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

3. The respondent no.1, an Indian Forest service officer of the Uttarakhand cadre of 2002 Batch was posted as Deputy 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 195 th 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.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 It is the case of the respondent no.1 that the work of the General Section was withdrawn from the respondent no.1 in November 2012, the work of Central Vigilance Officer was withdrawn from him in August 2014, the work of dealing with grievances was withdrawn from him some time in 2015 and in December 2015 the work of the Estate Section was withdrawn from him.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. Moreover, the respondent no.1 was, in his Annual Performance Appraisal Reports for the years 2012-13 and 2013-14 graded aswith the following remarks by the then Union Health MinisterSanjiv 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 and knowledge without fear or. 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 PrimeRelief 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 17.5.2016.14. 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 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 givengrading 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 under the Administrative Tribunals Act, 1985 (for short ‘theand 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 outMatter 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 thesuitability or fitness and he shall be considered on the basis of the rest of his ACRs/APARs.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 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.

Reasoning:
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.