Judgment:
1. This is application for restoration of O.A. 972/ 91 which was dismissed on 11.6.98 for non prosecution on the basis of the statement made by Mr. N.C. Chakraborty, learned Counsel for the applicant that the applicant was no longer interested in the matter. The applicant has filed another MA bearing No. 634/01 for condonation of delay in filing the MA for restoration of the O.A. 972/91.
2. It has been averred that the applicant had not instructed his advocate to state that he was not interested in the matter and he was always in touch with the advocate, but there was temporary communication gap in the middle of June, 1998 when the learned Counsel for the applicant got annoyed and made certain submission before the Tribunal. It has been further averred that after the applicant came to know about the fate of his O.A., he approached his Counsel Shri N.C.Chakraborty and obtained a copy of the order dated 11.6.98 on 1.9.98.
Thereafter, on the advice of the said advocate he filed O.A. 1107/98 on 8.9.98 seeking the reliefs for which O.A. 972/91 was filed, but the said O.A. was dismissed on 19.11.98 on the submission made by his advocate, Mr. Chakraborty. After that, the applicant filed review application No. 1/99 along with an application for condonation of delay, but the same were dismissed on 17.8.01. It has been stated that the applicant's case was defeated even though his advocate did what he thought best to correct his initial mistake by allowing the O.A, 972/91 to go for default. It has been stated that the applicant should be protected from the abuse of the process already done and the O.A. No.972/91 be restored.
3. In the reply the respondents have seriously opposed the application on various grounds.
4. Before we proceed to state the rival contentions made on behalf of the parties, it is necessary to state in brief the background of this application.
5. The applicant had filed O.A. 972/91 stating that he was appointed as Recruiting Assistant for the Siliguri Branch Recruiting Office on 13.8.82 and he continued on the said post for more than 9 years when a warning letter dated 31.8.91 was issued to his stating that his services were purely temporary and would be terminated with effect from 29.9.91. On filing this O.A. interim order was issued against the respondents restraining the termination of the service of the applicant.
In the reply to the O.A., the respondents' case was that the post of Recruiting Assistant was temporary initially for four years and was extendable to eight years and the applicant did not have a right to continue on the post. It was also averred that the post of Recruiting Assistant was created to accommodate Ex-serviceman in his region to help the organisation for empanelment of the candidates for short period and it was thought to give equal chance to other deserving Ex-serviceman once the tenure of the applicant was completed.
It may be pointed out that along with the O.A. the applicant had filed one letter dated 5.11.69 (Annexure 'A/1') which provided the terms of appointment of the Recruiting Assistant. Para 8 of the order states that the tenure of the Recruiting Assistant would be four years extendable to 8 years and would be employed for two years in the first instance. It is further provided in the said order that Recruiting Assistant can be discharged at any time even before completion of the tenure. In the said O.A. the applicant had also filed a copy of the letter sent to the Employment Exchange, Siliguri with regard to the vacancy of the Recruiting Assistant. A reading of that letter shows that only Ex-servicemen of the Army or Navy were eligible for appointment to the post of Recruiting Assistant and that the tenure of the post was four years extendable twice by two years. It is manifest that the appointment of the applicant was tenure appointment for a maximum period of eight years. It is to be noticed that by the time the applicant had filed O.A. 972/91 his tenure had already expired.
After the dismissal of the O.A. 972/91 the applicant filed another O.A.1107/98 on 8.9.98 wherein the case for the applicant was that in the first O.A. (972/91) the applicant's Counsel had enquired from the Counsel for the respondents about the present position and both the Counsel had made submission before the Court and the case was dismissed. It was further stated in para 7 of the said O.A. that the O.A. 972/91 was disposed of by the Tribunal on the submission of the learned Counsel for both the sides, but the cause of action still remained. This mater appeared before the Division Bench on 19.11.98 when Shri N.C. Chakraborty, Counsel for the applicant conceded that the present application would not lie and it would be appropriate on the part of the applicant to file review application in respect of the order dated 11.6.98 passed in O. A. 972/91.
Thereafter the applicant filed review application No. 1/99 on 15.1.99 along with MA to condone the delay. The said review application was dismissed by this Tribunal vide order dated 17.8.01 on the ground that the said review application was not filed within the limitation. It is relevant to point out that in the MA 633/01 which was filed along with the Review Application it was nowhere stated that the Counsel for the applicant had made submissions in O.A. No. 972/91 without instructions of the applicant.
After the dismissal of the RA, this MA under Rule 15(2) and Rule 24 of the CAT (Procedure) Rules, 1987 has been filed for restoration of the O.A. 972/91.
