# ALL INDIA INSTITUTE OF MEDICAL SCIENCES v. SANJIV CHATURVEDI & ORS

- **Citation:** [2019] 1 S.C.R. 862
- **Court:** Supreme Court of India
- **Decided:** 2019-02-01
- **Case number:** Civil Appeal No. 1392 of 2019
- **Bench:** R. Banumathi, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/all-india-institute-of-medical-sciences-v-sanjiv-chaturvedi-ors-33441
- **Pages:** 24

## Headnote

Administrative Tribunals Act, 1985 - ss. 5, 24 and 25 -
Chairman of the Tribunal, sitting singly and exercising his power to
transfer proceedings from one Bench to another, stayed proceedings
in an Original Application pending before a two member Bench
and rendered interim orders passed by that Bench inoperative -
Sustainability of - Held: Chairman sitting singly, cannot nullify the
orders passed by a larger Bench - Chairman, like the Chief Justice
of the Higher Courts or the Chief Judge of subordinate courts, may
be higher in order of protocol and may have additional
administrative duties and responsibilities, however, the Chairman,
acting judicially, is equal to any other Member - Chairman, being
one amongst equals, the order of the Chairman of the tribunal staying
proceedings before the two member Bench was without jurisdiction
and unsustainable in law.
Judicial Propriety - Norms of - Held: Judicial propriety and
decorum demands that a judicial order, ad interim, interim or final
be vacated, varied, modified, recalled or reviewed by a Bench of
coordinate strength or larger strength or a higher forum, but not a
smaller Bench of lesser strength, except in cases where such authority
to a lower forum and/or smaller Bench is expressly conferred or
implicit in the order sought to be vacated, varied, modified, recalled
or reviewed.
Dismissing the appeal, the Court
HELD: 1. The Chairman of the Tribunal, sitting singly and
exercising his power under Section 25 of the Administrative
Tribunals Act, 1985 to transfer proceedings from one Bench to
another, could not have stayed proceedings before a two member
Bench and rendered interim orders passed by that Bench
inoperative. [Para 40][875-E-F]
[2019] 1 S.C.R. 862
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2. The reference by counsel for the appellant to the
Preamble of the Act is of no relevance. The respondent no.1
approached the tribunal for redressal of his grievances. His case
was heard by a Division Bench and a reasoned interim order was
passed. The preamble, which states the aims and objects of the
Act is of no assistance to the appellant, as it does not lend support
to appellant's contention that the Chairman of the tribunal sitting
singly could have stayed further proceedings before a Division
Bench. The reliance placed on the Preamble is misconceived.
[Para 47][876-G-H; 877-A-B]
3.1 Section 5 provides that a Tribunal is to consist of a
Chairman and such number of judicial and administrative
members as the appropriate Government may deem fit and,
subject to the other provisions of the Act, the jurisdiction, powers
and authority of the Tribunal may be exercised by the Benches
thereof. Sub-section 2 provides that a Bench is to consist of one
Judicial Member and one Administrative Member. This, however,
is subject to the other provisions of the said Act. The Chairman
of the Tribunal is an entity distinct from the Tribunal and exercises
administrative powers and such other powers as are expressly
conferred on him under the Act. Section 5(4)(a) of the Act
empowers the Chairman to discharge in addition to the functions
of the Judicial Member or the Administrative Member, of the
Bench to which he is appointed, the functions of the Judicial
Member or the Administrative Member of any other Bench.
[Paras 49, 50][879-E-G]
3.2 Section 5(4)(b) empowers the Chairman to transfer a
Member from one Bench to another Bench, and Section 5(4)(c)
enables the Chairman to authorize the Judicial Member or the
Administrative Member of one Bench to discharge the duties
and functions of Judicial Member or Administrative Member, as
the case may be, of any other Bench. The Chairman can also
constitute Benches of more than two Members having regard to
the nature of the cases involved, by issuance of general or special
orders. Sub-section (6) of Section 5 empowers the Chairman or
any other Member authorized by the Chairman to sit singly to
exercise jurisdiction, powers and authority of the Tribunal only
in respect of such class

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ALL INDIA INSTITUTE OF MEDICAL SCIENCES
v.
SANJIV CHATURVEDI & ORS.
(Civil Appeal No. 1392 of 2019)
FEBRUARY 01, 2019
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Administrative Tribunals Act, 1985 - ss. 5, 24 and 25 -
Chairman of the Tribunal, sitting singly and exercising his power to
transfer proceedings from one Bench to another, stayed proceedings
in an Original Application pending before a two member Bench
and rendered interim orders passed by that Bench inoperative -
Sustainability of - Held: Chairman sitting singly, cannot nullify the
orders passed by a larger Bench - Chairman, like the Chief Justice
of the Higher Courts or the Chief Judge of subordinate courts, may
be higher in order of protocol and may have additional
administrative duties and responsibilities, however, the Chairman,
acting judicially, is equal to any other Member - Chairman, being
one amongst equals, the order of the Chairman of the tribunal staying
proceedings before the two member Bench was without jurisdiction
and unsustainable in law.
