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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2016 PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOS.33703-33704/2016(S-CAT)
BETWEEN :
MRS.NUTAN WODEYAR D/O.S.S.WODEYAR AGED 58 YEARS WORKING AS CHIEF COMMISSIONER INCOME TAX-2 BANGALORE-1 RESIDING AT NO.C-3 DONA CYNTHIA, 35, PRIMROSE ROAD BENGALURU-560 025
...PETITIONER
(BY SRI B.M.SHYAM PRASAD, SENIOR COUNSEL FOR SRI P.B.AJIT, ADV.,)
AND :
UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE REP.BY ITS SECRETARY R
2 NEW DELHI-110 001
UNION OF INDIA DEPARTMENT OF PERSONNEL AND TRAINING REP.BY ITS SECRETARY GOVERNMENT OF INDIA, NORTH BLOCK NEW DELHI-110 001
THE CHAIRPERSON CENTRAL BOARD OF DIRECT TAXES NORTH BLOCK, NEW DELHI-110 001
THE MEMBER (P&V) CENTRAL BOARD OF DIRECT TAXES NORTH BLOCK, NEW DELHI-110 001
.. RESPONDENTS
(BY SMT.GOWHAR UNNISA, CGC FOR R1 & R2 SRI JEEVAN J.NEERALGI, ADV., FOR R3 & R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DISSENTING ORDER/OPINION OF THE HON’BLE ADMINISTRATIVE MEMBER AND THE SUBSEQUENT COMPLIANCE WITH THE DISSENTING OPINION BY THE HON’BLE JUDICIAL MEMBER IN O.A.NO.170/01573/2015 DATED 28.4.2016 AT ANNEXURE-B AND THE ORDER DATED 20.8.2015 AT ANNEXURE-C AT A7 ISSUED BY R1 AND DECLARE THAT THE PETITIONER IS ENTITLED TO THE RELIEFS AS UNANIMOUSLY GRANTED BY THE JUDICIAL AND ADMINISTRATIVE MEMBERS VIDE ORDER DATED 28.4.2016 AT ANNEXURE-A IN O.A.NO.170/01573/2015, ETC.
3 THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY JAYANT PATEL, J., DELIVERED THE FOLLOWING:- O R D E R
The present petitions are directed against common order dated 28.4.2016 passed by the Tribunal whereby in the first part of the order the application is allowed, whereas in the latter part of the order, the application is dismissed. But the prayer of the petitioner is to maintain first part of the order which is favourable to her and for the second part of the order, the petitioner contends that such an order could not be passed by the Tribunal.
As such, we need not examine in detail the facts and the merits of the case. But the relevant aspects are that the petitioner preferred application before the Tribunal with the prayer to quash and set aside the order dated 20.8.2015 and hence, she also
4 prayed to direct the respondents to restore seniority position of the applicant with effect from 9.5.1988. The said application was heard by the Tribunal and as submitted by the learned counsel for the petitioner, the matter was last heard in February, 2016 and the order was reserved. Thereafter, the impugned order is passed by the Tribunal. Under circumstances, the present petitions before this Court.
We have heard Mr.B.M.Shyam Prasad, learned Senior Counsel with Mr.P.B.Ajit, for the petitioner and Mr.Jeevan J. Neeralagi, learned advocate appearing for respondent Nos.3 and 4 and also Ms.Gowhar Unnissa, learned CGC for respondent Nos.1 and 2.
Upon hearing the learned Advocate appearing for both the sides and on examination of the
5 records produced in the present proceedings it appears that the following aspects are apparent: (1) Impugned orders are passed by two members of the Tribunal on 28.04.2016, one was judicial member and another was administrative member.
(2) The order comprises of two parts: (i) one part of the order appears to have been dictated by the judicial member and the conclusion recorded in the said order is of allowing of OA as observed in the said order. Second part of the order is stated to have been dictated by the administrative member. Ultimately concludes that applicant is not entitled to any relief and OA is devoid of merit and hence, OA be dismissed.
Surprising aspect is that both the parts of order i.e., one for allowing and second for dismissal, are signed by both the members namely, judicial member as well as administrative member. In the first part of order the administrative member has just signed, but in the second part of the order after the signature of administrative member the judicial member has recorded as under: “After having gone through the dessent note by my learned brother, I have chosen to decide in compliance with it. Therefore, the OA is dismissed.”
The aforesaid fact situation goes for showing the circumstances that both the members must have dictated their reasons and conclusions by separate order. Whereas, while simultaneously signing both the parts of order one for allowing the application and
7 another for dismissal of application, the aforesaid note made by the judicial member comes on record.
At this stage, we wish to record that there are two conflicting views of the members of bench, one for allowing the application and another for dismissal. For any descanting views between two members of the Tribunal may be judicial or may be administrative, the view expressed by the respective member will be signed by the said member only and it may not be signed by the other member, who has recorded dessent note. But ofcourse when both dessent views are recorded, the third portion of the order by formulating the points for the difference/s and for making reference to the third member would be required to be signed by both the members, who are party to both the dessenting notes/views.
8 8. At this stage, we may also refer to the procedure contemplated by the Central Administrative Tribunal Rules of Practice, 1993, more particularly Rule 106 and 107 which reads as under: “106. Pronouncement of order by any one Member of the Bench:-- (a) Any one Member or the Bench may pronounce the order for and on behalf of the Bench.
(b) When an order is pronounced under this Rule, the court officer shall make a note in the order sheet that the order of the Bench consisting of ………… was pronounced in open court by the Bench consisting of ……… .
