ALL INDIA INSTITUTE OF MEDICAL SCIENCES versus SANJIV CHATURVEDI & ORS. on 1 February 2019

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[2019] 1 S.C.R.

AALL INDIA INSTITUTE OF MEDICAL SCIENCES

v.

SANJIV CHATURVEDI & ORS.

(Civil Appeal No. 1392 of 2019)

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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 totransfer proceedings from one Bench to another, stayed proceedingsCin an Original Application pending before a two member Benchand rendered interim orders passed by that Bench inoperative –Sustainability of – Held: Chairman sitting singly, cannot nullify theorders passed by a larger Bench – Chairman, like the Chief Justiceof the Higher Courts or the Chief Judge of subordinate courts, mayDbe higher in order of protocol and may have additionaladministrative duties and responsibilities, however, the Chairman,–acting judicially, is equal to any other Member Chairman, beingone amongst equals, the order of the Chairman of the tribunal stayingproceedings before the two member Bench was without jurisdictionand unsustainable in law.

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Judicial Propriety – Norms of – Held: Judicial propriety anddecorum demands that a judicial order, ad interim, interim or finalbe vacated, varied, modified, recalled or reviewed by a Bench ofcoordinate strength or larger strength or a higher forum, but not asmaller Bench of lesser strength, except in cases where such authorityto a lower forum and/or smaller Bench is expressly conferred orimplicit in the order sought to be vacated, varied, modified, recalledor reviewed.

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Dismissing the appeal, the Court

GHELD: 1. The Chairman of the Tribunal, sitting singly andexercising his power under Section 25 of the AdministrativeTribunals Act, 1985 to transfer proceedings from one Bench toanother, could not have stayed proceedings before a two memberBench and rendered interim orders passed by that Benchinoperative. [Para 40][875-E-F]H

2. The reference by counsel for the appellant to thePreamble of the Act is of no relevance. The respondent no.1approached the tribunal for redressal of his grievances. His casewas heard by a Division Bench and a reasoned interim order waspassed. The preamble, which states the aims and objects of theAct is of no assistance to the appellant, as it does not lend supportto appellant’s contention that the Chairman of the tribunal sittingsingly could have stayed further proceedings before a DivisionBench. 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 aChairman and such number of judicial and administrativemembers as the appropriate Government may deem fit and,subject to the other provisions of the Act, the jurisdiction, powersand authority of the Tribunal may be exercised by the Benchesthereof. Sub-section 2 provides that a Bench is to consist of oneJudicial Member and one Administrative Member. This, however,is subject to the other provisions of the said Act. The Chairmanof the Tribunal is an entity distinct from the Tribunal and exercisesadministrative powers and such other powers as are expresslyconferred on him under the Act. Section 5(4)(a) of the Actempowers the Chairman to discharge in addition to the functionsof the Judicial Member or the Administrative Member, of theBench to which he is appointed, the functions of the JudicialMember 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 aMember from one Bench to another Bench, and Section 5(4)(c)enables the Chairman to authorize the Judicial Member or theAdministrative Member of one Bench to discharge the dutiesand functions of Judicial Member or Administrative Member, asthe case may be, of any other Bench. The Chairman can alsoconstitute Benches of more than two Members having regard tothe nature of the cases involved, by issuance of general or specialorders. Sub-section (6) of Section 5 empowers the Chairman orany other Member authorized by the Chairman to sit singly toexercise jurisdiction, powers and authority of the Tribunal onlyin respect of such classes of cases or such matters pertaining tosuch classes of cases as the Chairman might, by general or special AB

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Aorders specify. The aforesaid provision does not enable theChairman 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 atany stage of hearing of any such case or matter it appears to theBChairman or the Member functioning singly that the case ormatter is of such a nature that it ought to be heard by a Benchconsisting of two Members, the case or matter may be transferredby the Chairman, or as the case may be, referred to him fortransfer to such Bench as the Chairman may deem fit. [Para53][880-C-D]C4.1 Section 24 of the Act limits the power to pass interimorder whether by way of injunction, stay or otherwise by imposingconditions on the exercise of such power. No interim order is tobe made unless copies of the application along with documentsin support of the plea for interim order are furnished to the partyDagainst whom such application is made and opportunity to beheard is given to such party. The said condition can only bedispensed with in exceptional cases, if the Tribunal is satisfied,for reasons to be recorded in writing, that it is necessary to passan interim order for preventing any loss to the applicant whichEcannot adequately be compensated in money. The interim order,in such case is to be of maximum duration of fourteen days unlessthe requirements of sub-sections (a) and (b) are complied with,before the expiry of fourteen days and the interim order isextended. [Paras 56, 57][880-G-H; 881-A-B]

F4.2 The power under Section 25 of the Act to transfer casesfrom one Bench to another is essentially an administrative powerof the Chairman of CAT. Such power is to be exercised by theChairman on his own motion or on the application of any of theparties after notice to the parties, and after hearing such of themas he may desire to be heard. The Chairman may, on his motion,Gtransfer any case pending before one Bench to another withoutnotice. A careful reading of Section 25 of the Act makes it clearthat the Chairman deciding the question of whether a mattershould be transferred from one Bench to another cannot grantinterim stay of proceedings, their being no power conferred onHthe Chairman under the said section to pass such interim stay.

