Central Administrative Tribunal - Delhi
Surendra Kumar Kaushik vs The Lt. Governor on 20 May, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.3016/2013 with OA No.3057/2013 Reserved on:19.05.2014 Pronounced on:20.05.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.3016/2013 Surendra Kumar Kaushik s/o Late Shri B.S. Kaushik Ro 5/10, Delhi Administration Flats, Probyn Road, Delhi 110 054. Applicant (By Advocate: Sh. Ajesh Luthra) Versus 1. The Lt. Governor, Raj Niwas Marg, Delhi 110 054. 2. Government of NCT of Delhi Through its Chief Secretary, IP Estate, New Delhi-110 002. Respondents (By Advocate: Ms. Avnish Ahlawat) OA No.3057/2013 Ms. Nita Bali C-24, Defence Colony, New Delhi 110 024. Applicant (By Advocate: Sh. P.K. Singh) Versus Government of NCT of Delhi Through its Chief Secretary, Delhi Secretariat, IP Estate, New Delhi. Respondent (By Advocates: Ms. Avnish Ahlawat Sh.A.K. Behera, Sh. Sanjay Sharma & Sh.Gaurav Gupta for interveners) O R D E R Justice Syed Rafat Alam, Chairman:
The aforesaid two Original Applications under Section 19 of the Administrative Tribunals Act, 1985 are directed against the order dated 31.07.2013 whereby the Lieutenant Governor of National Capital Territory of Delhi in exercise of his power conferred under sub-section (3) of Section 73 of Delhi Value Added Tax Act, 2004 read with sub rule (2) of Rule 12 of Delhi Value Added Tax Appellate Tribunal (Qualification, Salaries, Allowances and other Conditions of Service of Members) Rules, 2009 (hereinafter referred to as Rules, 2009) removed the applicant from the office of Member of DVAT Appellate Tribunal. The aggrieved applicants, therefore, filed OA No.3016/2013 on 30.08.2013, whereas OA No. 3057/2013 was filed on 03.09.2013. OA No. 3016/2013 was listed before us on 03.09.2013 and the respondents counsel appeared at the stage of admission and was given one weeks time to give reply. However, the matter was thereafter listed on 12.09.2013 and on the request made by the applicant, ten days time was given to give rejoinder to counter filed on behalf of the respondents.
2. It is appropriate to mention here that while this case was taken up, an intervener, namely Sales Tax Bar Association (Regd.), submitted that the two Writ Petitions bearing Nos. 2980/2013 and 4119/2013 and one PIL bearing WP(C) No. 3016/2013 were pending consideration before the Honble High Court of Delhi. Considering the fact that the Honble High Court was judicially seized with the matter in its writ jurisdiction and that the controversy involved in the instant Applications was directly and substantially connected with the matters pending before the Honble High Court, it was considered correct from the point of view of judicial propriety and ethics to await the decision of the Honble High Court in the aforementioned Writ Petitions. However, liberty was given to the parties to seek the necessary direction/clarification in the aforesaid petitions before the Honble High Court. However, the Honble High Court considered the application and decided as follows:-
3. The fact that the order which was assailed in OA No. 3057/2013 came to be passed during the pendency of these writ petitions is not disputed before this Court. Thus, the said matter is based on a different cause of action.
4. Therefore, there cannot be any objection for hearing and deciding OA No.3057/2013 by the Tribunal following due process of law. However, it is made clear that the order that may be passed in the said OA by the Central Administrative Tribunal shall be subject to the result of these writ petitions. As a consequence, the applicants had appeared and pressed for early hearing and disposal of the cases.
3. However, when the matter was taken up by this Tribunal, its jurisdiction to hear the case and its maintainability was questioned on behalf of the interveners in OA No. 3057/2013 through their counsel Shri A.K. Behera. As the issue of maintainability can be raised at any time or stage of the proceedings, learned counsel appearing for the parties were given an opportunity of being heard. Accordingly, learned counsel ShriAjeshLuthra appeared on behalf of the applicant in OA No. 3016/2013 and learned counsel Shri P.K. Singh appeared on behalf of applicant in OA No. 3057/2013. Both the counsels have submitted their oral and written submissions.
