Calcutta High Court (Appellete Side)
Union Of India & Ors vs Shri Bachan Pandey on 7 April, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
RVW 376 of 2024
IA NO: CAN 3 of 2024
Union of India & Ors.
Vs.
Shri Bachan Pandey
In
W.P.C.T 221 of 2024
For the Review Applicants : Mr. Asok Kumar Chakraborty, Ld. A.S. G
Mr. D.N. Ray, Sr. Adv.
Ms. Sayani Roy Chowdhury, Adv.
For writ petitioner / : Mr. Atarup Banerjee, Adv.
Union of India Mrs. Sarda Sha, Adv.
Hearing Concluded on : February 06, 2025
Judgement on : April 07, 2025
DEBANGSU BASAK, J.:-
1. Review applicant has sought review of order dated
November 11, 2024 passed in WPCT 221 of 2024.
2. Learned Additional Solicitor General appearing for the
review applicant has submitted that, the review applicant is the
Deputy Registrar of Central Administrative Tribunal, Kolkata
Bench. He has submitted that, the review applicant is aggrieved by
subha the order under review since, the order under review holds that, a
karmakar
Digitally signed by
subha karmakar
Date: 2025.04.07
13:44:36 +05'30'
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Single Member of the Central Administrative Tribunal is not
competent to hear and dispose of an original proceeding filed
before Central Administrative Tribunal on merits.
3. Learned Additional Solicitor General has relied upon 2005
Volume 4 Supreme Court Cases 741 (Board of Control for
Cricket in India and Another vs. Netaji Cricket Club and
Others) and contended that, the review applicant is entitled to
seek review of the judgment and order under review. He has
contended that there is a mistake on the part of the Court in the
judgment and order under review which requires correction. He
has also contended that, the review applicant is a party aggrieved
by the judgment and order under review and therefore is entitled
to file and maintain the review application.
4. Learned Additional Solicitor General has referred to Section
5(6) of the Administrative Tribunals Act, 1985 and Rule 18 (c) as
well as Appendix I, Schedule Serial No. 19 of the Central
Administrative Tribunal Rules of Practice, 1993 and contended
that, an original application can be posted before a Single Member
Bench and that, such Single Member Bench can deal with the
same in accordance with the procedure prescribed therein.
5. Learned Additional Solicitor General has submitted that,
Bench is defined in Section 3 (e) while a Member is defined in
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Section 3 (i-a) of the Act of 1985. He has contended that a member
means both Judicial and Administrative of a Tribunal and it
includes the Chairman. Consequently, according to him, a Single
Member Bench can decide an original application on merits even if
such Single Member Bench is an Administrative member of the
Tribunal.
6. Learned Additional Solicitor General has contended that,
the earlier two Division Benches of the Calcutta High Court did not
consider the Rules of 1993 or the ratio of the judgment laid down
in 1997 Volume 3 Supreme Court Cases 261 (L. Chandra
Kumar vs. Union of India and Others) in their correct
perspective. He has referred to paragraphs 25, 26 and 99 thereof
in particular.
7. Learned Additional Solicitor General has drawn the
attention of the Court to a decision of the Gujarat High Court
reported at 2013 GUJ HC 17461 (Ravjibhai Thakor vs. Union of
India) and submitted that, the issue as to whether an
Administrative Member can decide an original application on
merits sitting singly was answered by the Gujarat High Court by
holding that the Administrative Member cannot do so. Gujarat
High Court had relied upon 2002 Volume 10 SCC 338 (M.P vs.
B.R. Thakare and Ors.). He has contended that the view of the
4
Gujarat High Court was incorrect and that a Special Leave Petition
is pending directed against Ravjibhai Thakor (supra).
8. Learned Additional Solicitor General has contended that,
when B.R. Thakare and Ors. (supra) was pronounced, the Rules
of 1995 were not in place and at least the same were not taken
into consideration. Therefore, the issues that have fallen for
consideration were not answered by B.R. Thakare and Ors.
(supra).
