Gireeshan Vs. State [Kerala High Court, 05-07-2011]

Administrative Tribunals Act, 1985 – Section 5, 15, 28 & 29 – Constitution of Tribunal – Members of the tribunal – Chairman of the Tribunal – Chairman’s Powers – Exercise of powers of allocation of business – Transfer of Cases – Powers and Authority – Exclusion of  Jurisdiction of Courts – Transfer of Pending Cases – Held, Once the Tribunal is constituted in relation to any of the matters that fall under S. 15 of the Act the High  Court cannot retain the jurisdiction and the original jurisdiction would vest exclusively with the Tribunal.

# 2011 (3) KLT 443 : 2011 (3) KHC 154

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR, J.

Dated this the 5th day of July, 2011

O.P. No.35825 of 2002

For Petitioner : V. Chitambaresh, Dr. K.B. Muhamed Kutty, K. Ramakumar, K.R.B. Kaimal, Kurian George Kannanthanam, M. Pathrose Matthai, M.R. Rajendran Nair, K. Jayakumar, N. Nandakumara Menon, S.V. Balakrishna Iyer, Sumathy Dandapani, Grashious Kuriakose, K.K. Chandran Pillai (Senior Advocates), Siby Mathew, Philip J. Vettickattu, B. Premnath (E), K. Jaju Babu, P.J. Elvin Peter, Dr. George Abraham, Santhosh Mathew, Sathish Ninan, Dr. K.P. Satheesan, Dr. V.N. Sankarjee, K.R. Rajkumar, Millu Dandapani, V.A. Muhammed, P.B. Sahasranaman, T.S. Harikumar, K. Jagadeesh, M.M. Haris, A. Anilkumar, A. Haroon Rasheed, A.K. Alex, A. Mohamed Mustaque, A.P. Subhash, A.R. Dileep, A.S. Sajush Paul, A. Sudhi Vasudevan, A.T. Anilkumar, A.V. Jojo, A.V. Priya, A.V. Telles, A.V. Thomas, A.X. Varghese, Abraham Mathew (Vettoor), Abraham P. George, Abu Mathew, Achu Subha Abraham, Ajaya Kumar G., Ambika Radhakrishnan, Anil K. Mohammed, Anil K. Narendran, Anil Thomas (T), M.N. Anitha (Ekm), Aniyankunju Varghese, Annamma Abraham, Anoop V. Nair, V. Aravind, Asha Elizabeth Mathew, Asha P. Kuriakose, Aswin Gopakumar, Aysha Rahman, Aysha Youseef, B. Ashok Shenoy, B. Bipin, B. Gopakumar, B.K. Purushothaman, B. Krishna Mani, B. Ragunathan, B. Renjithkumar, B.S. Sivaji, B. Sainu, B. Unnikrishna Kaimal, B.V. Joy Sanker, Babu Cherukara, Babu Joseph Kuruvathazha, Babu S. Nair, Benoy K. Kadavan, Bimal K. Nath, Brijesh Mohan, C.C. Suresh, C.D. Dileep, C. Devika Rani Kaimal, C. Harikumar, C. Moideen Kutty, C.P. Mohammed Nias, C.S. Abdul Sammad, M.A. Firoz, C.S. Maniial, C.S. Rajani, C.S. Ullas, C. Unnikrishnan (Kollam), C.V. Antony Kothamangalam, C.X. Antony Benedict, D. Kishore, Daisy Thampi, Deepthi S. Menon, Deepu Lal Mohan, Dhanya Chandran, Dhanya P. Ashokan, Dilip Mohan, Dipu R., E.K. Madhavan, E.M. Sunil Kumar, E.S.M. Kabeer, Firoz K. Robin, Francis Joseph Kurisinkal, G.P. Shinod, G.S. Mohandas, G.S. Reghunath, G. Sasidharan Chempazhanthiyil, G. Sreekumar (Chelur), G. Sukumara Menon, Geetha P. Menon, George Mathew, George Mecheril, George Varghese Kizhakkambalam, George Varghese (Perumpallikuttiyil), Gopakumar R. Thaliyal Govindu, P. Renukadevi, H.B. Shenoy, H. Harikumar (Kollam), Haridas P. Nair, Haridas Thaikkandy, Harikumar S., Harisankar V. Menon, Harish Gopinath, Harish R. Menon, Sheela Devi, J. Abhilash, J. Jarikumar, J. Julian Xavier, Jacob Sebastian, Jagadeesh Lakshman, Jairam V. Menon, Jayakrishnan C.H., Jeswin P. Varghese, Jibu P. Thomas, Jiji S. Jimmy George (Thadathil), Jobi A. Thampi, John Varghese, Johnson Gomez, Johnson K. Kurien, Johnson Manayani, Johnson P. John, Joice George, Joseph Sebastian Purayidam, Joseph T. John, Joy C. Paul, Jyothish D. Mony, K.A. Balan, K.A. Shamsudeen, K. Amminikutty, K.B. Arunkumar, K.D. Babu, K.E. Hamza, K.G. Anil Babu, K.G. Balasubramanian, K.I. Abdul Rasheed, K.I. Sageer, K. Jayes Mohankumar, K. Jithin, K.K. Gopinathan Nair, K.L. Sreekala, K.M. Firoz, K.M. Jamaludheen, K.N. Chandrababu, K.N. Padmakumar, K.N. Ramachandra Panicker, K.P. Chandrasekhar, K.P. Jose Pious, K.P. Mujeeb, K. Preetha John, K. Pushpavathi, K.R. Heera, K.R. Michael, K.R. Ranjith, K. Ravi (Pariyarath), K.S. Chaithanya, K.S. Saira, K. Sanil Kumar, K. Sasikumar, K. Siju, K. Subash Chandra