Judicial Propriety - Norms of - Held: Judicial propriety and
decorum demands that a judicial order, ad interim, interim or final
be vacated, varied, modified, recalled or reviewed by a Bench of
coordinate strength or larger strength or a higher forum, but not a
smaller Bench of lesser strength, except in cases where such authority
to a lower forum and/or smaller Bench is expressly conferred or
implicit in the order sought to be vacated, varied, modified, recalled
or reviewed.
Dismissing the appeal, the Court
HELD: 1. The Chairman of the Tribunal, sitting singly and
exercising his power under Section 25 of the Administrative
Tribunals Act, 1985 to transfer proceedings from one Bench to
another, could not have stayed proceedings before a two member
Bench and rendered interim orders passed by that Bench
inoperative. [Para 40][875-E-F]
[2019] 1 S.C.R. 862
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2. The reference by counsel for the appellant to the
Preamble of the Act is of no relevance. The respondent no.1
approached the tribunal for redressal of his grievances. His case
was heard by a Division Bench and a reasoned interim order was
passed. The preamble, which states the aims and objects of the
Act is of no assistance to the appellant, as it does not lend support
to appellant's contention that the Chairman of the tribunal sitting
singly could have stayed further proceedings before a Division
Bench. The reliance placed on the Preamble is misconceived.
[Para 47][876-G-H; 877-A-B]
3.1 Section 5 provides that a Tribunal is to consist of a
Chairman and such number of judicial and administrative
members as the appropriate Government may deem fit and,
subject to the other provisions of the Act, the jurisdiction, powers
and authority of the Tribunal may be exercised by the Benches
thereof. Sub-section 2 provides that a Bench is to consist of one
Judicial Member and one Administrative Member. This, however,
is subject to the other provisions of the said Act. The Chairman
of the Tribunal is an entity distinct from the Tribunal and exercises
administrative powers and such other powers as are expressly
conferred on him under the Act. Section 5(4)(a) of the Act
empowers the Chairman to discharge in addition to the functions
of the Judicial Member or the Administrative Member, of the
Bench to which he is appointed, the functions of the Judicial
Member or the Administrative Member of any other Bench.
[Paras 49, 50][879-E-G]
3.2 Section 5(4)(b) empowers the Chairman to transfer a
Member from one Bench to another Bench, and Section 5(4)(c)
enables the Chairman to authorize the Judicial Member or the
Administrative Member of one Bench to discharge the duties
and functions of Judicial Member or Administrative Member, as
the case may be, of any other Bench. The Chairman can also
constitute Benches of more than two Members having regard to
the nature of the cases involved, by issuance of general or special
orders. Sub-section (6) of Section 5 empowers the Chairman or
any other Member authorized by the Chairman to sit singly to
exercise jurisdiction, powers and authority of the Tribunal only
in respect of such classes of cases or such matters pertaining to
such classes of cases as the Chairman might, by general or special
ALL INDIA INSTITUTE OF MEDICAL SCIENCES v. SANJIV
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orders specify. The aforesaid provision does not enable the
Chairman sitting singly to nullify orders passed by a larger Bench.
[Paras 51, 55][879-G-H; 880-A-B, F]
3.3 The proviso to Section 5(c) of the Act states that if at
any stage of hearing of any such case or matter it appears to the
Chairman or the Member functioning singly that the case or
matter is of such a nature that it ought to be heard by a Bench
consisting of two Members, the case or matter may be transferred
by the Chairman, or as the case may be, referred to him for
transfer to such Bench as the Chairman may deem fit. [Para
53][880-C-D]
4.1 Section 24 of the Act limits the power to pass interim
order whether by way of injunction, stay or otherwise by imposing
conditions on the exercise of such power. No interim order is to
be made unless copies of the application along with documents
in support of the plea for interim order are furnished to the party
against whom such application is made and opportunity to be
heard is given to such party. The said condition can only be
dispensed with in exceptional cases, if the Tribunal is satisfied,
for reasons to be recorded in writing, that it is necessary to pass
an interim order for preventing any loss to the applicant which
cannot adequately be compensated in money. The interim order,
in such case is to be of maximum duration of fourteen days unless
the requirements of sub-sections (a) and (b) are complied with,
before the expiry of fourteen days and the interim order is
extended. [Paras 56, 57][880-G-H; 881-A-B]
4.2 The power under Section 25 of the Act to transfer cases
from one Bench to another is essentially an administrative power
of the Chairman of CAT. Such power is to be exercised by the
Chairman on his own motion or on the application of any of the
parties after notice to the parties, and after hearing such of them
as he may desire to be heard. The Chairman may, on his motion,
transfer any case pending before one Bench to another without
notice. A careful reading of Section 25 of the Act makes it clear
that the Chairman deciding the question of whether a matter
should be transferred from one Bench to another cannot grant
interim stay of proceedings, their being no power conferred on
the Chairman under the said section to pass such interim stay.
