Central Administrative Tribunal - Delhi
The State Of Punjab vs Sarbdeep Singh Virk on 9 July, 2008
Central Administrative Tribunal Principal Bench PT 108/2008 in OA 157/2008 New Delhi, this 9th day of July, 2008 Honble Mr. Justice V.K. Bali, Chairman The State of Punjab Through its Home Secretary, Punjab Civil Secretariat, Sector 9, Chandigarh. Applicant (By Advocate: Sh. Mahabir Singh, Sr. counsel with Sh. Ajay Pal and Sh. Nikhil Jain). Versus 1. Sarbdeep Singh Virk, IPS, S/o Shri Kuldip Singh Virk, House No. 1068, Sector 27-B, Chandigarh. 2. Union of India through Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi. 3. The State of Maharashtra through Additional Chief Secretary (Home), Department of Home, Mantralaya, Mumbai 400 032. Respondents (By Advocate: Sh. R.P. Sethy for the applicant in OA and respondent in P.T. Shri Gautam Godara for Sh. R.K. Adsure, for State of Maharashtra O R D E R
Sarbdeep Singh Virk, 1970 Batch IPS, the respondent in this transfer application filed by State of Punjab, was allocated to Maharashtra State Cadre. He was one of the officers all over the country chosen to combat terrorism when the State of Punjab came in its severe grip in late 1970 and early 1980. He served the State of Punjab from 1984 till 2007 on deputation, even though the period of his inter-State deputation was initially fixed for three years. The service graph of the respondent, like gallantry awards and Padmashri with which he was decorated, may not require elaboration in the context of limited controversy involved in this Application seeking transfer of OA No. 157/2008 (Sarbdeep Singh Virk Vs. Union of India & Ors.) pending in Mumbai Bench of this Tribunal to the Principal Bench at New Delhi. On formation of new Government in Punjab in the year 2007, a request through proper channel for premature repatriation of the respondent to his parent State was made. The respondent himself also sought his premature repatriation to his parent State. On 13.03.2007, however, an FIR No. 98 of 2007 was lodged in which one Vijay Pal was named as an accused. The State of Punjab, on the basis of statement made by Vijay Pal, during his interrogation, ordered departmental enquiry against the respondent and also placed him under suspension, vide order dated 04.04.2007. Aggrieved, the respondent filed Original Application bearing No. 692/CH/07 before Central Administrative Tribunal, Chandigarh Bench. The pertinent questions raised in the OA aforesaid were relating to repatriation of the respondent to State of Maharashtra and the validity of suspension order. Vide order dated 03.04.2008, Chandigarh Bench of this Tribunal in the OA aforesaid held that repatriation of the respondent to State of Maharashtra under orders of Union of India dated 10.04.2007, as also joining of the respondent in his parent cadre under the State of Maharashtra were valid. Order of suspension dated 04.04.2007 was quashed and set aside, holding that final authority to take disciplinary action after expiry of five years vests with the Central Government. Direction also came to be issued to the State of Punjab to remit the entire matter relating to disciplinary proceedings against the respondent to the Central Government for taking final decision. Meanwhile, the State of Punjab passed yet another order dated 25.02.2008 under Rule 3(3) of 1969 Rules placing the respondent under suspension pursuant to his involvement in criminal cases under Sections 168/169/216/218/ 120B IPC and 7, 13 (1) (d)(e) read with Section 13(2) of Prevention of Corruption Act, 1988. The respondent, it was stated, would be deemed to have been placed under suspension with effect from the date of his arrest i.e. 09.09.2007 in FIR No. 10 dated 08.09.2007 with regard to offences mentioned above. The respondent challenged the order of suspension dated 25.02.2008 before the Central Administrative Tribunal, Mumbai Bench by filing OA No. 157/2008. The main reliefs sought for by the respondent in Original Application, referred to above, as enumerated in para 8 of the Application, read as follows:-
(a) This Honble Tribunal may gracious be pleased to call for the records of the case from the Respondent and after examining the same, quash and set aside the impugned suspension order dated 25th February, 2008 with all consequential benefits;
(b) This Honble Tribunal may further be pleased to direct the Respondent No. 2 to pay the Applicant salary and allowances due to him w.e.f. 10.04.2007 onwards;
(c) This Honble Tribunal may further be pleased to direct the Respondent No. 2 to grant suitable posting to the Applicant in the rank of Director General of Police in the Maharashtra State. On 19.03.2008, the Bench seized of the matter, passed the following orders:
(a) Operation of impugned order dated 25.02.2008 was stayed.
