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Lal Chand Ram (Dr.) v. Union Of India

Central Administrative Tribunal
Mar 26, 2010
Smart Summary (Beta)

Structured Summary of the Tribunal's Opinion

Factual and Procedural Background

The applicant originally filed OA-2007/2009 challenging transfer orders issued by Respondent No.2 as illegal and mala fide. The Tribunal consolidated several similar OAs (including matters from 2008 to 2012 of 2009 and OA-2619/2009) and treated OA-2007/2009 as the principal case. By an order dated 11.12.2009 the Tribunal quashed the impugned transfer orders and ordered restoration of the applicants to their earlier status.

The respondents state that the applicants were served a copy of the Tribunal's order on 31.12.2009 and immediately abandoned their transferred posts and went to Delhi to submit joining reports. The respondents (NCERT) decided to file a writ petition against the Tribunal's order and, accordingly, WP (C) No.813/2010 (with an associated stay application CM No.1708/2010) was filed on 30.01.2010. The Delhi High Court issued notice on 08.02.2010 returnable on 16.03.2010 and listed further proceedings.

On 05.02.2010 the applicant filed the present miscellaneous application under Section 27 of the Administrative Tribunals Act read with Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987, seeking a direction that the respondents give immediate effect to the Tribunal's order dated 11.12.2009.

Legal Issues Presented

  1. Whether the respondents are obliged to implement the Tribunal's order of 11.12.2009 immediately in the absence of any stay issued by the Delhi High Court.
  2. Whether the Tribunal should exercise its power under Section 27 of the Administrative Tribunals Act to direct execution of its order while a writ petition and a stay application against that order are pending in the High Court.
  3. Whether mere filing of a writ petition (and an application for stay) by the respondents relieves them from the duty to execute the Tribunal's order or whether execution must await a higher court's direction.

Arguments of the Parties

Applicant's Arguments

  • The Tribunal had already granted relief by quashing the transfer orders and directing restoration; therefore, respondents are duty bound to implement that order immediately unless there is a stay by the High Court.
  • Mere filing of a writ petition and stay application does not absolve the respondents from implementing the Tribunal's order (though implementation might be subject to the final outcome of the writ petition).
  • The applicant relied on authorities (including E.S. Rajabather and others) to support the proposition that execution may proceed in absence of a stay, and referred to case law where mere filing of appeals did not prevent execution of orders.
  • The Tribunal has power to execute its own orders and enforce them (including by reference to contempt mechanisms), and therefore the present application should be granted directing immediate compliance with the Tribunal's earlier order.

