Case Law Details
HIGH COURT OF ALLAHABAD
Sunil Kumar Yadav
versus
Union of India
ORIGINAL APPLICATION NO. 453 of 2012
FEBRUARY 8, 2013
ORDER
M.P. No. 2640/12 dated 11.12.2012 by respondent No. 2 for vacation of interim order dated 19.11.2012.
M.P. No. 2697/12 dated 18.12.2012 by private respondent No. 3 for vacation of Interim order dated 19.11.2012.
1. M.P. No. 2640/12 is supported by an affidavit of Sri Hira Lal Karwa, the officiating President, ITAT Head office, Mumbai (R-2). MP No. 2697/12 is not supported by any affidavit. Both the respondents No. 2 and 3 have however, filed separate counter replies on 11.12.2012 and 18.12.2012 respectively against which two Rejoinder Replies have been filed by the applicant on 7.1.2013 and 9.1.2013 respectively. Besides, an application for amendment (M.P. No. 81/2003) has also been filed on11.1.2013 against which objection has been invited.
2. A point raised in para 5 of the aforesaid affidavit filed in support of MP. No. 2640/12 is in respect of Section 24 of the AT Act (wrongly mentioned as Rule 24 of CAT (Procedure) Rules, 1987. It is to the effect that as per this provision, interim relief can be passed for a period of 14 days only whereas in this O.A., the interim order dated 19.11.2012 has been passed staying the transfer order till further orders and the case has been directed to be listed for hearing on 18.1.2013. This plea has also been taken by private respondent No.3 in para 26 of his counter affidavit, wherein the nomenclature of the provision has been correctly mentioned as Section 24 of the AT Act, 1985. The relevant provisions of Section 24 are as under:-
“24. Conditions as to making of interim orders-Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to , an application unless-
(a) copies of such application and of all documents in support of the plea for such interim order as furnished to the party against whom such application is made or proposed to be made; and
(b) opportunity is given to such party to be heard in the matter.
Provided that a Tribunal may dispense with the requirement of Clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner ‘Vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.”
3. The perusal of the above Section, makes it clear that no interim order shall be made unless copies of such application and of all documents, are furnished to the other party and opportunity is given to such party to be heard in the matter. But under the proviso these requirements may be dispensed with and an interim order may be passed as an exceptional measure if the Tribunal is satisfied for reasons to be recorded in writing that it is necessary to do so. But such order, if it is not sooner vacated, ceases to have effect on the expiry of 14 days unless the said requirements have been complied with before expiry of that period and the Tribunal has continued the operation of the interim order. In the present case, the interim order has not been passed under the above proviso and therefore, the limit of 14 days etc. has no relevance. As the record would reveal the copies of O.A. and documents were received by Sr. Standing Counsel, Govt. of India appearing for respondent No.1 and 2. Thereafter, in presence of learned counsel for applicant and the learned counsel for respondent Nos.1 and 2, the case was heard and a detailed interim order consisting of two pages was passed. The notice was also issued to private respondent No.3 calling for Counter Affidavit in 4 weeks and R.A. within 2 weeks and the case was listed for 18.1.2013. Since, the interim order was not passed under the-above proviso, I regret in not finding any substance in this ground for vacating it.
4. The interim order makes a mention about the guidelines laid down by Hon’ble Apex Court in its judgment dated 5.1.2004 in Ajay Gandhi v. B. Singh [2004] 134 Taxman 537 providing for a Collegium comprising the President, ITAT and two Senior Most Vice Presidents. A reference has also been made to a D.O letter dated 2.11.2012 (Annexure-4)from former officiating President, ITAT Sri G.E. Veerabhadrappa.. presently Senior Most Vice-President, ITAT to Sri Karwa (R-2 and 3), who has taken over as officiating President, ITAT w.e.f. 1.9.2012. The interim order also makes a mention about the allegation of mala fides against Sri Karwa as averred in paras 4:8 to 4.16 of the O.A. These points would be elaborated hereinafter But precisely, the interim order has been passed on the basis of a prima facie case that the impugned transfer order has not been made by a proper Collegium in accordance with the guidelines laid down by Hon’ble Apex Court in Ajay Gandhi’s case (supra) and also on the ground of alleged mala fides against the present officiating President of ITAT.