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Power under Section 24 to grant interim orders has been
conferred on the Tribunal, and/or in other words, a Bench of the
Tribunal in seisin of proceedings in respect of which the Bench
is entitled to exercise the jurisdiction and powers of the Tribunal.
[Paras 58, 59, 60][881-C-E]
4.3 A Tribunal created under the Act as also its Chairman
derives its powers from the Act and can only exercise such powers
as are conferred by the Act. The Chairman of the Tribunal
exercising its power under Section 25 of the Act does not function
as a Tribunal. The Chairman of CAT does not have power under
Section 25 to pass any interim order of stay of proceedings
pending before a Bench of the Tribunal. [Para 61][881-F-G]
4.4 A careful reading of the provisions of the Administrative
Tribunal Act and in particular Sections 14 and 15 thereof in
juxtaposition with Article 323A of the Constitution leaves no
manner of doubt that an Administrative Tribunal constituted under
the Act to give effect to Article 323A of the Constitution exercises
all the jurisdiction powers and authority exercisable by all the
Courts before commencement of the Act and has all the attributes
of a Court of law except that it is not bound by the strict rules of
procedure embodied in the Civil Procedure Code or the strict
rules of evidence prescribed by the Evidence Act. All norms of
judicial propriety and judicial discipline apply as much to the
Tribunal as to Courts including the High Court. [Para 62][881-GH; 882-A-B]
4.5 A judicial order passed by a Tribunal is binding on all
concerned, including the tribunal itself on its administrative side,
unless set aside or modified by a higher forum in exercise of
appellate or revisional powers. In no circumstances, can a judicial
order of a Bench of the Tribunal be nullified or rendered nugatory
by its Chairman. [Para 63][882-C]
4.6 In view of Section 12 of the Act, the Chairman of the
Tribunal can only exercise financial and administrative powers
over the Benches as may be vested under the Rules. The
Chairman may thus, constitute Benches, shift members from one
Bench to another, constitute Single Benches, Division Benches
and even larger Benches, allocate business to the Benches and
even transfer cases from one Bench to the other, but having done
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so he cannot interfere with the functioning of the Benches or
tinker with its orders by passing interim orders in a transfer
petition. [Para 64][882-D-E]
4.7 In any case, judicial decorum and propriety demands
that a judicial order, ad interim, interim or final be vacated, varied,
modified, recalled or reviewed by a Bench of coordinate strength
or larger strength or a higher forum, but not a smaller Bench of
lesser strength, except in cases where such authority to a lower
forum and/or smaller Bench is expressly conferred or implicit in
the order sought to be vacated, varied, modified, recalled or
reviewed. [Para 65][882-E-F]
4.8 The interim order passed by a Court does not operate
as a precedent and the law declared by the Supreme Court with
regard to the precedential value of judgments of Benches of larger
strength may not operate as a binding precedent in the facts and
circumstances of the instant case. The judgments referred to in
the preceding paragraphs lay down the norms of judicial decorum
and propriety which give precedence to Benches of higher
strength. There is no reason at all why the same principles should
not apply even to interim orders in pending proceedings. [Para
67][883-B-C]
4.9 An interim order passed by a court, on consideration of
the prima facie case made out by an applicant, should ordinarily
have been vacated by a Bench of coordinate strength after giving
open notice to the applicant. If the Chairman was of the considered
opinion that there was urgency in the application for vacating the
interim order, the Chairman ought to have assigned the
application for vacating and/or vacation of the interim order to a
Bench of two or more Members to consider whether the interim
order should continue or be vacated. The Chairman could also
have exercised his power to suo motu transfer the proceedings
to another Bench without prior notice. The order of stay of the
proceedings before the Nainital Bench is without jurisdiction and
unsustainable in law. [Para 68][883-D-E]
4.10 The Division Bench rightly allowed the writ petition.
The Chairman, like the Chief Justice of the Higher Courts or
the Chief Judge of subordinate courts, may be higher in order of
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protocol and may have additional administrative duties and
responsibilities. However, the Chairman, acting judicially, is equal
to any other Member. The Chairman, being one amongst equals,
the order of the Chairman of CAT staying proceedings before
the two member Bench was without jurisdiction and unsustainable
in law. The cost quantified at Rs. 25,000/- directed to be deposited
with the Supreme Court Legal Services Committee within the
stipulated period. [Paras 73, 74][885-D-E]
Munna Lal Karosia v. State of Madhya Pradesh and
Others (2012) 12 SCC 255; Association of Synthetic
Fibre Industries v. Apollo Tyres Limited and Others
(2010) 13 SCC 735 - distinguished.