Power under Section 24 to grant interim orders has beenconferred on the Tribunal, and/or in other words, a Bench of theTribunal in seisin of proceedings in respect of which the Benchis 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 Chairmanderives its powers from the Act and can only exercise such powersas are conferred by the Act. The Chairman of the Tribunalexercising its power under Section 25 of the Act does not functionas a Tribunal. The Chairman of CAT does not have power underSection 25 to pass any interim order of stay of proceedingspending before a Bench of the Tribunal. [Para 61][881-F-G]

4.4 A careful reading of the provisions of the AdministrativeTribunal Act and in particular Sections 14 and 15 thereof injuxtaposition with Article 323A of the Constitution leaves nomanner of doubt that an Administrative Tribunal constituted underthe Act to give effect to Article 323A of the Constitution exercisesall the jurisdiction powers and authority exercisable by all theCourts before commencement of the Act and has all the attributesof a Court of law except that it is not bound by the strict rules ofprocedure embodied in the Civil Procedure Code or the strictrules of evidence prescribed by the Evidence Act. All norms ofjudicial propriety and judicial discipline apply as much to theTribunal as to Courts including the High Court. [Para 62][881-G-H; 882-A-B]

4.5 A judicial order passed by a Tribunal is binding on allconcerned, including the tribunal itself on its administrative side,unless set aside or modified by a higher forum in exercise ofappellate or revisional powers. In no circumstances, can a judicialorder of a Bench of the Tribunal be nullified or rendered nugatoryby its Chairman. [Para 63][882-C]

4.6 In view of Section 12 of the Act, the Chairman of theTribunal can only exercise financial and administrative powersover the Benches as may be vested under the Rules. TheChairman may thus, constitute Benches, shift members from oneBench to another, constitute Single Benches, Division Benchesand even larger Benches, allocate business to the Benches andeven transfer cases from one Bench to the other, but having done A

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Aso he cannot interfere with the functioning of the Benches ortinker with its orders by passing interim orders in a transferpetition. [Para 64][882-D-E]

4.7 In any case, judicial decorum and propriety demandsthat a judicial order, ad interim, interim or final be vacated, varied,Bmodified, recalled or reviewed by a Bench of coordinate strengthor larger strength or a higher forum, but not a smaller Bench oflesser strength, except in cases where such authority to a lowerforum and/or smaller Bench is expressly conferred or implicit inthe order sought to be vacated, varied, modified, recalled orreviewed. [Para 65][882-E-F]C

4.8 The interim order passed by a Court does not operateas a precedent and the law declared by the Supreme Court withregard to the precedential value of judgments of Benches of largerstrength may not operate as a binding precedent in the facts andcircumstances of the instant case. The judgments referred to inDthe preceding paragraphs lay down the norms of judicial decorumand propriety which give precedence to Benches of higherstrength. There is no reason at all why the same principles shouldnot apply even to interim orders in pending proceedings. [Para67][883-B-C]E

4.9 An interim order passed by a court, on consideration ofthe prima facie case made out by an applicant, should ordinarilyhave been vacated by a Bench of coordinate strength after givingopen notice to the applicant. If the Chairman was of the consideredopinion that there was urgency in the application for vacating theFinterim order, the Chairman ought to have assigned theapplication for vacating and/or vacation of the interim order to aBench of two or more Members to consider whether the interimorder should continue or be vacated. The Chairman could alsohave exercised his power to suo motu transfer the proceedingsto another Bench without prior notice. The order of stay of theGproceedings before the Nainital Bench is without jurisdiction andunsustainable 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 orthe Chief Judge of subordinate courts, may be higher in order ofH

protocol and may have additional administrative duties andresponsibilities. However, the Chairman, acting judicially, is equalto any other Member. The Chairman, being one amongst equals,the order of the Chairman of CAT staying proceedings beforethe two member Bench was without jurisdiction and unsustainablein law. The cost quantified at Rs. 25,000/- directed to be depositedwith the Supreme Court Legal Services Committee within thestipulated period. [Paras 73, 74][885-D-E]

Munna Lal Karosia v. State of Madhya Pradesh andOthers (2012) 12 SCC 255; Association of SyntheticFibre Industries v. Apollo Tyres Limited and Others(2010) 13 SCC 735 - distinguished.

Dr. Mahabal Ram v. Indian Council of AgriculturalResearch and others (1994) 2 SCC 401; L. ChandraKumar 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 SCR992; 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 SCR112; Vatticherukuru Village Panchayat v. NoriVenkatarama Deekshithulu and Ors. (1991) Supp. 2SCC 228 : [1991] 2 SCR 531; Morgan Stanley MutualFund 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 PetroleumCorporation Ltd. v. Mumbai Shramik Sangha & Ors.(2001) 4 SCC 448 : [2001] 3 SCR 208 – referred to.

Case Law Reference

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SUPREME COURT REPORTS

CCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1392of 2019.

From the Judgment and Order dated 21.08.2018 of the High Courtof Uttarakhand at Nainital in WPSB No. 359 of 2018.

DDushyant Parashar, Mehmood Pracha, Himanshu Shekhar, R.H.A.Sikander, Jamesh Kumar, Mohd. Danish, Ms. Sadhana Sandhu, MukulSingh, G.S. Makker, Advs. for the appearing parties.

