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1990 Supreme(Ori) 34
High Court Of Orissa
S. C. MOHAPATRA
INDRAJEET ROY - Appellant
Versus
BANK OF BARODA - Respondent
CIV. REVN. 80 Of 1990
Decided On : 03/14/1990
Lokesh Roy, N.Prusty, RANJIT RAY
A member of the Administrative Tribunal is not exempted from appearing in Court, and his attendance in Court for examination as a witness on his behalf may be detrimental to the public service he renders.
Headnote:
CIVIL PROCEDURE CODE - ORDER 26 RULE 4 - EXAMINATION ON COMMISSION - MEMBER OF ADMINISTRATIVE TRIBUNAL - WHETHER EXEMPTED FROM APPEARING IN COURT - WHETHER ATTENDANCE OF MEMBER IN COURT FOR EXAMINATION AS WITNESS ON HIS BEHALF IS DETRIMENTAL TO PUBLIC SERVICE HE RENDERS.
Fact of the Case:
Defendant, an advocate appointed as Judicial Member of the State Administrative Tribunal, filed an application to be examined on commission, claiming that his attendance in Court would be detrimental to the public service he renders. The plaintiff bank objected, arguing that a member of the Administrative Tribunal is not exempted from appearing in Court, that the defendant stands in the position of a plaintiff having filed a counterclaim, and that his absence would not affect the Tribunal's functioning.
Finding of the Court:
The Court held that a member of the Administrative Tribunal is not exempted from appearing in Court under Order 16, Rule 19 or Order 133, Rule 1(x) of the Code of Civil Procedure. However, the Court has the discretion to examine any person on commission under Order 26, Rule 4, and this discretion should not be refused merely because the person sought to be examined is a party to the suit.
Issues: 1. Whether a member of the Administrative Tribunal is exempted from appearing in Court? 2. Whether the attendance of the defendant in Court for examination as a witness on his behalf is detrimental to the public service he renders?
Ratio Decidendi: 1. The Court held that a member of the Administrative Tribunal is not exempted from appearing in Court because: a. They are not included in the categories of persons exempted under Order 16, Rule 19 or Order 133, Rule 1(x) of the Code of Civil Procedure. b. The Administrative Tribunal is not a High Court, and its members are not Judges of the High Court. c. The dress, address, and procedure of the Administrative Tribunal do not confer on its members the status of Judges of the High Court. 2. The Court held that the attendance of the defendant in Court for examination as a witness on his behalf would be detrimental to the public service he renders because: a. The defendant is the Judicial Member of the Administrative Tribunal, and his absence would affect the functioning of the Tribunal. b. The defendant's duties as a Judicial Member are statutory and cannot be performed by anyone else. c. Early disposal of cases is a public policy, and the defendant's absence would cause delay in the disposal of cases.
Final Decision: The Court allowed the Civil Revision, set aside the impugned order, and allowed the defendant's application to be examined on commission.
S. C. MOHAPATRA, J.
( 1 ) THIS revision has been filed by the defendant against an order of the trial Court refusing his prayer to be examined on commission.
( 2 ) DEFENDANT who was an advocate had been appointed to Government Service as the Judicial Member, State Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. He made the application to be examined on commission on the ground that his attending Court to be examined as witness will be detrimental to the public service he renders as Judicial Member of the Administrative Tribunal.
( 3 ) PLAINTIFF-BANK raised objection to such prayer asserting- (i) a member of Administrative Tribunal is not exempted from appearing in Court; (ii) Defendant stands in the position of a plaintiff having filed counter claim and is required to be examined in Court; (iii) Absence of judicial member would not have any effect on working of the Tribunal for the days of his absence and as such there would be no detriment to public service; and (iv) Even if it is detrimental, Tribunal does not hold sittings on Saturdays and defendant can be examined on a Saturday in Court whereby the detriment if any can be avoided.
( 4 ) TRIAL Court having rejected the petition of defendant on the finding that attendance of defendant in Court for examination as witness on his behalf is not detrimental to public service he renders, this Civil Revision has been filed. On 25-1-1990, I decided the Civil Revision at admission stage without hearing the plaintiff giving the plaintiff liberty to move to recall the order in case of prejudice giving direction to the trial Court to appoint a commission to examine defendant. Plaintiff having so moved, order dated 25-1-1990 was recalled today and with consent of parties, Civil Revision was heard on merits after obtaining the records from the lower Court.
( 5 ) NORMALLY, a witness whether a party or otherwise is to be examined in Court when the Presiding Officer gets opportunity to mark demeanour of the witness and observing the way in which various questions put to him in cross-examination are answered by him, Presiding Officer makes assessment of his credibility. Where the witness is credible, it is hardly material whether he gives evidence viva voce in Court or before a commission or by affidavit or otherwise. It shall not, however, be assumed always that a witness is credible. For that reason, exhaustive provisions have been made in the Evidence Act with regard to oral evidence. Even when a matter is permitted to be decided on affidavits, Civil Procedure Code provides for summoning that person who gave affidavit for cross-examination. Legislature, well aware of the same, made provision in S. 132, C. P. C. , exempting appearance of certain women in Court and in S. 133, C. P. C. , exempted eleven categories of persons from such appearance. Member of State Administrative Tribunal does not come within those exempted persons. Even though an Administrative Tribunal constituted under the Administrative Tribunals Act excludes jurisdiction of High Court in matters it has been conferred exclusive jurisdiction to decide and by conditions of service its Chairman, Vice-Chairman or Member get similar or equal advantageous (sic) of High Court Judges, Administrative Tribunal is not High Court in respect of the limited jurisdiction it exercises or members thereof are not Judges of High Court. Being a Tribunal like any other Tribunal in the State High Court can exercise its writ jurisdiction over it except matters specifically excluded. Dress of' members address by members of the Bar to the members of the Tribunal in sitting or procedure for disposal of litigations in such Tribunal do not confer on the members, status of Judges of High Court and they do not come under S. 133 (1) (x), C. P. C. Plaintiff is correct in its objection that defendant being member of an Administrative Tribunal is not immuned from appearing in Court.
( 6 ) ORDER 16, Rule 19, C. P. C. pro