Bose, K.T. Shyamkumar, K.T. Thomas, K.V. Anil Kumar, K.V. George, K.V. Reshmi, K.V. Vimal, K. Vinodkumar, Kabani Dinesh M, Kaleeswaram Raj, Kodoth Sreedharan, Krishnadas P. Nair, K.V.P. Jayalekshmy, L. Jayawanth, L. Rajesh Narayan, L. Ram Mohan, Lakshmi B. Shenoy, Lakshmi Rajan, Lakshmi, N. Kaimal, Latha Prabhakaran, Leena Murali, Liji. J. Vadakedom, Liju M.P. Luiz Godwin D’couth, M.J. Thomas, M.K. Dileep Kumar, M.K. Pradeepkumar, M.M. Jasmin, M. Manju, M.N. Mathew, M.N. Sandeep, M.P. Ashok Kumar, M.P. Krishnan Nair, M.P. Madhavankutty, M.P. Sreekrishnan, M.R. Hariraj, M.R. Jayaprasad, M.R. Sudheendran, M. Rajagopalan Nair, M. Rajesh Kumar, M.S. Kalesh, M. Salim, M. Sasindran, M. Sreekumar, M.U. Vijayalakshmi, M.V. Bose, M.V. Joseph (Alappuzha), M.V. Ligi, M.V. Thamban, M. Vijayakumar, Madhu Radhakrishnan, Manoj Ramaswamy, V. Manu, Mariam Mathai, Mathew B. urian, Mathew John (K), Mathew K. Simon, Mathew Philip Edappallil, Mathew Sunny, Meera V. Menon, Merciamma Mathew, Mereena Joseph, Mohan Jacob George, Molly Jacob, M.V.S. Namboothiry, N. Aswathym N.M. Madhu, N.M. Varghese, N.N. Sasi, N.P. Prajeesh, N. Raghuraj, N. Santha, N. Sugathan, Naveen T., Nidhi Sam Johns, Nisha Bose, O.D. Sivadas, O.V. Maniprasad, P.A. Kumaran, P.B. Krishnan, P.B. Suresh Kumar, P.C. Chacko (Parathanam), P.C. Sasidharan, P. Chandrasekhar, P. Gopalakrishnan Nair, P. Haridas, P.J. Justine, P.K. Ashokan, P.K. Ravisankar, P.K. Vijayamohanan, P.M. Pareeth, P.M. Ziraj, P. Mohandas (Ernakulam), P. Muraleedharan (Irimpanam), P.N. Mohanan, P.P. Biju, P.R. Venkatesh, P. Radhakrishnan, P. Ramakrishnan, P. Retnakumar, P.S. Ramesh Kumar, P.S. Sheeja, P. Samsudin, P. Sankarankutty Nair, P. Santhosh Kumar (Panampalli Nagar), P.T. Dinesh, P. Ushakumari, P.V. Asha, P.V. Kunhikrishnan, P.V. Parvathi, P.V. Surendra Nath, P. Vijayamma, Peeyus A. Kottam, Peter Jose Christo, Philip T. Varghese, Pirappancode V.S. Sudhir, Pirappancode V. Sreedharan Nair, Pooja Surendran, Prasanth, P. Pratheesh P, Preethy Karunakaran, Pushparajan Kodoth, R. Anilkumar, R. Arun Raj, R. Manoj, R. MUralidharan (Aroor), R. Rajasekharan Pillai, R. Ranjini, R. Reji, R. Renjith, R.S. Kalkura, R. Satish Kumar, R. Srinath, R. Sudhish, R. Suraj Kumar, R. Surendran, R.P. Pradeep, Rabia Beegam T.K. Rajesh K. Raju, Raju Sebastian Vedakkekkara, Ram Mohan, G. Ramesh C.R., Reena Thomas, Rekha Vasudevan, Renjith B. Marar, Reshmi Poulose, Resmi G. Nair, S.A. Anand, S. Arun Raj, S. Biju (Kizhakkanela), S. Easwaran, S. Harikrishnan, S. Hemanth Santhosh, S. Jamal, S. Krishnamoorthy, S.M. Althaf, S. Muhammed Haneeff, S. Nidheesh, S.P. Aravindakshan Pillay, S. Prasanth (Ayyappankavu). S.R. Sreejith, S. Rahkakrishnan, S. Ramesh, S. Ramesh Babu, S. Sharan, S. Sudheeshkar, S. Vishnu, S. Vishnu, Sabina Jayan, Sabu S. Kallaramoola, Saiby Jose Kidangoor, Saigi Jacob Palatty, Saira Ravikumar, Sajan Vargheese, K. Sajeev Kumar K. Gopal, Saji Varghese, Sajjad, Santhan V. Nair, Santheep Ankarath, Sebastian Philip, Seema E. George, Shaji P. Chaly, Shaleena Rajan, Smitha Divakaran, Sobhan George, Soumini James, Sreedevi Kylasanath, Sreeharan Karatta, Sreeja T.V.V. Sreevalsan, V.B. Sujesh Menon, Sunil J. Chakkalackal, Sunil V. Mohammed, S. Suraj S., Suresh Menon, T.G. Rajendran, T.I. Daniel, T.K. Saidalikutty, T.M. Raman Kartha, T.N. Sukumaran, T.R. Rajan, T.R. Rajesh, T.R. Sadeesan, R. Rajasekharan Nair, T.S. Shyam Prasanth, T. Sethumadhavan, T.V. George, T.V. Vijayarajan, Thomas Abraham, Thomas P. Makil, Thomas T. Varghese, Tojan J. Vathikulam, Tony George Kannanthanam, U. Balagangadharan, V.B. Hari Narayanan, V.D. Balakrishna Kartha, V.D. Sudheer, V. Deepta, B.H. Jasmine, V.J. Joseph, V.K. Sathyanathan, V. Krishna Menon, V.L. Shenoy, V.M. Kurian, V.P. Sukumar, V. Philip Mathew, V. Rajendran (Perumbavoor), V. Sadasivan, V.V. Mathew, V. Venugopalan Nair, V. Vijulal, V. Vinay Menon, Vadakara V.VN. Menon, Varsha Bhaskar, Veena Roshan Jose, Vellayani Sundararaju, K.U. Vijayan, B. Vineetha, Vinod Madhavan, Vinoy Varghese Kailumoottill,