Dr. Mahabal Ram v. Indian Council of Agricultural
Research and others (1994) 2 SCC 401; L. Chandra
Kumar vs. Union of India & Ors. (1997) 3 SCC 261 :
[1997] 2 SCR 1186; Ramrameshwari Devi and Ors. v.
Nirmala Devi & Ors. (2011) 8 SCC 249 : [2011] 8 SCR
992; Kishorbhai Gandubhai Pethani v. State of Gujarat
& Anr. (2014) 13 SCC 539 : [2013] 10 SCR 208;
Kishore Samrite v. State of Uttar Pradesh & Ors. (2013)
2 SCC 398 : [2012] 9 SCR 733; Prestige Lights Ltd. v.
State Bank of India (2007) 8 SCC 449 : [2007] 9 SCR
112; Vatticherukuru Village Panchayat v. Nori
Venkatarama Deekshithulu and Ors. (1991) Supp. 2
SCC 228 : [1991] 2 SCR 531; Morgan Stanley Mutual
Fund v. Kartick Das (1994) 4 SCC 225 : [1994] 1 Suppl.
SCR 136; Union of India and Anr. v. K. S. Subramanian
(1976) 3 SCC 677 : [1977] 1 SCR 87; Bharat Petroleum
Corporation Ltd. v. Mumbai Shramik Sangha & Ors.
(2001) 4 SCC 448 : [2001] 3 SCR 208 - referred to.
Case Law Reference
(1994) 2 SCC 401
referred to
Para 28
[1997] 2 SCR 1186
referred to
Para 28
[2011] 8 SCR 992
referred to
Para 35
[2013] 10 SCR 208
referred to
Para 36
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[2012] 9 SCR 733
referred to
Para 36
[2007] 9 SCR 112
referred to
Para 36
(2012) 12 SCC 255
distinguished Para 38
(2010) 13 SCC 735
distinguished Para 38
[1991] 2 SCR 531
referred to
Para 42
[1994] 1 Suppl. SCR 136
referred to
Para 61
[1977] 1 SCR 87
referred to
Para 66
[2001] 3 SCR 208
referred to
Para 66
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1392
of 2019.
From the Judgment and Order dated 21.08.2018 of the High Court
of Uttarakhand at Nainital in WPSB No. 359 of 2018.
Dushyant Parashar, Mehmood Pracha, Himanshu Shekhar, R.H.A.
Sikander, Jamesh Kumar, Mohd. Danish, Ms. Sadhana Sandhu, Mukul
Singh, G.S. Makker, Advs. for the appearing parties.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J. 1. Leave granted.
2. This appeal is against the final judgment and order dated
21.08.2018 passed by a Division Bench of the High Court of Uttarakhand
at Nainital allowing the writ petition being WPSB No.359 of 2018 filed
by the respondent no.1 and quashing the order dated 18.09.2017 passed
by the Chairman of the Central Administrative Tribunal (hereinafter
referred to as "CAT") at the Principal Bench at Delhi, inter alia, staying
proceedings in OA 331/00790/ 2017 filed by the respondent no.1 and
pending before a Division Bench of CAT at Nainital.
3. The respondent no.1, an Indian Forest service officer of the
Uttarakhand cadre of 2002 Batch was posted as Deputy Secretary at
the All India Institute of Medical Sciences, New Delhi from 29.6.2012
till 28.6.2016.
4. The said post of Deputy Secretary was created with the approval
of the Department of Expenditure, inter alia, to coordinate and manage
infrastructure projects and ensure their timely completion, to exercise
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management and control of the Institute and to coordinate with Multi
Disciplinary Experts.
5. At its 195th meeting held on 20.7.2010, the Standing Finance
Committee of the Institute decided against the creation of a new post of
Central Vigilance Officer and resolved that the work of Central Vigilance
Officer should also be assigned to the officer, joining the newly created
post of Deputy Secretary of AIIMS. The Governing Body and Institute
body of AIIMS headed by the Union Health Minister ratified the decision
of the Standing Finance Committee.
6. An order dated 23.6.2011 was issued by the Ministry of Health
and Family Welfare enumerating the duties pertaining to the said post of
Deputy Secretary of AIIMS.
7. As stated above, respondent no.1 was appointed Deputy
Secretary of AIIMS on 29.6.2012. As per the work allocation order the
respondent no.1 was also made Central Vigilance Officer of the AIIMS.
8. It is the case of the respondent no.1 that the work of the General
Section was withdrawn from the respondent no.1 in November 2012,
the work of Central Vigilance Officer was withdrawn from him in August
2014, the work of dealing with grievances was withdrawn from him
some time in 2015 and in December 2015 the work of the Estate Section
was withdrawn from him. Ultimately the respondent no.1 was left
practically without any work, apart from signing pension papers and
booking guest houses.
9. According to the respondent no.1, there was delay in completion
of infrastructure projects, which along with the way in which the
respondent no.1 had been denuded of duties by successive office orders,
attracted severe criticism in a report of the Parliamentary Committee.
