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Employees State Insurance Corporation, Represented by Its Director General, New Delhi & Others v/s Dr. P.S. Naina


    OP (CAT). No. 317 of 2019

    Decided On, 02 March 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

    For the Petitioners: Adarsh Kumar, Shashank Devan, Advocates. For the Respondents: R1, P.C. Sasidharan, Advocate.



Judgment Text


P.V. Kunhikrishnan, J.

1. The short point to be decided in the Original Application is whether the Central Administrative Tribunal (for short Tribunal) can allow the prayers in an Original Petition, for the simple reason that, no reply to the Original Application is filed by the respondent, especially in the light of Rule 16 of the Central Administrative Tribunal (Procedure) Rule 1987 (for short Procedure Rules)

2. The petitioners herein are the respondents in OA No.892 of 2016 on the file of the Tribunal, Ernakulam Bench. The above Original Application was filed by the respondents herein (herein after the parties are mentioned in accordance to their rank before the Tribunal). The above Original Application is filed with following prayers:

a. Quash Annexure A7 issued by the 1st respondent letter to the extend it denies the applicant the Non Practicing Allowance with effect from 1.1.2003

b. Declare that the applicant herein is entitled to be granted the Non Practicing Allowance with effect from 1.1.2003 onwards and to direct the respondents to draw and disburse the same to the applicant within a time frame;

c. Declare that the applicant herein is entitled to be granted fixation of pay and arrears thereof in the promoted posts of Insurance Medical Officer Grade 1 and Chief Medical Officer with effect from 19.9.2005 and 19.9.2010 respectively and to direct the respondents to grant the applicant pay fixation in the posts of Insurance Medical Officer Grade I and Chief Medical Officer with effect from 19.9.2005 and 19.9.2010 respectively and to disburse the arrears thereof within a short time frame;

d. Alternatively direct the 1st respondent to consider and pass orders on Annexure A8 representation dated 23.6.2016 within a short time frame;

e. To grant such other reliefs as may be prayed for and the court may deem fit to grant, and

f. Grant the cost of this Original Application.

3. The above Original Application was filed on 25.10.2016 and the same was admitted on 26.10.2016. Thereafter, the case was posted for the reply of the respondents. As per Rule 12 of the Procedure Rules, every respondent intending to contest the application shall file their reply to the Original Application and documents relied upon, within one month of the service of notice of the application on them. However, no reply was filed by the respondents before the Tribunal. The matter came up before the Registrar of the Tribunal on 3.8.2017 and the Registrar placed the case before the Bench on 28.08.2017. Thereafter, the respondents were granted time up to 9.10.2017 to file reply statement on payment of cost of Rs.1,000/-. But no reply was filed even after the order of the Tribunal. Thereafter, the Tribunal ordered that, if no reply is filed within two weeks, it would be presumed that respondents had no intention to contest the matter. Accordingly, the case was finally posted to 31.1.2018. But on that day also, there was no reply. Hence, as a very last chance, the matter was again adjourned to 7.3.2018 stating that, order dated 10.1.2018 would prevail. On 7.3.2018 when the case was posted for final hearing, there was no representation on the side of the respondents. It is also stated by the Tribunal that "it is learned that T.V.Ajaykumar who had filed memo of appearance on behalf of the respondents had been instructed not to appear”. In such circumstances, the Tribunal passed an order which is extracted here under:

“As can be seen, in view of the recalcitrant attitude of the respondents, I have only one side of the issue to be considered. I deprecate in strong terms the failure of the respondents to reply to the OA despite adequate time being availed for the purpose. As the contentions in the OA are uncontroverted, I allow the prayers sought in the OA. O.A succeeds. All benefits claimed in the O.A, except the grant of costs, are allowed and I direct that the benefits should be disbursed within three months from the date of receipt of a copy of this order. No order as to costs”.

4. The point to be decided is, whether an Original Application can be allowed just because the averments in it are uncontroverted. Of course, we are in full agreement with the Tribunal to the extent that, the failure of the respondents to file reply to the Original Application, despite adequate time being availed for the purpose, is to be deprecated. But, since no reply is filed, can the Tribunal allow the Original Application without deciding the application on merit, ex parte. There is a clear answer to the above, in Rule 16 of the Procedure Rules, which is extracted here under:

16. Ex parte hearing and disposal of application-(1) Where on the date fixed for hearing the application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the application is called for hearing, the Tribunal may, in its discretion adjourn the hearing, or hear and decide the application ex parte.

