Central Administrative Tribunal - Delhi
N. K. Ghai vs Municipal Corporation Of Delhi & Others on 13 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI P.T. No.214/2011 in T.A. No.154/2009 This the 13th day of September, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN N. K. Ghai Applicant in PT-214/2011 ( By Shri Raman Duggal, Advocate ) In the matter of Smt. Krishna Chikara & others Applicants in TA No.154/2009 ( By Shri V. K. Garg, Advocate ) Versus Municipal Corporation of Delhi & others Respondents ( By Shri Naresh Kaushik for UPSC, Advocate ) O R D E R
The applicant in this application for transfer filed under Section 25 of the Administrative Tribunals Act, 1985 is respondent No.3 in TA No.154/2009. The applicants in the TA were promoted as AEO. They sought issuance of appropriate writ so as to quash order dated 26.4.2007 promoting the 3rd respondent. They also sought direction to be issued to the respondent MCD to convene year-wise DPCs for their promotion on their respective posts as per their respective eligibility in accordance with law with consequential benefits. The Division Bench seized of the matter, vide order dated 16.7.2009 referred the same for decision by a larger Bench on the questions framed by it. The Full Bench vide order dated 15.9.2010 while finding no conflict in the two judgments on the basis of which the reference was made, however, framed additional questions of law, and referred the matter back to the Division Bench. It is when the matter after having been sent to the Division Bench is pending adjudication for about a year that the present application seeking transfer of the matter from the Bench seized of it to some other Bench, has been made. It is the case of the applicant that he verily believes that the attitude of the present Bench became indifferent from the date when earlier its order in the said matter was leaked before pronouncement, and the counsel for the applicant brought the same to the notice of the Chairman. It is pleaded that the order was leaked and appeared in the website of the Tribunal on 14.7.2009, wherefrom the applicant downloaded the same and took printout thereof, copy whereof has been annexed as Annexure R3-AA. Thereafter, on 16.7.2009 the order was officially pronounced with about four additional paragraphs whereby the matter was referred to Full Bench. The Full Bench, it is pleaded, vide orders dated 15.9.2010 and 18.10.2010 opined that the reference was incompetent and consequently remitted the matter to the Division Bench for consideration afresh. It is then pleaded that the applicant verily believes that firstly the lodging of complaint with the Chairman with regard to the leak of the order on the Tribunals website, and secondly the remission of the matter by the Full Bench with the finding that the reference was incompetent, has annoyed the Bench. The Full Bench, while remitting the matter to the Division Bench gave liberty to the parties to move an application for review. On 8.11.2010, the applicant filed review application bearing RA No.304 of 2010. It is his case that it is now around ten months when the matter was remitted to the present Bench, and till date there is no progress in the above matter, inasmuch as in spite of several hearings, his review application has not been heard as yet. It is then pleaded that the other matter, i.e., TA No.158/2009 in the matter of R.P.S. Gaur v MCD, wherein the relief sought by the applicant therein with regard to the holding of DPC for the post of DEO was similar to the relief sought in present TA, was connected/listed along with the present matter before the Full Bench and thereafter before the present Bench, and after the matter was remitted by the Full Bench, the said TA was also listed before the present Bench along with TA No.154/2009, but notwithstanding the above, suddenly the said TA No.158/2009 was disconnected and was taken up independently and disposed of on 1.4.2011 with the direction to hold DPC. Copy of the order aforesaid has been placed on record as Annexure R3-BB. It is pleaded that the Bench knew that some of the issues in both TAs were common and for that reason both matters were taken up and listed on same date, firstly before the Full Bench and thereafter before the present Bench, and by suddenly deciding TA No.158/2009 by the Bench has caused reasonable apprehension in the mind of the applicant of a fair trial in the matter from the Bench where the matter is now pending. It is then pleaded that The applicant, therefore, believes that the Bench is deliberately causing delay in dealing with the above matter and, therefore, the Applicant has reasonable apprehension that the above matter will not be dealt with in a fair manner and as such prays to this Honble Chairman for transfer of the above matter before any other Bench, and as such, the present application.