(b) The State of Maharashtra was directed to pay the applicant his full salary from the date of his repatriation or from the date when he reported for duty i.e. 27.04.2007.
(c) Respondent no. 2 was given liberty to post the applicant to an appropriate post.
The order aforesaid has been annexed with present Application at Annexure P-2, perusal thereof would show that the same is speaking and reasoned order. The case is going on in Mumbai Bench of this Tribunal and the same, as has been found during the course of arguments, is now listed for arguments. In fact, when present Application came up for hearing after notice before this Tribunal on 07.05.2008, by way of ad-interim order, it was ordered that Mumbai Bench may not pronounce the judgment.
3. Present Application has been filed under Section 25 of the Administrative Tribunal Act, 1985 seeking transfer of OA No. 157/2008 pending at Mumbai Bench to the Principal Bench of this Tribunal. Inasmuch, the relief asked for in present Application is only relating to transfer of OA No. 157/2008 from Mumbai Bench to Principal Bench of this Tribunal, it may not be relevant to trace out the facts of the case with all their minute details culminating into filing of the Original Application before Chandigarh Bench and another before Mumbai Bench. There will be no requirement at all to go into the controversy, as involved in the two Original Applications, on merits as well. It may, however, be stated that against the final judgment recorded by Chandigarh Bench in OA No. 692/CH/2007 granting reliefs as indicated above, Civil Writ Petition bearing No. 6821/CAT/2008 came to be filed before Punjab & Haryana High Court, which, vide order dated 25.04.2008, stayed operation of the order passed by Chandigarh Bench. Aggrieved by the order aforesaid, the respondent filed Civil Appeal No. 3649 of 2008 arising out of SLP (C) No. 12440 of 2008, which has since been decided during the pendency of this Transfer Petition by the Honble Supreme Court of India, vide orders dated 16.05.2008. The operative part of the order passed by the Honble Supreme Court, reads as follows:-
7. On the facts and in the circumstances of the case this Court is of the opinion that the interim order dated April 25, 2008, passed by the High Court of Punjab and Haryana in CWP No. 6821-CAT of 2008, deserves to be modified by clarifying that it would be open to the State of Maharashtra to give posting to the appellant on his repatriation to the State of Maharashtra from the State of Punjab.
8. For the foregoing reasons the appeal partly succeeds. It is clarified that in view of repatriation of the appellant to the State of Maharashtra under order dated April 10, 2007 of the Union of India it would be open to the State of Maharashtra to give posting to the appellant as Director General of Police. This Court is informed by the learned counsel for the parties that CWP No. 6821-CAT of 2008, filed by the State of Punjab, is listed for final disposal before the High Court of Punjab and Haryana at Chandigarh on May 21, 2008. Having regard to the facts of the case the High Court of Punjab and Haryana is requested to dispose of CWP No.6821-CAT of 2008 finally on or before May 31, 2008. The appeal is allowed to the extent indicated hereinabove.
4. It may be mentioned at this stage that the Honble Supreme Court interfered with the interim order passed by Punjab & Haryana High Court even though the matter was listed for final disposal before the High Court on May 21,2008 i.e. five days before the Writ Petition was to be heard by the Punjab & Haryana High Court.
5. The State of Punjab has sought transfer of the Original Application from Mumbai Bench to Principal Bench on variety of grounds as urged during the course of arguments, but insofar as relevant pleadings seeking transfer are concerned, the same have been enumerated in paragraphs 4 to 10 which, for ready reference, are reproduced as under:-
4. That the State of Punjab was served in O.A. no.157 of 2008 on 31.3.2008 in the afternoon. The officials of the State, namely, Sh. Kirandeep Singh Bhullar, IAS, Special Secretary Home, and Sh. Amarjit Walia, Supdt. Grade-I, Deptt. of Home-I Branch left for Mumbai on 1.4.2008 itself and put in an appearance before the Ld. Tribunal, Mumbai Bench on 2.4.2008.
