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REPORTABLE THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL   APPEAL NO. 1392 OF 2019 (@ SLP(C) NO. 27490 OF 2018)

All India Institute of Medical Sciences         …Appellant  

Versus

Sanjiv Chaturvedi & Ors.             …Respondents

J U D G M E N T

Indira Banerjee, J.

Leave granted.

2. This appeal is against the final judgment and order dated

21.08.2018 passed by a Division Bench of the High Court of

Uttarakhand at Nainital allowing the writ petition being WPSB

No.359 of 2018 filed by the respondent no.1 and quashing the

order dated 18.09.2017 passed by the Chairman of the Central

Administrative Tribunal (hereinafter referred to as “CAT”) at the

Principal Bench at Delhi,  inter alia, staying proceedings in OA

331/00790/  2017  filed  by  the  respondent  no.1  and  pending

before a Division Bench of CAT at Nainital.

3. The respondent no.1, an Indian Forest service officer of the

Uttarakhand  cadre  of  2002  Batch  was  posted  as  Deputy

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Secretary  at  the All  India  Institute of  Medical  Sciences,  New

Delhi from 29.6.2012 till 28.6.2016.  

4. The said post of Deputy Secretary was created with the

approval  of  the  Department  of  Expenditure,  inter  alia,  to

coordinate and manage infrastructure projects and ensure their

timely completion,  to exercise management and control of the

Institute and to coordinate with Multi Disciplinary Experts.

5. At  its  195th meeting  held  on  20.7.2010,  the  Standing

Finance Committee of the Institute decided against the creation

of a new post of Central Vigilance Officer and  resolved that the

work of Central Vigilance Officer should also be assigned to the

officer, joining the newly created post of Deputy Secretary of

AIIMS.  The Governing Body and Institute body of AIIMS headed

by  the  Union  Health  Minister  ratified  the  decision  of  the

Standing Finance Committee.

6. An order dated 23.6.2011 was issued by the Ministry of

Health and Family Welfare enumerating the duties pertaining to

the said post of Deputy Secretary of AIIMS.

7. As stated above, respondent no.1 was appointed Deputy

Secretary of AIIMS on 29.6.2012.  As per the work allocation

order  the  respondent  no.1  was  also  made  Central  Vigilance

Officer of the AIIMS.

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8. It is the case of the respondent no.1 that the work of the

General  Section  was withdrawn from the respondent  no.1  in

November  2012,  the  work  of  Central  Vigilance  Officer  was

withdrawn from him in August 2014, the work of dealing with

grievances was withdrawn from him some time in 2015 and in

December 2015 the work of the Estate Section was withdrawn

from him.   Ultimately the respondent no.1 was left practically

without  any  work,  apart  from  signing  pension  papers  and

booking guest houses.

9. According  to  the  respondent  no.1,  there  was  delay  in

completion of infrastructure projects, which along with the way

in which the respondent no.1 had been denuded of duties by

successive office orders, attracted severe criticism  in a report

of the Parliamentary Committee.

10. According to the respondent  no.1,  at  the time when he

was assigned the work of  Central  Vigilance Officer,  the then

Health  Secretary  had  commented  on  his  “exemplary

performance”  and  “absolute  integrity”.  Moreover,  the

respondent  no.1  was,  in  his  Annual  Performance  Appraisal

Reports  for  the  years  2012-13  and  2013-14  graded  as

‘outstanding’,  with  the  following  remarks  by  the  then  Union

Health Minister “Shri Sanjiv Chaturvedi, Deputy Secretary and

CVO, AIIMS, New Delhi, is a man of integrity, sincerity, who is

keen on performing his assigned role to the best of his ability

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and knowledge without fear or favour”.

