CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH, BANGALORE
REVIEW
APPLICATION NO.10/2012
IN
ORIGINAL
APPLICATION NO.387/2011
DATED THIS
THE ..........................
DAY OF ............., 2012
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER(A)
1. Union of India
Represented by General Manager,
South
Western Railway,
Hubli
Zone, Hubli.
2. The Divisional Railway Manager,
South
Western Railway,
Mysore
Division, Mysore.
3. Senior Divisional Personnel Officer,
South
Western Railway,
Mysore
Division, Mysore. ... Review Applicants
(By
Advocate Shri K. Patel Muni Gowda,
Standing
Counsel for Railways)
Vs.
Sri M.N. Eswara,
S/o late Shri M.B. Lingappa,
Aged about 52 years,
Ex-Section Engineer,
PWI Shimoga,
Now R/at No.939, 9th Main,
8th Cross, 4th Stage, TK
Layout,
Mysore – 560 009. ... Respondent
O R D E
R (BY CIRCULATION)
This R.A. is filed under Section
22(3)(1) of the Administrative Tribunals Act, 1985, seeking review of the order
dated 09.09.2011 passed in OA No.387/2011.
2. The OA was filed with the prayer for
3. However, Section 20 of the AT Act
categorically mentions that the Tribunal shall not ordinarily admit an
application unless all the remedies available to the the applicant are
exhausted. Admiting any OA even when
there is a scope for remedy by the concerned administrative machinery would be
only frivolous and lead to spurious cases.
It is, therefore, within the right of the Bench to dispose of the OA at
the stage of admission, but, with a direction to the respondents to consider a
particular grievance and redress it within the framework of law within a
stipulated time. Such a time stipulation
has been necessitated in a whole catena of cases in the past for reason of
delay and non-action by the administrative department who, on many occassions
tend to keep the staff-issues in a state of pendency. Hence, there is no apparent mistake on the
face of the order and there was no need to issue notices to the
Respondents. A direction is given to
them to consider a particular matter pending with them, such a direction is not
in the nature of pre-concluded decision, but, only a direction to consider
several relevant aspects of the matter and come to a conclusion and pass a
speaking order as per the rules.This is also what is a normal administrative
duty required under good governance.
4. Accordingly a mere direction has been
given to the respondents to consider the applicant's prayer as per law and
rules.
5. The Review Application has been filed
mentioning several grounds of fall in 2 categories.
6. New dictation. Thus, the order was passed on the first
hearing itself. However, it is important
to note that the order was passed only for the department to consider her
application and it was not passed for sanctioning the leave. It is passed as per provision of Sec.20 of
the A.T.Act. Many such directions are passed in the same manner at the stage of
admission and without issuing notices to
the other side. So, there is no apparent
error in it.
6. A 2nd ground is mentioned in ......... This ground raises
a question on the authority of the Member (Administration) to finally dispose
of the OA. It mentions the decision of
the Hon'ble High Court of Karnataka in the case of "The Divisional Railway
Manager, South Central Railway, Hubli & Ors. Vs. Smt. Gangavva Laxman
Patil" – Writ Petition No.9551/2003, in support of the respondents' claim.
7. I have perused the said order of the Hon'ble High
Court. It quotes the judgment of the
Apex Court in the case of "State of Madhya Pradesh Vs. B.R. Thakare
& Ors. – AIR 2002 SC 2431" and holds that in the light of the said
judgment, the impugned order having been passed by the learned Administrative
Member of this Tribunal is set aside and the matter is remanded back. This order does not state whether it has an
universal application or whether it was applicable only to the referred Writ Petition
No.2551/2003. Was it an order in rem or
in personem? In this connection, I refer to Sec.5 (1), 5 (2) and 5(6) of the
AT Act, 1985 which reads as under:
"5(1). 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.
5.2)
Subject to the other
provisions of this Act, a Bench shall consist of one Judicial Member and one
Administrative Member.
6.
5(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;"
Further
the order No. 1/32/87-JA dated 18th December, 1991 issued under Rule
18(c) provides for a Schedule of cases that
can be decided by Single Member Bench.