5. On the said date, when the officials of applicant State appeared the Ld. Bench asked them about the advocate who shall be appearing on their behalf. To this, Sh. Kirandeep Singh Bhullar, IAS informed the Bench that the applicant State has been served only one day before i.e. 31.3.2008 afternoon and they left for Mumbai immediately on 1.4.2008. Therefore, they sought time to file reply. It was also brought to notice of Ld. Bench that the OA No. 692-CH-2007 is pending before Chandigarh Bench.
6. The Ld. Tribunal asked the counsel for Sh. S.S. Virk whether the applicant-State can be granted 2 weeks time to file reply. The counsel for Sh. S.S. Virk consented and the applicant-State was granted 10 days time to file reply. The case was adjourned to 16.4.2008. The reply to O.A. was filed by State of Punjab prior to 16.4.2008.
7. On 16.4.2008, as soon as the case was taken up, the counsel for applicant raised the point that his client i.e. Respondent No. 1 is not being given a posting order as DGP, Maharashtra despite the interim order dated 19.3.2008 passed in favour of Respondent NO. 1. The counsel submitted that without doubt it is the best possible interim order which any petitioner can expect from the Ld. Tribunal yet the same has not been implemented. In response thereto, the counsel for State of Maharashtra and Union of India submitted as far as Union of India is concerned, reply has been filed but as far as State of Maharashtra is concerned, the decision to post Respondent No.1 had been taken however, since assembly was in Session, therefore, there was paucity of time hence the order could not be passed.
8. The counsel for respondent no. 1 also raised point regarding malafides of present Chief Minister of State of Punjab, against respondent no.1. He stated that when there was terrorism in State of Punjab, the present Chief Minister of Punjab State was hiding under the tables and it was Respondent No. 1 who was facing the bullets. The Ld. Tribunal, at this asked counsel for the applicant State that why respondent No. 1 is being treated in this manner. The Ld. Tribunal further asked whether Respondent No. 1 is only isolated example of an officer, who has amassed so much of wealth. It further asked that earlier Respondent No. 1 was the favourite of the Chief Minister and now in a short span of period after the present Chief Minister took over, Respondent No. 1 is said to have amassed crores of rupees and that too in one month. The Ld. Tribunal also observed that such a senior officer is not to be treated in such a manner. The applicant has a reasonable apprehension that the Ld. Tribunal is proceeding in a predetermined manner.
9. The counsel representing the State of Punjab was not given any opportunity to advance any arguments on the observation made or on the legality of the impugned suspension order dated 25.2.2008 as the Bench observed that State of Punjab is nobody to pass this order after Respondent No. 1 joined Maharashtra.
10. The above said observations of the Ld. Tribunal has raised a genuine apprehension in the mind of the applicant State that the Ld. Tribunal appears to be predisposed in favour of respondent No. 1 and give him relief at any cost and the State of Punjab will neither get adequate opportunity of hearing and defending its order dated 25.2.2008, nor would it get any justice from Ld. Tribunal. The Ld. Tribunal has already declared orally that impugned order dated 25.2.2008 passed by State of Punjab is without jurisdiction and Ld. Tribunal was keen to post Respondent NO. 1 as D.G.P. Maharashtra, despite serious allegations of corruption, etc. against him. The case now stands adjourned to 8th May, 2008 for final disposal.
