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2013 DIGILAW 4084 (MAD)

State of Tamil Nadu v. A. G. Ponn Maickavel

2013-12-03

N.PAUL VASANTHAKUMAR, P.DEVADASS

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Judgment : N. Paul Vasanthakumar, J. 1. Heard Mr. A.L. Somayaji, learned Advocate General for the petitioners and Mr. N. Vijay Narayan, learned Senior Counsel for respondent No.1. 2. There writ petitions are filed to set aside the interim orders passed in Original Application Nos.1483 and 1484 of 2013, dated 14.11.2013. 3. Original Application Nos.1483 and 1484 of 2013 were filed challenging the charge memos dated 5.6.2010 and 1.10.2013 issued by the first petitioner herein and pending disposal of the above O.As., interim stay and interim injunction, restraining the respondents in O.As. from taking into consideration the pendency of the said charge memorandums issued by the first petitioner, while considering the first respondent herein for promotion to the next higher rank, pending disposal of OAs., were prayed for. 4. Both the original applications were herd and separate interim orders were passed to the following effect:- “O.A. N.1483 of 2013:- There shall be an interim stay of all further proceedings pursuant to the Charge Memorandum No.SC/4653-16/2009, dated 5.6.2010 issued by the first respondent and further the respondents are restrained from taking into consideration the pendency of the charge memorandum No.SC/4653-16/2009, dated 5.6.2010 issued by the first respondent, while considering the applicant for promotion to the next higher rank, until further orders. O.A.No.1484 of 2013:- There shall be an interim stay of all further proceedings pursuant to the Charge Memorandum No.HSC5/215-5/2012, dated 1.10.2013 issued by the first respondent and further the respondents are restrained from taking into consideration the pendency of the charge memorandum No.HSC5/215-5/2012, dated 1.10.2013 issued by the first respondent, while considering the applicant for promotion to the next higher rank, until further orders.” 5. The learned Advocate General appearing for the petitioners challenged the said orders in these writ petitions by contending that the mandatory requirement under Section 24 of the Administrative Tribunals, Act, 1985 (hereinafter referred to as the “Act”) has not been followed by the Central Administrative Tribunal, while passing the interim orders. The said section reads as follows:- “24. The learned Advocate General appearing for the petitioners challenged the said orders in these writ petitions by contending that the mandatory requirement under Section 24 of the Administrative Tribunals, Act, 1985 (hereinafter referred to as the “Act”) has not been followed by the Central Administrative Tribunal, while passing the interim orders. The said section reads as follows:- “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 are 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 requirements 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.” 6. The learned Advocate General further submitted that even if the proviso mentioned above permits the Tribunal to make an interim order as an exceptional measure, it is mandatory that the reasons are to be recorded in writing so as to prevent the loss being caused to the applicant/1st respondent herein, which cannot be adequately compensated in money, and no reason is stated by the Tribunal while passing the impugned orders. The learned Advocate General also relied on the judgment of the Division Bench reported in (2013) 4 MLJ 721 (Union of India vs. Government of Tamil Nadu and Others), in support of his contentions. 7. The learned Advocate General also relied on the judgment of the Division Bench reported in (2013) 4 MLJ 721 (Union of India vs. Government of Tamil Nadu and Others), in support of his contentions. 7. The learned Senior Counsel appearing for the first respondent, on the other hand, submitted that if the interim order has not been granted by the Tribunal, the first respondent’s right to get promotion will be affected. Therefore, the Tribunal was justified in granting interim stay and injunction. The learned Senior Counsel further submitted that if this Court is of the view that the proviso under Section 24 of the Act has not been followed, the orders may be set aside with a direction to the petitioners to file counter affidavit, within one week and the Tribunal may be directed to pass orders in the interim applications, within a period of one week therefrom. 8. The learned Advocate General has not objection to dispose of the above writ petitions on the same line. 9. The issue as to whether the reason has to be stated while passing the interim order, was considered by the Division bench of this Court in the above referred judgment. In paragraphs 34 to 42, it is held thus:- “34. In the interim order dated 14th March, 2013, the learned single Judge had simply passed an order of interim injunction, as prayed for, till 12th April, 2013. No reasons have been assigned by the learned single Judge. Even though the provisions of Order 39 Rule 1 of the Code of Civil Procedure are not maintainable to the writ proceedings, in view of explanation to Section 141 of the Code of Civil Procedure, 1908, the principles applicable for grant of interim injunction viz., consideration of prima facie case, balance of convenience, irreparable loss are applicable, while considering the question of grant of interim relief in the writ proceedings also. 35. In the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Limited and others (supra), the Hon’ble Supreme Court has deprecated the practice of granting exparte orders, which are often exparte and non-speaking, while entertaining the writ petitions under Article 226 of the Constitution of India. It had further held that where matters of public revenue are concerned, interim orders ought not to be granted merely because a prima facie case has been shown. More is required. It had further held that where matters of public revenue are concerned, interim orders ought not to be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. 