4. Learned counsel for the applicant in OA No. 3016/2013 submits that provisions of Section 2 of the Administrative Tribunals Act, 1985 shall not apply to the following category of persons:-
Any member of the naval, military or air forces or of any other armed forces of the Union;
Omitted.
Any officer or servant of the supreme Court or of any High Court [or courts subordinate thereto];
Any person appointed to the secretarial staff of either House of Parliament or to the secretarial staff of any State Legislature or a House thereof or, in the case of a Union Territory having a Legislature, of that Legislature.
5. However, the court is not included within the definition of court subordinate thereto implying the Supreme Court as they do not find a place in Part 6 of the Constitution.
6. Referring to Section 14(1)(b)(ii) of the AT Act, 1985 and the explanation thereto, it was argued on behalf of the applicant that the term civil post has been defined by the Honble Supreme Court in The State of Assam & Ors. vs. Kanak Chandra Dutt, AIR 1967 SC 584. It means a post, which is not connected with the Defence outside the regular civil service in which the State and the employees are locked in a master-servant relationship and under the administrative control of the State. This master-servant relationship is more than evident in the appellate tribunal and the State Government of Delhi. The appellate tribunal is a department which has substituted earlier Sales Tax Department following the introduction of Value Added Tax in the State. This is not an authority, but the department under the State Government. The Appellate Tribunal, though bearing the nomenclature of the Tribunal, is actually a department. The vacancies to the Appellate Tribunal have been filled up by the respondent under Section 74 of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as DVAT Act), while the functions of the Appellate Tribunal have been provided under Section 76 of the DVAT Act. The very fact that the decisions of the Tribunal are published under Gazette, indicates that these Tribunals are exercising essentially executives functions and are remedial agencies performing quasi judicial acts. They are not performing any judicial functions under Article 236 (b) of the Constitution.
7. Learned counsel for the applicant in OA No. 3016/2013 submitted that the Appellate Tribunal is neither a society nor a corporation nor a local authority as defined under The General Clause Act, 1897 in Section 3(1), as it is not managing any municipal or local fund. Hence, no notification under Section 14(2) of the AT Act, 1985 is required nor has any been made.
8. Learned counsel for the applicant in OA No. 3016/2013 has relied upon a decision of the Honble Supreme Court in the case of Standard Chartered Bank Ltd. vs. B.N. Raman, JT 2006(6) SCC 368. He further submits that under Rule 24 of DVATAT (Qualification, Salaries, Allowances and other Conditions of Service of Members) Rules, 2009 (hereinafter referred to as Rules, 2009), status equivalent to Joint Secretary to the Government of India belonging to the IAS has been deemed to have been given to the members and is supported by a decision of the Honble Supreme Court in the case of State of Bombay vs. Pandurang, AIR1953 SC 244. Emphasizing that the Appellate Tribunal is a separate legal entity, but rather holder of a civil post to a remedial agency set up under DVAT Act, 2006, it is very much amenable to the Jurisdiction of this Tribunal.
9. Learned counsel for the applicant in OA No.3057/2013 has supported the argument advanced in OA No. 3016/2013. The applicants are public servants as per Section 71 of the DVAT Act, 2004 with the administrative control of the Department of Finance, Trade and Tax, Govt. of NCT of Delhi, which are very well covered under the notification before this Tribunal. When the parent department is specifically covered before this Tribunal, an administrative department cannot be left over. The fact that it has not been notified under Section 14(2) of the AT Act, could, at best, be an omission and because the parent department is amenable to the jurisdiction of this Tribunal, no separate notification is required for the same. Rule 154(b) of The Central Administrative Tribunal Rules of Practice, 1993 encompass the entire Govt. NCT of Delhi for adjudication and present appointment of the members of the Appellate Tribunal has been issued by the Govt. of NCT of Delhi. Section 28 of the AT Act, 1985 excludes the jurisdiction of courts, except the Supreme Court under article 136 of the Constitution, which does not cover the Appellate Tribunal. Therefore, the provisions of Section 28 are apt to be read along with provisions of Section 2 in order to derive a clear understanding.