9. Learned advocate appearing for the Railway Authorities has
adopted the submissions advanced on behalf of the review
applicant by the learned Additional Solicitor General. She has
contended that, L. Chandra Kumar (supra) was referred to by
the two co-ordinate Benches.
10. The issues that have fallen for consideration before us are:-
(i) whether the review applicant is entitled to apply for
review of a judgment and order passed in a
proceeding in which it was not a party ?
(ii) whether the judgment and order under review
contains any error warranting review of the same ?
(iii) if the answers to the previous two issues are in
favour of the review applicant then the relief that the
parties are entitled to ?
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11. The private respondent had suffered a disciplinary
proceeding at the behest of the railway authorities. Two
chargesheets dated September 26, 2013 and February 17, 2014
had been issued against the private respondent, by the railway
authorities. Enquiry officer had submitted a report dated April 16,
2017 as against the private respondent. Disciplinary authority had
passed an order of punishment dated August 27, 2018.
Disciplinary authority had imposed a minor punishment of
recovery from the pay of the private respondent being the
pecuniary loss to the tune of Rs. 22,49,780.65 caused to the
railway administration by the negligence of the private respondent.
The private respondent had preferred an appeal therefrom which
was dismissed by the appellate authority by an order dated
January 24, 2022.
12. The private Respondent herein had approached the Central
Administrative Tribunal by way of an original application being No.
350 of 2022 seeking relief with regard to the Memorandum of
Chargesheet dated September 26, 2013 and the Memorandum of
Chargesheet dated February 17, 2014 and the disciplinary
proceedings held thereunder. The private respondent had sought
quashing of the disciplinary proceedings and orders passed
therein. The private respondent had also prayed for grant of all
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consequential benefits and an order directing the railway
authorities to refund the recovered amount with interest.
13. Deputy Registrar, Central Administrative Tribunal, Kolkata
Bench has applied for review of the order dated November 11,
2024 passed in WPCT 221 of 2024. The review applicant has
contended that, given the powers of the Chairman of the Central
Administrative Tribunal, the original application of the private
respondent was duly assigned to the Single-Member of the Kolkata
Bench of the Central Administrative Tribunal for hearing and
disposal. The order under review has curtailed the power of the
Chairman, Central Administrative Tribunal erroneously and
therefore, the order under review affected the right of the
Chairman, Central Administrative Tribunal, irrespective of the
rights of the parties to the litigation in which the order under
review was passed.
14. Code of Civil Procedure, 1908 has provided the substantive
right of review under Section 114 thereof. Section 114 has laid
down that, any person considering himself aggrieved may apply for
review of the judgement which passed the decree or made the
order and the Court may make such order thereon as it thinks fit.
15. Code of Civil Procedure, 1908 has laid down the procedural
aspect of a review of a judgement and order in Order 47 thereof.
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Rule 1 (1) of Order 47 again has recognised that, any person
considering himself aggrieved by a decree or order from which an
appeal is allowed but from which no appeal is being preferred, can
apply for review to the Court which has passed the judgement and
order subject to the fulfilment of the conditions laid down therein.
16. The review applicant is not a party to the proceedings in
which the order under review has been passed. However, the order
under review has, as rightly pointed out on behalf of the review
applicant, every potential of curtailing the powers of the Chairman
of the Central Administrative Tribunal in allocating business to the
Single-Member of the Central Administrative Tribunal. This
affectation of the right of the Chairman, Central Administrative
Tribunal has come about irrespective of the rights of the parties to
the proceedings.
17. In a given case, the order under review may be acceptable
to the parties to the proceedings in which such order was passed.
However, the same may have affected rights of person who is not a
party to the proceeding. In order to allow such person whose right
has been affected by an order passed on a proceeding in which
such person is not a party, to apply for review to the Court which
has passed the order under review, the provisions of review
enshrined in the Code of Civil Procedure, 1908 is so couched so as
8
to include "any person". A non-party to a proceeding in which the
order under review was passed has to establish that subsisting
rights of such non-party stood affected by the order under review
apart from the fact that the order under review suffers from an
error apparent on the face of the record.