11. The  respondent  no.1  had  been  awarded  the  Ramon

Magsaysay  Award  for  the  year  2015  in  recognition  of  his

exemplary  integrity,  courage  and  tenacity,  inter  alia, in

uncompromisingly  exposing  and  painstakingly  investigating

corruption in public office.  Records reveal that the respondent

no.1 had donated the award money of  Rs.14,23,000/- to the

Prime  Minister’s  Relief  Fund  after  the  All  India  Institute  of

Medical Sciences refused to accept his donation of the award

money to the All  India  Institute  of  Medical  Sciences for  free

treatment of under privileged patients.  

12. According  to  the  respondent  no.1,  no  complaint  of  any

kind was received against him from any employee during his

two year  tenure  as  Central  Vigilance Officer  of  the Institute.

However,  the very  same persons,  who had earlier  showered

praises  on  the  respondent  no.1  turned  against  him  for

extraneous  reasons,   particularly  his  role  in  exposing

corruption.   

13. Being aggrieved, the respondent no.1 filed an application

being O.A. No.1887 of 2015 before the Principal Bench of the

CAT  at  Delhi,  inter  alia,  for  directions  on  the  concerned

authorities  to  allocate  the  work  of  Deputy  Secretary  to  the

respondent no.1.   The said application has been dismissed by

a judgment and order dated 17.5.2016.

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14. The respondent no.1 has alleged that the duties of Central

Vigilance Officer were withdrawn from him as he had unearthed

irregularities  and  corruption  in  infrastructure  projects.   The

nature or reasons for the disputes between the respondent no.1

and the appellant are not relevant to the issues involved in this

appeal.   

15. A  memorandum  dated  7.1.2016  was  served  on  the

respondent  no.1,   informing him that  the Director  of  the  All

India  Institute  of  Medical  Sciences  had placed on record his

displeasure with insubordination, indiscipline and lack of work

ethics  of  the  respondent  no.1  during the  Winter  Session of

Parliament in the year 2015, and directed that a copy of the

said  memorandum  be  kept  in  the  personal  file  of  the

respondent  no.1.   A representation  made by the respondent

no.1 against the aforesaid memorandum was rejected by the

Competent Authority.

16. Being aggrieved, the respondent no.1 filed OA No.1342 of

2016  before  the  Principal  Bench  of  the  CAT  at  New  Delhi

challenging the said Memorandum dated 7.1.2016 and praying

for orders, restraining the Director of the All India Institute of

Medical  Sciences  from  writing  the  Annual  Performance

Appraisal Report of the respondent no.1.  The said application is

pending.  On the application being filed,  the learned Tribunal

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directed  issuance of  notices,  but  declined  the  prayer  of  the

respondent no.1 for interim relief.   

17. On 28.6.2016, the four year deputation of the respondent

no.1 as  Deputy Secretary at  AIIMS came to  an end,  and he

joined  his  new  post  at  Uttarakhand  in  August,  2016,  after

availing leave of two months.

18. By  an  order  dated  11.1.2017  AIIMS  communicated  an

adverse Annual Confidential Report for the year 2015 -2016 to

the  respondent  no.1  wherein  he  had  uniformly  been  given

‘Zero’ grading  in all attributes.   On 23.1.2017, the respondent

no.1 filed an appeal against the order dated 11.1.2017 before

the Competent Authority. The appeal was rejected by an order

dated 15/20.4.2017.

19. On  19.6.2017,  the  respondent  no.1  filed  a  writ  petition

being WPSB No.225 of 2017 before the Uttarakhand High Court

challenging the orders dated 11.1.2017 and 15/20.4.2017.  The

respondent no.1 also filed an application being PT No.286/2017

in OA No. 1342/2016 before the Principal Bench of the CAT at

Delhi  for  transfer  of  OA  No.  1342/2016  from  the   Principal

Bench  of  the   CAT  at  Delhi  to  its  Bench  at  Nainital.   The

appellant has filed a counter affidavit to the said application.

20. By  an  order  dated  19.6.2017 in  the  writ  petition  being

WPSB No.225 of 2017, the Division Bench of Uttarakhand High

Court relegated the respondent no.1 to approach the Tribunal

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under  the  Administrative  Tribunals  Act,  1985  (for  short  ‘the

Act’) and to seek all reliefs available to him.  The respondent

no.1  was given the liberty to approach the High Court in the

event any relief prayed for by the respondent was rejected by

the Tribunal.

