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TMI Blog2001 (1) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ches 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 memorandum was to man the posts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 ₹ 455-700 which stood revised as ₹ 1400-2300 on the recommendation of the 4th Pay Commission and not the scale of ₹ 550-750 which was revised to ₹ 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. Vs. M. Bhaskar & Ors., 1996 (4) SCC 416 passed by the Bench of Three learned Judges whereby it has been directed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents 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 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Supreme Court Bar Association v. Union of India (1998) 4 SCC 409) and held that under Article 142 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P(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 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 ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh (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 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 anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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