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THE ASSAM ADMINISTRATIVE [AND PENSION] TRIBUNAL ACT, 1977
THE ASSAM ADMINISTRATIVE [AND PENSION]* TRIBUNAL ACT, 1977
[Act No. VIII of 1977]
Published in the Assam Gazette Extraordinary No.62, dated the 2nd May, 1977
PREAMBLE
An Act to provide for the constitution of a Tribunal to adjudicate disputes in respect of certain conditions of service ["including pension matters"]( Inserted by the Assam Administrative Tribunal (Amendment) Act, 2005,Published in the Assam Gazette, Extraordinary No. 204, dated 20th May, 2005(with effect from 20th May, 2005) of certain classes of Civil Servants of the State.
It is hereby enacted in the Twenty-eight years of the Republic of India as follows-
LIST OF AMENDING ACTS, THE PROVISIONS OF WHICH HAVE BEEN INCORPORATED IN ITS DUE PLACES.
|
ASSAM ACT NO. IV OF 2008, |
ASSAM ACT NO. XXX OF 2005, |
|
ASSAM ACT NO. V OF 1996, |
ASSAM ACT NO. III OF 1992. |
STATEMENT OF OBJECTS AND REASONS
To replace the Assam Administrative Tribunal Ordinance, 1976 providing for an alternative forum for the adjudication of the disputes in respect of certain 'conditions of service of certain classes of civil servants of the State it is sought to provide for an appropriate piece of legislation (Published in the Assam Gazette Extraordinary dated 23-3-1977, pp.186).
AMENDING ACT - ASSAM ACT NO. III OF 1992
Though the intention behind establishing the Assam Administrative Tribunal under the Assam Administrative Tribunal Act, 1977 appears to have been to create a separate judicial appellate forum for service matters and simultaneously to bar jurisdiction of Civil Courts in such matters [ ref. Section 9(3)] due to the interpretation given by the Gauhati High Court in (1981) Gauhati Law Reports 241, Section 9{2) of the Assam Administrative of Civil Court's jurisdiction in service matters. Hence; to put this matter beyond doubt, addition of a third clause to Section 2(e) and substitution of existing Sections 9(2) and 9(3) are necessary. Published in the Assam Gazette Extraordinary No. 33, dated 10th March, 1992, at pp.299-302.
Section 1 - Short title, extent and commencement
(1) This Act may be called the Assam Administrative [And Pension]( Inserted by the Assam Administrative Tribunal (Amendment) Act, 2005,Published in the Assam Gazette, Extraordinary No. 204, dated 20th May, 2005(with effect from 20th May, 2005) Tribunal Act, 1977.
(2) It shall extend to the whole of Assam.
(3) It shall be deemed to have come into force on the Third day of January, 1977.
Section 2 - Definitions
In this Act, unless the context otherwise requires,-
(a) "Chairman" means the Chairman of the Tribunal;
(b) "Civil Servant" means a person who is or has been a member of a civil service or who holds or has held a civil post in connection with the affairs of the State of Assam and includes any such person on foreign service, a person whose services have been temporarily placed at the disposal of a local or other authority, any person in the service of a local or others authority whose services have been temporarily placed at the disposal of the State Government, a person in service under the State Government on a contract and a person who has retired from the Government service elsewhere and has been re-employed under the State Government but does not include employees of the Gauhati High Court, employees of the Assam Legislative Assembly Secretariate, employees of the Assam Public Service Commission, persons in the All India Service and other Civil services of the Indian Union, or persons of Civil services of other State Government serving on deputation in Assam;
(c) "Civil services" means the Civil services of the State of Assam and such other services as may be specified by the State Government from time to time by notification, but shall not include--
(i) Services under the Gauhati High Court;
(ii) Services under the Assam Legislative Assembly;
(iii) Services under the Assam Public Service Commission;
(iv) All India Services and other Civil services of the Indian Union.
