relating to
grant of permit to private operators on nationalised routes,
this Court referring to Articles 136, 142 and 226 of the
Constitution held that the Court should endeavour to
neutralise any undeserved and unfair advantage gained by a
party invoking its jurisdiction. Therein it was observed by
this Court (at p.630):
"This Court in Grindlays Bank Ltd. v. ITO held that
the High Court while exercising its power under Article 226
the interest of justice requires that any undeserved or
unfair advantage gained by a party invoking the jurisdiction
of the court must be neutralised. It was further held that
the institution of the litigation by it should not be
permitted to confer an unfair advantage on the party
responsible for it. In the light of that law and in view of
the power under Article 142(1) of the Constitution this
Court, while exercising its jurisdiction would do complete
justice and neutralise the unfair advantage gained by the 50
operators including the appellants in dragging the
litigation to run the stage carriages on the approved route
or area or portion thereof and forfeited their right to
hearing of the objections filed by them to the draft scheme
dated February 26, 1959."
In the case of Re: Vinay Chandra Mishra (1995)2 SCC
584) relating to a proceeding for criminal contempt a Bench
of three learned Judges of this Court dealing with the
priliminary objection raised on behalf of the contemner and
the State Bar Council held that this Court is not only the
highest court of record, but under various provisions of the
Constitution, is also charged with the duties and
responsibilities of correcting the lower courts and
tribunals and or protecting them from those whose misconduct
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tends to prevent the due performance of their duties.
Therein this Court distinguished the decisions in Prem Chand
Garg (supra) and relied on the decisions in Delhi Judicial
Service Association vs. State of Gujarat (1991)4 SCC 406
and Union Carbide Corporation.etc. vs. Union of India
(1991) 4 SCC 584, and this Court made the following relevant
observations in connection with the power vested under
Article 142 :
"Apart from the fact that these observations are made
with reference to the powers of this Court under Article 142
which are in the nature of supplementary powers and not with
reference to this Court’s power under Article 129, the said
observations have been explained by this Court in its later
decisions in Delhi Judicial Service Assn. v. State of
Gujarat and Union Carbide Corpn. v. Union of India. In
para 51 of the former decision, it has been, with respect,
rightly pointed out that the said observations were made
with regard to the extent of this Court’s power under
Article 142(1) in the context of fundamental rights. Those
observations have no bearing on the present issue. No
doubt, it was further observed there that those observations
have no bearing on the question in issue in that case as
there was no provision in any substantive law restricting
this Court’s power to quash proceedings pending before
subordinate courts. But it was also added there that this
Court’s power under Article 142(1) to do complete justice
was entirely of a different level and of a different
quality. Any prohibition or restriction contained in
ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court is in
seisin of a matter before it, it has power to issue any
order or direction to do complete justice in the matter. A
reference was made in that connection to the concurring
opinion of Justice A.N.Sen in Harbans Singh v. State of
U.P. where the learned Judge observed as follows: (SCC
pp.107-08, para 20):
"Very wide powers have been conferred on this Court
for due and proper administration of justice. Apart from
the jurisdiction and powers conferred on this Court under
Articles 32 and 136 of the Constitution, I am of the opinion
that this Court retains and must retain, an inherent power
and jurisdiction for dealing with any extraordinary
situation in the larger interests of administration of
justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used only in
exceptional circumstances for furthering the ends of
justice."
The Court has then gone on to observe there that no
enactment made by Central or State legislature can limit or
restrict the power of this Court under Article 142 of the
Constitution, though the Court must take into consideration
the statutory provisions regulating the matter in dispute.
What would be the need of complete justice in a cause or
matter, would depend upon the facts and circumstances of
each case.
In the case of Union Carbide Corporation and others
Vs. Union of India and others (supra), a Constitution Bench
of this Court dealing with the power of the Apex Court to
withdraw unto itself cases pending in the district court at
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Bhopal,considered the scope and ambit of the power vested in
the Court under Article 142 of the Constitution. In para 60
of the judgment it was observed :
"Any limited interpretation of the expression "cause
or matter" having regard to the wide and sweeping powers
under Article 136 which Article 142(1) seeks to effectuate,
limiting it only to the short compass of the actual dispute
before the Court and not to what might necessarily and
reasonably be connected with or related to such matter in
such a way that their withdrawal to the apex Court would
enable the court to do "complete justice", would stultify
the very wide constitutional powers. Take, for instance, a
case where an interlocutory order in a matrimonial cause
pending in the trial court comes up before the apex Court.
The parties agree to have the main matter itself either
decided on the merits or disposed of by a compromise. If
the argument is correct this Court would be powerless to
withdraw the main matter and dispose it of finally even if
it be on consent of both sides. Take also a similar
situation where some criminal proceedings are also pending
between the litigating spouses. If all disputes are
settled, can the court not call up to itself the connected
criminal litigation for a final disposal? If matters are
disposed of by consent of the parties, can any one of them
later turn around and say that the apex Court’s order was a
nullity as one without jurisdiction and that the consent
does not confer jurisdiction? This is not the way in which
jurisdiction with such wide constitutional powers is to be
construed. While it is neiehter possible nor advisable to
enumerate exhaustively the multitudinous ways in which such
situations may present themselves before the Court where the
Court with the aid of the powers under Article 142(1) could
bring about a finality to the matters, it is common
experience that day in and day out such matters are taken up
and decided in this Court. It is true that mere practice,
however long, will not legitimize issues of jurisdiction.
But the argument, pushed to its logical conclusions, would
mean that when an interlocutory appeal comes up before this
Court by special leave, even with the consent of the
parties, the main matter cannot be finally disposed of by
this Court as such a step would imply an impermissible
transfer of the main matter. Such technicalities do not
belong to the content and interpretation of constitutional
powers.