The Judgment of the Court was delivered by INDIRA BANERJEE, J. 1. Leave granted.E

2. This appeal is against the final judgment and order dated21.08.2018 passed by a Division Bench of the High Court of Uttarakhandat Nainital allowing the writ petition being WPSB No.359 of 2018 filedby the respondent no.1 and quashing the order dated 18.09.2017 passedby the Chairman of the Central Administrative Tribunal (hereinafterFreferred to as “CAT”) at the Principal Bench at Delhi, inter alia, stayingproceedings in OA 331/00790/ 2017 filed by the respondent no.1 andpending before a Division Bench of CAT at Nainital.

3. The respondent no.1, an Indian Forest service officer of theUttarakhand cadre of 2002 Batch was posted as Deputy Secretary atGthe All India Institute of Medical Sciences, New Delhi from 29.6.2012till 28.6.2016.

4. The said post of Deputy Secretary was created with the approvalof the Department of Expenditure, inter alia, to coordinate and manageinfrastructure projects and ensure their timely completion, to exercise H

management and control of the Institute and to coordinate with MultiDisciplinary Experts.

5. At its 195[th] meeting held on 20.7.2010, the Standing FinanceCommittee of the Institute decided against the creation of a new post ofCentral Vigilance Officer and resolved that the work of Central VigilanceOfficer should also be assigned to the officer, joining the newly createdpost of Deputy Secretary of AIIMS. The Governing Body and Institutebody of AIIMS headed by the Union Health Minister ratified the decisionof the Standing Finance Committee.

6. An order dated 23.6.2011 was issued by the Ministry of Healthand Family Welfare enumerating the duties pertaining to the said post ofDeputy Secretary of AIIMS.

7. As stated above, respondent no.1 was appointed DeputySecretary of AIIMS on 29.6.2012. As per the work allocation order therespondent 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 GeneralSection was withdrawn from the respondent no.1 in November 2012,the work of Central Vigilance Officer was withdrawn from him in August2014, the work of dealing with grievances was withdrawn from himsome time in 2015 and in December 2015 the work of the Estate Sectionwas withdrawn from him. Ultimately the respondent no.1 was leftpractically without any work, apart from signing pension papers andbooking guest houses.

9. According to the respondent no.1, there was delay in completionof infrastructure projects, which along with the way in which therespondent 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 wasassigned the work of Central Vigilance Officer, the then Health Secretaryhad commented on his “exemplary performance” and “absolute integrity”.Moreover, the respondent no.1 was, in his Annual Performance AppraisalReports for the years 2012-13 and 2013-14 graded as ‘outstanding’,with the following remarks by the then Union Health Minister “ShriSanjiv Chaturvedi, Deputy Secretary and CVO, AIIMS, New Delhi,is a man of integrity, sincerity, who is keen on performing hisassigned role to the best of his ability and knowledge without fearor favour”.

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A11. The respondent no.1 had been awarded the Ramon MagsaysayAward for the year 2015 in recognition of his exemplary integrity, courageand tenacity, inter alia, in uncompromisingly exposing and painstakinglyinvestigating corruption in public office. Records reveal that therespondent no.1 had donated the award money of Rs.14,23,000/- to thePrime Minister’s Relief Fund after the All India Institute of MedicalBSciences refused to accept his donation of the award money to the AllIndia Institute of Medical Sciences for free treatment of under privilegedpatients.

12. According to the respondent no.1, no complaint of any kindwas received against him from any employee during his two year tenureCas Central Vigilance Officer of the Institute. However, the very samepersons, who had earlier showered praises on the respondent no.1 turnedagainst him for extraneous reasons, particularly his role in exposingcorruption.

13. Being aggrieved, the respondent no.1 filed an application beingDO.A. No.1887 of 2015 before the Principal Bench of the CAT at Delhi,inter alia, for directions on the concerned authorities to allocate thework of Deputy Secretary to the respondent no.1. The said applicationhas been dismissed by a judgment and order dated 17.5.2016.

14. The respondent no.1 has alleged that the duties of CentralEVigilance Officer were withdrawn from him as he had unearthedirregularities and corruption in infrastructure projects. The nature orreasons for the disputes between the respondent no.1 and the appellantare not relevant to the issues involved in this appeal.

15. A memorandum dated 7.1.2016 was served on the respondentFno.1, informing him that the Director of the All India Institute of MedicalSciences had placed on record his displeasure with insubordination,indiscipline and lack of work ethics of the respondent no.1 during theWinter Session of Parliament in the year 2015, and directed that a copyof the said memorandum be kept in the personal file of the respondentGno.1. A representation made by the respondent no.1 against the aforesaidmemorandum was rejected by the Competent Authority.

16. Being aggrieved, the respondent no.1 filed OA No.1342 of2016 before the Principal Bench of the CAT at New Delhi challengingthe said Memorandum dated 7.1.2016 and praying for orders, restrainingthe Director of the All India Institute of Medical Sciences from writingH

the Annual Performance Appraisal Report of the respondent no.1. Thesaid application is pending. On the application being filed, the learnedTribunal directed issuance of notices, but declined the prayer of therespondent no.1 for interim relief.

17. On 28.6.2016, the four year deputation of the respondent no.1as Deputy Secretary at AIIMS came to an end, and he joined his newpost at Uttarakhand in August, 2016, after availing leave of two months.

18. By an order dated 11.1.2017 AIIMS communicated an adverseAnnual Confidential Report for the year 2015 -2016 to the respondentno.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 dated11.1.2017 before the Competent Authority. The appeal was rejected byan order dated 15/20.4.2017.