21. Thereafter, the respondent no.1 instituted an application

being OA No.331/00790/2017 before the Nainital Bench of the

CAT  challenging  the  Annual  Performance  Appraisal  Report

(APAR) of the year 2015-16 whereupon an interim order was

passed in favour of  the respondent  no.1 on 18.9.2017,  by a

Division Bench of the Tribunal, the operative part whereof is set

out hereinbelow:-

“Matter  be  posted  for  further  hearing  on  interim relief  on  03.10.2017.   Respondents  shall  file  their reply before the said date.  In the meantime, in the interest of justice, it is directed that if any matter related to  the career  progression of  the applicant comes up for consideration before the terms of the impugned  orders  shall  not  be  taken  into  account while  assessing  and  the  applicant’s  suitability  or fitness and he shall be considered on the basis of the rest of his ACRs/APARs.     

22. The Union of India filed an application before the Chairman

of the Tribunal being PT 316 /2017 seeking transfer of OA No.

331/00790/2017  to  the  Principal  Bench  at  Delhi.   By  an  ex

parte order  dated  18.9.2017  passed  in  the  said  transfer

application,  the  Chairman  of  the  CAT,  sitting  singly,  stayed

proceedings in  OA No.331/00790/2017 pending before  a  two

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member  Bench  at  Nainital  for  a  period  of  six  weeks,  and

directed that notice be issued to the respondent no.1.  

23. Challenging  the  aforesaid  order  on  the  ground that  the

Chairman  of  CAT,  sitting  singly,  could  not  have  stayed

proceedings pending before a Division Bench, the respondent

no.1 filed a writ  petition being W.P.(SB)  No.  259/2018 in  the

High Court of Uttarakhand at Nainital.   

24. By the impugned order dated 21.8.2018, which is under

appeal, the High Court allowed the writ petition and set aside

the  impugned  order  dated  18.9.2017  of  the  Chairman,

observing  that  the  Chairman  of  the  Tribunal,  while  sitting

singly,  could  not  stay  the  proceedings  pending  before  the

Division Bench. The High Court imposed costs of Rs.25,000/- on

the appellant.

25. Learned  counsel  appearing  on  behalf  of  the  appellant

submitted that the impugned order was passed without giving

the appellant an opportunity of hearing. No Vakalatnama was

executed by the appellant authorizing the learned Additional

Solicitor General of India Shri Rakesh Thapliyal to appear before

the High Court on behalf of AIIMS.  

26. Learned Counsel for the appellant next submitted that the

High  Court  had  erred  in  holding  that  the  Chairman  of  CAT,

sitting  singly,  could  not  stay  proceeding  before  the  Division

Bench.  He argued that a conjoint reading of the preamble of

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the Act with Section 5(2), 5(6), the proviso to Section 24 and

Section  25 of  the  said  Act,  shows that  the  Chairman sitting

singly  can  stay  proceedings  before  any  other  Bench.   Such

power has been conferred upon the Chairman under Section

5(6) read with Section 25 of the Act.

27. Learned counsel submitted that it was necessary for the

Chairman  to  pass  an  order  of  stay  of  proceedings  in  O.A.

No.331/790/2017 pending before the Bench at Nainital  to avoid

multiplicity of proceedings and for judicial uniformity, more so,

since the lis in OA No.1342 of 2016 before the Principal Bench

and in  O.A.  No.  331/790/2017 at the Bench at  Nainital  were

similar.  The subject matter of both the applications related to

the APAR of the year 2015-2016.

28.  In  support  of  his  submission,  that the Chairman of the

CAT, considering an application for transfer under Section 25 of

the  Act,  had  the  power  to  stay  the  proceedings  before  the

Nainital  Bench,  of  which  transfer  had  been  sought,  counsel

cited Dr. Mahabal Ram vs. Indian Council of Agricultural

Research and others1 and L. Chandra Kumar vs. Union of

India & Ors.2.  

