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HIGH COURT OF JUDICATURE AT MADRAS
V. RAMASUBRAMANIAN & P.R. SHIVAKUMAR, JJ.
S. Manoharan – Petitioner
Versus
Deputy Registrar, Central Administrative Tribunal & Others – Respondents
W.P. No. 31409 of 2014 & M.P. Nos. 1 & 2 of 2014
Decided On : 26-02-2015
Administrative Tribunals Act, 1985 - Section 28 - National Tax Tribunal Act, 2005 - Section 7 - Companies Act, 1956 - National Green Tribunal Act, 2010 - Section 4(4) – Constitution of India, 1950 - Article 323-A and 323-B - Working as an Engine Fitter – Jurisdiction - Challenging order of reification - Petitioner is working as an Engine Fitter SK in INS, Naval Base - He received a show cause notice proposing to revise seniority list of Engine Fitters on basis of judgment of Central Administrative Tribunal Madras Bench - As per show cause notice it was proposed to place fourth respondent in this writ petition as senior to writ petitioner - Since show cause notice was issued on basis of judgment of Central Administrative Tribunal in an application to which writ petitioner was not a party petitioner filed challenging order of Tribunal - But writ petition was dismissed by order on ground that petitioner will have to approach Tribunal itself – Held, It appears that in exercise of powers conferred by Section 4(4) read with Section 35 of National Green Tribunal Act, 2010 Central Government has issued a set of rules known as National Green Tribunal Rules, 2011 - Rule 3(1) of these Rules empowers Chairperson of Tribunal to constitute a Bench of two or more Members consisting of at least one Judicial Member and one Expert Member - Under Rule 5(1) an application or appeal should be heard by Tribunal consisting of at least one Judicial and one Expert Member - Sub-Rule (2) of Rule 5 makes it incumbent upon Chairperson to constitute a Bench comprising of more than two Members if a particular case is to be heard and decided by a Larger Bench – But interestingly Rule 5(2) is conspicuously silent about ratio between Judicial and Expert Members – Therefore one has to fall back upon Proviso to Rule 4(4)(c) that mandates a Bench of more than two Members to be loaded with equal number of Judicial and Expert Members - If Court carefully analyze scheme of Section 5(4)(d) of Administrative Tribunals Act, 1985 and Proviso there under in context of Section 4(4)(c) and Proviso there under of National Green Tribunal Act, 2010 in backdrop the development of law to Bar Association it will be clear that a Bench of more than three Members cannot be overloaded with Administrative Members - Parliament itself appears to have understood difficulty of allowing a Bench of any Tribunal to be overloaded with Administrative or Technical or Expert Members - That is why it sought to provide equality of representation between Judicial and Expert Members in National Green Tribunal - If substantial questions of law as per decision in National Tax Tribunals Act case cannot be decided by Tribunals loaded with Administrative Members it is incomprehensible that a reference made to a larger Bench of an Administrative Tribunal which would ordinarily require an exposition of a substantial question of law can be decided by two Administrative Members making Judicial Member a minority - What could be of assistance in resolving issue on hand - It is emphatically province and duty of Judicial Department to say what law is If two laws conflict with each other Courts must decide on operation of each - Writ petition is allowed
V. Ramasubramanian, J.
1. This writ petition challenges an order of the Hon'ble Chairman of the Central Administrative Tribunal, refusing to change the composition of a Full Bench constituted by him, comprising of two Administrative Members and one Judicial Member.
2. We have heard Ms.R.Vaigai, learned counsel for the petitioner and Mrs.R.Maheswari, learned Senior Central Government Standing Counsel, appearing for the respondents 1 to 3.
3. The petitioner is working as an Engine Fitter SK (Skilled) in INS Kattabomman, Naval Base. He received a show cause notice dated 10.11.2008, proposing to revise the seniority list of Engine Fitters, on the basis of the judgment of the Central Administrative Tribunal, Madras Bench made in O.A.No.371 of 2007 dated 26.6.2008. As per the show cause notice, it was proposed to place the fourth respondent in this writ petition as senior to the writ petitioner.
4. Since the show cause notice was issued on the basis of the judgment of the Central Administrative Tribunal, in an application to which the writ petitioner was not a party, the petitioner filed W.P.No.8391 of 2009 challenging the order of the Tribunal in O.A.No.371 of 2007. But the writ petition was dismissed by order dated 9.6.2009, on the ground that the petitioner will have to approach the Tribunal itself.
5. Therefore, the petitioner filed an application in O.A.No.1203 of 2009, challenging the order of refixation of seniority dated 13.3.2009. The said application was heard by a Division Bench of the Central Administrative Tribunal, comprising of one Judicial Member and one Administrative Member. After hearing arguments, the Division Bench of the Tribunal passed an order dated 20.4.2011 expressing disagreement with the views taken by the Bench in O.A.No.371 of 2007 and consequently referring the issue to a larger Bench for consideration.
6. Pursuant to the order dated 20.4.2011, the Chairman of the Tribunal constituted a Full Bench. In the Full Bench, an Administrative Member by name Mr.R.Satapathy was included. Since the said Administrative Member was a party to the earlier order in O.A.No.371 of 2007, the petitioner raised a preliminary objection. Since the objection was not sustained, the petitioner moved a writ petition in W.P.No.1910 of 2012. This Court entertained the writ petition and granted a stay.
7. During the pendency of the writ petition, the Hon'ble Mr.R.Satapathy, Administrative Member retired. Therefore, the writ petition was dismissed on 29.10.2013, as having become infructuous.
8. Thereafter, the Hon'ble Chairman of the Central Administrative Tribunal constituted a Full Bench afresh, for hearing O.A.No.1203 of 2009. But the Full Bench so constituted, comprises of one Judicial Member and two Administrative Members.
9. Upon coming to know of the composition of the Full Bench, the counsel for the petitioner circulated a letter dated 14.11.2014 praying for reconstitution of the Full Bench with two Judicial Members and one Administrative Member. But the Chairman of the Tribunal refused to reconstitute and the said decision was communicated by the Section Officer of the Tribunal, to the counsel for the petitioner, by a letter dated 20.11.2014. Challenging the said order, the petitioner has come up with the above writ petition.
10. The only question arising for consideration in this writ petition is as to whether in a Full Bench of the Administrative Tribunal, the number of Administrative Members could be more than the number of Judicial Members.
11. To find an answer to this question, we may need to undertake a journey into the past. The power to establish Administrative Tribunals, was conferred upon the Parliament by Article 323-A and 323-B of the Constitution, which were inserted by the Constitution (42nd Amendment) 1976. In exercise of the power conferred by Clause(1) of Article 323-A of the Constitution, the Parliament enacted the Administrative Tribunals Act, 1985 (Act 13 of 1985). In tune with the provisions of the Act, t
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