19. On 19.6.2017, the respondent no.1 filed a writ petition beingWPSB No.225 of 2017 before the Uttarakhand High Court challengingthe orders dated 11.1.2017 and 15/20.4.2017. The respondent no.1 alsofiled an application being PT No.286/2017 in OA No. 1342/2016 beforethe Principal Bench of the CAT at Delhi for transfer of OA No. 1342/2016from 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 WPSBNo.225 of 2017, the Division Bench of Uttarakhand High Court relegatedthe respondent no.1 to approach the Tribunal under the AdministrativeTribunals Act, 1985 (for short ‘the Act’) and to seek all reliefs availableto him. The respondent no.1 was given the liberty to approach theHigh Court in the event any relief prayed for by the respondent wasrejected by the Tribunal.

21. Thereafter, the respondent no.1 instituted an application beingOA No.331/00790/2017 before the Nainital Bench of the CAT challengingthe Annual Performance Appraisal Report (APAR) of the year 2015-16whereupon an interim order was passed in favour of the respondentno.1 on 18.9.2017, by a Division Bench of the Tribunal, the operativepart whereof is set out hereinbelow:- “Matter be posted for further hearing on interim relief on03.10.2017. Respondents shall file their reply before the saiddate. In the meantime, in the interest of justice, it is directed that A

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Aif any matter related to the career progression of the applicantcomes up for consideration before the terms of the impugnedorders shall not be taken into account while assessing and theapplicant’s suitability or fitness and he shall be considered on thebasis of the rest of his ACRs/APARs.

B22. The Union of India filed an application before the Chairmanof the Tribunal being PT 316 /2017 seeking transfer of OA No.331/00790/2017 to the Principal Bench at Delhi. By an ex parte orderdated 18.9.2017 passed in the said transfer application, the Chairman ofthe CAT, sitting singly, stayed proceedings in OA No.331/00790/2017pending before a two member Bench at Nainital for a period of sixCweeks, and directed that notice be issued to the respondent no.1.

23. Challenging the aforesaid order on the ground that the Chairmanof CAT, sitting singly, could not have stayed proceedings pending beforea 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.D

24. By the impugned order dated 21.8.2018, which is under appeal,the High Court allowed the writ petition and set aside the impugnedorder dated 18.9.2017 of the Chairman, observing that the Chairman ofthe Tribunal, while sitting singly, could not stay the proceedings pendingbefore the Division Bench. The High Court imposed costs of Rs.25,000/-Eon the appellant.

25. Learned counsel appearing on behalf of the appellant submittedthat the impugned order was passed without giving the appellant anopportunity of hearing. No Vakalatnama was executed by the appellantauthorizing the learned Additional Solicitor General of India Shri RakeshFThapliyal to appear before the High Court on behalf of AIIMS.

26. Learned Counsel for the appellant next submitted that theHigh Court had erred in holding that the Chairman of CAT, sitting singly,could not stay proceeding before the Division Bench. He argued that aconjoint reading of the preamble of the Act with Section 5(2), 5(6), theGproviso to Section 24 and Section 25 of the said Act, shows that theChairman 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 theHChairman to pass an order of stay of proceedings in O.A. No.

331/790/2017 pending before the Bench at Nainital to avoid multiplicityof proceedings and for judicial uniformity, more so, since the lis in OANo.1342 of 2016 before the Principal Bench and in O.A. No.331/790/2017 at the Bench at Nainital were similar. The subject matterof 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, hadthe power to stay the proceedings before the Nainital Bench, of whichtransfer had been sought, counsel cited Dr. Mahabal Ram vs. IndianCouncil of Agricultural Research and others[1] and L.Chandra Kumarvs. Union of India & Ors.[2].

29. Counsel appearing on behalf of the respondent no.1 refutedthe submission that the appellant had not been heard by the High Court,arguing that the appellant had duly been represented by Shri RakeshThapliyal, Additional Solicitor General of India. He submitted that, asper the rules of the High Court an advance copy of the writ petition hadalso been served on the Additional Solicitor General Shri RakeshThapliyal. The Additional Solicitor General and senior government counselhad been representing both Union of India and AIIMS in the High Courtas well as in Nainital Bench of CAT where the Union of India andAIIMS had jointly filed reply through counsel for Union of India.

30. Counsel appearing for the Respondent no.1 emphatically arguedthat the Chairman of CAT sitting singly had no power under the Act tostay the proceedings in a part-heard matter before a Division Bench ofthe same Tribunal. It was trite that a body created by statute could onlyhave those powers provided by statute and nothing more.

31. Counsel for the respondent no.1 further argued that theappellant had filed O.A No.331/790 of 2017 pursuant to the order of theDivision Bench of the High Court, in the writ petition filed by therespondent no.1, being WPSB No.225 of 2017. The order of theChairman was, thus, in violation of the order of the Division Bench ofthe High Court.