5. A new point has been brought to notice that the Cabinet Committee of Appointment (ACC) has not approved the officiating appointment of Mr. Karwa and has returned the proposal raising certain objection. Therefore, some specific averments are now being sought to be added in the O.A. for which aforesaid amendment application (M.P. No. 81 of 2013 dated 11.1.2013) has been moved which is pending for disposal. However, during the course of arguments, the learned counsel for applicant submits that till June, 2010, there were no officiating appointments. But since the last more than two and half years, only officiating appointments of President, ITAT are being made He also made a categorical statement at Bar that “ACC (Cabinet Committee of Appointment) has not approved the officiating appointment of Mr. Karwa, on the ground that the selection process prescribed in the Rules does not differentiate between appointment in substantive capacity and an officiating capacity and the name of Sri Karwa figures at SI. No.4 in the seniority list of the President/Sr, Vice-President/ Vice-President. Therefore, ACC has directed that notwithstanding the decision to supersede three persons above him, the appointment should be considered first by the Selection Committee in terms of the existing Rules. In view of this, the ACC has further directed the Department of Legal Affairs to obtain recommendation of the Selection Committee for the proposed appointment.”
6. The learned counsel for Sri Karwa, the private respondent No. 3, opposed this statement saying that it comes from air and its source has not been disclosed at all and therefore, it has no significance. But in response to a query made by this Tribunal from the learned counsel for official respondents No.1 and 2, it was conceded that such communication has been received by O.P. No.1 who has also sent its reply to the ACC which is still pending for decision. Thus, the admitted position is that till the last date, the ACC had not accorded approval on the proposed appointment of Sri Kaava as officiating President, ITAT This approval may or may not come in due course of time and then only the exact status of the competent authority i.e. the President , ITAT would be ascertained. For the present, prima facie, this point is also in favour of the applicant.
7. Now, I propose to elaborate the points of proper Collegium and allegation of mala fides. In respect of Collegium, the guidelines have been laid down by Hon’ble Apex Court in Ajay Gandhi’s case (supra) The relevant para 15 of the judgment is as under:-
“Although, it is not necessary that the President should consult the Senior Vice-President, we are of the opinion that he in all fairness should consult them keeping in view the fact that a large number of members are functioning at different places and, thus, it may sometimes becomes impossible for the President to know about the intellect or otherwise of the member for the purpose of his posting, including his efficiency, disposal and other relevant factors. During the course of discussions, it was suggested that in exercise of the aforementioned powers, the President must consult the two senior Vice-presidents by forming a collegium therefor. Although we are of the opinion that such a course of action may not be necessary but we hasten to add that the President, in all’ fairness, should consult two Senior Vice-Presidents before passing such orders of transfer and posting. Such a measure may be necessary having regard to the fact that the President may not be aware of the efficacy or otherwise in relation thereto. In view of the fact that the large number of members are functioning at different places and, thus, the advice of the senior Vice-Presidents as regard the functioning of a particular member including his efficiency, disposal and other relevant factors may be considered by the President in ultimately passing such orders of transfer and posting.”
8. Thus, the mandate is that in all fairness, the President should consult two Senior Vice-Presidents before passing such orders of transfer and posting.
9. Admittedly, the four senior most Vice-Presidents in order of seniority are as under:-
(i) Sri G.E. Veerabhadrappa
(ii) Sri G.D.Agrawal
(iii) Sri D. Manmohan
(iv) Sri O.K.Narain.
10. The applicant was initially transferred from Lucknow to Chennai by the Collegium held on 18.10.2012, At that time, Senior most Vice-President Sri Veerabhadrappa was on medical leave till.1.11. 2012. Therefore, next two Senior most Vice-Presidents, Sri G.D. Agrawal and Sri D. Manmohan were to be consulted. Sri D. Manmohan agreed with the proposal, while Sri G.D. Agrawal, Vice President had expressed some reservations in his D.O. letter dated 18.10.2012 in respect of transfer of the applicant on the ground that he was posted to Vishakhapattanam for a period of 2-1/2 years and then he was transferred to Lucknow in September, 20l1 because it-was nearer to Delhi where the applicant belongs. After one year, he is being transferred again to Chennai which is faraway from Delhi. Hence it would be unfair to him. Another objection was raised that Sri O.K. Narayan Vice-President , Chennai before promotion to the post of Vice-President, was junior to the applicant who is proposed for transfer to Chennai to work under Sri O.K. Narain. The applicant is also fighting a case against Sri Narayan in Delhi High Court. Similarly, reservation was also’ expressed in respect of transfer of another member namely, Sri Vikas Awasthi, who was being disturbed within a period of 10 months from Chennai without any complaint. The relevant record further reveals that without considering above points raised by Sri G.D. Agrawal, the transfer orders were issued on 18.10.2012 itself. The applicant then made a representation dated 19th October, 2012 for staying his transfer order for sometime and if it is inevitable, then for transferring him to Delhi, Chandigarh and Mumbai so that he may take care of his family including his daughter of marriageable age. The next Collegium was held on 15.11.2012, by means of which, the transfer of Sri Vikas Awasthi from Chennai was cancelled and the applicant was diverted to Calcutta. In this Collegium, in place of both the Sr. most Vice-Presidents, namely Sri G.E.. Veerabhadrappa and Sri G.D. Agrawal the next Sr. Vice-Presidents Sri D Manmohan and Sri O.K. Narayan were co-opted and consulted in spite of the fact that vide D.O. letter dated 2.11.2012 (Annexure-4), Sri Veerabhadarappa has already raised the issue of making certain transfers without following the principles laid down in Ajay Gandhi’s case (supra) and has also intimated that though he would be on HPL from 5.11.2012 to 16.11.2012 but for any Collegium proceedings, he may be called at his residence on the given telephone/mobile numbers. This D.O. letter is reproduced hereunder:-‘