10. Learned counsel appearing on behalf of both the parties vociferously asserted that jurisdiction is available to this Tribunal to hear and decide the OAs.
11. Mrs. Avnish Ahlawat, learned counsel appearing for the respondents has opposed the plea of the applicants over the issue of jurisdiction. She submits that this Tribunal has no jurisdiction to adjudicate over the present issue, as the DVAT Appellate Tribunal has not been notified under Section 14 (2) of the A.T. Act, 1985. This matter is no longer res integra. The Division Bench of this Tribunal in the matter of Uttam Chand Nahata versus Union of India & Another [OA No. 3486/2011 decided on 13.01.2012] considered a similar issue involving the post of Member (Technical) in the Company Law Board set up under the Companies Act to be governed by the Company Law Board (Qualifications, Experience and other Conditions of Service of Members) Rules, 1993 as amended from time to time. After having considered the matter, in its entirety, the Tribunal was of the view that it had no jurisdiction to entertain the matter. Further, this Tribunal in the matter of Mr. R. Vasudevan versus Union of India & Another [OA No.49/2012 decided on 08.05.2012] relying upon the decision of the Division Bench in the case of Uttam Chand Nahata versus Union of India & Another (supra) dismissed the OA for want of jurisdiction. Further, the learned counsel for the respondents has relied upon the decision in the case of Union of India & Another versus Shankar Raju, decided on 13.12.2007wherein the Honble High Court had considered the cases cited by the applicant, namely, The State of Assam vs. Kanakchandra Dutta[AIR 1967 SC 584] along with others and had unequivocally held that the Members of the Central Administrative Tribunal are not holder of civil posts. Therefore, the issue is squarely covered by the afore mentioned pronouncements and this Tribunal has no jurisdiction to adjudicate over the issue before it.
12. The applicants in rejoinder have stated that the case of Uttam Chand Nahata versus Union of India & Another (supra) cannot be relied upon as the Honble High Court in the case of Dr. A.K. Doshi versus Central Administrative Tribunal & Ors. [2000II AD (DELHI) 107] have expressed reservation in accepting the view that the office of Member in the Central Administrative Tribunal was not a civil post and has left the issue open for further decision. The applicant further submits that the pay fixation of the Member of the DVAT Appellate Tribunal is done by the Govt. of NCT of Delhi and identity card is also issued by them. In short, the master-servant relationship between the applicant and the respondents is well confirmed and as being holder of the civil post, the applicants are very much amenable to the jurisdiction of this Tribunal.
13. The above discussions give rise to the following issues:-
(i) Whether the issue of jurisdiction over the respondent organization is res intergra?
(ii) Whether the office of the Member of the DVAT Appellate Tribunal is a civilian post within the meaning of the Section 14(1)(a) of the AT Act, 1985?
(iii) Whether this Tribunal has the jurisdiction to adjudicate upon the issue before it?