(d) " Competant authority" means any officer or other authority having power to pass any order whether original, appellate or revisional, under any service rule, executive instruction or order, general or special of the State Government in respect of any conditions of services of civil servant;
(e) "Conditions of service" includes all matters relating to the-
(i) appointment, seniority, confirmation and termination of service [and pension matters]( Inserted by the Assam Administrative Tribunal (Amendment) Act 2005, Published in the Assam Gazette, Extraordinary No, 204, dated 20th May, 2005 (with effect from 20th May, 2005) of civil servant; Assam, 1985(1) GLR 244: (1986) GHC 4 (NAD) held that the conditions of service other than the conditions mentioned under Section 2(e) do not come within the definition of condition of service. Regarding recent enlargement see sub-clause (iii) to clause (e). In Smt. Premoda Bhuyan v. D.I. of Schools, Nalbari, 1991 (1) GLJ 156 : 1991 (2) GLR (NOC) 15: 1991 (1) GHC 216, it has been held that the word transfer does not find place in sub-clause (i) of clause (e) and as such for such matter the Tribunal has no jurisdiction. The Civil Court is held to have jurisdiction for such matter. Trial Court's decision unheld, Jitendra Nath Goswami's case, 1993 (1) GLJ 448 also decides the question of Jurisdiction of the Tribunal on Seniority matter.
(ii) censure, withholding of increments or promotion, recovery from pay of any loss to the Government, reduction to a lower service, grade or post, or to a lower time scale, or to a lower stage in a time scale, denial or variation of pension or denial of the maximum pension;
[(iii) all matters arising out of application of the Fundamental Rules and Subsidiary Rules.](Inserted by the Assam Act No. III of 1992, Published in the Assam Gazette, Extraordinary No. 60, dated 28th April, 1992 (with effect from 28th April, 2005).
(f) "Member" means a member of the Tribunal and includes the Chairman;
(g) "Notification" means a notification published in the Assam Gazette;
(h) "Prescribed" means prescribed by rules made under this Act;
(i) "State Government" means the Government of Assam;
(j) "Tribunal" means the Assam Administrative [and Pension]* Tribunal constituted under Section 3 of this Act.
Section 3 - Constitution of the Tribunal
(1) The State Government shall constitute for the State of Assam a Tribunal to be known as the Assam Administrative [and Pension](Inserted by the Assam Administrative Tribunal (Amendment) Act, 2005, Published in the Assam Gazette, Extraordinary No. 204, dated 20th May, 2005 (with effect from 20th May, 2005) Tribunal.
(2) The Tribunal shall consist of three members to be appointed by the State Government.
(3) The State Government shall appoint one of the members of the Tribunal by the State Government.
(4) The Chairman shall be a person who at the time of appointment to the Tribunal is a senior administrator with wide experience and of the other two members, one shall have experience in legal affairs and the other shall have experience in technical matters, non being lower in the rank than Secretary to the State Government.
[(5) No person shall be retained as a member of the Tribunal after he has attained the age of sixty five years or after completion of a period of 5 years from the date of his re-employment, whichever is earlier :
(a) any Government servant appointed as a member of the Tribunal shall retire as such member on attaining the age of 60 years as usual applicable to a servant of the State Government;
(b) if such a member, who was a servant of the State Government, retired at the age of 60 years as such member of the Tribunal is-re-employed as a member of the Tribunal, he shall retire on attaining the age of 65 years or shall continue for a period of 5 years from the date of his re-employment, whichever is earlier;
(c) the provisions of clause (a) and (b) shall not be applicable in the case of the Chairman of the Tribunal who shall retire on attaining the age of superannuation as per condition of service governed by the respective Service Rules of his service cadre](Substituted by Assam Act No. IV of 2008, Published in the Assam Gazette, Extraordinary No. 101, dated 4th April, 2008 (with effect from 4-4-2008);
(6) The salary and allowances of the members of the Tribunal shall be such as may be prescribed.
(7) The principal seat of the Tribunal shall be at Gauhati but the Tribunal may also sit at such other place or places as the Chairman may, from time to time, specify.
Section 4 - Jurisdiction
(1) Save as otherwise expressly provided in sub-section (2) below the Tribunal shall have jurisdiction to entertain and dispose of appeals preferred by civil servants against any order passed by a competent authority in any condition of service [and pension matters.](Inserted by the Assam Administrative Tribunal (Amendment) Act, 2005, Published in the Assam Gazette, Extraordinary No. 204, dated 20th May, 2005).
