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2016 (11) TMI 1252 - KARNATAKA HIGH COURT

2016 (11) TMI 1252 - KARNATAKA HIGH COURT - TMI - Validity of the order of the ITAT - Descanting views between two members of the Tribunal - Pronouncement of order by any one Member of the Bench - Held that:- Since both the parts of order one for allowing the application and another for dismissal of the application are duly signed by both the members of the bench, we find that there is apparent self contradiction and in our view, apparent self contradiction of order which comprises of two parts, .....

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at both the parts of order are / and can be read comprising of only one common order and self contradiction are apparent on the face of it. - If both the parts are simultaneously pronounced, one for allowing of the application and another for dismissal of the application, it is not possible for us to accept the contention that first part of the order was within the jurisdiction and when second part was simultaneously pronounced, the Tribunal had already become functus officio. On the contrar .....

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side with the direction that the main OA shall stand restored to the Tribunal. - Writ Petition Nos. 33703-33704/2016(S-CAT) - Dated:- 7-11-2016 - Jayant Patel And Aravind Kumar, JJ. For the Petitioner : Sri B. M. Shyam Prasad For the Respondent : Smt. Gowhar Unnisa ORDER The present petitions are directed against common order dated 28.4.2016 passed by the Tribunal whereby in the first part of the order the application is allowed, whereas in the latter part of the order, the application is dismis .....

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espondents to restore seniority position of the applicant with effect from 9.5.1988. The said application was heard by the Tribunal and as submitted by the learned counsel for the petitioner, the matter was last heard in February, 2016 and the order was reserved. Thereafter, the impugned order is passed by the Tribunal. Under circumstances, the present petitions before this Court. 3. We have heard Mr.B.M.Shyam Prasad, learned Senior Counsel with Mr.P.B.Ajit, for the petitioner and Mr.Jeevan J. N .....

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one part of the order appears to have been dictated by the judicial member and the conclusion recorded in the said order is of allowing of OA as observed in the said order. Second part of the order is stated to have been dictated by the administrative member. Ultimately concludes that applicant is not entitled to any relief and OA is devoid of merit and hence, OA be dismissed. 5. Surprising aspect is that both the parts of order i.e., one for allowing and second for dismissal, are signed by bot .....

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must have dictated their reasons and conclusions by separate order. Whereas, while simultaneously signing both the parts of order one for allowing the application and another for dismissal of application, the aforesaid note made by the judicial member comes on record. 7. At this stage, we wish to record that there are two conflicting views of the members of bench, one for allowing the application and another for dismissal. For any descanting views between two members of the Tribunal may be judic .....

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r to the procedure contemplated by the Central Administrative Tribunal Rules of Practice, 1993, more particularly Rule 106 and 107 which reads as under: 106. Pronouncement of order by any one Member of the Bench:- (a) Any one Member or the Bench may pronounce the order for and on behalf of the Bench. (b) When an order is pronounced under this Rule, the court officer shall make a note in the order sheet that the order of the Bench consisting of ………… was pronounced in o .....

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duly pronounced. (b) The Member so authorized for pronouncement of the order shall affix his signature in the order sheet of the case stating that he has pronounced the order as provided in this rule. (c) If the order cannot be signed by reason of death, retirement or resignation or for any other reason by any one of the Members of the Bench who heard the case, it shall be deemed to have been released from part-heard and listed afresh for hearing. 9. Aforesaid operation of Rules 106 and 107 pres .....

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rent operative conclusion, such authority in normal circumstances cannot be read otherwise it may result into not only chaotic situation but the sanctity of the judicial orders or quasi judicial orders will be lost. The litigation must be completed by conclusive view of a judicial forum, may be Tribunal and such a view should be backed by the authority of both the members. If another view is to be expressed by the member of the bench, who is not present, in absence thereof, possibly it is diffic .....

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a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it. 11. The aforesaid Sec .....

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ed including the views of earlier members who heard the matter. It is hardly required to be stated that Section 26 shall march over the procedure stipulated for pronouncement of order by Rules 106 and 107 of the Central Administrative Tribunal Rules of Practice, 1993. Hence, we are inclined to take a view that Rules 106 and 107 would apply in a case where there is unanimity in the view for the ultimate operative direction of the order of Tribunal. But in case of dessent view in the ultimate oper .....

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ed in the light of aforesaid, since both the parts of order one for allowing the application and another for dismissal of the application are duly signed by both the members of the bench, we find that there is apparent self contradiction and in our view, apparent self contradiction of order which comprises of two parts, cannot be sustained in the eye of law. The aforesaid is coupled with the circumstances that in both the parts of order though duly signed by both the members of Tribunal. There i .....

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did contend that the first part of order could be said as only order of Tribunal and the second part of order could be said as without any authority and competent since Tribunal had become functus officio and therefore, he contended that petitioner is aggrieved by the second part of order, which is for dismissal of the application before the Tribunal. 14. Whereas, learned counsel for the respondent contended that it is not a matter where after pronouncement of the first part of the order at the .....

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