14. In so far as the first issue is concerned, it has already been stated that the respondents have relied upon a number of cases decided by this Tribunal and by the Honble High Court to hold that the issue is no longer res integra, but rather well covered by these decisions. The first of these decisions that we take up is Uttam Chand Nahta Vs. Union of India & Another (supra). In this case, the applicant had applied for the post of Member (Technical) in CLB and had indicated his willingness to join the same. The CLB is governed by the Companies Act, 1956 and the Company Law Board (Qualifications, Experience and other Conditions of Service of Members) Rules, 1993 as amended from time to time. Under the terms of Rule 3(a)(b) of the Rules, 1993, the applicant was required to retire from his service before joining as Member of the CLB. The applicant accepted the offer conditional to the request that his lien could be kept alive by amending Rule 3(a)(b) of the Rules, 1993. The respondents cancelled the appointment of the applicant and debarred him for three years for consideration for appointment in all autonomous statutory bodies. The applicant approached the Tribunal, which vide its order dated 13.1.2012 held that this Tribunal has no jurisdiction to entertain the matter so long as no notification is issued under Section 14(3) of the AT Act, 1985. The coordinate Bench of this Tribunal had gone into the provisions of Article 323 of the Constitution, which provides for enactment of law by the Parliament for adjudication or trial by administrative tribunals of disputes and complaints with respect to 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. The coordinate Bench made a comparison between the Central Administrative Tribunal and CLB and arrived at a conclusion that the appointment of the Member in CLB was not deemed as appointment to the civil post under the Union. As such, the coordinate Bench of the Tribunal held that it was lacking in jurisdiction to entertain the OA. This judgment was relied upon in a number of decisions, namely R.VasudevanVs. Union of India &Anr. (OA No. 49/2012 decided on 08.05.2012). It is, however, the case of Union of India &Anr. Vs. ShankerRaju(supra), which has been extensively relied upon by both the parties.Here, the Honble High Court had examined a number of decisions, which had been rendered on the subject by different courts, including that of Union of India and Ors. Vs. Kali DassBatish&Anr., L.Chandra Kumar Vs. Union of India and Ors., V.S. Mallimath Vs. Union of India and Anr., The State of Asssam and Ors. Vs. Kanak Chandra Dutta, State of Gujarat and Anr. Vs. Raman LalKeshavLalSoni and Ors., State of Gujarat and Anr. Vs. Raman LalKeshavLalSoni and Ors.,A.K.Doshi (Dr.) Vs. Central Administrative Tribunal and Ors. (supra), Union of India Vs. Shiv Charan Sharma, WP(C) No. 15754/2006, Sarvan Singh Lamba& Ors. Vs. Union of India &Ors., S.P. Sampath Kumar Vs. Union of India. The Honble Court had traced the events leading to the formulation of the Tribunal, its powers and functions, including whether it was a real substitute of the High Court, on the basis for which, it arrived at a conclusion that the Members of the CAT are not holder of civil posts. In view of the above, we find that the matter is no longer res integra, as there are number of judgments covering the subject.
15. The second issue needed to be framed as a separate issue in view of two strains present in the above judgments. In the case of Dr. A.K. Doshi Vs. Union of India (supra), the Honble Supreme Court held as under:-
16. Both the Central Administrative Tribunal and the High Court have relied upon various Rules, notably Rules, 6,7,10 and 13 of the said Rules and concluded that these Rules indicated control by the Government. It was held that as the Government had control, thus the post was a civil post. It must be mentioned that we have reservation in accepting this view. However, for all these years the post has lain vacant. Even if we were to hold in favour of the Appellant no useful purpose would be served. The 2nd Respondent would have to be given time to challenge in a proper forum. On facts set out hereinabove the end result would be the same. The selection of the appellant would be set aside. The post would then lie vacant for the period it takes to dispose of that matter. The only sufferer would be the litigating public. As in this case the facts are very gross, we see no reason to interfere. We leave this question open to be decided in an appropriate manner. The Honble High Court also reiterated the same view in para 26 of its judgment dated 13.12.2007 that as per the Apex Court, whether even a Member of the CLB is holder of a civil post or not is at large. However, in the same, the Honble High Court, after going through the judgments cited above, arrived at an inescapable conclusion that Members of the CAT are not holder of civil posts.