29. Counsel  appearing  on  behalf  of  the  respondent  no.1

refuted the submission that the appellant had not been heard

by the High Court, arguing that the appellant had duly been

1  (1994) 2 SCC 401 2  (1997) 3 SCC 261

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represented  by  Shri  Rakesh  Thapliyal,  Additional  Solicitor

General of India.   He submitted that, as per the rules of the

High Court an advance copy of the writ petition had also been

served  on  the  Additional  Solicitor  General  Shri  Rakesh

Thapliyal.   The  Additional  Solicitor  General  and   senior

government counsel had been representing both Union of India

and AIIMS in the High Court as well as in  Nainital Bench of CAT

where  the  Union  of  India  and  AIIMS  had  jointly  filed  reply

through counsel for Union of India.   

30. Counsel appearing for the Respondent no.1 emphatically

argued that the Chairman of CAT sitting singly had no power

under the Act  to stay the proceedings in a part-heard matter

before a Division  Bench of the same Tribunal.   It was trite that

a  body  created  by  statute  could  only  have  those  powers

provided by statute and nothing more.

31. Counsel  for the respondent no.1  further argued that the

appellant  had filed O.A No.331/790 of  2017 pursuant  to  the

order  of  the  Division  Bench  of  the  High  Court,  in  the  writ

petition filed by the respondent no.1,  being WPSB No.225 of

2017. The order of the Chairman was, thus,  in violation of the

order of the Division Bench of the High Court.   

32. Counsel appearing for the respondent no.1 also submitted

that under Section 24 of the Act, the maximum duration of an

ex-parte interim order could be two weeks and that too subject

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to certain conditions, including service of advance copy, which

had not been done in this case. Moreover, there had to be a

prima facie finding  that the appellant would suffer irreparable

loss, which could not be monetarily compensated, if no interim

order were passed.  In this case, the Chairman passed a non-

speaking  interim  order  for  six  weeks.   The  order  does  not

disclose  any  urgency  or  irreparable  loss  which  could  not  be

monetarily compensated.

33. Counsel  for the respondent no.1 also submitted that the

cause of action in OA No. 331/790/2017 was distinct from cause

of action in OA No. 1342/2016.  The communication of adverse

APAR for the year 2015-16 gave rise to a fresh cause of action.

Unless  challenged,  the  APAR  would  have  led  to  adverse

consequences  for  the  respondent  no.1,  such  as,  denial  of

promotion.

34. Counsel  for  the respondent  no.1  submitted that  OA No.

1342/2016 and OA No. 331/790/2017 arose as a result of two

completely  different  orders  and,  in  any  case,  the  issue  of

whether  there  was  similarity  of  cause  of  action  in  the  two

proceedings had been dealt with by the Nainital Bench.  The

finding of the Nainital Bench had never been challenged by the

appellant and had attained finality.

35. Relying on the judgment of this Court in Ramrameshwari

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Devi  and Ors. v.  Nirmala Devi & Ors.3,  Counsel  for  the

respondent  no.1  submitted  that  the  High  Court  had  rightly

imposed a fine on the appellant, as the appellant had obtained

an ex parte order by misrepresentation.

36. Counsel for the respondent no.1 finally submitted that this

appeal might be dismissed, as it is purely based on perjury and

concealment of facts, citing Kishorbhai Gandubhai Pethani

v. State of Gujarat & Anr.4,  Kishore Samrite V. State of

Uttar Pradesh & Ors.5 and  Prestige Lights Ltd. v. State

Bank of India6.

37. It  is  not  in  dispute  that  the  impugned  order,  under

challenge in this Court, records the appearance of Shri Rakesh

Thapliyal,  Additional  Solicitor  General  on  behalf  of  AIIMS  as

well.  Any  objection  with  regard  to   erroneous  recording  of

appearances, or the authority of the learned Additional Solicitor

General  of  India  to  represent  the AIIMS ought  to  have been

urged  before  the  High  Court  by  making  an  appropriate

application.  The objection to the appearances of the Additional

Solicitor General, representing the Central government in the

same  proceedings,  is  prima  facie  preposterous,  considering

that the AIIMS is under full control of the Central Government.