32. Counsel appearing for the respondent no.1 also submitted thatunder Section 24 of the Act, the maximum duration of an ex-parte interimorder could be two weeks and that too subject to certain conditions, 1 (1994) 2 SCC 401 2 (1997) 3 SCC 261

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Aincluding service of advance copy, which had not been done in this case.Moreover, there had to be a prima facie finding that the appellant wouldsuffer irreparable loss, which could not be monetarily compensated, ifno interim order were passed. In this case, the Chairman passed a non-speaking interim order for six weeks. The order does not disclose anyurgency or irreparable loss which could not be monetarily compensated.B

33. Counsel for the respondent no.1 also submitted that the causeof action in OA No. 331/790/2017 was distinct from cause of action inOA No. 1342/2016. The communication of adverse APAR for the year2015-16 gave rise to a fresh cause of action. Unless challenged, theAPAR would have led to adverse consequences for the respondent no.1,Csuch 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 completelydifferent orders and, in any case, the issue of whether there was similarityof cause of action in the two proceedingshad been dealt with by theDNainital Bench. The finding of the Nainital Bench had never beenchallenged by the appellant and had attained finality.

35. Relying on the judgment of this Court in RamrameshwariDevi and Ors. v. Nirmala Devi & Ors.[3], Counsel for the respondentno.1 submitted that the High Court had rightly imposed a fine on theEappellant, as the appellant had obtained an ex parte order bymisrepresentation.

36. Counsel for the respondent no.1 finally submitted that thisappeal might be dismissed, as it is purely based on perjury andconcealment of facts, citing Kishorbhai Gandubhai Pethani v. StateFof Gujarat & Anr.[4], Kishore Samrite V. State of Uttar Pradesh &Ors.[5] and Prestige Lights Ltd. v. State Bank of India[6].

37. It is not in dispute that the impugned order, under challenge inthis Court, records the appearance of Shri Rakesh Thapliyal, AdditionalSolicitor General on behalf of AIIMS as well. Any objection with regardGto erroneous recording of appearances, or the authority of the learnedAdditional Solicitor General of India to represent the AIIMS ought tohave been urged before the High Court by making an appropriate 3 (2011) 8 SCC 249 4 (2014) 13 SCC 539 5 (2013) 2 SCC 398H 6 (2007) 8 SCC 449

application. The objection to the appearances of the Additional SolicitorGeneral, representing the Central government in the same proceedings,is prima facie preposterous, considering that the AIIMS is under fullcontrol of the Central Government. It is, however, not for this Court toexamine whether the learned Additional Solicitor General of India hadbeen authorized to appear before the High Court on behalf of AIIMS ornot.

38. The judgments of this Court in Munna Lal Karosia vs. Stateof Madhya Pradesh and Others[7 ]and Association of Synthetic FibreIndustries vs. Apollo Tyres Limited and Others[8], cited by the appellantto argue that a final order ought not be passed by the High Court againstany person without giving that person an opportunity of hearing, have noapplication in the facts and circumstances of this case, since the appellanthad apparently been represented by the Additional Solicitor General.The judgments were rendered in the particular facts and circumstancesof those cases.

39. In Munna Lal Karosia(supra), the High Court had held MunnaLal Karosia to be guilty of contempt without hearing him. It was in theaforesaid context that this Court deprecated the passing of stigmaticorders against a person without giving that person an opportunity ofhearing. An order of contempt may be stigmatic. The order under appealis not so. Imposition of costs does render an order stigmatic, as soughtto be argued on behalf of the appellant.

40. The main question before this Court is, whether the Chairmanof the Tribunal, sitting singly and exercising his power under Section 25of the Act, to transfer proceedings from one Bench to another, couldhave stayed proceedings before a two member Bench and renderedinterim orders passed by that Bench inoperative. The answer to theaforesaid question has to be in the negative for the reasons discussedhereinafter.

41. The Act has been enacted in pursuance of Article 323 A,inserted into the Constitution of India by the Constitution (42[nd]Amendment) Act, 1976, which enables Parliament to enact law to providefor adjudication and/or trial by Administrative Tribunals of disputes inrespect of recruitment and conditions of service of persons in public 7 (2012) 12 SCC 255

8 (2010) 13 SCC 735

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Aservices and posts inter alia in connection with the Union of India andauthorities under its control.

42. As observed by the Supreme Court in Vatticherukuru VillagePanchayat v. Nori Venkatarama Deekshithulu and Ors.[9], theParliament has enacted Article 323A for the reason that the Civil Courts,Bgripped with rules of pleading and strict rules of evidence and tardy trial,four-tier appeals, endless revisions and reviews under the Civil ProcedureCode, are not suited to the need for expeditious dispensation of litigationrelating to services.

43. CAT has been established under Section 4 of the Act andCexercises jurisdiction, powers and authority as stipulated in Section 14 ofthe Act.

44. Under Section 14(1) read with 14(3) of the Act, CAT exercisesall the jurisdiction authority and powers, exercised by all Courts exceptthe Supreme Court before the establishment of a Tribunal under theAct.D

45. Even though the Evidence Act and Civil Procedure Code maynot apply to Tribunals constituted in pursuance of Article 323 A of theConstitution, such Tribunals, like ordinary law courts are bound by rulesof evidence and procedure as laid down under the law under which theETribunal is constituted and/or the rules and regulations framed thereunderand are required to determine the lis brought before them strictly inaccordance with the law.

46. The preamble to the Act states the object of the Act, whichis to provide for adjudication or trial by Administrative Tribunals, ofdisputes and complaints in respect of recruitment and conditions of serviceFof persons appointed to public services and posts in connection with theaffairs of the Union or of any State or of any local or other authoritywithin the territory of India or under the control of the Government ofIndia or of any corporation owned or controlled by the Government, inpursuance of Article 323A of the Constitution of India and for the mattersGconnected therewith or incidental thereto.