“Dear brother Karwa,
You know that immediately the day I have handed over charge to you I fell sick and went on medical leave till 1.11.2012 and supposed to join the duty on 2.11.2012. But, doctor found me fit on 1.11.2012 itself and I have reported for duty on 1.11.2012 F.N. It was known to you that I am joining duty at least on 2.11.2012 and you have done certain transfers without following the principles laid down in Ajay Gandhi’s case, which according to me, is illegal and clear case of contempt of Supreme Court, if questioned. As the Head of the Institution you are not supposed to act in contempt of the Supreme Court. I, therefore, request you to withdraw all the transfer orders passed by you for the Members wherein you have not involved me being the Senior Most Vice-President in ITAT as a part of the collegium. Moreover, many of the transfers have created heartburn amongst Members and you have recklessly abused the power of transfer without caring the guidelines laid down in Ajay Gandhi’s case 265 ITR 451. In the interest of justice, as you are the Head of the Institution as of now, I request you and the Hon’ble Law Secretary also through this letter to direct you to cancel all these transfer orders and take a fresh mandate. When you know that I am joining on 2.11.2012, you should not have held any Collegium proceedings so as to exclude me when the transfer order itself are to take effect from 5.11.2012 (and in some cases from 16.11.2012) which clearly shows your mala fid’e intention to see somehow I am not made a part of the Collegium, but I am duty-bound to act in Government Service in compliance with the directions/ guidelines issued by the Hon’ble Supreme Court, in the case of Ajay Gandhi (supra).
In fact, I am hurt by the action of the Ministry in replacing me as Vice-President from officiating President. Therefore, I will be proceeding on HPL from 5.11.2012 to 16.11.2012 for a period of 12 days (Leave application enclosed) initially and till the Ministry takes rectification proceedings or their reply to my representation in this regard, I will not resume my duties.
But, I must make it very clear that for any Collegium proceedings, you must call me at my residence No. 23625263 or on my Mobile No. 9833146769. or by a notice to my residence so that I wilt effectively participate and guide you how to comply with the guidelines issued by the Hon’ble Supreme Court of India in Ajay Gandhi’s case. Any action contrary to Ajay Gandhi’s case, I will not allow it to happen. Whenever you call me, I shall cancel my HPL for that day and participate in the Collegium proceedings. This thing must be taken note of and a copy of this letter is also marked to the Hon’ble Union Law Minister and Hon’ble Law Secretary for suitable direction in this regard, besides next two senior Vice-Presidents, for their note.
With regards,
Yours faithfully
(G.E. VEERABHADRAPPA)
To
Sri H.L. Karwa
Hon’ble President
Income Tax Appellate Tribunal,
Mumbai.
Copy to:
1. Hon’ble Union Law Minister
Govt. of India,
New Delhi.
2. Dr. B.A. Agrawal,
Hon’ble Law Secretary,
Ministry of Law and Justice,
Department of Legal Affairs,
New Delhi-110001.”
11. Similarly, the next Senior Vice-President Sri G.D. Agrawal was also available at Bombay. The leave record filed by the respondents shows that he was availing only restricted holidays (RH) for 2 days on 12.11.2012 and 14.11.2012 and 2 days casual leave (CL) on 15th and 16th November, 2012. It is a matter of common knowledge that R.H. or C.L. is not a recognized form of leave. According to Swamy’s Hand Book 2012 page 141, C.L. is not subject to any Rules made by Govt, of India and an official on C.L. is not treated as absent from duty. Similarly, R.H. can be prefixed of’ suffixed to C.L. and LTC can be availed during C.L. Sri Agrawal was availing LTC after taking above CLs and RHs for visiting Bombay Itself which happens to be the seat of Collegium. Thus, he was also available. It was also submitted on behalf of the applicant that the representation of the applicant against transfer was given on 19.10.2012, What was the necessity to take it on 15.11.2012. Up to 11.11.2012, Sr. Vice-President, Sri G.D. Agrawal was available. It could have been taken till then or after a’ week on 19.11.2012 when Sri Agrawai came back. Similarly, if the Collegium was to be held bona fidely on 15.11.2012, then C.L. or permission could have been refused to Sri Agrawal. Moreover, the guidelines laid down in Ajay Gandhi’s case (supra) require consultation with two Sr. Vice-Presidents. The guidelines do not provide for consultation with two Sr. Vice-Presidents available. Thus, both the Senior most Vice-Presidents were ignored in an arbitrary manner and in utter defiance of the guidelines laid down by the Hon’ble Apex Court in Ajay Gandhi’s case (supra) it was further submitted. It was also submitted that in the past, always Sr. Vice-Presidents have been consulted and the word “available” has never been used in the minutes of the Collegium. In support of his contention, the electrostat copies of orders dated 24.2.2009, 27.2.2009, 16.3.2009 , 19.1.2012 and 29.3.2012 have been filed for perusal. Next, it was submitted on behalf of the applicant thai the Collegium of Hon’ble Supreme Court for transfer of Hon’ble High Court Judges never changes like this unless any Hon’ble Judge retires. The contention is that there is also an element of malice in law. Prima facie there appears some substance in the above submissions.