It reads:
"in exercise of the powers
conferred by sub-section (6) of Section 5 of the Administrative Tribunals Act,
1985, I hereby authorise all the Members of the Central Administrative Tribunal
to function as a Bench consisting of a Single Bench and exercise the
jurisdiction, powers and authority of the Tribunal in respect of classes of
cases specified in the Schedule with effect from 1-1-1992, subject tothe
following procedure:-
(1)
that the case does not involved validity of any statutory provision or
interpretation of any of the provisions of the Constitution;
(2)
that it is open to either party to submit tothe Single Member before the
matter is taken up for admission or for final hearing, that it may be placed
before a Bench of two Members. If such a request is made at the outset, the
Single Member shall direct that the case be placed before an appropriate Bench
of two Members. Once the cae is taken up, no such request shall be entertained
at any subsequent stage of the proceedings for admission or final hearing, as
the case may be."
SCHEDULE
"6.
Cases relating to claims of medical reimbursement, leave,
joining time, LTC and
overtime."
8. This
question of a single Member disposing of cases has been dealt with in detail by
the Hon'ble Apex Court in the following 3 cases:
1.
Dr. Mahabal Ram Vs. ICAR –
(1994) 2 SCC 401
2.
L. Chandrakumar Vs. Union of
India & Ors. -
JT
1997 (3) SC 589; and
3. State of Madhya Pradesh Vs. B.R.
Thakare & Ors.
2002(1)
SLR 374.
9. In the
matter of Dr. Mahabal Ram Vs. ICAR cited above, a 3-Member Bench of the Apex Court has held
that the Chairman can constitute a Bench comprising a Single Member, whether
judicial or administrative one, but matter involving interpretation of constitutional provisions
should be assigned to a two Member Bench. It states --
2. This matter has two
aspects involved in it firstly, the question as to whether a single member of
the Central Administrative Tribunal set up under the Administrative Tribunals
Act, 1985, has jurisdiction to dispose of matters coming before the Tribunal
under the Act, a question which has been referred by a two-Judge Bench to a
larger Bench and the second, a controversy between the parties which centres
round the order of transfer of the appellant. We do not propose to finally
dispose of the second aspect and would leave it to the Tribunal to deal with it
in the manner which we shall presently indicate.
3. Turning to the first
aspect, it would be necessary to refer to the relevant provisions of the Act.
Section 5 deals with composition of the Tribunal and benches thereof. Section
5(1), (2) and (6) provide :
"5. (1) Each Tribunal
shall consist of a Chairman and such number of Vice-Chairman (and 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. (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."
4. A two-Judge Bench of this
Court in Amulya Chandra Kalita v. Union of India' dealt with the dispute where
a claim had been disposed by a Single Administrative Member. This Court in that
case referred to sub-section (2) of Section 5 and the observations made by the
Constitution Bench of this Court in the case of S.P. Sampath Kumar v. Union of India and
indicated that the scheme of statute was that cases should be heard by a Bench
of two Members. From what has been said in the judgment, it appears that
sub- section (6) of Section 5 was not brought to the notice of the Court.
6. Sub-sections (2) and (6)
appearing as limbs of the same section have to be harmoniously construed. There
is no doubt that what has been said in Sampath Kumar case would require safeguarding the interest of
litigants in the matter of disposal of their disputes in a judicious way. Where
complex questions of law would be involved the dispute would require serious
consideration and thorough examination. There would, however, be many cases
before the Tribunal where very often no constitutional issues or even legal
points would be involved. Mr Ramamurthi, Senior Counsel, suggested to us in
course of the hearing that keeping the principles indicated in the
Constitutional Bench judgment in view, the Single Member contemplated under
sub-section (6) should be meant to cover a judicial member only. That view may
perhaps not be appropriate to adopt. On the other hand, we are prepared to
safeguard the interests of claimants who go before the Tribunal by holding that
while allocating work to the Single Member whether judicial or administrative
in terms of sub-section (6), the Chairman should keep in view the nature of the
litigation and where questions of law and for interpretation of constitutional
provisions are involved they should not be assigned to a Single Member.