6. Pursuant to notice issued by this Tribunal, the respondent (applicant in the original lis) has entered appearance and by filing counter reply hotly contested the Transfer Application. Appearance has been put by Mr. Gautam Godara, Advocate representing State of Maharashtra also who, during the course of arguments, only stated that State of Maharashtra would abide by the decision that may be passed by this Tribunal, and no reply on behalf of State of Maharashtra has been filed. In the counter reply filed on behalf of the contesting respondent, it has, inter alia, been pleaded that present transfer application is not maintainable in law as the same is in the nature of an appeal and complaint against the functioning of Mumbai Bench of this Tribunal, which is a co-ordinate Bench. Present Application, as pleaded, is liable to be dismissed at the outset for the reason that the same is not supported by affidavit of the person representing the applicant i.e. State of Punjab. It also does not indicate that the person who has sworn the affidavit is either competent or authorized to swear the affidavit. It is further pleaded that the person, who has sworn the affidavit, is not the person who was present in the Tribunal when the alleged incident took place. It is also not disclosed in the application that he has derived such knowledge from any other person who was present in the Tribunal, nonetheless in the affidavit the person has claimed that the contents of the application are true to the best of his knowledge. It is pleaded that present application is also not supported by any other person who was present in the Tribunal on the date on which the alleged incident took place and in such circumstances, present application does not require consideration by this Tribunal and is liable to be dismissed with heavy cost for making baseless, reckless and scurrilous allegations against the Honble Bench and that too without being a witness of the alleged incident. It is averred that the allegations leveled against the Bench are per se contempt and the persons responsible for making such allegation are liable to be punished accordingly. It is then pleaded that the respondent has joined his parent cadre i.e. State of Maharashtra as early as on 27.04.2007 and has been allowed to join by the said Government. He had been put on compulsory wait as no suitable post in the rank of Director General of Police was available. Original Application No. 692/CH/2007 has already been allowed, vide order dated 03.04.2008 wherein it has been categorically held that the respondent stands repatriated to Government of Maharashtra on 27.04.2007 itself. In yet another litigation respondent had filed a Writ Petition before the Punjab & Haryana High Court which has since been conclusively decided by the said High Court in Criminal Misc. No. 54610-M of 2007 on 17.01.2008. Being aggrieved by the final order passed by the Chandigarh Bench of this Tribunal, the State of Punjab had filed Writ Petition wherein the judgment of this Tribunal came to be stayed. Respondent, being very seriously aggrieved by the interim order passed by Punjab & Haryana High Court, has already filed an SLP in which on the very first date i.e. 08.05.2008, the Honble Supreme Court was pleased to grant status-quo. It is pleaded that it would not be appropriate for either of the parties before this Tribunal to comment on the merits or otherwise of the interim order passed by Mumbai Bench as insinuations made by the State of Punjab are clearly either in the nature of an appeal or a complaint against the Mumbai Bench. On account of the respondent being taken on strength by Government of Maharashtra and presently living in Mumbai, he had little option but to file Original Application in Mumbai. The reasonableness of the action of respondent, if viewed in the light of the final orders passed by Chandigarh Bench and Punjab & Haryana High Court clearly goes to show that he is not at all indulged in bench hunting. The attempt of the Punjab Government to suspend the respondent on 25.02.2008 when he stood repatriated as early as on 10.04.2007 by Union of India and in any case when his deputation came to an end by afflux of time by 19.05.2007 would be a clear case of colourable exercise of powers. With regard to incidents mentioned in para nos. 4 to 11, it is pleaded that information supplied by S/Shri K.S. Bhullar, IAS, Special Secretary (Home) and Amarjeet Walia, Superintendent Grade-I of Department of Home cannot be referred to in the light of settled law that the allegations which do not find mention in the orders cannot be relied upon before an appellate forum. It is stoutly denied that State of Punjab was not heard on 02.04.2008. With regard to allegations of casting aspersion against the Honble Member of the Mumbai Bench, it is pleaded that the comments deserve to be mentioned only to be rejected in the light of settled judicial precedents of the Honble Supreme Court on the subject and in the light of facts that the same are actually casting aspersion against the Division Bench in Mumbai. Contents of para no. 10 of the application have been denied being absolutely false and shocking.
7. Mr. Mahabir Singh, learned counsel appearing in support of the Application contends that the crucial issue be it before the Chandigarh Bench giving rise to OA No. 157/2008 against which now a Writ is pending before the Honble Punjab & Haryana High Court or the application filed before the Mumbai Bench is with regard to repatriation of the respondent to the State of Maharashtra. If the Mumbai Bench may proceed to determine the controversy, it may lead to conflicting opinion by two judicial fora, one by Punjab & Haryana High Court and another by Mumbai Bench. He further contends that on the principles envisaged under Section 10 of Code of Civil Procedure, when the controversy in issue is pending decision before the Honble Punjab & Haryana High Court, the Mumbai Bench of this Tribunal should not have proceeded in the case because of the matter being sub-judice before the Honble High Court of Punjab & Haryana, the proceedings before the Mumbai Bench need to be stayed. These are not the grounds pleaded in the Transfer Application. Mr. Mahabir Singh, learned counsel, would, however, contend that these are questions of law and can be raised at any stage.