Respondents' Arguments

  • The respondents have filed a writ petition and an application for stay before the Delhi High Court; in these circumstances it would be unfair and prejudicial to insist upon immediate implementation of the Tribunal's order.
  • If respondents are compelled to comply while the stay application is pending, it may render their stay application and the remedy of appeal/writ infructuous, causing prejudice and defeating the very purpose of the higher court process.
  • The respondents relied on authorities (including Modern Food Industries and others) to demonstrate that compelling obedience without considering a pending stay application can make the appeal or stay ineffective and prejudicial.
  • Accordingly, the respondents sought adjournment of the present execution application until disposal of the writ petition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
E.S. Rajabather Vs. Secretary, Government of India, Ministry of Transport, New Delhi (1990 (14) ATC 292) Relied on by the applicant to support the proposition that no further formal order may be necessary to give effect to a Tribunal's order. Noted as a case relied upon by the applicant; the Tribunal considered this submission but did not grant immediate execution.
ICICI Bank Limited Vs. Klen & Marshalls Manufacturers & Exporters Ltd. and Registrar of Companies, Tamil Nadu (Company Law Board, Southern Region Bench, Chennai CA No.1/63A/SRB/2000) Advanced by the applicant to show that mere filing of an appeal does not prohibit execution of an order in the absence of any stay. Recognized as a supporting authority cited by the applicant; the Tribunal recorded the argument but declined to direct execution at the present stage.
Kamal Kishore Vs. Shri Sidharth Bahure & Anr. (CP‑174/2008 in OA811/2008 decided on 21.10.2008) Cited for a proposition that compliance may be directed subject to the outcome of a writ petition. Noted by the Tribunal as part of applicant's submissions; the Tribunal nonetheless refrained from issuing the execution direction now.
K.I. Thomas and others Vs. Union of India and others (1993 (25) ATC 789) Used to show that implementation of a beneficial judgment of the Tribunal should not be withheld on grounds of public interest. Mentioned in applicant's arguments; the Tribunal recorded this but balanced it against the pendency of the writ petition and did not order immediate compliance.
Union of India and Anr. Vs. M.J.A. Khan and Anr. (WP (C) 7652/2009 & CM No.3825/2009, 20.07.2009) Referred to where the High Court declined to proceed further until the Tribunal's order was complied with, noting violation of specific Tribunal orders. Referred to by the applicant; the Tribunal considered competing authorities and chose not to direct execution pending High Court determination of stay.
M. Ganeshsan Vs. A.K. Belwal (2003 (2) ATJ 458) Cited to support the contention that the Tribunal can execute its own orders, including by invoking contempt powers. Noted as a submission by the applicant; the Tribunal acknowledged its execution powers (Section 27) but still declined to order execution now.
Union of India and Ors. Vs. Suraj Bhan (2004 (1) CAT (Jodhpur Bench) 330) Cited to show that until a stay is granted by a higher forum, the Tribunal's order is to be obeyed and filing a review/appeal is not a ground for delay in implementation. Referred to by the applicant; the Tribunal considered it but emphasized the present factual matrix (no stipulated time for implementation and prompt High Court proceedings) and did not direct execution now.
Modern Food Industries (India) Ltd. & Another Vs. Sachidanand Dass & Another (1995 Supp. (4) SCC 465) Relied on by the respondents; paragraph 4 was cited to show that forcing compliance without considering a stay can render an appeal or stay application infructuous and cause prejudice. Accepted by the Tribunal as a relevant authority for respondents' contention that compliance should not be forced while a stay application is pending; this influenced the decision not to direct execution.
Narain Dev and others Vs. Punjab University and others (1989 Supp (2) SCC 407) Cited by respondents to support the proposition that where an appeal is filed, contempt action may not be appropriate. Noted by the Tribunal in assessing the respondents' position; the Tribunal weighed this against the applicant's contentions and withheld execution directions at present.
Mool Chand Yadav & Another Vs. Raza Buland Sugar Company Ltd. & others (1982 (3) SCC 484) Cited to indicate that during the pendency of an appeal, orders having serious civil consequences may need to be stayed. Referenced by the respondents and considered by the Tribunal as supporting prudence in not directing immediate execution pending High Court proceedings.

Court's Reasoning and Analysis

The Tribunal undertook a fact-sensitive balancing exercise. It reiterated that its earlier order of 11.12.2009 quashed the impugned transfer orders and directed restoration; Section 27 of the Administrative Tribunals Act confers upon the Tribunal execution powers akin to those vested in Civil Courts under the Code of Civil Procedure (CPC), and principles embodied in the CPC can be applied where appropriate.

However, the Tribunal observed several salient facts that influenced its decision:

  • The 11.12.2009 order did not stipulate any specific time limit for implementation.
  • The applicants had abandoned their posts and proceeded to Delhi to submit joining reports without waiting for further orders or considering administrative consequences (such as absence from place of posting, non-payment of salary, or reporting duties tied to the date of receiving orders).
  • The respondents promptly filed a writ petition and an application for stay in the Delhi High Court; notices were issued and the High Court was seized of the matter.
  • There were competing authorities relied upon by both sides — some supporting immediate compliance in absence of a stay, and others supporting restraint where a higher court is seized and a stay application is pending; the Tribunal specifically referred to provisions and principles in Order XXI Rules 26 and 29 and Order XXXXI Rule 5 CPC in reaching its conclusion.