(2) Notwithstanding anything contained in sub-section (1) above, the Tribunal shall have no jurisdiction with respect to any order passed, when the civil servant has not availed of all the remedies available to him under the relevant service rules, executive instructions of orders:
Provided that notwithstanding anything contained In the above paragraph the Tribunal may entertain an appeal from a civil servant, if any appeal, revision petition or representation filed by him under the revelevant service rules before the competent authority has not been finally disposed of by the competent authority within a period of six months from the date of filing such appeal, revision petition or representation :
["Provided further that in an appropriate case the Tribunal may relax the provisions contained in the foregoing proviso regarding the period of six months specified therein."](Inserted new proviso by Assam Act No. V of 1996, Published in the Assam Gazette, Extraordinary No. 48, dated 26th March, 1996 (with effect from 26-3-1996, p.306).
(3) Notwithstanding anything contained in sub-section (1) above, the Tribunal shall have no jurisdiction to entertain and dispose of appeals against any order passed by a competent authority under Article 311(2) provisos (a), (b) and (c) as also under F.R. 56 (b).
Section 5 - Limitation
No appeal shall lie to the Tribunal after the expiry of 60 days from the date of the order appealed against :
Provided that the Tribunal may entertain an appeal after the expiry of sixty days from the date of passing the order if the Tribunal is satisfied that the civil servant was prevented by any sufficient cause from preferring the appeal within the aforesaid period.
Section 6 - Tribunal shall have powers of Civil Court
The Tribunal shall, for the purpose of the disposal of an appeal have all the powers of a Civil Court for the trial of a suit under the Code of Civil Procedure, 1908 (V of 1908) in respect of the following matters, namely-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copy thereof from any Court of office; and
(e) issuing commissions for examination of witness or documents.
Section 7 - Amendment of decisions or order
Clerical or arithmetical mistakes in decision or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Tribunal either of its own motion or on the application of any of the parties.
Section 8 - Procedure before Tribunal
(1) Subject to the provisions of this Act and the rules framed thereunder the Tribunal shall have power to regulate its own procedure and for the constitution of Benches, if any, for the disposal of all matters arising out of the exercise of its powers under the provisions of this Act.
(2) At least two of the members of the Tribunal will hear and pass orders on appeals preferred before the Tribunal.
(3) The decision of the majority of the members present and hearing the matter shall be the decision of the Tribunal. Where the members are equally divided in their opinion, the appeal would be heard and decided by all the members and the decision arrived at by the majority opinion of all the members shall be the decision of the Tribunal.
(4) The Tribunal shall have power to confirm, modify or reverse the order against which the appeal is preferred or to remand the matter for a fresh decision by the competent authority passing the order in accordance with such directions, if any, as may be given by the Tribunal.
Section 9 - Finality of decision and bar of suit, powers of review of its own order and transfer of pending proceedings
[(1) (a) The order of the Tribunal passed in any appeal under the provisions of this Act shall be final;
(b) Notwithstanding anything contained in sub-section (1)(a) above, the Tribunal may, on the application of any of the parties, review its own decision or order in any case and may pass such order as its thinks fit :
Provided that no such decision or order shall be reviewed unless notice has been given to the opposite parties to appear and to show cause why such order or decision should not be reviewed :
Provided further that an application for review under sub-section (1)(b) shall be made within thirty days from the date of decision or order of the Tribunal.
["(2) Notwithstanding anything contained in any law, no Civil Court or other authority shall entertain any civil suit or other proceedings with respect to any matter relating to any condition of service of any civil servant or question in any form any order passed by the Tribunal in any appeal or review with respect to any matter or with respect to any other matter which arises out of the exercise of powers under the Act.
(3) Notwithstanding anything contained in any law, all suits or other proceedings with respect of any matter relating to any condition of service of any Civil servant and which are pending before any Civil Court or other authority on the date of coming into force of the Act, shall stand transferred to the Tribunal and the Civil Court or other authority before whom such a suit or proceeding is pending shall transfer all relevant and connected papers and records to the Tribunal and thereupon the Tribunal shall decide the suit and proceeding in the same manner as if they were appeals referred under the provisions of the Act."](Substituted sub-sections (2) and (3) of Section 9 by the Assam Act.No.III of 1992 (with effect from 28-4-1992) [Published in the Assam Gazette, Extraordinary No.60, dated 28th April, 1992).
(4) The decision of the Tribunal shall be implemented within such reasonable time as may be specified by the Tribunal.
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NOTE.- Before substitution of sub-sections(2) and (3) of Section 9, read as follows--
(2) "Notwithstanding anything contained in any law, no Civil Court or other authority shall entertain any Civil Suit or other proceedings with respect to any of the matters which all within the jurisdiction of the Tribunal or question in any form any order passed by the Tribunal in any appeal or review with respect to any matter when an appeal could have been preferred under the provisions of this Act or with respect to any others matter which arises out of the exercise of powers under this Act."
