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TMI Blog2003 (3) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal Act 1995 (in short 'the Act'). By the notification dated 16.9.1995 referred to above, Chairman and the technical member were also appointed. Subsequently, he was appointed to discharge functions of Chairman of the Tribunal till appointment of regular Chairman. This contingency arose on the previous Chairman attaining the age of 65 years. State Government vide notification dated 27.2.1999 issued an Ordinance No.1/1999 styled The Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999 (in short 'the Ordinance'). The same became operative w.e.f. the date of notification i.e. 27.2.1999. By the above Ordinance under Section 5 matters and proceedings pending before Tribunal on the date of commencement of the Ordinance stood automatically transferred to the High Court for disposal. As a consequence of Tribunal being abolished, continuance of appellant as Chairman automatically came to an end. Appellant claimed compensation of ₹ 5,35,648/- with interest @ 15% per annum by filing a writ petition on the ground that his tenure appointment was to continue up to 18.9.2000. Since there was a premature termination of the tenure appointment, claim of compensation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that effect. Even though there was no contractual prescription for payment of compensation, that has to be taken as inbuilt requirement in the spirit of clause (2) of Article 310. There has to be interpretation of the provisions for giving effect to constitutional mandates. The decision taken by the Cabinet was in line with the said provision and, therefore, the High Court was not justified in refusing the grant of compensation. Finally, since there has been violation of the legitimate expectation of the appellant to continue till the end of tenure period, by application of the principle of legitimate expectation the State Government was bound to pay compensation irrespective of whether there was any Cabinet decision earlier or not and that would not make any difference. Section 4(b) of the Ordinance also has relevance in that context. Any obligation or liability accrued or incurred under the Act repealed are not be affected by the repeal. In support of the stands reliance was placed on following decisions: (L.G. Chaudhari, vs. The Secretary, L.S.G. Dept., Govt. of Bihar and Others AIR 1980 SC 383, State of Himachal Pradesh and Anr. vs. Kailash Chand Mahajan and Ors. 1992 Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all executive action of the State Government shall have to be taken in the name of the Governor. Further there is no particular formula of words required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in R. Chitralekha etc. vs. State of Mysore and Ors. (AIR 1964 1823) held that the provisions of the Article were only directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed, it only prescribes the mode under which such act is to be expressed. While clause (1) in relation to the mode of expression, clause (2) lays down the ways in which the order is to be authenticated. Whether there is any Government order in terms of Article 166, has to be adjudicated from the factual background of each case. Strong reliance was placed by learned counsel for the appellant on L.G. Chaudhari (supra) to contend that for all practicable purposes the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the contract to a person who is holding a civil post under the Union or a State, if before the expiry of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate the post. Being an enabling provision in the matter of payment of compensation on the basis of a contractual obligation, it cannot be said that even when there is no stipulation in a contract of employment, the same is implicit. Submission of learned counsel that such a provision is inbuilt and has to be read into the Act and the Ordinance is clearly unacceptable. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the legislature. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the language is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the rule of law, if Judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to public interest. Where, therefore, the language is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here. (See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests (AIR 1990 SC 1747 at p. 1752); Shyam Kishori Devi v. Patna Municipal Corpn. (AIR 1966 SC 1678 at p. 1682); A.R. Antulay v. Ramdas Sriniwas Nayak (1984 (2) SCC 500, at pp. 518, 519)]. Indeed, the Court cannot reframe the legislation as it has no power to legislate. [See State of Kerala v. Mathai Verghese (1986 (4) SCC 746, at p. 749); Union of India v. Deoki Nanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. The relevant observations appeared at paragraph 5 of the judgment in Bollapragada's case reads as follows: It is contended by the State that the respondents are not entitled to gratuity or the benefit of the Family Benefit Scheme because the posts of part-time Village Officers have been abolished under the said Act. The Gratuity Scheme under GOMs dated 18.4.1980 provides, inter alia, for payment of gratuity to the Village Officer at the time of demitting office after attaining the age of 58 years after giving notice to the appointing authority. Therefore, the Gratuity Scheme expressly provides for the manner of demitting office on attaining the age of 58 years, or 60 years, as the case may be. It is only when the office is demitted in the manner set out in the Scheme that gratuity under the said GOMs becomes payable. The office is required to be demitted by the holder concerned after giving a notice to the appointing authority. This clearly contemplates a voluntary relinguishment of office on attaining the specified age. There is no retirement age for this office. This provision would not apply when, by legislation, the posts are abolished. In such a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , predictability and certainty in governments' dealings with the public. Adverting to the basis of legitimate expectation its procedural and substantive aspects, Lord Steyn in Pierson v. Secretary of State for the Home Department (1997 (3) All ER 577, at p.606)(HL) goes back to Dicey's description of the rule of law in his Introduction to the study of the Law of the Constitution (10th Edn. 1968 p.203) as containing principles of enduring value in the work of a great jurist. Dicey said that the constitutional rights have roots in the common law. He said: The 'rule of law', lastly, may be used as a formula for expressing the fact that with us, the law of constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land . This, says Lord Steyn, is the pivot of Dicey's discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which was protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to the individual or generally to class of persons. Even so, it has been held under English law that the decision maker's freedom to change the policy in public interest, cannot be fettered by the application of the principle of substantive legitimate expectation. Observations in earlier cases project a more inflexible rule than is in vogue presently. In R. v. IRC, ex p Preston (1985 AC 835) the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior consultation with the prisoner, Lord Scarman observed: But what was their legitimate expectation. Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors, relating to such legitimate expectation. Within the contours of fair dealing, the reasonable opportunity to make representation against change of policy came in. Lastly we come to the three-judge Bench judgment in National Building Construction Corporation vs. S. Raghunathan Others. (1998 (7) SCC 66). This case has more relevance to the present case, as it was also a service matter. The respondents were appointed in CPWD and they went on deputation to the NBCC in Iraq and they opted to draw, while on deputation, their grade pay in CPWD plus deputation allowance. Besides that, the NBCC granted them Foreign Allowance at 125% of the basic pay. Meanwhile their Basic Pay in CPWD was revised w.e.f. 1.1.1986 on the recommendation of the 4th Pay Commission. They contended that the above-said increase of 125% should be given by NBCC on their revised scales. This was not accepted by NBCC by orders dated 15.10.1990. The contention of the respondents based on legitimate expectation was rejected in view of the peculiar conditions under which NBCC was working in Iraq. It was observed that the doctrine of 'legitimate expectation' had both substantive and procedural aspects. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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