Balancing these considerations, and having regard to the CPC provisions cited, the Tribunal concluded that issuing the execution direction at the present stage could have the effect of rendering the writ petition and the stay application before the High Court infructuous and would therefore be inappropriate. The Tribunal thus exercised restraint: it acknowledged its execution powers under Section 27 and the applicability of CPC principles, but considered the present case not fit for the issuance of the relief sought by the applicant at this time.

The Tribunal's reasoning is limited to the factual matrix and the pendency of the High Court proceedings; it did not undertake an expanded, general ruling on whether execution should always be ordered in analogous circumstances.

Holding and Implications

Holding: The Tribunal declined to direct immediate execution of its order dated 11.12.2009 at the present stage. It held that the present case is not fit for the issuance of the direction prayed for, particularly given that the order in question does not stipulate any time limit for implementation and that the High Court proceedings are pending.

Direct consequences and implications:

  • The respondents are not directed at this stage to give effect to the Tribunal's 11.12.2009 order; the execution application under Section 27 is effectively deferred.
  • The parties were directed to await the outcome of the stay application pending before the Delhi High Court and, after that decision, to take appropriate action (including revival of the present execution application) if necessary.
  • The Tribunal emphasized its power under Section 27 to execute orders and noted the applicability of CPC principles, but did not use that power to compel compliance in this factual setting.
  • No broader or novel legal precedent was laid down by the Tribunal in this opinion; the decision is tied to the particular facts and to the pendency of higher court proceedings as presented in the record.

This summary is confined strictly to the materials and statements contained in the provided opinion.

Show all summary ...

The applicant has earlier filed OA-2007/2009 praying for quashing illegal transfer order issued by Respondent No.2 on mala fide grounds and extraneous considerations. This Tribunal clubbed together all the OAs of similar nature and heard them together viz. OA Nos. from 2008 to 2012 of 2009 and OA-2619 of 2009 against the impugned transfer orders, taking 2007/2009 as the principal case. All these OAs were allowed vide this Tribunals order dated 11.12.2009 whereby the impugned transfer orders were quashed and the applicants were ordered to be restored to their earlier status based on such consequence.

2. The respondents version is that the applicants served a copy of the aforesaid order of 11.12.2009 upon the respondents counsel on 31.12.2009 and forthwith started abandoning their posts and rushed to Delhi to submit joining reports even without waiting for the respondent council to peruse the order and respond to it. After discussing with their counsel, the NCERT decided to prefer writ against the said order on 11.1.2010 and accordingly informed the applicants of the same. The applicants filed caveat in the High Court. The writ petition being WP No.813/2010 challenging the said order along with an application for stay of the operation thereof during the pendency of the petition being CM No.1708/2010 was filed on 30.01.2010. The matter was listed for hearing on 08.02.2010, when after hearing both the parties, the Honble High Court was pleased to issue notice to the respondents (applicant herein) returnable on 16.3.2010. The order dated 08.02.2010 is excerpted below:-  C.M. No.1709/2010 (exemptions). Allowed, subject to just exceptions. W.P. (C ) No.813/2010 The allegations of the petitioner is that there is no teaching work in NCERT Headquarters for any of the Professors/Readers/ Lecturers posted at Delhi. According to the petitioner, the respondents are primarily involved in research work and considering the urgent requirements, they had to be posted at different places. The transfer, according to the learned counsel for the petitioner, was also necessitated on account of delay in the process of recruitments. Learned counsel for the petitioner contends that the Tribunal has not dealt with and considered this administrative exigency of the petitioner in its impugned judgment. Issue show cause notice to the respondents as to why Rule Nisi be not issued. Mr. Abhirup Dasgupta accepts notice for respondent No.1 and Mr. M.S.Saini accepts notice for respondents No.2 to 8 and seek time to file the replies. Replies be filed within four weeks. Rejoinders, if any, before the next date of hearing. List on 6th May,2010. C.M.No.1708/2010 Issue notice to the respondents. Mr.Abhirup Dasgupta accepts notice for respondent No.1 and Mr. M.S. Saini accepts notice for respondents No.2 to 8 and seek time to file the replies. Replies be filed within four weeks. List on 6th May,2010. Caveat No.22/2010 Notices have been accepted by learned counsel for the respondents. The caveat stands discharged.

