Case: ALL INDIA INSTITUTE OF MEDICAL SCIENCES Vs. SANJIV CHATURVEDI

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. (2001) 4 SCC 448 . 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 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.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 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 Others (1994) 2 SCC 401 , 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 Others(2012) 12 SCC 255     and Association of Synthetic Fibre Industries vs. Apollo Tyres Limited and Others (2010) 13 SCC 735 , 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.The Act has been enacted in pursuance of Article 323 A, inserted into the Constitution of India by the Constitution (42 nd Amendment) Act, 1976, which enables Parliament to enact law to 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.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.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 tocontention 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.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.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 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 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.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 Das(1994) 4 SCC 225 .   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 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 sought to be vacated, varied, modified, recalled or reviewed.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 giveprecedence 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.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 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.