(2) Where an application has been heard ex parte against a respondent or respondents such respondent or respondents may apply within 30 days from the date of the order to the Tribunal for an order to set it aside and if such respondent or respondents satisfy the Tribunal that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing when application was called for hearing the Tribunal may make an order setting aside the ex parte order as against him or them upon such terms as it thinks fit, and shall appoint a day for proceeding with the application:

Provided that where the ex parte order of the application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also;

Provided further that in cases covered by sub-rule (8) of rule 11, the Tribunal shall not set aside ex parte order of an application merely on the ground that it was not served upon a respondent or respondents].

(Emphasis supplied)

5. Reading of Rule 16 of the Procedure Rules, it is clear that, where on the date fixed for hearing the application or on any other date to which such hearing is adjourned, the applicant appears and the respondents do not appear when the application is called for hearing, the Tribunal may in its discretion adjourn the hearing, or hear and decide the application ex parte. If there is no appearance to the respondents, it is the duty of the Tribunal either to adjourn the hearing or to hear and decide the application ex parte. To "hear and decide the application ex parte" means, the Tribunal should hear the applicant and decide the application ex parte. That means, an order on merit is necessary, while passing orders, in the absence of the respondents, as per Rule 16. In other words, application of mind to the facts of the case and a decision on merit is necessary. If such an ex parte order is passed, the respondent/ respondents against whom such an order is passed may apply within 30 days from the date of order to the Tribunal for an order to set it aside the same and if the respondent/respondents satisfy the Tribunal that he/they were prevented by any sufficient cause from appearing, when the application was called for hearing, the Tribunal can entertain the same and can set aside the ex parte order and appoint a day for proceeding with the application.

6. Therefore, it is clear that if a respondent does not appear before the Tribunal, when the application is called for hearing, the Tribunal may in its discretion adjourn the hearing, or hear and decide the application ex parte. If the Tribunal is going to pass an ex parte order, a decision on merit after hearing the applicant is necessary. The Tribunal cannot simply allow the Original Application for the reason that the contentions in the Original Application are uncontroverted. This is against Rule 16 of the Procedure Rules. If such an order is passed, it cannot be treated as an ex parte order as per Rule 16 of Procedure Rules. If there is an ex parte order as stated in Rule 16 of the Procedure Rules, the respondents can approach the Tribunal with an application to set aside the ex parte order.

7. An order allowing the Original Application for the reason that the contentions in the Original Applications are uncontroverted cannot be treated as an ex parte order as explained in Rule 16 of the Procedure Rules 1987. In such situation, the alternative remedy of filing a petition to set aside an ex parte order also not maintainable before the Tribunal.

8. In this case, there is no ex parte order under Rule 16 of the Procedure Rules. The Original Application was allowed simply for the reason that the contentions in the Original Application are uncontroverted. Therefore, the order passed by the Tribunal is unsustainable and the order is liable to be set aside.

9. But, at the same time, the attitude of the respondents before the Tribunal, who are the petitioners in this Original Petition, is to be deprecated. Several chances were given by the Tribunal to file a reply to the Original Application to the respondents. They refused to file a

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reply before the Tribunal and thereafter came before this court under the supervisory jurisdiction vested with this court. As stated by the Tribunal, the attitude of the respondents is to be deprecated. Similarly a decision on merit is necessary in the Original Application. Since there is lethargy on the part of the respondents, we will remand the matter to the Tribunal for fresh consideration on merits only on terms. In a similar situation, this court in the order dated 18.10.2019 in OP(CAT) No.192 of 2019 set aside the orders on payment of costs. The same procedure can be adopted in this case also. 10. Hence the OP(CAT) No.317 of 2019 is allowed. The order dated 21.3.2018 in OA/180/892/2016 of the Central Administrative Tribunal, Ernakulam Bench is set aside and the case is remanded back to the Tribunal for fresh consideration, on condition of payment of Rs.3,000/- to the applicants through their counsel within a period of three weeks. The Original Petition(CAT) is allowed on the above condition being satisfied.
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