16. We have gone through the respective legal provisions governed the Central Administrative Tribunals, namely, Article 223A of the Constitution,The Administrative Tribunals Act, 1985, The Central Administrative Tribunal Rules of Practice, 1993 as well as the provisions of Companies Act, 1956. Without going into the greater details and citing their relevant provisions, which have already been covered in the case of Uttam Chand NahtaVs. Union of India (supra), we find that there is a structural uniformity governing the constitution of these bodies. We also find that the CLB though it appears to have a master-servant relationship with the Government is also acting in a quasi judicial capacity and its judgments are subject to appeal before the Honble High Court. In the case of Union of India Vs. ShankerRaju (supra), the Honble High Court has also examined in detail the constitution of the similar bodies that being National Highways Tribunal, which is a creation and the control of National Highways Land and Traffic Act, 2002. It is provided that the presiding officer of the Tribunal should either be qualified to be a judge of the High Court or has been a member of the Indian Legal Service and is selected by a selection committee chaired by the judge of the Supreme Court of India and two members, one secretary to Government of India in the Ministry of Road Transport and Highways and one Secretary to Government of India in the Ministry of Law and Justice, Department of Legal Affairs. The presiding officer of the Tribunal has jurisdiction, power and authority to entertain an appeal from the order passed or action taken by the Highway Administration to the exclusion of any other authority, except the Honble Supreme Court and the High Court exercising their jurisdiction under Articles 226 and 227 of the Constitution. This is where there is a difference between the National Highways Tribunal or the Central Administrative Tribunal and the DVAT Appellate Tribunal, which is appointed by the Government and their members are also dismissed by the Government. However, the functions and powers of the CLB are remarkably similar to that of the DVAT Appellate Tribunal. The coordinate Bench of the Tribunal has held the post of the members of the CLB as not holding civil posts. Though the Honble High Court has left the issue open, we are swayed by the fact that all the facts pleaded before us were also considered by the Honble High Court and their order in Union of India vs Shankar Raju (supra) has been given in full consideration thereof.
17. No doubt, it is a well recognized principle of law that jurisdiction of a Tribunal or Court created specially for resolution of disputes of certain kinds, is to be construed liberally. A restricted meaning to the provisions of such Act would frustrate the very object of setting up such Court/Tribunal. Where the object of speedy adjudication of certain matters which are widely defined, the wide language used in the statute cannot be narrowly construed. Reference may be made to the judgment of the Apex Court in United Bank of India and Others versus Debts Recovery Tribunal reported in (1999) 4 SCC 69, wherein, their Lordships have opined that while construing the relevant provisions of the Act, the object for which the enactment is made is to be kept in mind, and, therefore, while interpreting the expression debt, it is observed in para 15 of the judgment that it has to be given the widest amplitude to mean any liability which is alleged as dues from any person by a bank during the course of any business activity undertaken by the bank either in cash or otherwise, whether secured or unsecured, whether payable under a decree or order of any court or otherwise and legally recoverable on the date of the application. Similar view was expressed by the Apex Court in K. A. Abdul Jaleel vs T. A. Shahida reported in (2003) 4 SCC 166 where the question arose as to whether the family court has jurisdiction to adjudicate upon any question relating to the properties of the divorced parties. Their Lordships in para 14 of the judgment held as under:-
14. It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object where for the Family Courts were set up. Thus, provisions of an Act, whereunder a court/tribunal is specially created for resolution of disputes of certain kinds, are to be interpreted liberally so that the very object and purpose of enacting such statute may not get diluted. We definitely had an option to refer the issue of civil post for the consideration of a larger bench. Yet, we have elected to forgo this option in view of the fact that the arguments placed before us have already been considered by the Honble High Court and that in the same judgment the Honble High Court has also held that the Members of CAT are not holding civil post. When paragraphs 26 and 33 are reconciled and the decision of the coordinate Bench in the case of Uttam Chand Nahta Vs. Union of India (supra) is taken into account, keeping in view the doctrine of binding precedent which is of utmost importance in the administration of our judicial system, we need not to venture into the same in the absence of any reasonable ground to take a different view, and deem it advisable to abide by those decisions of the coordinate Bench while the issue left open can only be determined at the level of the Honble High Court. Once the matter has been considered at the level of the Honble High Court and it is the Honble High Court, which is competent to consider the issue, which has been left open and deciding upon the same for the aforestated reasons. We are bound by the judgments of the Apex Court and the Honble High Courts and cannot sit in appeal over the same.
18. In view of the issues considered above, we are of the considered view that the question raised in the instant OAs stands squarely covered by the decision rendered in Uttam Chand Nahta Vs. Union of India & Ors. (supra). We have also noticed that there is a remarkable coincidence among the CLB, National Highways Tribunal and DVAT Appellate Tribunal. We, therefore, hold that this Tribunal lacks jurisdiction to adjudicate the issue raised in these two OAs.
19. In the result, both the OAs are dismissed for want of jurisdiction. However, it would be open to the applicants to avail the remedy available to them under the law before the appropriate forum.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Member (J) /lg/