8. On consideration of the points raised by Mr. Mahabir Singh, as noted above, this Tribunal is of the view that it would have been more appropriate for the applicant-State of Punjab to raise these issues before the Mumbai Bench than of raising the same in a Transfer Petition moved under Section 24 of the Administrative Tribunals Act, 1985. These questions are not relevant for the purpose of deciding as to whether Original Application pending before the Mumbai Bench should be transferred to the Principal Bench. That apart, the first contention raised by Mr. Mahabir Singh shall remain the same even if the O.A. pending in Mumbai Bench is transferred to Principal Bench, and the only prayer, which may be made, would be staying proceedings of the case. That course can be adopted even now by the applicant-State of Punjab. The second contention of learned counsel, if accepted, at the most, once again would lead to staying proceedings of the O.A. This Tribunal would not go into the question as to whether the issues involved in two proceedings, referred to above, are identical. The applicant-State of Punjab, as mentioned above, may raise such issues before the Bench of this Tribunal at Mumbai and seek appropriate orders.
9. It is then urged by the learned counsel of the applicant that while issuing interim directions the Mumbai Bench did not adhere to the provisions contained in Section 24 of the Administrative Tribunals Act, 1985. The pre-conditions as set out in Section 24 for grant of interim stay were completely ignored and that gives genuine apprehension in the mind of the applicant-State of Punjab that they would not get justice from the said Bench. It is urged that the Mumbai Bench while issuing interim directions on 19.03.2008 did not, by specific order, dispense with the requirements of clauses (a) & (b). With a view to appreciate the contention of the learned counsel, it would be appropriate to re-produce Section 24 of the Administrative Tribunals Act, 1985, which reads as follows:-
24. Conditions as to making of interim orders.
Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless-
Copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and
(b) Opportunity is given to such party to be heard in the matter:
Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of a fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.
10. The facts, as pleaded in the Application, would reveal that State of Punjab was served on 31.03.2008 and officers, namely, Sh. Kirandeep Singh Bhullar, IAS, Special Secretary Home, and Sh. Amarjit Walia, Superintendent Grade-I, Department of Home-I Branch had put in appearance before Mumbai Bench on 02.04.2008. They sought time to file reply, which was granted and the matter was adjourned to 16.04.2008. The interim order by Mumbai Bench, however, came to be passed on 19.03.2008. I find no merit in the aforesaid contention of learned counsel. In considered view of this Tribunal, if the circumstances may exist by which requirements of clauses (a) & (b) could be dispensed with, it is not necessary to pass a specific order that such requirements are exempted provided the Tribunal may record its satisfaction and reasons in writing that it is necessary to issue interim directions to prevent any loss to be caused to the applicant which may not be adequately compensated in money. In the detailed order dated 19.03.2008 passed by the Tribunal, it has been specifically recorded thus:-
The submission of the learned counsel for applicant is that now there is clear vacancy in the grade of DGP and the applicant can be very well accommodated by the State of Maharashtra but because of the vindictive and malicious impugned order passed by the Respondent No. 3 i.e. the State of Punjab, the applicants complete service career is being jeopardized. I also note that the applicant is on the verge of retirement within a period of about 15 to 16 months and he is rightly and legitimately expecting and aspiring to reach an umbrella post at least at the fag end of his career. In the circumstances, the balance of convenience also lies in favour of the applicant and irreparable loss would be caused to him if the operation of impugned order dated 25.02.2008 is not stayed.