18. The private respondent had filed the original application
before the Central Administrative Tribunal which is established
under the provisions of the Administrative Tribunal Act, 1985 and
is governed, inter alia, by the Central Administrative Tribunal
(Procedure) Rules, 1987 and the Central Administrative Tribunal
Rules of Practice, 1993.
19. Section 5 of the Act of 1985 has provided for the
composition of Tribunals and Benches thereof. It has provided as
follows: -
"5. Composition of Tribunals and Benches thereof.--(1) Each
Tribunal shall consist of [a Chairman and such number of Judicial
and Administrative Members] as the appropriate Government may
deem fit and, subject to the other provisions of this Act, the
jurisdiction, powers and authority of the Tribunal may be exercised
by Benches thereof.
[(2) Subject to the other provisions of this Act, a Bench shall
consist of one Judicial Member and one Administrative Member.]
(3) [* * * * * ]
(4) Notwithstanding anything contained in sub-Section (1) [***]
the Chairman--
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[(a) may, in addition to discharging the functions of the Judicial
Member or the Administrative Member of the Bench to which he is
appointed, discharge the functions of the Judicial Member or, as the
case may be, the Administrative Member, of any other Bench;]
(b) may transfer [a Member] from one Bench to another Bench;
[(c) may authorise [the Judicial Member] or the Administrative
Member appointed to one Bench to discharge also the functions of
[the Judicial Member or the Administrative Member, as the case may
be] of another Bench; and]
(d) may, for the purpose of securing that any case or cases
which, having regard to the nature of the questions involved,
requires or require, in his opinion or under the rules made by the
Central Government in this behalf, to be decided by a Bench
composed of more than [two members], issue such general or special
orders, as he may deem fit.
[Provided that every Bench constituted in pursuance of this clause
shall include at least one Judicial Member and one Administrative
Member.]
(5) [* * * * *]
(6) Notwithstanding anything contained in the foregoing
provisions of this Section, it shall be competent for the Chairman or
any other Member authorised by the Chairman in this behalf to
function as [a Bench] consisting of a Single Member and exercise the
jurisdiction, powers and authority of the Tribunal in respect of such
classes of cases or such matters pertaining to such classes of cases
as the Chairman may by general or special order specify:
Provided that if at any stage of the hearing of any such case or
matter it appears to the Chairman or such Member that the case or
matter is of such a nature that it ought to be heard by a Bench
consisting of [two members], the case or matter may be transferred
by the Chairman or, as the case may be, referred to him for transfer
to, such Bench as the Chairman may deem fit.
[(7) Subject to the other provisions of this Act, the Benches of the
Central Administrative Tribunal shall ordinarily sit at New Delhi
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(which shall be known as the principal Bench), Allahabad, Calcutta,
Madras, New Bombay and at such other places as the Central
Government may, by notification, specify.
(8) Subject to the other provisions of this Act, the places at which
the principal Bench and other Benches of a State Administrative
Tribunal shall ordinarily sit shall be such as the State Government
may, by notification, specify.]"
20. Sub-section (6) of Section 5 of the Act of 1985 has
authorised the Chairman or any other Member authorised by the
Chairman to function as a Bench consisting of a Single Member
and exercise the jurisdiction, powers and authority of the Tribunal
in respect of such classes of cases on such matters pertaining to
such classes of cases as the Chairman may by general or special
order specify. The only proviso to such sub-section has laid down
that, if at any stage of the hearing of such case on matter it
appears to the Chairman or such member that the case or matter
is of such a nature that it ought to be heard by a Bench consisting
of two members the case on matter may be transferred by the
Chairman or, as the case may be, referred to him for transfer to,
such Bench as the Chairman may deem fit.