3. In the meantime, on 05.02.2010 the applicant filed the present Misc. application under Section 27 of the Administrative Tribunals Act, read with Rule 24 of the Central Administrative Tribunal (Procedure) Rules,1987 seeking direction to the respondents to give effect to Tribunals order dated 11.12.2009 immediately.

4. The main thrust of the applicants case is that since there is no order of the Delhi High Court staying the operation of this Tribunal, the respondents are duty bound to execute/implement the Tribunals order and merely filing a writ petition along with stay application would not absolve them from their responsibility to do so. Of course, implementation of this Tribunals order might, indeed, be subject to the final outcome of the decision in writ petition.

5. On the other hand, the respondents case is that since the respondents have filed the writ petition and also sought stay of operation of the impugned order which is pending disposal, it would not be fair and in the interest of justice to insist upon implementation of the impugned order. If the respondents are asked to implement the impugned order, it would gravely prejudice their case in the writ petition and especially the stay application and may even render it infructuous. It is, therefore, submitted that the present application may be adjourned sine die till the dispose of the present writ petition.

6. At the hearing of the application, the learned counsel for the applicant Shri M.S.Saini strongly urged that the Tribunal, in the instant case, has already granted the relief while quashing the impugned order and directing restoration of earlier status of the applicants. That being so, no formal order is necessary to give effect to the Tribunals order. In support of his contention, the learned counsel has referred to and relied upon the case of E.S.Rajabather Vs. Secretary, Government of India, Ministry of Transport, New Delhi (1990 (14) Administrative Tribunals Case 292). The learned counsel made further reference to ICICI Bank Limited Vs. Klen & Marshalls Manufacturers & Exporters Limited and the Registrar of Companies, Tamil Nadu, Chennai. (Company Law Board, Southern Region Bench, Chennai CA No.1/63A/SRB/2000) wherein it has been held that mere filing of an appeal pending consideration would not prohibit the Company Law Board from executing its order in the absence of any stay order.

7. The applicants counsel also referred to and relied upon Kamal Kishore Vs. Shri Sidharth Bahure & Anr. (CP-174/2008 in OA811/2008 decided on 21.10.2008) wherein the respondents were directed to comply with the directions subject to the outcome of the decision in writ petition. The learned counsel further referred to K.I.Thomas and others Vs. Union of India and others (1993 (25) ATC 789) to show that implementation of the beneficial judgment of the Tribunal could not be withheld by the Government on the ground of public interest. The learned counsel for the applicant further referred to order passed in the case of UOI and Anr. Vs. M.J.A. Khan and Anr. (WP (C ) 7652/2009 and CM No.3825/2009) on 20.07.2009, wherein the Honble High Court declined to proceed further in the matter until the order of the Tribunal is complied with since it appears that the petitioner has violated specific orders passed by the Tribunal. Learned counsel for the applicant further submitted that the Tribunal can execute its own order as it has the power under the Contempt of Courts Act. In this connection, he has referred to M.Ganeshsan Vs. A.K.Belwal (2003(2) ATJ 458). Futher, reference has been made to Union of India and Ors. Vs. Suraj Bhan (2004(1) CAT (Jodhpur Bench) 330) wherein it has, inter alia, been held that until and unless there is a stay order from the higher forum i.e. the Honble High Court , the Tribunals order is required to be obeyed and by no stretch of imagination mere decision to file review application before the High Court can be a ground for seeking extension of time for implementing the judgment.