10. According to the respondent no.1, at the time when he was
assigned the work of Central Vigilance Officer, the then Health Secretary
had commented on his "exemplary performance" and "absolute integrity".
Moreover, the respondent no.1 was, in his Annual Performance Appraisal
Reports for the years 2012-13 and 2013-14 graded as 'outstanding',
with the following remarks by the then Union Health Minister "Shri
Sanjiv Chaturvedi, Deputy Secretary and CVO, AIIMS, New Delhi,
is a man of integrity, sincerity, who is keen on performing his
assigned role to the best of his ability and knowledge without fear
or favour".
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11. The respondent no.1 had been awarded the Ramon Magsaysay
Award for the year 2015 in recognition of his exemplary integrity, courage
and tenacity, inter alia, in uncompromisingly exposing and painstakingly
investigating corruption in public office. Records reveal that the
respondent no.1 had donated the award money of Rs.14,23,000/- to the
Prime Minister's Relief Fund after the All India Institute of Medical
Sciences refused to accept his donation of the award money to the All
India Institute of Medical Sciences for free treatment of under privileged
patients.
12. According to the respondent no.1, no complaint of any kind
was received against him from any employee during his two year tenure
as Central Vigilance Officer of the Institute. However, the very same
persons, who had earlier showered praises on the respondent no.1 turned
against him for extraneous reasons, particularly his role in exposing
corruption.
13. Being aggrieved, the respondent no.1 filed an application being
O.A. No.1887 of 2015 before the Principal Bench of the CAT at Delhi,
inter alia, for directions on the concerned authorities to allocate the
work of Deputy Secretary to the respondent no.1. The said application
has been dismissed by a judgment and order dated 17.5.2016.
14. The respondent no.1 has alleged that the duties of Central
Vigilance Officer were withdrawn from him as he had unearthed
irregularities and corruption in infrastructure projects. The nature or
reasons for the disputes between the respondent no.1 and the appellant
are not relevant to the issues involved in this appeal.
15. A memorandum dated 7.1.2016 was served on the respondent
no.1, informing him that the Director of the All India Institute of Medical
Sciences had placed on record his displeasure with insubordination,
indiscipline and lack of work ethics of the respondent no.1 during the
Winter Session of Parliament in the year 2015, and directed that a copy
of the said memorandum be kept in the personal file of the respondent
no.1. A representation made by the respondent no.1 against the aforesaid
memorandum was rejected by the Competent Authority.
16. Being aggrieved, the respondent no.1 filed OA No.1342 of
2016 before the Principal Bench of the CAT at New Delhi challenging
the said Memorandum dated 7.1.2016 and praying for orders, restraining
the Director of the All India Institute of Medical Sciences from writing
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the Annual Performance Appraisal Report of the respondent no.1. The
said application is pending. On the application being filed, the learned
Tribunal directed issuance of notices, but declined the prayer of the
respondent no.1 for interim relief.
17. On 28.6.2016, the four year deputation of the respondent no.1
as Deputy Secretary at AIIMS came to an end, and he joined his new
post at Uttarakhand in August, 2016, after availing leave of two months.
18. By an order dated 11.1.2017 AIIMS communicated an adverse
Annual Confidential Report for the year 2015 -2016 to the respondent
no.1 wherein he had uniformly been given 'Zero' grading in all attributes.
On 23.1.2017, the respondent no.1 filed an appeal against the order dated
11.1.2017 before the Competent Authority. The appeal was rejected by
an order dated 15/20.4.2017.
19. On 19.6.2017, the respondent no.1 filed a writ petition being
WPSB No.225 of 2017 before the Uttarakhand High Court challenging
the orders dated 11.1.2017 and 15/20.4.2017. The respondent no.1 also
filed an application being PT No.286/2017 in OA No. 1342/2016 before
the Principal Bench of the CAT at Delhi for transfer of OA No. 1342/2016
from the Principal Bench of the CAT at Delhi to its Bench at Nainital.
The appellant has filed a counter affidavit to the said application.
20. By an order dated 19.6.2017 in the writ petition being WPSB
No.225 of 2017, the Division Bench of Uttarakhand High Court relegated
the respondent no.1 to approach the Tribunal under the Administrative
Tribunals Act, 1985 (for short 'the Act') and to seek all reliefs available
to him. The respondent no.1 was given the liberty to approach the
High Court in the event any relief prayed for by the respondent was
rejected by the Tribunal.
21. Thereafter, the respondent no.1 instituted an application being
OA No.331/00790/2017 before the Nainital Bench of the CAT challenging
the Annual Performance Appraisal Report (APAR) of the year 2015-16
whereupon an interim order was passed in favour of the respondent
no.1 on 18.9.2017, by a Division Bench of the Tribunal, the operative
part whereof is set out hereinbelow:-
"Matter be posted for further hearing on interim relief on
03.10.2017. Respondents shall file their reply before the said
date. In the meantime, in the interest of justice, it is directed that
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if any matter related to the career progression of the applicant
comes up for consideration before the terms of the impugned
orders shall not be taken into account while assessing and the
applicant's suitability or fitness and he shall be considered on the
basis of the rest of his ACRs/APARs.
