CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
REVIEW APPLICATION NO.10/2012
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)
Sri M.N. Eswara,
S/o late Shri M.B. Lingappa,
Aged about 52 years,
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."
"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, the RA is therefore, dismissed.