It  is,  however,  not  for  this  Court  to  examine  whether  the

3  (2011) 8 SCC 249 4  (2014) 13 SCC 539 5  (2013) 2 SCC 398 6  (2007) 8 SCC 449

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learned  Additional  Solicitor  General  of  India  had  been

authorized to appear  before the High Court on behalf of AIIMS

or not.

38. The judgments of this Court in Munna Lal Karosia vs.

State of Madhya Pradesh and Others7 and Association of

Synthetic Fibre Industries vs. Apollo Tyres Limited and

Others8,  cited  by  the  appellant  to  argue  that  a  final  order

ought  not  be  passed  by  the  High  Court  against  any person

without giving that person an opportunity of hearing, have no

application in the facts and circumstances of this case, since

the  appellant  had  apparently  been  represented  by  the

Additional  Solicitor General.  The judgments were rendered in

the particular facts and circumstances of those cases.

39. In Munna Lal Karosia (supra), the High Court had held

Munna Lal  Karosia  to  be  guilty  of  contempt  without  hearing

him.  It was in the aforesaid context that this Court deprecated

the passing of stigmatic orders against a person without giving

that person an opportunity of hearing.   An order of contempt

may be stigmatic.  The order under appeal is not so.  Imposition

of costs does render an order stigmatic, as sought to be argued

on behalf of the appellant.  

40. The  main  question  before  this  Court  is,  whether  the

Chairman of the Tribunal, sitting singly and exercising his power

7  (2012) 12 SCC 255 8  (2010) 13 SCC 735

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under Section 25 of the Act, to transfer proceedings from one

Bench to another, could have stayed proceedings before a two

member  Bench  and  rendered  interim orders  passed  by  that

Bench inoperative. The answer to the aforesaid question has to

be in the negative for the reasons discussed hereinafter.

41. The Act has been enacted in pursuance of  Article 323 A,

inserted into the Constitution of India by the Constitution (42nd

Amendment) Act, 1976, which enables Parliament to enact law

to  provide  for  adjudication  and/or  trial  by  Administrative

Tribunals of disputes in respect of recruitment and conditions of

service  of  persons  in  public  services  and  posts  inter  alia  in

connection  with  the Union of  India  and authorities  under  its

control.  

42. As  observed  by  the  Supreme Court  in  Vatticherukuru

Village  Panchayat  v.  Nori  Venkatarama  Deekshithulu

and Ors.9,  the  Parliament  has  enacted Article  323A for  the

reason that the Civil Courts, gripped with rules of pleading and

strict  rules  of  evidence  and  tardy  trial,  four-tier  appeals,

endless revisions and reviews under the Civil Procedure Code,

are  not  suited  to  the  need  for  expeditious  dispensation  of

litigation relating to services.

43. CAT has been established under Section 4 of the Act and

exercises  jurisdiction,  powers  and  authority  as  stipulated  in

9    (1991) Supp. (2)  SCC 228

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Section 14 of the Act.   

44. Under  Section  14(1)  read  with  14(3)  of  the  Act,  CAT

exercises all the jurisdiction authority and powers, exercised by

all Courts except the Supreme Court before the establishment

of a Tribunal under the Act.   

45. Even though the Evidence Act and Civil  Procedure Code

may not apply to Tribunals constituted in pursuance of Article

323 A of the Constitution, such     Tribunals, like ordinary law

courts are bound by rules of evidence and procedure as laid

down under  the  law under  which  the  Tribunal  is  constituted

and/or  the  rules  and  regulations  framed thereunder  and are

required to determine the  lis  brought  before them strictly  in

accordance with the law.    

