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THE PRESIDENT versus MR.A.KALYANASUNDARAM

High Court of Madras

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The President v. Mr.A.Kalyanasundaram - Writ Petition No. 25484 of 2005 [2005] RD-TN 708 (29 September 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 29/09/2005

Coram

The Hon'ble Mr.MARKANDEYA KATJU, Chief Justice and

The Hon'ble Mr.Justice A.KULASEKARAN

Writ Petition No. 25484 of 2005

and

W.P.M.P.Nos. 27923 of 2005 & W.V.M.P.No.1850 of 2005 The President,

Income-Tax Appellate Tribunal,

10/11th Floor, Lok Nayak Bhavan,

NDMC Complex, Khan Market,

New Delhi - 110 003. ... Petitioner -Vs-

1. Mr.A.Kalyanasundaram

2. The Union of India

rep. by its Secretary to Government,

Ministry of Law and Justice,

Department of Legal Affairs,

New Delhi.

3. The Deputy Registrar,

Central Adminstrative Tribunal,

Chennai Bench, Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari for the reasons stated therein. For Petitioner ::: Mr.P.P.Malhotra

Addl.Solicitor General of India, Assisted by Mr.Sharma for

Mr.R.Venkatavaradhan

For Respondent 2 ::: Mr.B.Shantha Kumar

Senior Panel Counsel for

Central Government

For Respondent 1 ::: No Appearance

:O R D E R



(The Order of the Court was made by the Hon'ble The Chief Justice) This writ petition has been filed praying for quashing of the order of the Central Administrative Tribunal, Madras Bench dated 30.06.2005 in O.A.No.140/2005.

2. Heard Mr.P.P.Malhotra, learned Additional Solicitor General of India for the petitioner. None has appeared for the first respondent, although the name of his counsel has been shown in the cause list. Since to-day's date was fixed as agreed between counsels for the parties we are not inclined to adjourn the case.

3. The first respondent was working as Senior Vice President, Income Tax Appellate Tribunal, Chennai (hereinafter referred to as 'ITAT') from 18.10.2000 till the date of his transfer order to Bangalore dated 07.01.2005. It is the aforesaid transfer order dated 07.01.2005 which was challenged before the Central Administrative Tribunal.

4. The first respondent has thus completed more than four years at Chennai. It is well settled that transfer is an exigency of service. Moreover Section 252(5) of the Income Tax Act (in short 'the Act') states: - " The Senior Vice President or Vice President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing." Thus, on a plain reading of Section 252(5) of the Act, it is evident that respondent no.1/A.Kalayanasundaram could only exercise such powers of the President which were delegated to him in writing by the President. The Senior Vice President or Vice President cannot perform any duty or function, which is not delegated to him by the President. The constitution of benches has to be decided by the President, and, in our opinion, the Senior Vice President or Vice President cannot themselves decide their place of posting, otherwise there would be chaos if every Senior Vice President or Vice President or Member can sit wherever he pleases. In our opinion, it is entirely for the President of the ITAT to decide which Senior Vice President, Vice President or Member should sit at which place and at which bench. Thus, the position of President of the ITAT is, in our opinion, like the position of the Chief Justice of the High Court, as it is the Chief Justice who decides which Judge is to sit in which Bench and at which place (in High Courts where there are Benches in two or more cities). So also it is for the President of the ITAT to decide which Senior Vice President, Vice President or Member shall sit in which place and at which Bench. The constitution of benches, place of sitting, etc is hence all a matter for the President of ITAT to decide, and no Senior Vice President, Vice President or Member can insist that he will sit in any particular City or Bench. Neither the Income Tax Act nor the Rules mention any specific place of functioning of the Senior Vice President. As mentioned in paragraph 12 of the writ petition, different senior Vice Presidents have been functioning at various places.

5. Section 255(1) of the Act states: - " The powers and functions of the Appellate Tribunal may be exercised and discharged by the Benches constituted by the President of the Appellate Tribunal from among the members thereof."

It is, thus, evident from Section 255(1) of the Act that it is for the President of ITAT to decide which member of the ITAT (which includes senior Vice President and Vice President) will sit in which bench. Since there are benches of the ITAT in several cities in India, in our opinion the President of the ITAT can transfer members (including Senior Vice Presidents and Vice Presidents) to a bench in another city.

6. Apart from that, Rule 3 of the Appellate Tribunal Rules, 1963 states: -

" A Bench shall hold its sitting at its Headquarters or at such other place or places as may be authorized by the President"

The above provision also thus reinforces the view that it is for the President of the ITAT to decide as to which member (including senior Vice President and Vice President) will sit in which place or Bench.

7. In Ajay Gandhi v. B.Singh, (2004) 2 SCC 120, the Supreme Court observed (vide paragraph 21) that postings to different Benches shall be done by the President. It was also mentioned therein that save and except for sufficient and cogent reasons a member should not be posted at a place for more than five years. Respondent No.1 has been posted at Chennai for more than four years, and hence also, in our opinion, the Central Administrative Tribunal should not have interfered with the transfer order. At any event today he has almost completed five years in Chennai, and hence has no justification to continue any further.

7. It is also stated in paragraph 24 of the writ petition that the first respondent had gone on leave for the last six months and had not attended to his duties at Bangalore even though more than 12,000 cases are pending there.

8. In the impugned order dated 30.06.2005, the Central Administrative Tribunal has observed that the Headquarters of the Senior Vice President is declared to be at New Delhi by some Government Order. It has also observed that the status of senior Vice President is the same as the President.

9. In our opinion, no G.O can override the statute or statutory rule. The Income Tax Act, as well as the rules made thereunder (which have been quoted above) clearly gives the power to the President to decide the place of sitting of the members including the Senior Vice President and Vice President of the Tribunal. If this position is not accepted, then there will be total chaos because every Senior Vice President, Vice President or Member can themselves choose where they will have to sit.

10. The Tribunal in paragraph 19 of its judgment has held that since the respondents before it have not produced certain documents adverse inference should be drawn against them. In our opinion, there is no question of drawing adverse inference in this case. We have to see the correct legal position. In paragraph 20 of the judgment the Tribunal has stated that there is implied admission on the part of the President of the ITAT that the headquarters of the Senior Vice President is at Delhi. In our opinion there is no question of admission or estoppel against the statute.

11. Moreover, as already stated above, no G.O or administrative order can override the statutory provision or statutory rule, vide Virender Singh Hooda v. State of Haryana, AIR 2005 SC 137 (vide paragraph 22 ) wherein the Supreme Court observed: -

" In law if an executive instruction is contrary to Statutory Rules, the Rules will prevail and not the executive instructions." The same view has been taken in a large number of decisions of the Supreme Court e.g. T.N.Housing Board v. S.N.Balasubramanaim, (2004) 6 SCC 85, etc

12. For the reasons given above, we set aside the impugned order of the Central Administrative Tribunal, Madras Bench dated 30.06.2005. The petition is allowed. No costs. Consequently, W.P.M.P and W.V.M.P are closed. Index:Yes

Internet:Yes

pv/

Copy to:

1. The Union of India

rep. by its Secretary to Government,

Ministry of Law and Justice,

Department of Legal Affairs,

New Delhi.

2. The Deputy Registrar,

Central Adminstrative Tribunal,

Chennai Bench, Chennai.




Copyright

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