For Respondents:, Advocate General (K.P. Dandapani), E.S. Ashraf, S. Gopakumaran Nair, Asok M. Cherian, Murali Purushothaman, Alexander Thomas,, Georgekutty Mathew (C.G.S.C.), M. Ajay, M.K. Chandra Mohandas, M.L. Sajeevan, M.P. Prakash (Special Government Pleader), Renjith Thampan (Spl. Government Pleader), T.P.M. Ibrahim Khan (Assistant Solicitor General of India), P. Parameswaran Nair, (Assistant Solicitor General), Rojo Joseph Thuruthipara (A.C.G.S.C.)

J U D G M E N T

1. This bunch of Writ Petitions came up before me for considering whether the issues involved in them relate to any of the subjects enumerated in the letter bearing No.104/2011/KAT dated 25/6/2011 of the Registrar of the Kerala Administrative Tribunal and if so, whether they could be transferred to the Kerala Administrative Tribunal. The Kerala Administrative Tribunal was established as per Government of India notification No.G.S.R.705(E) dated 25th August, 2010, published in the Gazette of India extraordinary Part II-S/3-sub-s(1) No.476 dated 25.8.2010. As per order No.A-11014/9/2009 AT dated 25th August, 2010 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, the Chairman of the Tribunal was appointed. On 28th June, 2011 the Chairman issued order No.105/2011/KAT invoking the powers conferred on him by sub-s.(6) of S.5 of the

# Administrative Tribunals Act, 1985

(for short ‘the Act’) to the effect that with effect from 12th day of July, 2011, the Chairman, Kerala Administrative Tribunal would function as a Bench consisting of a Single Member and exercise the jurisdiction, powers and authority of Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as are specified therein. The aforesaid letter 25.06.2011 and the aforesaid order dated 28.6.2011 identified the following categories of cases for the said purposes.