46. The  preamble   to  the  Act  states  the  object  of  the  Act,

which is to provide for adjudication or trial by Administrative

Tribunals, of disputes and complaints in respect of recruitment

and  conditions  of  service  of  persons  appointed  to  public

services and posts in connection with the affairs of the Union or

of  any  State  or  of  any  local  or  other  authority  within  the

territory  of  India  or  under  the  control  of  the  Government  of

India  or  of  any  corporation  owned  or  controlled  by  the

Government, in pursuance of Article 323A of the Constitution of

India  and  for  the  matters  connected  therewith  or  incidental

thereto.

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47. The  reference  by  Counsel  for  the  appellant  to  the

Preamble of the Act is of no relevance. The respondent no.1

approached the Tribunal  for  redressal  of  his  grievances.   His

case was heard by a Division Bench and a reasoned interim

order passed on 18.9.2017.  The preamble, which states the

aims and objects of the Act is of no assistance to the appellant,

as it does not lend support to appellant’s contention that the

Chairman  of  the  Tribunal  sitting  singly  could  have  stayed

further  proceedings  before  a  Division  Bench.   The  reliance

placed by Counsel on the Preamble is misconceived.  

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

5. Composition of Tribunals and Benches thereof.— (1)  Each Tribunal  shall  consist  of  a  Chairman and such number  of  Judicial  and  Administrative  Members  as  the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority  of  the  Tribunal  may be exercised  by  Benches thereof. (2) Subject to the other provisions of  this  Act,  a Bench shall  consist  of  one  Judicial  Member  and  one Administrative Member. (3)  Omitted (4) Notwithstanding anything contained in sub-section (1), the Chairman— (a) may, in addition to discharging the functions of  the Judicial  Member  or  the  Administrative  Member  of  the Bench to which he is appointed, discharge the functions of the  Judicial  Member  or,  as  the  case  may  be,  the Administrative Member, of any other Bench; (b)  may transfer a Member from one Bench to another Bench; (c)  may  authorise  the  Judicial  Member  or  the Administrative  Member  appointed  to  one  Bench  to discharge also the functions of the Judicial Member or the

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Administrative Member, as the case may be, of another Bench; and (d)  may,  for  the  purpose  of  securing  that  any  case  or cases which, having regard to the nature of the questions involved, requires or require, in his opinion or under the rules made by the Central Government in this behalf, to be  decided  by  a  Bench  composed  of  more  than  two Members issue such general or special orders, as he may deem fit: Provided that every Bench constituted in pursuance of this clause shall include at least one Judicial Member and one Administrative Member. (6) Notwithstanding anything contained in the foregoing provisions of  this  section,  it  shall  be competent  for the Chairman  or  any  other  Member  authorised  by  the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify: Provided that if at any stage of the hearing of any such case  or  matter  it  appears  to  the  Chairman  or  such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit. (7) Subject to the other provisions of this Act, the Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi (which shall be known as the principal Bench), Allahabad,  Calcutta,  Madras,  New Bombay and  at  such other  places  as  the  Central  Government  may,  by notification, specify. (8) Subject to the other provisions of this Act, the places at which the principal Bench and other Benches of a State Administrative Tribunal shall ordinarily sit shall be such as the State Government may, by notification, specify.

xxx xxx xxx xxx 24.  Conditions  as  to  making  of  interim  orders.  - Notwithstanding  anything  contained  in  any  other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless -

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(a) copies  of  such  application  and  of  all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and  (b) opportunity is given to such party to be heard in the matter:  

Provided  that  a  Tribunal  may  dispense  with  the requirements of clauses (a) and (b) and make an interim order  as  an  exceptional  measure  if  it  is  satisfied,  for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall,  if  it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of  that  period  and  the  Tribunal  has  continued  the operation of the interim order.  

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

49. Section  5  provides  that  a  Tribunal  is  to  consist  of  a

Chairman  and  such  number  of  judicial  and  administrative

members as the appropriate Government may deem fit and,

subject  to  the  other  provisions  of  the  Act,  the  jurisdiction,

powers and authority of the Tribunal may be exercised by the

Benches thereof.   Sub-section  2  provides that  a  Bench is  to

consist of one Judicial Member and one Administrative Member.