...................................................................... To
make a distinction between Judicial Member and Administrative Member
functioning under sub-section (6) of Section 5 of the Act may not be
appropriate and, therefore, we have not been able to accept the approach
suggested by Mr Ramamurthi. The observation made in the two-Judge Bench
case that no provision was cited to them that a Single Member could hear cases
laid before the Tribunal led to the conclusion that the judicial business of
the Administrative Tribunal was intended to be carried by a bench of two
Members. The vires of sub-section (6) has not been under challenge and,
therefore, both the provisions in Section 5 have to be construed keeping the
legislative intention in view. We are of the view that what we have indicated
above brings out the true legislative intention and the prescription in sub-
section (2) and the exemption in sub-section (6) are rationalised."
10. In L.
Chandrakumar's case a 7-Member Constitutional Bench of the Apex Court
has mainly considered the order of High Court of Andhra Pradesh in C.A.No.169
of 1994 in which a full Bench of the A.P. High Court declared Article 323 A (2)
(d) of the Constitution to be unconstitutional to the extent it excludes the
jurisdiction of the High Court under Article 226 of the Constitution, "additionally,
Section 28 of the Act has also been held to be unconstitutional to the extent
it divests the High Courts of jurisdiction under Article 226 in relation to
service matters." Dealing
with this aspect the Hon'ble Judges held in Para 90 that the A.T.Act cannot
take away the power of judicial review of the High Court under Article 226 and
227 and declared that "the aggrieved party will be entitled to move the
High Court under Articles 226/227 of the Constitution and from the decision of
the Division Bench of the High Court the aggrieved party could move this Court
under Article 136 of the Constitution."
11.
However, additionally, their Lordships also dealt with the vires of
Sec.5 (6) of the A.T.Act and observed:
"98. Since we have analysed the issue of the
constitutional validity of Section 5(6) of the Act at length, we may now pronounce
our opinion on this aspect. Though the
vires of the provision was not in question in Dr. Mahabal Ram's case, we
believe that the approach adopted in that case, the relevant portion of which
has been extracted in the first part of this judgment, is correct since it
harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate
together. We wish to make it clear that
where a question involving the interpretation of a statutory provision or rule
in relation to the Constitution arises for the consideration of a single Member
Bench of the Administrative Tribunal, the proviso to Section 5(6) will
automatically apply and the Chairman or the Member concerned shall refer the
matter to a Bench consisting of at least two Members, one of whom must be a
Judicial Member. This will ensure that
questions involving the vires of a statutory provision or rule will never arise
for adjudication before a single Member Bench or a Bench which does not consist
of a Judicial Member. So construed,
Section 5(6) will no longer be susceptible to charges of
unconstitutionality."
Since, the OA No.373/2009 does not involve any question of statutory
provision, but, only a question of giving a direction to the administrative
department, there does not seem to be any bar for an Administrative Member
sitting in single Member Bench to dispose of the OA.
12. In case of State of M.P. vs. B.R.
Thakare & Ors. cited above,
a 2 Member Bench of the Apex Court have
gone by the view of the Constitutional bench in L. Chandra Kumar Vs.
Union of India & Ors. (1997), in reiterating that there is no
distinction between the powers of a member (J) and member (A) while sitting as
a single member, when care is taken as per the proviso of sec 5(6). It is
pertinent to note that their lordships have recorded that the quashing of the
orders is not merely on the ground that the Chairman had not authorized the
specific Administrative Member and secondly on the questionable action of
passing on wholesale delegation of the powers of State Administrative Tribunal
to a Single Member.
The Hon'ble Bench quoted from the
constitution Bench in L. Chandra Kumar case as under:
"........ Where complex
questions of law would be involved the dispute would require serious
consideration and thorough examination.
There would, however, be many cases before the Tribunal where very often
no constitutional issues or even legal points would be involved........ We are prepared to safeguard the interests of
claimants who go before the Tribunal by holding that while allocating work to
the Single Member. Whether judicial or
administrative in terms of sub-section (6), the Chairman should keep in view
the nature of the litigation and where questions of law and for interpretation
of constitutional provisions are involved they should not be assigned to a
Single Member.