2. Pursuant to notice issued by this Tribunal, the applicants in the original lis (respondents in PT) have filed reply, wherein it is pleaded that the present application is not only gross misuse of law but also amounts to scandalizing this Tribunal, and would thus be a clear case of contempt of court. The allegations of bias against the Honble Members of the Tribunal are stated to be not only incorrect and without any basis, but that the same also need to be dealt with heavy hand in order to curb this tendency amongst the litigants, such as the applicant in the PT, of maligning the institution itself sans fair criticism. The allegation of bias and deliberate delay attributed to the Honble Members of the Bench is stated to be highly deplorable and factually incorrect. While giving sequence of events, it has been pleaded that the Division Bench vide its order dated 16.7.2009 in para 34 thereof stated that Seen from any angle as discussed above, we can come to only one conclusion that the regular promotion granted to respondent No.3 and 4 as DEO (Phy.) is not sustainable in law. The same is accordingly quashed and set aside, and that After the above said, Honble Division Bench in view of judgement in T.A. No.115/2009 and 116/2009 referred the matter for decision by a larger bench on the questions of reference formulated by it. The Full Bench vide its order dated 15.9.2010 noted that the decision in TA No.115 and 116 of 2009 would not touch even remotely the issue as raised in the case referred to it. The coordinate Bench in the two TAs referred to above did not express any opinion whatsoever on the controversy in issue and hence no conflict would arise. It is pleaded that this position was reiterated in order dated 18.10.2010. The Full Bench also framed additional questions of law which in their wisdom also arose to be determined. However, the Full Bench thereafter referred the matter to the Division Bench. It is stated that a bare perusal of the above would depict that after the order dated 18.10.2010 of the Full Bench, though declaration by the Division Bench as in para 34 quoted above, against promotion of the 3rd and 4th respondent continues, the said respondents are continuing in their position as DEO (Phy.) contrary to law. It is pleaded that on 8.11.2010 the 3rd respondent filed RA No.304/2010 in TA No.154/2009 seeking review of judgment dated 16.7.2009 in the TA, which as per rules is to be listed before a Bench comprising same Honble Members. It is then pleaded that the order sheet in TA No.154/2009 would depict that after order dated 18.10.2010 of the Bench, since Honble Ms. Meera Chhibber was presiding over the Division Bench along with Honble Mr. A. K. Mishra, a special Bench of Honble Ms. Chhibber and Honble Mr. Shailendra Pandey had to be constituted, and that quite often the special Bench could not be constituted and adjourned date was notified in the cause list itself. It is pleaded that on one or two occasions, either Honble Ms. Chhibber or Honble Mr. Pandey would be free only when hardly any court time was left to hear the matter, and, therefore, it would be a case of sheer misadventure and deliberate insinuation on the part of the 3rd respondent to accuse the Members of the Bench of either indifference or bias on this account. It is then pleaded that pendency of the TA has only benefited the 3rd and 4th respondents. It is stated that there is no justification for such unfounded and scurrilous outbursts against the Honble Members of the Tribunal, towards which as an institution, each one the Members, the litigants and the lawyers, owe a duty to preserve and respect, whereas the 3rd respondent (applicant in the PT) has clearly violated such solemn duty for no reasons. It is pleaded that it has become a trend in recent times that the losing party after receiving an unfavourable verdict makes allegations of bias against presiding officers/judges and that no credence can be given to such wild and bald allegations made without any factual basis, and further that merely because the Honble Members of the Tribunal cannot enter into public controversy or file affidavit to repudiate the criticism and allegations made against them, that by itself would not give a licence to the litigant such as the 3rd respondent to make disparaging and derogatory remarks against them.
3. Allegations as regards leakage of the judgment with suggestive averments pointing fingers against the Honble Members, are stated to be an attempt at scandalizing this Tribunal, especially in view of the fact that even before the matter was heard by the Full Bench, on a specific complaint made on behalf of the 3rd respondent, the allegation was thoroughly probed and was found to be incorrect. It was a case of inadvertent mistake. It is then pleaded that the 3rd respondent has deliberately made false averment that TA No.158/2009 has any connection with the present case. In the TA filed by the applicants challenge is to promotion of the 3rd and 4th respondents. Even prior to judgment and order dated 16.7.2009, TA No.158/2009, though listed before the same Bench but was neither tagged nor taken up with present case, and thus to raise fingers against Honble Members would be wrong as TA No.158/2009 has been decided on the basis of admissions made by respondent MCD in its counter affidavit originally before the High Court of Delhi. The issues raised in TA No.158/2009 are stated to be separate than the issues involved in the present TA, and this question has been specifically dealt with by the Division Bench in its judgment dated 16.7.2009.