21. The Act of 1985 has defined terms used therein such as,
Administrative Member, Bench, Chairman, Judicial Member, and
Member which are as follows: -
"3. Definitions. - In this Act, unless the context otherwise
requires,-
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[(a) "Administrative Member" means a Member of a Tribunal who
is not a Judicial Member within the meaning of clause (i);]
**************************************************************
(e) “Bench” means a Bench of a Tribunal;
**************************************************************
(g) “Chairman” means the Chairman of a Tribunal;
************************************************************
(i) “Judicial Member” means a Member of a Tribunal
appointed as such under this Act, and includes the
Chairman [* * *] who possesses any of the qualifications
specified in sub-Section (3) of Section 6;
(i-a) “Member” means a Member (whether Judicial or
Administrative) of a Tribunal, and includes the Chairman [* * *];”
22. The Act of 1985 has defined a Member to mean both a
Judicial and Administrative of a Tribunal and to include the
Chairman of the Tribunal. Section 5 (6) of the Act of 1985 has
authorised the Chairman or any Member of the Tribunal
authorised by the Chairman to function as a Bench consisting of a
Single Member and exercise the jurisdiction, powers and authority
of the Tribunal in respect of such classes of cases or such matters
pertaining to such classes of cases as Chairman may by general or
special order specify.
23. Section 5 (6) of the Act of 1985 has not distinguished
between a Judicial or an Administrative Member. It has used the
word “Member” while delineating the powers of the Chairman of
the Tribunal to assign matters of hearing to a “Member” for
12hearing and disposal. It has expressly provided that such
assignment by the Chairman to a Member board be an assignment
to a Bench having the power, jurisdiction and authority of the
Tribunal.
24. Central Government in exercise of powers under Section 22
of the Act of 1985 had promulgated the Central Administrative
Tribunal Rules of Practice, 1993 which came into effect from
November 1, 1993. Rule 18 thereof has provided for posting of
cases for admission/orders before the Bench which is as follows: –
“18. Posting of cases for admission/order before the Bench.- (a)
Subject to the orders of the Chairman/Vice-Chairman of the
concerned Bench, all registered applications/petitions shall be
posted for admission/orders before the appropriate Bench on the
next working day. The notice of posting shall be given by notifying in
the daily cause list for the day.
(b) Before placing the records of the case for
admission/order, the Registry shall state in brief in the column
“Notes of the Registry” of the Order Sheet, the date of presentation
and registration, the subject-matter of the application and the date of
posting before the Bench and fill up the columns in file covers “A”
and “B”.
(c) The category of cases specified in Appendix-I to these
Rules as may be amended by the Chairman from time to time, may
as far as possible be posted before the Single-Member Bench and
dealt with in accordance with the procedure prescribed therein.
(d) The constitution of Benches and distribution of work
shall be as per the orders/directions given in Appendix-II to these
Rules, as may be modified by the Chairman from time to time.”
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25. Rule 18 (c) of the Rules of Practice 1993 has allowed the
Chairman to create a category of cases as specified in Appendix-I
to the Rules of Practice 1993 and as amended by the Chairman
from time to time, as far as possible to be posted before the Single
Member Bench and dealt with in accordance with the procedure
prescribed therein.
26. Appendix-I has been amended from time to time by the
Chairman. Chairman of the Central Administrative Tribunal in
exercise of his powers under Section 5 (6) of the Act of 1985 has
issued a notification dated December 18, 1991 in supersession of
the earlier notification dated March 1, 1988 authorising a Single
Member to exercise jurisdiction, powers and authority of the
Tribunal in respect of the cases specified in the schedule thereto,
with effect from January 1, 1992 subject to the procedure laid
down therein. Chairman of the Central Administrative Tribunal
has issued a notification dated April 4, 2000 adding to the
schedule to Appendix-I. Chairman has made further additions to
Appendix-I on September 8, 2016 and September 10, 2021.
27. The private respondent had approached the Central
Administrative Tribunal challenging an order of the disciplinary
authority as affirmed by the appellate authority imposing a minor
punishment as against him. The last notification dated September
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10, 2021 issued by the Chairman of the Central Administrative
Tribunal has added “cases relating to minor penalties” to the
list/schedule of single Bench cases with effect from September 10,
2021.