2. We may
also notice that in the matter of allotment of cases as no Rules had been
framed, the Chairman of the Tribunal had also issued an order on 27-8-1993 which is as under:
"In Supersession of order No.R/D/1-93, Indore, dated 6-8-1993
on the subject, and in exercise of the powers conferred by syv-section (6) of
Section 5 of the M.P. Administrative Tribunal, hereby authorise the Judicial
Member of M.P. Administrative Tribunal to function as a bench consisting of
single member and to exercise the jurisdiction, powers and authority of the
Tribunal in respect of hearing including the final hearing of all types of
cases within the jurisdiction of the Tribunal"
3. Even
assuming that all the powers of the Tribunal could be exercisedby any Single
Member, it can only be by a Judicial Member of the Tribunal and not any otehr
member under the aforesaid order."
However, relying on this judgment in State
of M.P. vs. B.R.B.R. Thakare & Ors. Cited above and especially para 3 therein the Hon'ble High Court of Karnataka in W.P.No.9551/2003 had remanded the case decided by an
Administrative Member sitting as a single member bench, questioning his
competency to decide a matter. So it is
necessary to quote the said para 3 in the case of State of M.P. vs. B.R.B.R.
Thakara & Ors . It reads:
"3. Even assuming that all the power of the
Tribunal could be exercised by any Single Member, it can only be by a Judicial
Member of the Tribunal and not any other member under the aforesaid
order."
Here
the reference to the words "under the aforesaid order" makes it clear that it was a matter in
personem in view of the the specific order by Chairman delegating the powers of
the bench and not in rem. Hence, with due respect to the HC bench, it
is therefore my considered opinion that their lordships have gone beyond the
view held by the Constitutional bench of the Apex court and further
ignored that even if Thakare case is to be construed as rejecting the
jurisdiction of member (A), the facts were peculiar only to that case.
Thus the case of State of M.P. vs. B.R.B.R. Thakare & Ors. was
a case in persona and not in rem.
13. Furthermore, in the notification dated 18th
December, 1991 No. 1/32/87-JA/2169(A)
issued by Chairman, C.A.T. for Single Member Bench no distinction has been made between a Member (Judicial) and a
Member (Administration) and this position has been upheld in the Chandrakumar
case cited above.
14. In view of the above, there is no
apparent mistake in disposing of this matter especially, when it is seen
as pre-mature under Sec. 20 of the Act,
in which the respondent department has a duty to fulfil their administrative
tasks.
15. Regarding Review by the
Tribunal It has been held by the Hon'ble Apex Court in Ajik Kumar Rath Vs. State of Orissa and
Others - (1999) 9 SCC 596
that “power of review available to the Tribunal under Section
22(3)(f) is not absolute and is the same
as given to a court under Section 114
read with Order 47 Rule 1 of CPC”. It has further held that “the scope of review
is limited to correction of a patent
error of law or fact which stares in the face, without any elaborate argument
being needed to establish it” and that “exercise of power of review on a ground
other than those set out in Order 47 Rule 1 amounts to abuse of liberty granted
to the Tribunal and hence review cannot be claimed or asked merely for a fresh
hearing or arguments or corrections of an erroneous view taken earlier”.
16. In Union of India Vs Tarit Ranjan Das – 2004 SCC (L&S) 160 –
the Hon'ble Apex Court held "the scope of review is rather limited and
it is not permissible for the forum hearing the review application to act as an
appellate authority in respect of the original order by a fresh order and
rehearing of the matter to facilitate a change of opinion on merits”.
17. In State of West Bengal and Others
Vs. Kamal Sengupta and Another – (2008) 8 SCC 612 –
Hon'ble Apex Court after referring to Ajit
Kumar Rath's case (supra) held that an order or decision
or judgement cannot be corrected merely because it is erroneous in law or on
the ground a different view could have been taken by the Court/Tribunal on a
point of fact or law and while exercising the power of review the
Court/Tribunal concerned cannot sit in an appeal over its judgment/decision.
18. Thus,
it has been held in many cases that the review has to be held only when
there is an error apparent on the face of the record or if there is any
ground/points taken in the OA affecting the merit of the case is left
out/ignored. Here there was no pleadings from respondents. But then, the O.A.
was disposed at admission stage simply with direction to consider the request
and pass a speaking order within a time frame.
(may need a specific dictation).
19. In view of the above,
(LEENA
MEHENDALE)
MEMBER (A)
psp./sj
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