4. I have heard the learned counsel representing the parties and examined the records of the case. As regards the judgment having been leaked before its pronouncement, I may mention that the counsel for the applicant (3rd respondent in TA 154/2009) met me in the chamber on 16.7.2009 and while handing over an unfinished copy of judgment in TA No.154/2009 stated that though the judgment was fixed for pronouncement on 16.7.2009 but it was available on the website of the Tribunal since 7.7.2009, copy whereof was available with both parties. The allegation was serious and required immediate action. Counsel for the applicant was assured of the same then and there. The very next day, i.e., 17.7.2009, on administrative side I passed the following order:
A lawyer from High Court, whose name for the time being I may not mention, but is separately given to the Registrar of the Tribunal, came to me at 1.10 p.m. on 16.7.2009 and while handing over an unfinished copy of a judgment in TA No.154/2009 stated that though the judgment was fixed for pronouncement on 16.7.2009 but is available on the internet since 7.7.2009, copy whereof is available with both the parties. The judgment is inconclusive, but in my considered view, it could not have been put on the internet before it was pronounced and signed by the concerned Bench.
2. Registrar to make a fact-finding enquiry into the issue and report the matter to me as expeditiously as possible. The Registrar enquired into the matter by holding a fact-finding enquiry and submitted the report on 23.7.2009. Concluding part thereof reads as follows:
The lapse here appears to be that the incomplete judgment got mixed up with the pronounced judgments since lying in the same folder/file in the system. With this report papers are submitted for directions please. The Registrar then sent the matter to me and on my directions called for explanation of two persons, one the PS to the Honble Member and the other Data Entry Operator. Both gave their explanation and the Joint Registrar found one of the persons apparently guilty, though inadvertently and not deliberately. The following noting of the Registrar was approved by me on 10.8.2009:
Undersigned had called Shri Rakesh Sareen, PS and Smt. Kavita Sharma, DEO, for personal discussion last week. From the events and from written explanation, undersigned is of the view that Shri Rakesh Sareen, PS has inadvertently transmitted incomplete judgment to share folder and has apologized. Relevant incomplete judgment has been now deleted from Internet on 6/8/09 (Thurs.). Shri Sareen may, however, be issued a written non-recordable warning as a measure of caution. For orders please.
5. Before I may deal with the grounds seeking transfer of the matter from one Bench to another, I may mention that if a litigant may have reasonable apprehension that justice may not be meted out to him because of bias of the judge or the bench hearing the matter, on such facts on which a reasonable person with ordinary prudence may think so, it will be a case of transfer. Further, the other principle which is well entrenched is that justice must not only be done but it should also seem to have been done. The other aspect of the matter is that if allegations on which bias in the mind of those who are hearing the matter appear to be unfounded, or only a figment of imagination of a litigant, no transfer order need to be passed, as that would cause an incalculable harm and result into bench hunting. It is keeping in view the basic principle for dealing with transferring the matters that the present matter needs to be decided. Surely, the allegations constituting reasonable apprehension in the mind of the applicant as regards the bias of the Bench in dealing with the matter would need elaboration. The first in that connection is leaking out of the judgment before its pronouncement. In that regard, I have already mentioned that the counsel representing the applicant (3rd respondent in TA) met me in my chamber on 16.7.2009. The allegations made by him, if correct, were really serious. The counsel was assured of proper probe in the matter, and after taking into consideration all aspects of the matter, an enquiry was indeed ordered. At that stage, I thought it may have been somewhat indiscreet to mention the name of the counsel, but now when this application for transfer has been filed, and as mentioned in the application itself that the counsel for the 3rd respondent had met the Chairman, there would be no need to deal with the matter any further, but for to say that after the decision dated 16.7.2009 when the matter was referred to larger Bench, the learned counsel had again met me and told me that in the judgment pronounced on that day, the matter had been referred to larger Bench. There would be no need to make mention of the talk that then ensured between me and the learned counsel.
6. On the facts as mentioned above, what clearly emerges is that the counsel for the 3rd respondent in the original lis knew it that an enquiry in the complaint lodged by him had been conducted. Such things as holding of enquiry do not remain a secret. If the applicant knew about the enquiry having been conducted and the allegation that the judgment was leaked having not been substantiated, it appears that the respondents would also know the same. Their knowledge is fortified from the fact that this application for transfer has come to be made quite some time after the order dated 18.10.2010 of the Full Bench remitting the matter to the Division Bench, to be precise, almost ten months.