Authorising any member to pronounce order:-- (a) If the Members of the Bench who heard the case are no readily available or have ceased to be Members of the Tribunal, the Chairman / Vice-Chairman may authorise any other Member to pronounce the order on his being satisfied that the order has been duly prepared and signed by all the Members who heard the case. The order pronounced by the Member so authorized shall be deemed to be duly pronounced.
9 (b) The Member so authorized for pronouncement of the order shall affix his signature in the order sheet of the case stating that he has pronounced the order as provided in this rule.
(c) If the order cannot be signed by reason of death, retirement or resignation or for any other reason by any one of the Members of the Bench who heard the case, it shall be deemed to have been released from part-heard and listed afresh for hearing.”
Aforesaid operation of Rules 106 and 107 presupposes the unanimity in the ultimate operative portion of the order, such would not apply if there is disagreement or dessent view for allowing or dismissal of the application between two members of the Bench. It is only when there is unanimity amongst the member, the pronouncement of the order by one member of the Bench may be made on behalf of the Bench or upon the authority so assigned for pronouncement of the order. But in case of disagreement or dessenting views
10 ultimately leading to different operative conclusion, such authority in normal circumstances cannot be read otherwise it may result into not only chaotic situation but the sanctity of the judicial orders or quasi judicial orders will be lost. The litigation must be completed by conclusive view of a judicial forum, may be Tribunal and such a view should be backed by the authority of both the members. If another view is to be expressed by the member of the bench, who is not present, in absence thereof, possibly it is difficult to conceive situation of pronouncement of only one view of member of bench when it is known that the another view by another member is for dessentment and not for concurring the view which is being pronounced.
At this stage, we may also refer to Section 26 of the Administrative Tribunal Act, 1985, which reads as under:
11 “26. Decision to be by majority.—If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it.”
The aforesaid Section 26 of the Act also makes it clear that if the members of the Bench differ in opinion or any point, if there is a majority of the opinion, such majority may prevail but if the members are equally divided, they shall state the point or points on which they differ and make a reference to the Chairman who shall either hear the point or points himself and refer the case for hearing by one or more of
12 the other members to the Tribunal and thereafter, as per the majority view, matter shall be decided including the views of earlier members who heard the matter. It is hardly required to be stated that Section 26 shall march over the procedure stipulated for pronouncement of order by Rules 106 and 107 of the Central Administrative Tribunal Rules of Practice, 1993. Hence, we are inclined to take a view that Rules 106 and 107 would apply in a case where there is unanimity in the view for the ultimate operative direction of the order of Tribunal. But in case of dessent view in the ultimate operative portion of the order of Tribunal, it may have to be pronounced by the respective member expressing his own view. Further as recorded earlier, after both the dessent views are pronounced, there may be third portion of the order for formulating the point of difference/s to make reference to the Chairman of the
13 Tribunal for hearing either by himself or by one or more member of the Tribunal as the Chairman may decide as per Section 26 of the Act.
If the facts of the present case are examined in the light of aforesaid, since both the parts of order one for allowing the application and another for dismissal of the application are duly signed by both the members of the bench, we find that there is apparent self contradiction and in our view, apparent self contradiction of order which comprises of two parts, cannot be sustained in the eye of law. The aforesaid is coupled with the circumstances that in both the parts of order though duly signed by both the members of Tribunal. There is no dessentment recorded in their respective part, may be first part or second part. But in the second part, judicial member has concurred with the view of administrative member irrespective of his
14 earlier part of view for allowing of the application, which is also signed by the administrative member. Hence, we find that both the parts of order are / and can be read comprising of only one common order and self contradiction are apparent on the face of it.
Learned counsel for the petitioner did contend that the first part of order could be said as only order of Tribunal and the second part of order could be said as without any authority and competent since Tribunal had become functus officio and therefore, he contended that petitioner is aggrieved by the second part of order, which is for dismissal of the application before the Tribunal.
Whereas, learned counsel for the respondent contended that it is not a matter where after pronouncement of the first part of the order at the later
15 stage or later date, Tribunal has pronounced the second part of the order, but it appears that both the parts are simultaneously pronounced by the Tribunal. Hence, he contends that both the parts are of one order and it cannot be said that Tribunal had become functus officio for second part of the order as canvassed.
If the order of the Tribunal is considered as it is, it appears that both the parts of the order are pronounced simultaneously because the only date recorded is 28.04.2016. There is no material produced or shown to us which may demonstrate that the second part of the order is pronounced at the later time or later date. Hence, if both the parts are simultaneously pronounced, one for allowing of the application and another for dismissal of the application, it is not possible for us to accept the contention that first part of the order was within the jurisdiction and when second
16 part was simultaneously pronounced, the Tribunal had already become functus officio. On the contrary, in our considered view that we do find that both the parts of the order when simultaneously pronounced would comprise of one order but with self contradictory view expressed by both the members of the Tribunal.
In view of the aforesaid, we find that the order passed by Tribunal comprising of both the parts cannot be sustained. Hence, the impugned order dated 28.04.2016 comprising of both the parts of order, one for allowing the application and another for dismissal of the application, is set aside with the direction that the main OA shall stand restored to the Tribunal. Tribunal shall examine the matter in the light of observations made by this Court in the present judgment after giving opportunity of hearing to both the sides preferably
17 within a period of two months from the date of receipt of certified copy of the order.
Petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
Sd/- JUDGE
Sd/- JUDGE
CK/DR