“(a) Change of date of birth while in service,

(b) Postings/transfers,

(c) Entry in the character rolls made otherwise then as a measure of penalty under the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960,

(d) Allotment of and eviction from Government accommodation,

(e) Fixation of pay,

(f) Claims of medical reimbursement, leave, joining time and overtime,

(g) Grant of Family Pension,

(h) Grant or refusal to grant of advances/loans,

(i) Stagnation increments,

(j) Grant or refusal to grant or recovery of allowances,

(k) Payment of interest on pensionary benefits,

(l) Suspension,

(m) Minor penalties.”

It is in the said circumstances that these cases are posted before me.

2. When these mattes are taken up for consideration for the aforesaid purpose the learned counsel on both sides contended that these cases are not transferable to the Kerala Administrative Tribunal at this stage as the Tribunal is yet to be constituted. To support the said contention, they rely on various provisions under the Act, more particularly to Sections 5, 15, 28 and 29. In view of the said submission I think it is only appropriate to consider the said issue ahead of the other issue. Before adverting to the contentions raised in the light of the aforesaid provisions, I may refer to a Division Bench decision of this Court in

# Sreekandan v. State of Kerala reported in (2011 (2) KLT 394)

to know the scope and limit of such a consideration. Paragraph 8 thereunder is relevant for the said purpose of this case and reads thus:

“8. The petitioners have also raised objection that even though Members are selected, the President of India has not approved their appointments. According to the petitioners, with the appointment of Chairman alone Tribunals cannot be constituted. In other words, the Tribunal should be constituted with the Chairman and Members together is the case of the petitioners. However, what we find is that the Administrative Tribunals (procedure for Appointment of Vice Chairman and Members) Rules, 2006, in R.2 provides that Vice Chairman and Members of the State Administrative Tribunal are appointed by a committee with the Chief Justice of the High Court as Chairman, Chairman of the State Administrative Tribunal as a Member, Chief Secretary to Government and Chairman of the State Public Service Commission as other Members. So much so, unless Chairman is first appointed, it would not be possible under the Rules to appoint the Vice Chairman and Members of the Tribunal. We, therefore, feel the appointment of the Chairman first after establishment of the Tribunal is a necessary prerequisite to constitute the Tribunal with the full quorum of Vice Chairman and Members as decided by the Government. We, therefore, do not find any merit in this contention also. However, the position as of now is that the Tribunal is only established but not constituted which will happen only on appointment of the Members.”

(emphasis supplied)

Thus, it is obvious that the Division Bench held that the Kerala Administrative Tribunal on publication of a notification under S.4(1) of the Act was only established but, yet to be constituted and that its constitution would happen only on appointment of the Members. When that be the position, I am of the view that while considering these Writ Petitions for the aforesaid purpose, this Court has to look into the question whether subsequent to the decision by the Division Bench in Sreekandan’s case (supra) the Tribunal was constituted. Section 5(1) of the Act assumes relevance for consideration of the said question and it reads thus:

# 5. Composition of Tribunals and Benches thereof

(1) Each Tribunal shall consist of a Chairman and such number of Judicial and Administrative Members as the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction powers and authority of the Tribunal may be exercised by Benches thereof.”

Admittedly, as regards the Kerala Administrative Tribunal, after its establishment only its Chairman was appointed and such number of Judicial and Administrative Members as Government of Kerala deemed fit are yet to be appointed. With this indisputable position, I may refer to the various provisions and consider the contentions to answer the question whether the Tribunal could be said to have been constituted, of course, for the purpose of deciding whether these cases could be transferred to the Tribunal.

3. Going by S.5(1) of the Act the Tribunal shall consist of a Chairman and such number of Judicial and Administrative Members as the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and, authority of the Tribunal may be exercised by Benches thereof. S.15 of the Act deals with the jurisdiction, powers and authority of Tribunals S.15(1) reads thus:

# 15. Jurisdiction, powers and authority of State Administrative Tribunals

(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts except the Supreme Court in relation to …..”

In this context, it is also relevant to refer to S.28 of the Act. It reads thus:

# 28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution

On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunalin relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no Court except –

(a) the Supreme Court, or

(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment of such service matters.”