This, however, is subject to the other provisions of the said Act.

50. The Chairman of the Tribunal is an entity distinct from the

Tribunal  and exercises  administrative  powers  and such other

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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.   

51. 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.  

52. 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.    

53. 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

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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.  

54. 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.

55. 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.

56. 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

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party against whom such application is made and opportunity

to the heard is given to such party.

57. 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.  

58. 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.

59.  A careful reading of Section 25 of the Act makes it clear

that the Chairman deciding the question of whether a matter

should be transferred from one Bench to another cannot grant

interim stay of proceedings, their being no power conferred on

the Chairman under the said section to pass such interim stay.

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60. 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.

61.  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 proposition that the power to

grant interim relief must expressly be provided by statute finds

support from the judgment of the Supreme Court in  Morgan

Stanley Mutual  Fund vs.  Kartick Das10.  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.  

62. 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

10 (1994) 4 SCC 225

23

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.  

63. 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.

64. 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.  

65. 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

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sought to be vacated, varied,  modified, recalled or reviewed.   

66. In  Union of India and Anr. vs. K. S. Subramanian11 ,

the Supreme Court observed that the proper course for a High

Court was to try to find out and follow the opinion expressed by

larger benches of this Court in preference to those expressed

by smaller  Benches of  the Supreme Court  and that was the

practice also to be followed by the Supreme Court itself.  The

practice has now crystallized into a rule of law declared by the

Supreme Court.   A  similar  view  was  taken  by  the  Supreme

Court in  Bharat Petroleum Corporation Ltd. vs. Mumbai

Shramik Sangha & Ors.12.   A five Judge Constitution Bench

of  the  Supreme  Court  observed  that  the  decision  of  a

Constitution Bench of the Supreme Court would bind a Bench of

two judges of  the Supreme Court and that judicial  discipline

obliged them to follow it, regardless of their doubts about its

correctness.

67. It is true that the interim order passed by a Court does not

operate as a precedent and the law declared by the Supreme

Court  with regard to  the precedential  value of  judgments  of

Benches  of  larger  strength  may  not   operate  as  a  binding

precedent  in the facts and circumstances of this case.  The

judgments referred to in the preceding paragraphs lay down

the  norms  of  judicial  decorum  and  propriety  which  give

11  (1976) 3 SCC 677 12  (2001) 4 SCC 448

25

precedence to Benches of higher strength. There is no reason

at all why the same principles should not apply even to interim

orders in pending proceedings.

68. An interim order passed by a court, on consideration of the

prima facie case made out by an applicant, should ordinarily

have been  vacated  by  a  Bench  of  coordinate  strength  after

giving open notice to the applicant.  If the Chairman was of the

considered opinion that there was urgency in the application for

vacating  the  interim  order,  the  Chairman  ought  to  have

assigned  the  application  for  vacating  and/or  vacation  of  the

interim order to a Bench of two or more Members to consider

whether the interim order should continue or be vacated.  The

Chairman could  also  have  exercised  his  power  to  suo  motu

transfer the proceedings to another Bench without prior notice.

The order of stay of the proceedings before the Nainital Bench

is without jurisdiction and unsustainable in law.

69. Neither  the  judgment  of  the  Constitution  Bench  of  this

Court in  L. Chandra Kumar  (supra) nor the judgment of the

Division Bench of this Court in  Dr. Mahabal Ram vs. Indian

Council  of  Agricultural  Research  and  Others  is  an

authority for the proposition that the Chairman of CAT, sitting

singly to decide on application for transfer under Section 25 of

the Act, can stay the proceeding before a two Member Bench or

interfere with the orders of a two Member Bench.