28. By the order under review, we had taken note of the fact
that the writ petition of the private respondent was directed
against the judgement and order dated April 3, 2024 passed in
original application No. 350 of 2022 by an Administrative member
sitting singly. We had taken note of the unreported judgement and
order dated July 19, 2021 passed by the coordinate Bench in
WPCT 151 of 2011 and an order dated April 17, 2011 passed in
RVW 164 of 2010 by another coordinate Bench.
29. In RVW 164 of 2010 a coordinate Bench has taken note of
L Chandra Kumar (supra) as also B R Thakare (supra) and held
that, a Single Member Bench consisting of Administrative Member
cannot decide an original application pending before the Central
Administrative Tribunal. This view has been followed by another
coordinate Bench in WPCT 151 of 2011. We have followed and
applied such two decisions of the coordinate Bench in the order
under review.
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30. Power of the Chairman to assign matters to a Single
Member of the Tribunal has received the consideration of the
Supreme Court in L Chandra Kumar (supra).
31. L Chandra Kumar (supra) has upheld the Constitutional
validity of the Act of 1985. With regard to Section 5 (6) of the Act of
1985 it has held as follows: –
“25. In Amulya Chandra case [(1991) 1 SCC 181 : 1991 SCC
(L&S) 145 : (1990) 14 ATC 911] a Division Bench of this Court had to
consider the question whether a dispute before the Central
Administrative Tribunal could be decided by a single Administrative
Member. The Court took note of sub-Section (2) of Section 5 of the Act
which, as we have seen, stipulates that a Bench of a Tribunal under
the Act should ordinarily consist of a Judicial Member and an
Administrative Member, as also the relevant observations
in Sampath Kumar case [(1987) 1 SCC 124 : (1987) 2 ATC 82] , to
conclude that under the scheme of the Act, all cases should be heard
by a Bench of two Members. It appears that the attention of the
Court was not drawn towards sub-Section (6) of Section 5 which, as
we have noticed, enables a Single Member of a Tribunal under the
Act to hear and decide cases.”
“98. Since we have analysed the issue of the constitutional
validity of Section 5(6) of the Act at length, we may now pronounce
our opinion on this aspect. Though the vires of the provision was not
in question in Dr Mahabal Ram case [(1994) 2 SCC 401 : 1994 SCC
(L&S) 642 : (1994) 27 ATC 97] , we believe that the approach
adopted in that case, the relevant portion of which has been
extracted in the first part of this judgment, is correct since it
harmoniously resolves the manner in which Sections 5(2) and 5(6)
can operate together. We wish to make it clear that where a question
involving the interpretation of a statutory provision or rule in relation
16to the Constitution arises for the consideration of a Single Member
Bench of the Administrative Tribunal, the proviso to Section 5(6) will
automatically apply and the Chairman or the Member concerned
shall refer the matter to a Bench consisting of at least two Members,
one of whom must be a Judicial Member. This will ensure that
questions involving the vires of a statutory provision or rule will
never arise for adjudication before a Single Member Bench or a
Bench which does not consist of a Judicial Member. So construed,
Section 5(6) will no longer be susceptible to charges of
unconstitutionality.”
32. B R Thakare (supra) has considered an order of the
Madhya Pradesh Administrative Tribunal. It has noticed that, in
the matter of allotment of cases, no rules had been framed. It has
also noticed the order of the Chairman of the State Administrative
Tribunal on the subject. In such context, it has set aside the order
passed by the Tribunal. Even while doing so, it has observed that,
it was not resting the decision on lack of jurisdiction of a Single
Member of the Tribunal as the Court was more concerned with the
administration of justice. It has observed that, to have proper
administration of justice while allotting work to a Single Member,
whether Judicial or Administrative, the Chairman should keep in
mind the nature of the litigation and where questions of law and
its interpretation are involved, they should be assigned to a
division Bench of which one of them is a Judicial member.
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33. L Chandra Kumar (supra) has recognised that, Section 5
(6) enables a Single Member of a Tribunal under the Act of 1985 to
hear and decide cases. It has however held that, where, a question
involving the interpretation of a statutory provision or rule in
relation to the Constitution arises for the consideration of a Single
Member Bench of the Administrative Tribunal, the proviso to
Section 5 (6) will automatically apply and the Chairman of the
Tribunal concerned shall refer the matter to a Bench consisting of
at least two members, one of whom must be a Judicial member.