47. The reference by Counsel for the appellant to the Preambleof the Act is of no relevance. The respondent no.1 approached theTribunal for redressal of his grievances. His case was heard by a Division 9 (1991) Supp. (2) SCC 228H

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 theappellant, as it does not lend support to appellant’s contention that theChairman of the Tribunal sitting singly could have stayed furtherproceedings before a Division Bench. The reliance placed by Counselon the Preamble is misconceived.

48. Sections 5, 24 and 25 of the Act provide as follows:-

5. Composition of Tribunals and Benches thereof.— (1) EachTribunal shall consist of a Chairman and such number ofJudicial and Administrative Members as the appropriateGovernment may deem fit and, subject to the other provisionsof this Act, the jurisdiction, powers and authority of theTribunal may be exercised by Benches thereof.

(2) Subject to the other provisions of this Act, a Bench shallconsist of one Judicial Member and one AdministrativeMember.

(3) Omitted

(4) Notwithstanding anything contained in sub-section (1),the Chairman—

(a) may, in addition to discharging the functions of the JudicialMember or the Administrative Member of the Bench to whichhe is appointed, discharge the functions of the JudicialMember 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 AdministrativeMember appointed to one Bench to discharge also thefunctions of the Judicial Member or the AdministrativeMember, as the case may be, of another Bench; and (d) may, for the purpose of securing that any case or caseswhich, having regard to the nature of the questions involved,requires or require, in his opinion or under the rules made bythe Central Government in this behalf, to be decided by aBench composed of more than two Members issue suchgeneral or special orders, as he may deem fit:

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Provided that every Bench constituted in pursuance of thisclause shall include at least one Judicial Member and oneAdministrative Member.

(6) Notwithstanding anything contained in the foregoingprovisions of this section, it shall be competent for theChairman or any other Member authorised by the Chairmanin this behalf to function as a Bench consisting of a singleMember and exercise the jurisdiction, powers and authorityof the Tribunal in respect of such classes of cases or suchmatters pertaining to such classes of cases as the Chairmanmay by general or special order specify:

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Provided that if at any stage of the hearing of any such caseor matter it appears to the Chairman or such Member thatthe case or matter is of such a nature that it ought to be heardby a Bench consisting of two Members, the case or mattermay be transferred by the Chairman or, as the case may be,referred to him for transfer to, such Bench as the Chairmanmay deem fit.

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(7) Subject to the other provisions of this Act, the Benches ofthe Central Administrative Tribunal shall ordinarily sit at NewDelhi (which shall be known as the principal Bench),Allahabad, Calcutta, Madras, New Bombay and at such otherplaces as the Central Government may, by notification, specify.

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(8) Subject to the other provisions of this Act, the places atwhich the principal Bench and other Benches of a StateAdministrative Tribunal shall ordinarily sit shall be such asFthe 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 thisAct or in any other law for the time being in force, no interimorder (whether by way of injunction or stay or in any other manner)shall be made on, or in any proceedings relating to, an applicationunless - G

(a) copies of such application and of all documents in supportof the plea for such interim order are furnished to the party H

against whom such application is made or proposed to bemade; and (b) opportunity is given to such party to be heard in the matter:

Provided that a Tribunal may dispense with the requirements ofclauses (a) and (b) and make an interim order as an exceptionalmeasure if it is satisfied, for reasons to be recorded in writing,that it is necessary so to do for preventing any loss being causedto the applicant which cannot be adequately compensated in moneybut any such interim order shall, if it is not sooner vacated, ceaseto have effect on the expiry of a period of fourteen days from thedate on which it is made unless the said requirements have beencomplied with before the expiry of that period and the Tribunalhas continued the operation of the interim order.

25. Power of Chairman to transfer cases from one Benchto another. - On the application of any of the parties and afternotice to the parties, and after hearing such of them as he maydesire to be heard, or on his own motion without such notice, theChairman may transfer any case pending before one Bench, fordisposal, to any other Bench.

49. Section 5 provides that a Tribunal is to consist of a Chairmanand such number of judicial and administrative members as the appropriateGovernment may deem fit and, subject to the other provisions of theAct, the jurisdiction, powers and authority of the Tribunal may be exercisedby the Benches thereof. Sub-section 2 provides that a Bench is to consistof 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 theTribunal and exercises administrative powers and such other powers asare expressly conferred on him under the Act. Section 5(4)(a) of theAct empowers the Chairman to discharge in addition to the functions ofthe Judicial Member or the Administrative Member, of the Bench towhich he is appointed, the functions of the Judicial Member or theAdministrative Member of any other Bench.

51. Section 5(4)(b) empowers the Chairman to transfer a Memberfrom one Bench to another Bench, and Section 5(4)(c) enables theChairman to authorize the Judicial Member or the Administrative Member A

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Aof one Bench to discharge the duties and functions of Judicial Memberor Administrative Member, as the case may be, of any other Bench.The Chairman can also constitute Benches of more than two Membershaving regard to the nature of the cases involved, by issuance of generalor special orders.

B52. Section 5(6) enables the Chairman or any other Memberauthorized by the Chairman to function as a Single Bench and exercisejurisdiction, powers and authority of the Tribunal in respect of such classesof cases or such matters pertaining to such classes of cases as theChairman may by general or special order specify.