26

70. In  L.  Chandra  Kumar (supra),  cited  on  behalf  of  the

appellant, a Constitution Bench of seven Judges of the Supreme

Court held that the power of judicial review vested in the High

Court under Article 226 and in the Supreme Court under Article

32 of the Constitution was an integral and essential feature of

the  Constitution  constituting  part  of  its  basic  structure.

Ordinarily,  therefore,  the  power  of  the  High  Courts  and  the

Supreme Court to test the constitutional validity of legislations

could never be ousted or excluded.  The power vested in the

High  Court  to  exercise  judicial  superintendence  over  the

decision  of  all  Courts  and  Tribunals  within  their  respective

jurisdictions  was  also  part  of  the  basic  structure  of  the

Constitution.  Further, in L. Chandra Kumar (supra), this Court

upheld  the  vires  of  Section  5(6)  of  the  Act  observing  that

Section 5(6) could harmoniously  operate with Section 5(2) in

view of the proviso to Section 5(6).   This Court also held that

the Tribunals are even competent to hear matters where vires

of statutory provisions are questioned,  except where the vires

of  their  parent  statute  is  in  question,  following  the  settled

principle  that  a  Tribunal  which  is  the  creature  of  a  statute

cannot declare that very statute to be unconstitutional. In such

cases  alone,  the  High  Court  might  be  approached  directly.

However, in discharging the duty of deciding vires of statutory

provisions,  Tribunals  cannot  act  as  substitute  for  the  High

Courts  and  the  Supreme  Court.   Their  function  is

27

supplementary and all such decision of the Tribunals would be

subject to scrutiny before the Division Bench of the respective

High Courts.   

71. In  L.  Chandra  Kumar  (supra)  this  Court  held  that

whenever  any  question  involving  the  interpretation  of   a

statutory provision or rule in relation to Constitution arose for

consideration of a Single Bench of the Administrative Tribunal,

the provision to Section 5(6) would automatically apply and the

Chairman or the member concerned would be obliged to refer

the matter to a Bench consisting of at least two members one

of whom must be a judicial member.  This would ensure that

questions involving vires of statutory provisions or rules would

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)  would  no  longer  be  susceptible  to

charges  of  unconstitutionality   and,  therefore,  valid  and

constitutional.

72. In Dr. Mahabal Ram vs. Indian Council of Agricultural

Research and Others13,  the  Supreme Court  held  that  sub-

sections (2) and (6) appearing as limbs of the same Section 5

of  the  Act,  have  to  be  harmoniously  construed.   While

allocating  work  to  a  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 13 . (1994) 2 SCC 401

28

law or interpretation of constitutional provisions are involved,

they should not be assigned to a single Member.  It would be

open to either  party  appearing before the single  Member to

suggest to that Member 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  two  Members  when  so

requested.  However,  the contention that the single Member

contemplated  under  sub-section  (6)  had  to  mean  a  Judicial

Member only, was not accepted.  In Dr. Mahabal Ram (supra),

the  question  was  whether  a  Bench  consisting  of  a  single

Member  under  Section  5(6)  necessarily  had  to  be  a  Bench

comprising of a judicial member.

73. In our considered view, the Division Bench rightly allowed

the writ petition.  The Chairman, like the Chief Justice of the

Higher Courts or the Chief Judge of subordinate courts, may be

higher  in  order  of  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, could not have stayed

proceedings pending before a larger Bench. We find no grounds

to  interfere  with  the  reasoning  of  the  High  Court.  The  High

Court  rightly  allowed the  writ  petition  with  costs.  Since  we

have upheld the order of the Division Bench of the HighCourt

under appeal and held that the order of the Chairman of CAT

staying proceedings before the two member Bench was without

29

jurisdiction and unsustainable in law, we need not go into the

various other contentions raised on behalf of the respondent

no.1.

74. The  appeal  is  dismissed  with  costs,  quantified  at

Rs.25,000/-,  to  be  deposited  with  the  Supreme  Court  Legal

Services Committee within four weeks from the date.

.................................J. (R. BANUMATHI)

.................................J. (INDIRA BANERJEE)

NEW DELHI FEBRUARY 01, 2019