TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 2082
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....inistrative 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 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 re....
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....he Supreme Court judgments in State of Jammu and Kashmir -v-R.K. Zalpuri and Others 2015 (15) SCC 602 and A.K. Kaul and Another -v- Union of India and Another (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 pa....
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.... that is subject to review. [See Sasi (D through LRs -v- Aravindakshan Nair (2017) 4 SCC, paras 6-9; Haridas Das -v- Smt. Usha Rani Banik (2006) 4 SCC 78, paras 15-18; Parsion Devi -v- Sumitri Devi 1997 (8) SCC 715, paras 7-10; Aribam Tuleshwar Sharma -v- Aribam Pishak Sharma (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 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 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....
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....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 sai....
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....dice having been caused. In A.S. Motors Pvt. Ltd. -v- Union of India (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. 1691-F and 1692-F, bot....
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....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 of the Constitution. Since the task of....
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....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 23.07.1979, 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 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 judic....
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....; 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 to see whether writ of mandamus could be issued by the court before de....