11. That apart, if in view of the State of Punjab the stay was granted without complying with the provisions contained in Section 24 of the Administrative Tribunals Act, 1985, it could well move an application for vacation of stay or else agitate the matter before the Honble High Court. This is no ground to seek transfer of the case from Mumbai Bench to Principal Bench. Insofar as allegation against the Honble Member of the Bench is concerned, this Tribunal may observe that judges are not computers. While hearing the arguments, they are not required by any law to just keep mum. A hearing, in considered view of this Tribunal would not be complete unless the questions which arise are put to the learned counsel appearing for the parties and their answers obtained. If, while hearing the arguments, some observations are made by the Court or Tribunal in favour or against a party, the same are meant to clarify the issue that may be involved. The Court, while hearing the arguments only forms, if at all, tentative views, and it is always with a view to have a proper reply of such views that observations are sometimes made. Once, such observations are always tentative, no litigant, least the State, may draw conclusions from such observations as if the matter is bound to be decided against it. Mr. Mahavir Singh, being conscious of this position, did not lay much stress on the grounds seeking transfer as enumerated above. We may, at this stage, refer to an order dated 22.11.2005 passed by a Division Bench of the Rajasthan High Court at Jaipur in the matter of Surendra Bhatia v Poonam Bhatia & Others (Contempt Matter arising out of DBSAC No.104/2001), in which one of us (V. K. Bali, J.) was a member. Arguments in DB Spl. Appeal (Civil) 104/2001 were heard on 31.8.2005. The case was, however, adjourned to 2.9.2005 on request. On the said date, arguments remained inconclusive and the matter on request was adjourned to 5.9.2005. On the date aforesaid, the case was once again on request adjourned to 6.9.2005. Arguments were concluded on 6.9.2005 and judgment was reserved. On 13.9.2005, the Bench received a letter requiring it to release the case on the ground that the Honble Single Judge who had decided the case and against which the appeal was filed, and who had since retired, was seen going along with Poonam Bhatia, respondent in the appeal, to the house of a very close relation of one of the Judges. The arguments having been heard in the matter, the learned counsel representing the parties were put to notice with regard to contents of the letter aforesaid, as also the Advocate General, Rajasthan, and President, Rajasthan High Court Bar Association. During the course of hearing, Shri S. R. Bajwa, Sr. Advocate a leading criminal lawyer in the State also assisted the court. Learned members of the Bar representing the parties, the Advocate General as also Shri Bajwa, in unison stated that the court should proceed to decide the case and ignore the letter. In fact, the counsel representing the appellant Surendra Bhatia went further to canvass that the court should also issue contempt notice to the appellant. Shri Bajwa, the Senior Advocate, urged thus:
.that hearing of a matter in open court would necessarily involve putting of questions to the lawyers of the respective parties during the course of arguments and in fact, the Judges with regard to the submissions made during the course of hearing would be duty bound to question the concerned counsel as it is in that matter alone that it would be called proper hearing. If the Judges might just sit quiet and do not put questions which necessarily arise for clarification during the course of arguments it shall not be considered to be a proper hearing. He further urges that while hearing, if on the question put by the Judges and after the same having been replied, some observations are made, the same are always tentative and such observations are made simply with a view that the concerned lawyer may come up with his best on the questions raised by him, be it of fact or law. He further urges that the judgment should be pronounced as per the records and submissions made by the counsel for the respective parties and that no party can be permitted to communicate in private with court. That being so, the letter written by Surendra Bhatia forms no part of the record and inasmuch as no extraneous material can at all be looked into while deciding the case, the court should simply ignore the letter but for to take the same into consideration for issuing contempt notice which must be done in the present case. In support of the submission made by the learned counsel, as noted above, reliance was placed upon judgments of the Honble Supreme Court in T. Arivandanam v T. V. Satyapal & Another [AIR 1977 SC 2421], Gujarat Electricity Board & Another v Atmaram Sungomal Poshani [(1989) 2 SCC 602], as also a judgment of learned Single Judge of the Rajasthan High Court in SB Crl. Misc. Bail Application No.2249/1993 Dr. Raj Kumar Jaipal v State of Rajasthan, decided on 10.9.1993. In T. Arivandanam (supra) when a gratuitous Judge, despite his trying to help the appellant, saw his name embroiled by him, yet proceeded to decide the case, the Honble Supreme Court observed as follows:
The unhappy Judge, who had done all he could to help the tenant by persuading the landlord, found himself badly betrayed. He adjourned the case to the next day. The torment he underwent is obvious from his own order where he said, I spent a sleepless night yesterday. Luckily, he stabilised himself the next day and heard arguments without yielding to the bullying tactics of the petitioner and impropriety of his advocate. He went into the merits and demerits of the revision. Of course, these fruitless proceedings in the High Court did not deter the petitioner from daring to move this Court for special leave to appeal. In consideration of the judicial precedents, as mentioned above, the Division Bench observed thus:
From the conspectus of the judicial decisions as have been cited before us, what really emerges is that on conclusion of the arguments the court must proceed to decide the case being totally uninfluenced and undaunted by the kind of letter, as has been received by this Court. The observations that thus came to be made by the concerned Bench when the matter was taken up for hearing on 6.9.2005 can, at the most, be termed as tentative. The same also cannot be said to be forming part of the records.