34. The test to be applied while considering the issue as to
whether a Single Member be it Administrative or Judicial can hear
an original application or not, is to evaluate: –
(i) whether the nature of the case falls within any
notification issued by the Chairman of the
Administrative Tribunal exercising powers under
Section 5 (6) of the Act of 1985 or not and if so,
(ii) whether, such original application involves
interpretation of a statutory provision or rule in
relation to the Constitution or not. In the event, the
first of the two tests is answered in the affirmative,
that is to say, there exists no notification allowing a
Single Member to decide the subject matter of the
18original proceedings and the second test is answered
in the negative then, the original proceedings can be
heard by a Single Member.
35. In the event, the first of the two tests is answered in the
affirmative, that is to say, there exists no notification allowing a
Single Member to decide the subject matter of the original
proceedings and the second test is answered in the negative then,
the original proceedings can be heard by a Single Member.
36. In the facts of the present case, under the notification
dated September 10, 2021 issued by the Chairman of the Central
Administrative Tribunal read in conjunction with the earlier
notification dated September 18, 2016, a Single Member could
exercise the jurisdiction, powers and authority of the Tribunal in
respect of “cases relating to minor penalties”, amongst others. The
original application filed by the private respondent before the
Central Administrative Tribunal has assailed the decisions taken
by the railway authorities in the disciplinary proceedings initiated
as against the private respondent in which, a minor penalty was
imposed.
37. We have perused the prayers made in the original
application by the private respondent before the Central
Administrative Tribunal. We have not found that the prayers made
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in the original application involves interpretation of any statutory
provision or rule in relation to the Constitution. Therefore, the
original application could be heard by the Single Member of a
Central Administrative Tribunal pursuant to the notifications
dated September 10, 2021 read with September 18, 2016 issued
by the Chairman of the Central Administrative Tribunal exercising
powers under Section 5 (6) of the Act of 1985.
38. We did not take into consideration such aspects of the
matter while we had passed the order under review dated
November 11, 2024.
39. The decisions of the two coordinate Benches cannot be
read to be in conflict with or in derogation of the binding precedent
of L Chandra Kumar (supra). In the fact scenario of those two
cases before the two coordinate Benches, there is every possibility
of those two cases falling within the exceptions noted in paragraph
98 of L Chandra Kumar (supra). In the facts of the present case,
we have not found any material to suggest that the present case
falls within the exception noted in paragraph 98 of L Chandra
Kumar (supra).
40. Board of Control for Cricket in India (supra) has held
that, an application for review would be maintainable not only
upon discovery of a new and important piece of evidence or when
20
there exists an error apparent on the face of the record but also if
the same is necessitated on account of some mistake or for any
other sufficient reason. What would constitute sufficient reason
would depend upon the facts and circumstances of the case and is
wide enough to include a misconception of fact or law by a Court
or even an advocate.
41. On the strength of the ratio of Board of Control for
Cricket in India (supra) we review our order dated November 11,
2024. On review, we recall such order. Since we have not decided
the merits of the writ petition in which, we passed the order dated
November 11, 2024 by setting aside the order of the Tribunal
under challenge in such writ petition, as it was passed by a Single
Member, we direct the Department to place W.P.C.T 221 of 2024 in
the monthly list of April, 2025.
42. In view of the discussions above, we answer the first issue
in the affirmative and in favour of the review applicant. The second
issue is also answered in the affirmative and in favour of the
review applicant. The third issue is answered by recalling the order
under review and placing WPCT 221 of 2024 for final hearing in
the monthly list of April, 2025 since, merits of such writ petition
was not decided and it was disposed of purely on the basis of our
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understanding of the lack of jurisdiction of a Single Member to
hear an original application.
43. RVW 376 of 2024 along with all connected applications are
disposed of without any order as to costs.
[DEBANGSU BASAK, J.]
44. I agree.
[MD. SHABBAR RASHIDI, J.]
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