22. The Union of India filed an application before the Chairman
of the Tribunal being PT 316 /2017 seeking transfer of OA No.
331/00790/2017 to the Principal Bench at Delhi. By an ex parte order
dated 18.9.2017 passed in the said transfer application, the Chairman of
the CAT, sitting singly, stayed proceedings in OA No.331/00790/2017
pending before a two member Bench at Nainital for a period of six
weeks, and directed that notice be issued to the respondent no.1.
23. Challenging the aforesaid order on the ground that the Chairman
of CAT, sitting singly, could not have stayed proceedings pending before
a Division Bench, the respondent no.1 filed a writ petition being W.P.(SB)
No. 259/2018 in the High Court of Uttarakhand at Nainital.
24. By the impugned order dated 21.8.2018, which is under appeal,
the High Court allowed the writ petition and set aside the impugned
order dated 18.9.2017 of the Chairman, observing that the Chairman of
the Tribunal, while sitting singly, could not stay the proceedings pending
before the Division Bench. The High Court imposed costs of Rs.25,000/-
on the appellant.
25. Learned counsel appearing on behalf of the appellant submitted
that the impugned order was passed without giving the appellant an
opportunity of hearing. No Vakalatnama was executed by the appellant
authorizing the learned Additional Solicitor General of India Shri Rakesh
Thapliyal to appear before the High Court on behalf of AIIMS.
26. Learned Counsel for the appellant next submitted that the
High Court had erred in holding that the Chairman of CAT, sitting singly,
could not stay proceeding before the Division Bench. He argued that a
conjoint reading of the preamble of the Act with Section 5(2), 5(6), the
proviso to Section 24 and Section 25 of the said Act, shows that the
Chairman sitting singly can stay proceedings before any other Bench.
Such power has been conferred upon the Chairman under Section 5(6)
read with Section 25 of the Act.
27. Learned counsel submitted that it was necessary for the
Chairman to pass an order of stay of proceedings in O.A. No.
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331/790/2017 pending before the Bench at Nainital to avoid multiplicity
of proceedings and for judicial uniformity, more so, since the lis in OA
No.1342 of 2016 before the Principal Bench and in O.A. No.
331/790/2017 at the Bench at Nainital were similar. The subject matter
of both the applications related to the APAR of the year 2015-2016.
28. In support of his submission, that the Chairman of the CAT,
considering an application for transfer under Section 25 of the Act, had
the power to stay the proceedings before the Nainital Bench, of which
transfer had been sought, counsel cited Dr. Mahabal Ram vs. Indian
Council of Agricultural Research and others1 and L.Chandra Kumar
vs. Union of India & Ors.2.
29. Counsel appearing on behalf of the respondent no.1 refuted
the submission that the appellant had not been heard by the High Court,
arguing that the appellant had duly been represented by Shri Rakesh
Thapliyal, Additional Solicitor General of India. He submitted that, as
per the rules of the High Court an advance copy of the writ petition had
also been served on the Additional Solicitor General Shri Rakesh
Thapliyal. The Additional Solicitor General and senior government counsel
had been representing both Union of India and AIIMS in the High Court
as well as in Nainital Bench of CAT where the Union of India and
AIIMS had jointly filed reply through counsel for Union of India.
30. Counsel appearing for the Respondent no.1 emphatically argued
that the Chairman of CAT sitting singly had no power under the Act to
stay the proceedings in a part-heard matter before a Division Bench of
the same Tribunal. It was trite that a body created by statute could only
have those powers provided by statute and nothing more.
31. Counsel for the respondent no.1 further argued that the
appellant had filed O.A No.331/790 of 2017 pursuant to the order of the
Division Bench of the High Court, in the writ petition filed by the
respondent no.1, being WPSB No.225 of 2017. The order of the
Chairman was, thus, in violation of the order of the Division Bench of
the High Court.
32. Counsel appearing for the respondent no.1 also submitted that
under Section 24 of the Act, the maximum duration of an ex-parte interim
order could be two weeks and that too subject to certain conditions,
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including service of advance copy, which had not been done in this case.
Moreover, there had to be a prima facie finding that the appellant would
suffer irreparable loss, which could not be monetarily compensated, if
no interim order were passed. In this case, the Chairman passed a nonspeaking interim order for six weeks. The order does not disclose any
urgency or irreparable loss which could not be monetarily compensated.
