SC: CAT’s Chairman can’t stay proceedings/nullify orders of a larger bench

Today, i.e. on 1st February 2019, in the matter of All India Institute of Medical Sciences v. Sanjiv Chaturvedi & Ors., the Hon’ble Supreme Court pronounced that a chairman of the Central Administrative Tribunal cannot stay proceedings pending before a larger bench or nullify orders of a larger bench or interfere with the functioning of the Benches or tinker with its orders by passing interim orders in a transfer petition because The 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 financial administrative duties and responsibilities but the Chairman, acting judicially, is equal to any other Member.

The Hon’ble Supreme Court observed that:

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. (Para 42)

Central Administrative Tribunal (CAT) has been established under Section 4 of the Act and exercises jurisdiction, powers and authority as stipulated in Section 14 of the Act. (Para 43)

Under Section 14(1) read with 14(3) of the Administrative Tribunals Act, 1985, 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. (Para 44)

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. (Para 45)

The preamble to the Central Administrative Tribunals 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. (Para 46)

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. (Para 49)

The Chairman of the Tribunal is an entity distinct from the Tribunal and exercises administrative powers and such other powers as are expressly conferred o 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.(Para 50)

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. (Para 51)

Section 5(6) enables the Chairman or any other Member authorized by the Chairman to function as a Single Bench and exercise 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. (Para 52)

 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)

A perusal of Section 5 indicates that the Chairman is empowered to discharge administrative functions of constituting Benches by transferring a Member from one Bench to another, authorizing the Judicial Member or the Administrative Member appointed to one Bench to discharge the functions of Judicial Member or Administrative Member of another Bench. (Para 54)

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 orders specify. The aforesaid provision does not enable the Chairman sitting singly to nullify orders passed by a larger Bench. (Para 55)

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 the heard is given to such party. (Para 56)

The aforesaid 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. (Para 57)

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. (Para 58)

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. (Para 59)

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. (Para 60)

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)

A careful reading of the provisions of the 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, as observed above. All norms of judicial propriety and judicial discipline apply as much to the Tribunal as to Courts including the High Court.(Para 62)

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 circumstance, can a judicial order of a Bench of the Tribunal be nullified or rendered nugatory by its Chairman. (Para 63)

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 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)

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)

An interim order passed by a court, on consideration of the prima facie case made out by an applicant, should ordinarily be vacated by a Bench of coordinate strength after giving open notice to the applicant. If the Chairman is of the considered opinion that there is urgency in the application for vacating the interim order, the Chairman may assign 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 can also exercise his power to suo motu transfer the proceedings to another Bench without prior notice. (Para 68)

The 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. The Chairman, being one amongst equals, cannot stay proceedings pending before a larger Bench. (Para 73)

Copy of judgement: Judgement_01-Feb-2019

-Tushar Kaushik

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