7. Even though the facts as mentioned above would provide a clincher that the applicant in the present application knew about the enquiry and the outcome thereof, but yet presuming it that he would not know about the same, I am of the considered opinion that the counsel for the applicant who had appeared before me to make a complaint for which a proper enquiry was ensured, he could once again talked to me to know about the result of the enquiry before the present application was filed.
8. The second ground for transfer of the case is that remission of the matter by the Full Bench with the finding that the reference was incompetent would have annoyed the Bench. This ground is only stated to be rejected, as if this is to be accepted then dozens of scores of cases which are remitted by the High Court to this Tribunal by setting aside the orders passed by it or where the writs are permitted to be withdrawn with liberty to file review applications before the Tribunal, shall never have to be heard by the same Bench which decided the matter, against which the writ might have been carried to the High Court. Members of the Tribunal or Judges of High Court are discharging their duties to the best of their ability and knowledge. They pass such orders as may appear to them to be correct. Judges setting aside the orders passed by the Tribunal, if in their wisdom the orders passed by the Tribunal may not be correct, with direction or request to re-determine the issues, is part of the system. Orders passed by the Tribunal are set aside by the High Court and those passed by the High Court are set aside by the Supreme Court. The Supreme Court would itself re-visit its own judgments and overturn them. Reversal of the judgment or even comments on the judgments is a routine matter and would annoy none.
9. The third ground taken for transfer of the case is that pursuant to the matter being remitted to the Division Bench and the observations made by the Full Bench, a review application was filed by the applicant but the same has not been decided for a period of about ten months. One could imagine the allegation to have some semblance of substance, if perhaps the Bench had met and without any cause adjourned the matter. As has been clarified in the reply, and to which there is no rebuttal, the matter had to be adjourned on a few occasions because the special Bench which is to hear the review matter would not be in position because of change of roster, or could not be constituted or could not meet because of paucity of time. It is rather baffling to know as to how the delay in the matter has caused apprehension in the mind of the applicant that the Bench would not do justice, as surely it is only when the TA is allowed that adverse order can be said to have been passed against the applicant. As long as there is no decision in the matter, the applicant is not put to any loss. The loss on account of delay, if any, can be only of the applicants in the original lis.
10. As regards the last ground that TA No.158/2009 had been disconnected and was taken up independently and disposed of on 1.4.2011, it is the positive case of the respondents that the same did not involve similar issues. Be that as it may, the judgment rendered in the TA referred to above has been annexed by the applicant with the PT. Perusal thereof would reveal that the directions came to be issued in the said case because of the categorical statement made in the counter reply and by the counsel representing the respondents also before the Tribunal that the respondents were willing to consider the applicant for the post of DEO as per existing recruitment rules of 1976. Once, the order in the TA referred to above has come to be made on concession, the same, in any case, cannot be pressed into service by the applicants in the original lis, even if some points therein may be involved in the present case as well.
11. Counsel for the applicant has cited some case law to impress upon this Tribunal that bias of a judge would be good ground to transfer the case. The first judicial precedent pressed into service is in P. K. Ghosh v J. G. Rajput [JT 1995 (8) SC 214]. The facts of the case aforesaid reveal that the appellant expressly objected to the presence of a particular Judge of the High Court in the Bench hearing the case on the ground that the said Judge had been the counsel of the respondent-employee before his appointment as a Judge. The Apex Court held that the concerned Judge should have recused himself from the Bench hearing the matter. The said case would have not even remote parity with the facts of the present case. Reliance is then placed upon the decision of the Supreme Court in Ranjit Thakur v Union of India [AIR 1987 SC 2386]. Facts of the said case reveal that Ranjit Thakur, the appellant before the Supreme Court, had not commended himself well to the 4th respondent, who was the commanding officer of the regiment. On March 29, 1985 the appellant was already serving out a sentence of 28 days regirous imprisonment imposed on him for violating the norms for presenting representations to higher officers. He was stated to have sent representation complaining of ill-treatment at the hands of the 4th respondent directly to higher officers, for which he was punished by the 4th respondent. He was held in quarterguard cell in handcuffs to serve that sentence of rigorous imprisonment. While so serving the sentence, the appellant was stated to have committed another offence on March 29, 1985 for which the impugned punishment was handed down by the 4th respondent. The appellant was tried in a summary court martial the very next day, i.e., March 30, 1985, and the 4th respondent and two others were on the court martial. In the facts as mentioned above, the 4th respondent constituting the court martial was objected to. It is under the circumstances as mentioned above that it was held that the 4th respondent would be biased. Once again, the facts of the case cited by the counsel would have no parity with facts of the case in hand. The next judgment relied upon by the learned counsel is in Kumaon Mandal Vikas Nigam Ltd. v Girja shankar Pant & others [(2001) 1 SCC 182], wherein it is held that existence of real danger of bias would vitiate administrative action, but fanciful allegations of bias made to avoid a particular court, tribunal or authority would not. Whether there is bias in the mind of the presiding officer deciding the case was thus the question. Facts of the said case as well would have no parity with those of the case in hand. Counsel also places reliance upon Kulwinder Kaus @ Kulwinder Gurcharan Singh v Kandi Friends Education Trust & others [(2008) 3 SCC 659]. It was a case where the High Court without applying its mind to the allegations and counter-allegations made by parties and without recording any reasons/grounds, allowed the transfer application by merely observing that it would be appropriate to transfer the suit. Such an order was held to be not sustainable. What has been ultimately held is that before an order of transfer of a case is passed, the concerned court has to apply its mind to the grounds put forth by the party for transfer of the applicant, and no order can be passed without entering into the controversy.
