Power of contempt must be exercised with caution: CAT

New Delhi, Feb 19 (PTI) The Central Administrative Tribunal has held that the power of contempt in judicial proceedings has to be exercised with "abundant caution".
"The power of contempt, which is essentially a local tool to secure respect and confidence in judicial proceedings, has to be exercised with abundant caution," the Tribunal bench comprising members Shanker Raju and Veena Chhotray said.
The CAT passed the observation on a plea of a doctor who had filed a contempt petition against MCD for allegedly not obeying the Tribunal's previous order directing it to regularise certain period of his service during which he remained absent as per the service rules.
The doctor R R Gautam had also challenged the charge sheet issued against him in 2009 which questioned the genuineness of the medical certificate produced by him.
"Every act cannot be a definite defile or wilful negligence of the court's order.

CAT: cash rewards for IT officers unconstitutional : J. Venkatesan

NEW DELHI: The cash reward scheme for officers of the Investigating Wing of the Income Tax Department is bad in law and ultra vires the Constitution, the Kolkata Bench of the Central Administrative Tribunal has held.

A Bench consisting of K.V. Sachidanandan, Vice-Chairman, and Champak Chatterjee, Administrative Member, quashed the scheme introduced by a Central Board of Direct Taxes Circular, dated November 6, 1985, to the officers per case of detection of tax evasion.

The Tribunal said: “Tax evasion is not a new phenomenon, and the propensity to evade payment or under-payment of tax is common all over the world. It has existed since the taxing system was introduced in our country long long ago. For detection of any unaccounted money which is commonly known as ‘black money,’ the Income Tax Department is equipped with competent officers, who undertake search and seizure operations either on their own initiative or on receipt of information or tip-offs from informers or sources.”

The Bench said: “Such government officials are performing their official duties, for which they are paid an appropriate pay and allowances as prescribed under the rules, and such duties are also conditions of their service. In such circumstances, payment of reward per case of detection of unlawful evasion of tax is wholly unwarranted and uncalled for.

“Payment of reward to outsiders who act as a source or informer can be understood, as they stand on a different pedestal, but it is not understood why payment of reward/commission is to be made to the government officials over and above their monthly salary for performing their prescribed statutory duties? That too without liability to pay income tax, though it is their income. Why this benevolence?”

In the instant case, Samir K. Ghosh, who retired as Additional Commissioner of Income Tax, Kolkata, claimed Rs.7,46,320 as a cash reward during 1992-96 with respect to six cases, as against Rs. 2,80,244 paid to him.

The Tribunal rejected the plea, saying it would be open to the government if it so desired to explore an alternative means of recognising commendable work done by officials.

Courtesy: The Hindu

'Employer cannot dictate the uniform linen': HC

Chennai, Nov 5: Asserting that an employer cannot dictate the type of material to be used for uniform, the Madras High Court today set aside a order by the Chennai Airport directing a woman employee to use only the dress prescribed by the Airports Authority while on duty.

Allowing a writ petition by a senior Office Assistant S Kasthuri in 1999, who used khadi/handloom material instead of silk while maintaining the colour prescribed by the airport, Justice K Chandru said the airport had the power to prescribe a uniform and even indicate the colour and shade of material one should wear but it cannot not dictate on the type of linen.

Silk and synthetic material prescribed were neither suited to our country nor did it reflect the ethos of the independence movement, he said.

"Rather than appreciating the principle stand taken by the petitioner, it is unthinkable that the respondent should come up with an unjustified reference to a so-called service regulation," the Judge said, adding that Article 51 A (b) of the Constitution clearly stipulated that a citizen of the Union had a duty to cherish and follow the noble ideals which inspired the freedom struggle.

He directed the Chennai Airport to pay Kasthuri Rs 5,000 as costs.

Kasthuri was appointed as a junior clerk in 1973 in the office of Director General of Civil Aviation. In 1989, she was made an employee of AAI and subsequently redesignated as senior office assistant. Since 1994 the employees were made to wear silk or polyster sarees.

The petitioner who used khadi/ handloom cotton dresses and khadi chappals was told in August 1996 to attend office in the prescribed uniform.

Kasthuri, inspired by life and principles of Mahatma Gandhi right from her childhood, contended that she neither collected her uniform sarees nor claimed any allowance in lieu of it. - Agencies

Courtesy_
http://news.chennaionline.com

Implementing new pay scale prerogative of employer: SC

The Supreme Court on Friday said that it is the prerogative of the government to implement revised pay scale for employees. There is no legal right vested in employees to claim implementation of revised pay scale, the apex court said.

“The question as to whether the scale of pay would be revised or not is a matter of policy decision for the state. No legal right exists in a person to get a revised pay scale implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the state that bears the financial burden,” a bench comprising Justice S B Sinha and Justice Cyriac Joseph said.

The court dismissed the appeal of an employee who had resigned from the service of a PSU but claimed arrears which accrued due to the retrospective implementation of the revised pay scale by the government. The appellant, Mr A K Chandrashekar, was employed as finance director in an PSU of the Kerala government. He had resigned from service on May 23, 1995.

Subsequently, the Government of India issued an office memorandum (OM), on July 19, 1995, revising scales of pay for `executives holding board level posts’ with effect from January 1, 1992. In January, 1996, the appellant made a representation requesting payment of arrears on the ground that he was in service on January 1, 1992, and was entitled to the benefit of the OM of 1995.

It was, however, rejected by the state government. It had said that the OM of 1995 issued by the secretary to the Government of India directing the revision of scales of pay of scheduled posts effective from Jan 1, 1992, specifically contains a clause that all the administrative ministries/ departments are required to issue presidential directives to the concerned public sector enterprises under its administrative control to give effect to the revision.

The industries department of the BPE of Kerala government has not issued any specific directive to the PSU for making the revision effective. “Hence, we are unable to consider your request,” the government said. Another representation of the appellant drew a similar fate. The appellant then approached the Kerala high court. The HC had dismissed the plea of the appellant.

Courtesy_
http://economictimes.indiatimes.com

continuing wrongs and recurring/ successive wrongs

The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. Supreme Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan -[AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963) :

"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held :

"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred........."

To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting
others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.