33. Counsel for the respondent no.1 also submitted that the cause
of action in OA No. 331/790/2017 was distinct from cause of action in
OA No. 1342/2016. The communication of adverse APAR for the year
2015-16 gave rise to a fresh cause of action. Unless challenged, the
APAR would have led to adverse consequences for the respondent no.1,
such as, denial of promotion.
34. Counsel for the respondent no.1 submitted that OA No. 1342/
2016 and OA No. 331/790/2017 arose as a result of two completely
different orders and, in any case, the issue of whether there was similarity
of cause of action in the two proceedingshad been dealt with by the
Nainital Bench. The finding of the Nainital Bench had never been
challenged by the appellant and had attained finality.
35. Relying on the judgment of this Court in Ramrameshwari
Devi and Ors. v. Nirmala Devi & Ors.3, Counsel for the respondent
no.1 submitted that the High Court had rightly imposed a fine on the
appellant, as the appellant had obtained an ex parte order by
misrepresentation.
36. Counsel for the respondent no.1 finally submitted that this
appeal might be dismissed, as it is purely based on perjury and
concealment of facts, citing Kishorbhai Gandubhai Pethani v. State
of Gujarat & Anr.4, Kishore Samrite V. State of Uttar Pradesh &
Ors.5 and Prestige Lights Ltd. v. State Bank of India6.
37. It is not in dispute that the impugned order, under challenge in
this Court, records the appearance of Shri Rakesh Thapliyal, Additional
Solicitor General on behalf of AIIMS as well. Any objection with regard
to erroneous recording of appearances, or the authority of the learned
Additional Solicitor General of India to represent the AIIMS ought to
have been urged before the High Court by making an appropriate
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application. The objection to the appearances of the Additional Solicitor
General, representing the Central government in the same proceedings,
is prima facie preposterous, considering that the AIIMS is under full
control of the Central Government. It is, however, not for this Court to
examine whether the learned Additional Solicitor General of India had
been authorized to appear before the High Court on behalf of AIIMS or
not.
38. The judgments of this Court in Munna Lal Karosia vs. State
of Madhya Pradesh and Others7 and Association of Synthetic Fibre
Industries vs. Apollo Tyres Limited and Others8, cited by the appellant
to argue that a final order ought not be passed by the High Court against
any person without giving that person an opportunity of hearing, have no
application in the facts and circumstances of this case, since the appellant
had apparently been represented by the Additional Solicitor General.
The judgments were rendered in the particular facts and circumstances
of those cases.
39. In Munna Lal Karosia(supra), the High Court had held Munna
Lal Karosia to be guilty of contempt without hearing him. It was in the
aforesaid context that this Court deprecated the passing of stigmatic
orders against a person without giving that person an opportunity of
hearing. An order of contempt may be stigmatic. The order under appeal
is not so. Imposition of costs does render an order stigmatic, as sought
to be argued on behalf of the appellant.
40. The main question before this Court is, whether the Chairman
of the Tribunal, sitting singly and exercising his power under Section 25
of the Act, to transfer proceedings from one Bench to another, could
have stayed proceedings before a two member Bench and rendered
interim orders passed by that Bench inoperative. The answer to the
aforesaid question has to be in the negative for the reasons discussed
hereinafter.
41. The Act has been enacted in pursuance of Article 323 A,
inserted into the Constitution of India by the Constitution (42nd
Amendment) Act, 1976, which enables Parliament to enact law to provide
for adjudication and/or trial by Administrative Tribunals of disputes in
respect of recruitment and conditions of service of persons in public
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services and posts inter alia in connection with the Union of India and
authorities under its control.
42. As observed by the Supreme Court in Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu and Ors.9, the
Parliament has enacted Article 323A for the reason that the Civil Courts,
gripped with rules of pleading and strict rules of evidence and tardy trial,
four-tier appeals, endless revisions and reviews under the Civil Procedure
Code, are not suited to the need for expeditious dispensation of litigation
relating to services.
43. CAT has been established under Section 4 of the Act and
exercises jurisdiction, powers and authority as stipulated in Section 14 of
the Act.
44. Under Section 14(1) read with 14(3) of the Act, CAT exercises
all the jurisdiction authority and powers, exercised by all Courts except
the Supreme Court before the establishment of a Tribunal under the
Act.
45. Even though the Evidence Act and Civil Procedure Code may
not apply to Tribunals constituted in pursuance of Article 323 A of the
Constitution, such Tribunals, like ordinary law courts are bound by rules
of evidence and procedure as laid down under the law under which the
Tribunal is constituted and/or the rules and regulations framed thereunder
and are required to determine the lis brought before them strictly in
accordance with the law.
46. The preamble to the Act states the object of the Act, which
is to provide for adjudication or trial by Administrative Tribunals, of
disputes and complaints in respect of recruitment and conditions of service
of persons appointed to public services and posts in connection with the
affairs of the Union or of any State or of any local or other authority
within the territory of India or under the control of the Government of
India or of any corporation owned or controlled by the Government, in
pursuance of Article 323A of the Constitution of India and for the matters
connected therewith or incidental thereto.