C53. The proviso to Section 5(c) of the Act states that if at anystage of hearing of any such case or matter it appears to the Chairmanor the Member functioning singly that the case or matter is of such anature 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 casemay be, referred to him for transfer to such Bench as the ChairmanDmay deem fit.

54. A perusal of Section 5 indicates that the Chairman isempowered to discharge administrative functions of constituting Benchesby transferring a Member from one Bench to another, authorizing theJudicial Member or the Administrative Member appointed to one BenchEto discharge the functions of Judicial Member or Administrative Memberof another Bench.

55. Sub-section (6) of Section 5 empowers the Chairman or anyother Member authorized by the Chairman to sit singly to exercisejurisdiction, powers and authority of the Tribunal only in respect of suchFclasses of cases or such matters pertaining to such classes of cases asthe Chairman might, by general or special orders specify. The aforesaidprovision does not enable the Chairman sitting singly to nullify orderspassed by a larger Bench.

56. Section 24 of the Act limits the power to pass interim orderGwhether by way of injunction, stay or otherwise by imposing conditionson the exercise of such power. No interim order is to be made unlesscopies of the application along with documents in support of the plea forinterim order are furnished to the party against whom such application ismade and opportunity to be heard is given to such party.

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57. The aforesaid condition can only be dispensed with inexceptional cases, if the Tribunal is satisfied, for reasons to be recordedin writing, that it is necessary to pass an interim order for preventing anyloss to the applicant which cannot adequately be compensated in money.The interim order, in such case is to be of maximum duration of fourteendays unless the requirements of sub-sections (a) and (b) are compliedwith, before the expiry of fourteen days and the interim order is extended.

58. The power under Section 25 of the Act to transfer cases fromone Bench to another is essentially an administrative power of theChairman of CAT. Such power is to be exercised by the Chairman onhis own motion or on the application of any of the parties after notice tothe 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 oneBench to another without notice.

59. A careful reading of Section 25 of the Act makes it clear thatthe Chairman deciding the question of whether a matter should betransferred from one Bench to another cannot grant interim stay ofproceedings, their being no power conferred on the Chairman under thesaid section to pass such interim stay.

60. Power under Section 24 to grant interim orders has beenconferred on the Tribunal, and/or in other words, a Bench of the Tribunalin seisin of proceedings in respect of which the Bench is entitled toexercise the jurisdiction and powers of the Tribunal.

61. A Tribunal created under the Act as also its Chairman derivesits powers from the Act and can only exercise such powers as areconferred by the Act. The Chairman of the Tribunal exercising its powerunder Section 25 of the Act does not function as a Tribunal. Theproposition that the power to grant interim relief must expressly beprovided by statute finds support from the judgment of the SupremeCourt in Morgan Stanley Mutual Fund vs. Kartick Das[10]. TheChairman of CAT does not have power under Section 25 to pass anyinterim order of stay of proceedings pending before a Bench of theTribunal.

62. A careful reading of the provisions of the Act and in particularSections 14 and 15 thereof in juxtaposition with Article 323A of theConstitution leaves no manner of doubt that an Administrative Tribunal 10 (1994) 4 SCC 225

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Aconstituted under the Act to give effect to Article 323A of theConstitution exercises all the jurisdiction powers and authority exercisableby all the Courts before commencement of the Act and has all theattributes of a Court of law except that it is not bound by the strict rulesof procedure embodied in the Civil Procedure Code or the strict rules ofevidence prescribed by the Evidence Act, as observed above. All normsBof judicial propriety and judicial discipline apply as much to the Tribunalas to Courts including the High Court.

63. A judicial order passed by a Tribunal is binding on all concerned,including the Tribunal itself on its administrative side, unless set aside ormodified by a higher forum in exercise of appellate or revisional powers.CIn no circumstance, can a judicial order of a Bench of the Tribunal benullified or rendered nugatory by its Chairman.

64. In view of Section 12 of the Act, the Chairman of the Tribunalcan only exercise financial and administrative powers over the Benchesas may be vested under the Rules. The Chairman may thus constituteDBenches, shift members from one Bench to another, constitute SingleBenches, Division Benches and even larger Benches, allocate businessto the Benches and even transfer cases from one Bench to the other,but having done so he cannot interfere with the functioning of the Benchesor tinker with its orders by passing interim orders in a transfer petition.E

65. In any case, judicial decorum and propriety demands that ajudicial order, ad interim, interim or final be vacated, varied, modified,recalled or reviewed by a Bench of coordinate strength or larger strengthor a higher forum, but not a smaller Bench of lesser strength, except incases where such authority to a lower forum and/or smaller Bench isFexpressly conferred or implicit in the order sought to be vacated, varied,modified, recalled or reviewed.

66. In Union of India and Anr. vs. K. S. Subramanian[11], theSupreme Court observed that the proper course for a High Court was totry to find out and follow the opinion expressed by larger benches of thisGCourt in preference to those expressed by smaller Benches of theSupreme Court and that was the practice also to be followed by theSupreme Court itself. The practice has now crystallized into a rule oflaw declared by the Supreme Court. A similar view was taken by theSupreme Court in Bharat Petroleum Corporation Ltd. vs. Mumbai Shramik Sangha & Ors.[12]. A five Judge Constitution Bench of theSupreme Court observed that the decision of a Constitution Bench ofthe Supreme Court would bind a Bench of two judges of the SupremeCourt and that judicial discipline obliged them to follow it, regardless oftheir doubts about its correctness.