12. I would not comment upon the validity of the order giving interim relief to the respondent as that would amount to commenting upon the controversy in issue which, according to the counsel for the applicant himself, is a matter sub-judice before Punjab & Haryana High Court, as also the Bench of the Tribunal at Mumbai. Suffice it, however, to say that the Honble Supreme Court in Civil Appeal No. 3649 of 2008 (supra) has observed that even though prima facie after expiry of the period of deputation final authority to take disciplinary action against the respondent vests with Central Government and further that As the appellant has already joined duties in parent cadre pursuant to the order issued by the Central Government, this Court is of the opinion that the High Court was not justified in staying the declaration made by the Tribunal that repatriation of the appellant from the State of Punjab to the State of Maharashtra was valid. The order dated April 10, 2007 repatriating the appellant to the State of Maharashtra will have to be given effect notwithstanding the order of suspension dated April 4, 2007. The declaration made by the Tribunal that the Central Government is competent to take disciplinary action against the appellant and directing the State of Punjab to remit the entire matter relating to the disciplinary proceedings initiated against the appellant to the Central Government should not have been stayed by the High Court.
13. The Honble Supreme Court while modifying the orders of Punjab & Haryana High Court clarified that it would be open to the State of Maharashtra to give posting to the respondent on his repatriation to State of Maharashtra from State of Punjab. This is what precisely has been ordered by the Bench of this Tribunal at Mumbai while passing interim order on 19.03.2008.
14. Before I may part with this order, I may mention that Sh. Mahabir Singh, learned senior counsel for the applicant, relied upon a judgment of Honble Supreme Court in R.S. Nayak Vs. A.R. Antulay and Anr., 1986 (2) SCC 716. The reliance placed upon by the learned counsel is on the observations made in paragraph 74 of the judgment aforesaid, which read as follows:-
Though we have no doubt in our mind that Mehta, J. acted fairly and impartially in disposing of the case in the manner he did, it cannot be said that there is no scope for apprehension in the appellants mind that his complaint may not receive adequate and proper treatment at the hands of the same learned Judge who has already expressed himself one way. In these circumstances, while reiterating our opinion that we have no doubt that Mehta, J. acted fairly and impartially and without casting any reflection whatsoever on the learned Judge, we would, following the well known dictum that justice should not only be done but must also appear to be done, request the learned Chief Justice of the High Court to nominate another learned Judge to take up the matter from the stage at which Mehta, J. made the impugned order
15. I may only mention that before making observations, as reproduced above, it was observed that It is too well settled that litigants can have no say in regard to the choice of the judge before whom their lis must be heard. We have no doubt that Mehta, J. had dealt with the matter in a fair way and there is no warrant on the facts of the case for shifting the case from him to another learned Judge for trial. Recording of the prosecution evidence is almost over and but for a few more witnesses and some documents which might come, the prosecution has already laid its entire cards before the court and Mehta, J. has, with reference to all this material, taken a view which we have reversed.
16. It is significant to mention that while observing, as relied upon by the learned counsel, the Honble Supreme Court reversed the view taken by the Honble Judge with regard to material. In considered view of this Tribunal no circumstances exist that may entail even transfer of the case from the Bench seized of the matter. I find the allegations made against the Honble Member of this Tribunal to be wholly unsubstantiated.
17. Finding no merit in this Application, I dismiss the same.
18. Before I may part with this order, I may mention that in view of the allegations leveled against the Honble Member, the concerned Bench may himself think of reclusing himself from the case but that would exclusively be the discretion of the concerned Member.
(V.K. Bali) Chairman /naresh/