In para 83 of the judgment this Court rejected as
unsound and erroneous the proposition that a provision in
any ordinary law irrespective of the importance of the
public policy on which it is founded, operates to limit the
powers of the apex Court under Article 142(1).
In paragraph 214 of the judgment summing up the
conclusions reached this Court observed :
(i) The contention that the apex Court had no
jurisdiction to withdraw to itself the original suits
pending in the District Court at Bhopal and dispose of the
same in terms of the settlement and the further contention
that, similarly, the Court had no jurisdiction to withdraw
the criminal proceedings are rejected.
It is held that under Article 142(1) of the
Constitution, the Court had necessary jurisdiction and power
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to do so.
Accordingly, contentions (A) and (B) are held and
answered against the petitioners.
In the case of Ved Prakash and others vs. Union of
India and others (1994) 1 SCC 45 taking note of the piquant
situation caused due to inordinate delay in payment of
compensation for the property acquired under section 4 of
the Land Acquisition Act, this Court made the following
observation:
"The petitioners because of the delay and inaction on
the part of the respondents are in a great predicament. Any
amount determined as market value of their lands acquired,
with reference to the dates of issuance of notifications
under sub-section (1) of Section 4 of the Act i.e. at the
rate prevalent 15-21 years prior to the dates of the making
of the award, cannot be held to be compliance of the mandate
regarding payment of market value of the land so acquired
under the Constitution and the Act. This Court faced with
such a situation, where proceedings have remained pending
for years after issuance of declarations under Section 6, in
order to protect the petitioners concerned from irreparable
injury i.e. getting compensation for their lands acquired
with reference to the date of notification under sub-section
(1) of Section 4, which may be more than a decade before the
date of the making of the award, has advanced the date of
notification under sub-section (1) of Section, so that
market value of the land so acquired is paid at a just and
reasonable rate. Reference in this connection may be made
to the cases of Ujjain Vikas Pradhikaran v. Raj Kumar Johri
(1992) 1 SCC 328; Akhara Brahm Buta, Amritsar v. State of
Punjab, (1992) 4 SCC 243 and Bihar State Housing Board v.
Ram Bihari Mahato, AIR 1988 Supreme Court 2134. This Court
has advanced the date of notification under sub-section (1)
of Section 4 of the Act, in the cases referred to above,
without assigning any reason, as to how the date fixed by
Sections 11 and 23 of the Act, can be altered for
ascertainment of the market value of land. The power of
this Court under Article 142 is very wide and can be
exercised in the ends of justice. The scope of the said
Article was recently examined in the case of Union Carbide
Corpn. v. Union of India (1991) 4 SCC 584 (Emphasis
supplied)
In the case of N.A. Mohammed Kasim (Dead) and another
vs. Sulochana and others (1995) Supp(3) SCC 128 which arose
from a civil suit this Court in the facts and circumstances
of the case considered it fit for invoking Court’s power
under Article 142 for giving equitable relief to the
plaintiff-respondents, not on ground on which they claimed
relief in the suit but on the ground of promissory estoppel
equity and fair play.
From the conspectus of the views expressed in the
decided cases noted above it is clear that this Court has
invoked the power vested under Section 142 of the
Constitution in different types of cases involving different
fact situations for doing complete justice between the
parties.
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In the case on hand the controversy relates to the
scale of pay admissible for Traffic Apprentices in the
Railways appointed prior to the cut-off date. The
controversy in its very nature is one which applies to all
such employees of the Railways; it is not a controversy
which is confined to some individual employees or a section
of the employees. If the judgment of the tribunal which had
taken a view contrary to the ratio laid down by judgment of
this Court in M. Bhaskar’s case (supra) was allowed to
stand then the resultant position would have been that some
Traffic Apprentices who were parties in those cases would
have gained an unfair and undeserved advantage over other
employees who are or were holding the same post. Such
enviable position would not only have been per se
discriminatory but could have resulted in a situation which
is undesirable for a cadre of large number of employees in a
big establishment like that of the Indian Railways. To
avoid such a situation this Court made the observations in
paragraph 17 of the judgment. At the cost of repetition we
may reiterate that since the main plank of argument of the
appellants was that since they were not parties in the case
they had no opportunity to place their case before this
Court made the observations in paragraph 17 of the judgment
as aforementioned we specifically asked learned counsel
appearing for the parties to place the argument in support
of their challenge to the observations made by this Court on
merits. No point of substance assailing the observations on
merits could be placed by them. The only contention made in
that regard was some of the employees who were given benefit
in the judgments of the CAT have got further promotions and
they may lose the benefit of such promotion in case the
observations made in paragraph 17 of the judgment are
allowed to stand as it is. We are not impressed by the
contention raised. If some employees were unjustly and
improperly granted a higher scale of pay and on that basis
were given promotion to a higher post then the basis of such
promotion been on a non-existent; the superstructure built
on such foundation should not be allowed to stand; This is
absolutely necessary for the sake of maintaining equality
and fair play with the other similarly placed employees.
However, in our considered view, it will be just and fair to
clarify that any amount drawn by such employees either in
the basic post (Traffic Apprentice) or in a promotional post
will not be required to be refunded by the employee
concerned as a consequence of this judgment. This position
also follows as a necessary corolary from the observations
made by this Court in paragraph 18 of the judgment in
M.Bhaskar’s case (supra).
On the discussions made and the reasons set forth in
the preceeding paragraphs the appeal is dismissed but in the
circumstances of the case without any order for costs.