67. It is true that the interim order passed by a Court does notoperate as a precedent and the law declared by the Supreme Court withregard to the precedential value of judgments of Benches of largerstrength may not operate as a binding precedent in the facts andcircumstances of this case. The judgments referred to in the precedingparagraphs lay down the norms of judicial decorum and propriety whichgive precedence to Benches of higher strength. There is no reason at allwhy the same principles should not apply even to interim orders in pendingproceedings.

68. An interim order passed by a court, on consideration of theprima facie case made out by an applicant, should ordinarily have beenvacated by a Bench of coordinate strength after giving open notice tothe applicant. If the Chairman was of the considered opinion that therewas urgency in the application for vacating the interim order, the Chairmanought to have assigned the application for vacating and/or vacation ofthe interim order to a Bench of two or more Members to consider whetherthe interim order should continue or be vacated. The Chairman couldalso have exercised his power to suo motu transfer the proceedings toanother Bench without prior notice. The order of stay of the proceedingsbefore the Nainital Bench is without jurisdiction and unsustainable inlaw.

69. Neither the judgment of the Constitution Bench of this Courtin L. Chandra Kumar (supra) nor the judgment of the Division Benchof this Court in Dr. Mahabal Ram vs. Indian Council of AgriculturalResearch and Others is an authority for the proposition that the Chairmanof CAT, sitting singly to decide on application for transfer under Section25 of the Act, can stay the proceeding before a two Member Bench orinterfere with the orders of a two Member Bench.

70. In L. Chandra Kumar (supra), cited on behalf of the appellant,a Constitution Bench of seven Judges of the Supreme Court held thatthe power of judicial review vested in the High Court under Article 226 12 (2001) 4 SCC 448

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Aand in the Supreme Court under Article 32 of the Constitution was anintegral and essential feature of the Constitution constituting part of itsbasic structure. Ordinarily, therefore, the power of the High Courts andthe Supreme Court to test the constitutional validity of legislations couldnever be ousted or excluded. The power vested in the High Court toexercise judicial superintendence over the decision of all Courts andBTribunals within their respective jurisdictions was also part of the basicstructure of the Constitution. Further, in L. Chandra Kumar (supra),this Court upheld the vires of Section 5(6) of the Act observing thatSection 5(6) could harmoniously operate with Section 5(2) in view ofthe proviso to Section 5(6). This Court also held that the Tribunals areCeven competent to hear matters where vires of statutory provisions arequestioned, except where the vires of their parent statute is in question,following the settled principle that a Tribunal which is the creature of astatute cannot declare that very statute to be unconstitutional. In suchcases alone, the High Court might be approached directly. However, indischarging the duty of deciding vires of statutory provisions, TribunalsDcannot act as substitute for the High Courts and the Supreme Court.Their function is supplementary and all such decision of the Tribunalswould be subject to scrutiny before the Division Bench of the respectiveHigh Courts.

71. In L. Chandra Kumar (supra) this Court held that wheneverEany question involving the interpretation of a statutory provision or rulein relation to Constitution arose for consideration of a Single Bench ofthe Administrative Tribunal, the provision to Section 5(6) wouldautomatically apply and the Chairman or the member concerned wouldbe obliged to refer the matter to a Bench consisting of at least two Fmembers one of whom must be a judicial member. This would ensurethat questions involving vires of statutory provisions or rules would neverarise for adjudication before a Single Member Bench or a Bench whichdoes not consist of a judicial member. So construed, Section 5(6) wouldno longer be susceptible to charges of unconstitutionality and, therefore,valid and constitutional.G

72. In Dr. Mahabal Ram vs. Indian Council of AgriculturalResearch and Others[13], the Supreme Court held that sub-sections (2)and (6) appearing as limbs of the same Section 5 of the Act, have to beharmoniously construed. While allocating work to a single Member,

whether Judicial or Administrative in terms of sub-section (6), theChairman should keep in view the nature of the litigation and wherequestions of law or interpretation of constitutional provisions are involved,they should not be assigned to a single Member. It would be open toeither party appearing before the single Member to suggest to thatMember hearing the matter that it should go to a Bench of two Members.The Member should ordinarily allow the matter to go to a Bench of twoMembers when so requested. However, the contention that the singleMember contemplated under sub-section (6) had to mean a JudicialMember only, was not accepted. In Dr. Mahabal Ram (supra), thequestion was whether a Bench consisting of a single Member underSection 5(6) necessarily had to be a Bench comprising of a judicialmember.

73. In our considered view, the Division Bench rightly allowed thewrit petition. The Chairman, like the Chief Justice of the Higher Courtsor the Chief Judge of subordinate courts, may be higher in order ofprotocol 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, could not have stayedproceedings pending before a larger Bench. We find no grounds tointerfere with the reasoning of the High Court. The High Court rightlyallowed the writ petition with costs. Since we have upheld the order ofthe Division Bench of the HighCourt under appeal and held that theorder of the Chairman of CAT staying proceedings before the two memberBench was without jurisdiction and unsustainable in law, we need not gointo the various other contentions raised on behalf of the respondentno.1.

74. The appeal is dismissed with costs, quantified at Rs.25,000/-,to be deposited with the Supreme Court Legal Services Committee withinfour weeks from the date.

Nidhi Jain

Appeal dismissed.

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