36. In the case of Union of India vs. Era Educational Trust and another (supra), the Hon’ble Supreme Court has held as follows:- (SCC, pages-59-60, para-6) “It may be that Order XXXIX CPC would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution, but at the same time various principles laid down under Order XXXIX for granting ad interim or interim reliefs are required to be taken into consideration. In the case of Morgan Stanley Mutual Fund v. Kartick Das after considering the various authorities this Court laid down the guiding principles in relation to grant of an ad interim injunction which are as under: (SCC pp. 241-42, para 36) “36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are” (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; (e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application; (f) even if granted, the ex parte injunction would be for a limited period of time; (g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court. 37. 37. In the case of State of U.P and others vs. Modern Transport Co., Ludhiana and another (supra), the Hon’ble Supreme Court has held that the High Court should give reasons while passing interim orders, more so, when the interim orders have the effect of granting the final relief. 38. In the case of State of U.P and others vs. Ram Sukhi Devi (supra), the Hon’ble Supreme Court has deprecated the practice of granting interim orders, which practically give principal relief sought in the petition for no better reasons than that of prima facie case having been made out, without being concerned about the balance of convenience, public interest and a host of other considerations. 39. In the case of Special Director and another vs. Mohd. Ghulam Ghouse and another (supra), the Hon’ble Supreme Court has held that Courts should ensure that the final relief is not granted at the threshold by the interim order, and it should record reasons for granting interim protection. 40. In the case of Mahanadi Coal Fields Ltd. vs. Orient Paper & Industries Ltd., and others (supra), the Hon’ble Supreme Court has held while the purpose of an interlocutory order is to preserve in status quo the rights of the parties during the pendency of the litigation, the Court is also required to put into the scales the need to protect the interest of the respondent before it if the writ petitions ultimately fail and uncertainty as to their results is resolved in such respondent’s favour. 41. In the case of Bhavesh D. Parish and others vs. Union of India and another reported in 2000 (5) SCC 471 , the Hon’ble Supreme Court has held in paragraph-31 of the Report as follows:- (SCC, page 487) “While the courts should not abrogate (sic abdicate) their duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes.” 42. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes.” 42. In view of the settled legal position, as discussed above, when we consider the impugned order dated 14th March, 2013 passed by the learned single Judge, we find that the learned single Judge has neither assigned any reasons while passing the interim injunction nor has considered the question of prima facie case, balance of convenience, irreparable loss, nor had protected the interest of the respondents while passing the impugned order. The order dated 14th March, 2013, therefore, cannot be sustained in law and is liable to be set aside.” 10. The principal set out in the said judgment is bound to be followed having regard to the statutory provision, viz., Section 24 of the Administrative Tribunals Act, 1985, which mandates setting out reasons while passing interim ex-parte orders, hence the Tribunal is bound to pass speaking order with reasons. It is to be noted here that the Central Administrative Tribunal itself is established/created under Section 4 of the said Act by virtue of the powers given to parliament under Article 323-A of the Constitution of India. The Central Administrative Tribunal is given jurisdiction, powers and authority under Section 14 of the Act. Filing of application is provided under Section 19 of the Act and conditions as to making interim orders are expressly stated in Section 24 of the Act extracted supra. 11. In such circumstances, we are of the view that the orders passed by the Tribunal in O.A.Nos.1483 & 1484 of 2013, dated 14.11.2013 are liable to be set aside and accordingly set aside. The petitioners are directed to file counter within one week from today and the Central Administrative Tribunal is directed to consider the request of the first respondent, seeking stay as well as injunction as an interim measure on its own merits, within a period of one week therefrom. 12. These writ petitions are allowed with above directions. It is made clear that if counter affidavit as undertaken by the learned Advocate General is not filed within one week from today, the Central Administrative Tribunal is entitled to consider the interim prayer on merits and pass order by recording reasons. No costs. Consequently, connected miscellaneous petitions are closed.