12. In view of the discussion made above, the applicant has not been able to make out a case for transferring the case from one Bench to another in the Principal Bench of the Tribunal. In fact, some of the averments made in the application appear to be bordering on contempt. Reference in this connection be made to para 8 of the application, which reads, The applicant, therefore, believes that the Bench is deliberately causing delay in dealing with the above matter. Even though, the sentence continues to say that the applicant has reasonable apprehension that the matter would not be dealt with in a fair manner, but the sentence contains a definite accusation that the Bench is deliberately causing delay in the matter. Apprehension of bias on some specified facts or even by the behaviour of the Bench that justice may not be done is one thing, but to say that the Bench is deliberately doing certain things is altogether different. I have said bordering on contempt for the reason that I do not want, in the peculiar facts and circumstances of this case, to take suo moto notice and leave it to the parties, if they may so choose, to move an application for contempt. The application is bereft of any merit and is dismissed.
13. Before I may, however, part with this order, there is one very important feature of the case, which should have come to my notice earlier. Having realised now of this aspect of the case, I, as Chairman, vested with the power to constitute Division Benches and larger Benches, would refer this matter to be decided, be it the review application or the main lis, to be decided by a Bench of five Honble Members. The reasons for doing so, are given hereinafter. In the order dated 15.9.2010, after referring to the brief history of the case, the question framed by the Division Bench to be answered by the Full Bench and some other questions that were formulated by the Full Bench itself, we have mentioned that the reference is incompetent. The reasons for holding so are that in paras 29, 30 and 31 of the order dated 16.7.2009 of the Division Bench referring the matter to the Full Bench, and reproduced in the order dated 15.9.2010, the Division Bench had not only finally commented upon the rules, but also had arrived at a conclusion that regular promotion granted to respondents 3 and 4 as DEO (Physical) would not be sustainable in law, and the same was accordingly quashed and set aside. It is in the context of the final view expressed by the Division Bench that it has been held that the reference would be incompetent, as the Full Bench would be hearing the matter as if an appeal against the order passed by the Division Bench. In view of observations made in the two orders dated 15.9.2010 and 18.10.2010 vide which the matter has been referred to the Division Bench, the applicant has filed a review application. Propriety demands that this matter be heard by a larger Bench as the applicant may reasonably entertain an apprehension in his mind that review may be a remedy from pole to pole or Caesar to Caesar. The matter would thus be heard by the Bench consisting of five Honble Members, out of which three would be Judicial and two would be Administrative, as per seniority, including those who referred the matter to the Full Bench vide order dated 16.7.2009. I would not like to be a Member of the Bench, having expressed, even though tentatively, a view as regards contempt committed by the applicant. This later part of the order be considered as if passed on administrative side, and the Registrar would obtain orders from me as per directions mentioned above immediately. I am sanguine, considering the controversy in issue and the delay that has been caused in the matter, the Bench then seized of the matter would dispose of the review application on the date fixed, and at the most, on the next date to which it may be adjourned, if request is made on that behalf. After deciding the review application, if the occasion may so arise, the Bench is requested to conduct day-to-day proceedings, if required, to determine the controversy as per pleadings and as per questions that have been formulated, and decide the main matter as early as possible.
( V. K. Bali ) Chairman /as/