8. The respondentscounsel Shri R.K. Singh, on the other hand, very strongly urged that if the respondents are made to take action in compliance with the order of the Tribunal which is appealed against and even during the pendency of the stay application that would render their application infructuous. In support of this contention, the learned counsel referred to Modern Food Industries (India) Ltd. And Another Vs. Sachidanand Dass and Another (1995 Supp. (4) SCC 465). The learned counsel has specifically drawn my attention to Para 4 of this judgment as follows: If, without considering the prayer for stay, obedience to the Single Judges order was insisted upon at the pain of committal for contempt, the appellants may find, as has now happened, the very purpose of appeal and the prayer for interlocutory stay infructuous. It is true that a mere filing of an appeal and an application for stay do not by themselves absolve the appellants from obeying the order under appeal and that any compliance with the learned Single Judges order would be subject to the final result of the appeal. But then the changes brought about in interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice. Wherever the order whose disobedience is complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complain for contempt. To keep the prayer for stay stand-by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice.

9. Thus, where an appeal is filed against the order whose compliance is sought, no case would be made out for any action of Contempt of Court in this case, as has been held by the Honble Supreme Court in the case of Narain Dev and others Vs. Punjab University and others (1989 Supp(2)SCC 407). The learned counsel for the respondents further referred to the case of Mool Chand Yadav and Another Vs. Raza Buland Sugar Company Limited, Rampur and others (1982 (3) SCC 484) where in the circumstances of the case, it has been held that during the pendency of the appeal any order having serious civil consequences must be stayed.

10. I have given my careful consideration to the respective submissions of both the learned counsel for the parties and have also gone through the records of the case.

11. The order of 11.12.2009 whose implementation is being sought in these proceedings, does not stipulate any time limit for that purpose. If that order is to be executed like other orders the Tribunal ought to have passed in the matter in terms of Section 27 of the Administrative Tribunals Act, no further order would be necessary. Acting upon such an assumption, the applicants have abandoned their posts to which they were transferred and rushed to Delhi to submit their joining reports even without waiting for appropriate order and without understanding the administrative difficulties such as absence from place of posting, no salary and reporting duties within ten days from the date of receipt of a copy of the order. The applicants were informed that the respondents have decided to file writ petition against the order in question. Thereupon, the applicants filed caveat in the High Court. They were heard and WP (C ) No.813/2010 along with C.M. No.1709/2010 whereupon the High Court issued notices which were duly accepted by the applicants counsel seeking time to file reply thereto. Thus, in these circumstances of the case it would not be expedient to issue any direction for execution of the order in question which may have the effect of rendering the proceedings in writ petition No.813/2010 seeking stay of the operation of the order in question during the pendency of writ petition infructuous..

12. It may be relevant to mention that under Section 27 of the Act, this Tribunal has power for execution of its order which vests in the Civil Court under the Code of Civil Procedure. Though the Tribunal is not bound by the provisions of CPC in terms of Section 2 of the Act, nevertheless the principles embodied in the Code of Civil Procedure and the procedure prescribed therein can be applied in appropriate cases.

13. Having regard to the provisions of Order XXI Rules 26 and 29 and Order XXXXI Rule 5 CPC, I am of the considered view that the present case is not fit for issuance of the direction as prayed for at the present stage, specially in view of the fact that the order in question does not stipulate time limit for its implementation. There has been no delay on the part of the respondents in the matter in approaching the Honble High Court which is presently seized of the at hand in these proceedings.

14. In these circumstances, it would be appropriate for the parties to wait for outcome of decision on stay application against the impugned order in question and thereupon to take appropriate action for revival of this application for further consideration, if need be. (Dr. Dharam Paul Sharma) Member (A) /usha/