6. Mr. De, learned Counsel for the applicant contended that Mr.
Chakraborty had made wrong submission in the case on 11.6.98 and the applicant should not be allowed to suffer in the matter. Relying on the case of Naubat Ram Sharma v. Additional District Judge II, Moradabad and Ors., AIR 1987 SC 1352; Raflq and Anr. v. Munshilal and Anr., AIR 1981 SC 1400 and N.S. Giani v. Union of India and Ors., O.A. 508/1996, decided by this Tribunal on 7.8.98, he submitted that the O.A. 972/91 be restored.
7. On the other hand, learned Counsel for the respondents pointed out that O.A. 972/ 91 was dismissed on 11.6.98 in thepresenceof the Counsel for the applicant and on the basis of the statement made by him and therefore, the order does not come under Rule 15(2) of the CAT (Procedure) Rules, 1987 and cannot be restored. Her further contention was that the case cannot also be restored under Rule 24 of the CAT (Procedure) Rules 1987 because by the dismissal of the O.A. a right had accrued to the respondents to terminate the services of the applicant, which have actually been terminated. She contended that the appointment of the applicant was for a tenure of eight years, but the applicant continued on the said post of the basis of the stay order granted by the Tribunal and if in such a matter the O.A. is restored, the effect would be that the stay order granted by the Tribunal will also stand restored which would have the effect of continuance of the applicant on the job even after the expiry of the tenure period.
8. We have given the matter our thoughtful consideration. Rule 15(2) of the Rules of 1987 applies only where the original application was dismissed for default and the applicant files an application within 30 days from the date of dismissal and satisfies the Tribunal that there is sufficient cause for non-appearance. In the instant case the O.A.was not dismissed for default. It was dismissed in the presence of the Counsel for the applicant and on the basis of the statement made by him. Therefore, the O.A. cannot be restored under Rule 15(2) of the Rules of 1987. The case of Rafiq (supra) does not assist the applicant as in that case the appeal was dismissed for default of the Counsel for the appellants. It is evident that matter squarely fell under Order 41, Rule 17 of CPC.In the case of Naubat Ram Sharma (supra), it may be stated, there are no facts in the report, However, a reading of the case shows that the respondents' Counsel had made a concession before the Supreme Court that the matter could be remanded and he would not raise objection in the High Court. This ruling does not help the applicant in the instant case.
As to the decision in the case of N.S. Giant (supra) a reading of the order shows that in that case the Counsel for the applicant had made two contradictory submissions. One, his client did not want to proceed in the matter and two, he wanted to retire and he be permitted to retire from the case. The leave to retire was granted by this Tribunal.
The obvious effect of the order was that there was none to represent the applicant after the leave to retire was granted. Therefore, the application was treated to have been dismissed for default. It is significant to point out that that matter was not of restoration. The point at issue was whether the second application for the similar cause of action was barred by the principle of resjudicata. The question was answered in the negative. In our considered opinion, this ruling does not assist the applicant in deciding the instant matter.
9. Coming to Rule 24 of the CAT (Procedure) Rules, 1987 it is worthwhile to reproduce the Rule hereunder: "The Tribunal may make such order or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice." A reading of the Rule shows that the Tribunal may make necessary order or give direction as may be necessary or expedient (1) to give effect to its order or, (2) to prevent abuse of its process or (3) to secure the ends of justice. Evidently, the instant matter does not come under Item No. 1. It also cannot come under Item No. 2 as there is no question of preventing the abuse of the Tribunal's process. The Tribunal had not issued any order or process which could be abused by the respondents. The order was passed on the submission made by the Counsel for the applicant that the application may be dismissed for non-prosecution and therefore, it cannot be said that it is necessary to the restore the O. A. to prevent the abuse of the Tribunal's process.
For securing the ends of justice certainly an order may be passed.
However, in the instant case, as already stated, the applicant was given appointment only for tenure period of 8 years and he was allowed to continue in terms of the instructions of employment of Recruiting Assistant dated 5.11.69. The applicant could not have any right to continue in the post after completion of 8 years. As a matter of fact, in the matter of tenure appointment it is not even required that a notice be issued terminating the services of an incumbent. The services stand automatically terminated on the expiry of the tenure period.Dr. L.P. Agarwal v. Union of India and Ors., 1992(4) SLR SC 583=1992(3) SLJ 137 (SC), have observed as under: "Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds.
Such a person does not superannuate, he only goes out of the office on completion of his tenure." 10. This fact also cannot be lost sight of that after the dismissal of the O. A., the services of the applicant have been terminated which fact is evident by the facts stated in the O. A. 1107/98. Certainly a right has accrued to the respondents after the dismissal of the O.A.972/91. If this application is allowed it will have the effect o restoring the stay order granted by this Tribunal which means that there shall be compulsion on the respondents to allow the applicant to continue in service even after the expiry of the tenure period. That being so, no order restoration s required to be passed to secure the ends of justice.
11. For the reasons stated above, we find no merit in the MAs, which are hereby dismissed.