12. The next point is of mala fide. The order of interim relief makes a mention about the allegation of mala fides as alleged in para 4.8 to 4.16 of the O.A. The pith and substance of the averments contained in the above paragraphs is that, the impugned transfer order is an outcome of the vindictive attitude, of O.P. No. 3 who is bearing bias against the applicant for the reason that O.P. No, 3 and 4 other persons have been appointed/ promoted as Vice-Presidents superseding the applicant and few other persons and Writ Petition No.8650/2010 filed by the applicant in this regard is pending before the Hon’ble Delhi High Court for adjudication. Similarly, Writ Petition No. 7715/2010 filed by Sri U.B. Singh Bedi in this regard has been allowed quashing selection of the Vice-Presidents vide judgment and order dated 30.11.2011. Against that judgment SLP No. 6141/2012 has been filed which is also pending for adjudication. That Dr. O.K. Narain is posted as Vice-President, Chennai, ITAT who is also holding additional charge of Vice-President , Calcutta, ITAT. That Sri Narain was junior to the applicant before becoming Vice-President and he is one of the petitioners in the SLP. That the applicant has been deliberately transferred earlier to Chennai and now to Calcutta so that he may feel demoralized and harassed. That in the relevant collegium, aforesaid Dr. O.K. Narain was also co-opted and consulted ignoring two Senior Vice-Presidents as said above. That as a fallout of the impugned transfer order, ITAT, Lucknow would become defunct and on the other hand, Calcutta ITAT would be having two extra judicial Member and there would be four judicial Members against one Accountant Member after December, 2012.
13. Most of these averments are based on record, thought the same have been controverted by the respondents in their CAs. Bui at this stage, without entering into merit of the case, only a prima facie case and the points of balance of convenience and irreparable loss have to be looked into which appear to exist at his stage. The final adjudication on merit is possible only when the pending amendment application is allowed or rejected of and Supplementary CA and RA, if any are exchanged and after completion of the pleadings , the O.A. is finally heard and decided.
14. The learned counsel for respondent No.3 placed his reliance on the following case laws;-
(i) The President, ITAT v. A. Kalyanasundaram [2006] 150 Taxman 165 (Mad.)
This case law deals with the matter of transfer from Chennai to Bangalore of one Senior Vice-President in 1TAT. In this case, the power of the President under the IT Act to decide the place of sitting of Vice-Presidents/Members of ITAT was reiterated and it was equated to the position of Hon’ble the Chief Justice of the Hon’ble High Court who decides which judge is to sit in which bench and at which place. In the case in hand, however, there is no quarrel on this point. This points in question in the present are different as mentioned hereinabove.
(ii) O.A. No. 87/2012 D.K. Srivastava v. Union of India of Central Administrative Tribunal, Chandigarh Bench, Decided on 27.2.2012-
Specific reference was made to para 12 and some subsequent paragraphs of this judgment wherein it has been observed that though the applicant has found fault with the association of the Vice-President of the Tribunal at Delhi with the Collegium on an averment that he had dealt with the complaint made by respondent No.4 against the applicant. But there was not even iota of averment to indicate any bias on the part of the President or other Vice-Presidents who considered the matter and recommended his transfer from .Chandigarh to Rajkot Bench. But as discussed hereinbefore, in the present case, there are such allegations of bias and mala fides and also of not holding the Collegium in accordance with the guidelines laid down by Hon’ble Apex Court. Therefore; both the above case laws have no application in the present matter.
15. In view of the above, therefore, without entering into merit of the case at this stage, I regret in not finding substantial and sufficient ground to vacate the interim order dated 19.11.2012.
16. Let this O.A. be listed for fixing a date for disposal of amendment application.