(3) "Notwithstanding anything contained in any law, all suits or others proceedings in respect of any matter over which the Tribunal has jurisdiction and which are pending before any Civil Court or other authority on the date of coming into force of this Act shall stand transferred to the Tribunal and the Civil Court or others authority before whom such a suit or proceeding is pending shall transfer all revelent and connected papers and record to the Tribunal and thereupon the Tribunal shall decide the suit and proceedings in the same manner as if they were appeals referred under the provisions of this Act."
power of the tribunal must be held to be wider than that of the other courts empowered to exercise this power. The review petition is to be preferred within thirty days from the decision or order of the Tribunal. In Sebo Kanta Hazarika v. Headmaster and Secy., Dohotia Girls High School and others, (1991) 1 GLJ (NOC) 18, held that the suit for recovery of arrear pay and increments is tenable before the Civil Court. In such matter Tribunal has no jurisdiction.
Sub-section (4) provides that the decision of the Tribunal shall be implemented within such reasonable time as may be specified by the Tribunal. In Ranjit Chakravarty's case, supra, the High Court has held that contempt proceedings is not an effective relief to the Civil servant. In the same case the effect of non providing the machinery to implement the order or decision of the Tribunal is indicated. In fact the nature of relief that may be granted there cannot be a type of machinery which may be akin to the type provided in the Civil Procedure Code. For jurisdiction of Civil Court, see Jitendra Nath Goswami v. Dhirendra Nath Saikia, (1993) 1 GLJ 312 : (1993) 1 GHC 325 : 1993 (1) GLR 448. Further see Jatish Ch. Bhattacharjee v. State of Assam and Others, (1991) 1 GLJ 273, for Jurisdiction of the Tribunal to decide the vires of the statute. Tribunal does not have this power.
Assam Administrative Tribunal Act, 1977 visa-vice Assam Service (Discipline and Appeal) Rules, 1964-
In earlier discussion it is indicated that provisions in aforesaid Rules of 1964 are to be treated as Service Rules. In Dr. Rajyamalla v. Assam Administrative Tribunal, 1983 (1) GLR (NOC) 71 : (1983) GHC 52, held that in disposing of appeal by the Tribunal direction or requirement mentioned in Rule 23(2) of the aforesaid rules must be complied with.
Sudhan Chandra Gogoi v. Smt Lakhahira Das and Other's, (1993) Suppt. (1) GLR 169: (1993) 2 GHC 230. Definition of condition of service held to be not exhaustive Seniority and promotion are condition of service Civil Court has no jurisdiction.
Section 10 - Representation before Tribunal
The Government, the competent authority as well as the Civil servant preferring any appeal shall have the right to be represented before the Tribunal through a duly authorised representative or by an Advocate.
Section 11 - Contempt
(1) The Tribunal shall be deemed to be a Civil Court for the purpose of Sections 345 and 346 of the Code of Criminal Procedure. 1973 (Central Act 2 of 1974) and the Contempt of Courts Act, 1971 (Central Act 70 of 1971).
(2) The proceeding before the Tribunal shall be deemed to be a Judicial Proceeding within the meaning of Section 193 of Indian Penal Code, 1860 (Central Act No. 45 of 1860).
Section 12 - Power to make rules
(1) The State Government may, by notification in the official Gazette, make rules for the purpose of giving effect to the provisions of this Act.
(2) All rules made under this Section shall be laid for not less than fourteen days before the Assam Legislative Assembly as soon as possible after they are made and shall be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid or the session immediately following.
Section 13 - Power to make regulation by the Tribunal
(1) Subject to the previous sanction of State Government, the Tribunal shall, from time to time, frame regulations consistent with the provisions of this Act and rules made under Section 12 for regulating its procedure and disposal of its business.
(2) The Regulations made under sub-section (1) shall be published in the Assam Gazette.
Section 14 - Repeal and savings
(1) The Assam Administrative Tribunal Ordinance, 1976 is hereby repealed.
(2) Notwithstanding such repeal, any order passed, notifications issued, anything done or any action taken under the Assam Administrative Tribunal Ordinance, 1976 shall be deemed to have been passed, issued, done or taken under the corresponding provisions of this Act.