47. The reference by Counsel for the appellant to the Preamble
of the Act is of no relevance. The respondent no.1 approached the
Tribunal for redressal of his grievances. His case was heard by a Division
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Bench and a reasoned interim order passed on 18.9.2017. The preamble,
which states the aims and objects of the Act is of no assistance to the
appellant, as it does not lend support to appellant's contention that the
Chairman of the Tribunal sitting singly could have stayed further
proceedings before a Division Bench. The reliance placed by Counsel
on the Preamble is misconceived.
48. Sections 5, 24 and 25 of the Act provide as follows:-
5. Composition of Tribunals and Benches thereof.- (1) Each
Tribunal shall consist of a Chairman and such number of
Judicial and Administrative Members as the appropriate
Government may deem fit and, subject to the other provisions
of this Act, the jurisdiction, powers and authority of the
Tribunal may be exercised by Benches thereof.
(2) Subject to the other provisions of this Act, a Bench shall
consist of one Judicial Member and one Administrative
Member.
(3) Omitted
(4) Notwithstanding anything contained in sub-section (1),
the Chairman-
(a) may, in addition to discharging the functions of the Judicial
Member or the Administrative Member of the Bench to which
he is appointed, discharge the functions of the Judicial
Member or, as the case may be, the Administrative Member,
of any other Bench;
(b) may transfer a Member from one Bench to another Bench;
(c) may authorise the Judicial Member or the Administrative
Member appointed to one Bench to discharge also the
functions of the Judicial Member or the Administrative
Member, as the case may be, of another Bench; and
(d) may, for the purpose of securing that any case or cases
which, having regard to the nature of the questions involved,
requires or require, in his opinion or under the rules made by
the Central Government in this behalf, to be decided by a
Bench composed of more than two Members issue such
general or special orders, as he may deem fit:
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Provided that every Bench constituted in pursuance of this
clause shall include at least one Judicial Member and one
Administrative Member.
(6) Notwithstanding anything contained in the foregoing
provisions of this section, it shall be competent for the
Chairman or any other Member authorised by the Chairman
in this behalf to function as a Bench consisting of a single
Member and exercise the jurisdiction, powers and authority
of the Tribunal in respect of such classes of cases or such
matters pertaining to such classes of cases as the Chairman
may by general or special order specify:
Provided that if at any stage of the hearing of any such case
or matter it appears to the Chairman or such Member that
the case or matter is of such a nature that it ought to be heard
by a Bench consisting of two Members, the case or matter
may be transferred by the Chairman or, as the case may be,
referred to him for transfer to, such Bench as the Chairman
may deem fit.
(7) Subject to the other provisions of this Act, the Benches of
the Central Administrative Tribunal shall ordinarily sit at New
Delhi (which shall be known as the principal Bench),
Allahabad, Calcutta, Madras, New Bombay and at such other
places as the Central Government may, by notification, specify.
(8) Subject to the other provisions of this Act, the places at
which the principal Bench and other Benches of a State
Administrative Tribunal shall ordinarily sit shall be such as
the State Government may, by notification, specify.
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24. Conditions as to making of interim orders. -
Notwithstanding anything contained in any other provisions of this
Act or in any other law for the time being in force, no interim
order (whether by way of injunction or stay or in any other manner)
shall be made on, or in any proceedings relating to, an application
unless -
(a) copies of such application and of all documents in support
of the plea for such interim order are furnished to the party
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against whom such application is made or proposed to be
made; and
(b) opportunity is given to such party to be heard in the matter:
Provided that a Tribunal may dispense with the requirements of
clauses (a) and (b) and make an interim order as an exceptional
measure if it is satisfied, for reasons to be recorded in writing,
that it is necessary so to do for preventing any loss being caused
to the applicant which cannot be adequately compensated in money
but any such interim order shall, if it is not sooner vacated, cease
to have effect on the expiry of a period of fourteen days from the
date on which it is made unless the said requirements have been
complied with before the expiry of that period and the Tribunal
has continued the operation of the interim order.
25. Power of Chairman to transfer cases from one Bench
to another. - On the application of any of the parties and after
notice to the parties, and after hearing such of them as he may
desire to be heard, or on his own motion without such notice, the
Chairman may transfer any case pending before one Bench, for
disposal, to any other Bench.
49. Section 5 provides that a Tribunal is to consist of a Chairman
and such number of judicial and administrative members as the appropriate
Government may deem fit and, subject to the other provisions of the
Act, the jurisdiction, powers and authority of the Tribunal may be exercised
by the Benches thereof. Sub-section 2 provides that a Bench is to consist
of one Judicial Member and one Administrative Member. This, however,
is subject to the other provisions of the said Act.
50. The Chairman of the Tribunal is an entity distinct from the
Tribunal and exercises administrative powers and such other powers as
are expressly conferred on him under the Act.