(emphasis supplied)

Section 28 of the Act thus, excludes the jurisdiction of Courts except Supreme Court under Art.136 of the Constitution and from the date from which any jurisdiction, powers and authority becomes exercisable under the Act by a Tribunal. The question is whether in respect of the Kerala Administrative Tribunal such a stage has reached and whether the jurisdiction, powers and authority became exercisable under the Act by the Tribunal. There cannot be any doubt with respect to the position that the jurisdiction, powers and authority would become exercisable under the Act by the Tribunal. There cannot be any doubt with respect to the position that the jurisdiction, powers and authority would become exercisable by a tribunal only after its constitution. Only the Tribunal constituted in accordance with the provisions under S.5(1) alone could exercise the jurisdiction, powers and authority that are exercisable by the Tribunal and only on such constitution S.28 of the Act would become applicable to exclude jurisdiction of Courts in terms of S.28 of the Act. In Sreekandan’s case (supra) the Division Bench held that constitution would happen only on appointment of the Members. Appointment of Members in respect of a State Administrative Tribunal is dealt with under S.5(1) of the Act. In this context, it is also relevant to note that the Division Bench held that constitution would happen only on appointment of the Members. Appointment of Members in respect of a State Administrative Tribunal is dealt with under S.5(1) of the Act. In this context, it is also relevant to note that the Division Bench was well posted with the information that the Chairman of the Tribunal alone was appointed, as far as the Kerala Administrative Tribunal is concerned. It is after taking note of the said position that the Division Bench held that the Tribunal could be said to have been constituted only on appointment of Members. Thus, to say that the Tribunal is constituted the appointments of Members in terms of S.5(1) of the Act also should take place besides the appointment of the Chairman. While dealing with the question of constitution of the Tribunal sub-s(2) of S.5 of the Act also would assume significance and it reads as follows:

“5(2). Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member.”

Thus, S.5(2) stipulates that a Bench of a Tribunal under the Act shall consist of one Judicial Member and one Administrative Member. At the same time, sub-s.(6) of S.5 enables the Tribunal to function through a Single Member Bench. Sub-s.(6) of S.5 reads thus:

“5(b).Notwithstanding anything contained in the foregoing provision of this section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify:

Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit.”

It is apposite to note in this context that the Hon’ble Apex Court has harmoniously construed sub-sections (2) and (6) of S.5 under the Act in the manner in which the said subsections could operate together. In Dr. Mahabal Ram v. Indian Council of Agricultural Research & Ors. ((1994) 2 SCC 401) the Hon’ble Apex Court construed the said sub-sections in the following manner:

“….. There is no doubt that what has been said in Sampath Kumar’s case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very often no constitutional issues or even legal points would be involved…….. We are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-s(6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament’s concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two Members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should got to a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigation may be before the Single Member for disposal……. The vires of sub-s.(6) has not been under the challenge and, therefore, both the provisions in S.5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-s(2) and the exemption in sub-s.(6) are rationalized.”

(emphasis supplied)

This was quoted with approval by the Hon’ble Apex Court in

# L. Chandra Kumar v. Union of India (1997 (2) KLT SC SN 11 (C.No.11)

as hereunder:

“98. Since we have analysed the issue of the constitutional validity of S.5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in, Dr. Mahabal Ram’s case ((1994) 2 SCC 401), we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to S.5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a bench which does not consist of a Judicial Member. So construed, S.5(6) will no longer be susceptible to charges of unconstitutionality.”

(emphasis supplied)

A careful consideration of the aforesaid decisions and the aforementioned provisions under the Act would thus, undoubtedly, suggest that the power vested with the Chairman of a Tribunal under S.5(6) of the Act is for allocation of the business of the Tribunal. If that be so, in view of the harmonious construction of sub-ss.(2) and (6) of S.5 by the Hon’ble Apex Court it could be safely said that the question of allocation of works by exercising the power under sub-s.(6) of S.5 could arise only after constitution of the concerned Tribunal. In the circumstances, in the light of the Division Bench decision in Sreekandan’s case (supra) and considering the facts that as per S.5(1) of the Act the composition of a Tribunal shall be one Chairman and such number of Judicial and Administrative Members as the appropriate Government deem fit, that admittedly, the Government of Kerala deemed it fit to have a Chairman and more than one Judicial and one Administrative Member in Kerala Administrative Tribunal and that as per S.5(2) of the Act a Bench shall consist of one Judicial Member and one Administrative Member I have no hesitation to hold that the Kerala Administrative Tribunal is still to be constituted though it was established. Only when a Tribunal is constituted the jurisdiction, powers and authority would become exercisable under the Act by the Tribunal and only then, exclusion of jurisdiction of Courts would happen. Only when such stage is reached transfer of pending cases, in terms of S.29 would arisen S.29 of the Act that deals with transfer of pending cases reads thus:

# 29. Transfer of pending cases

(1) Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:”

Apart from S.29 of the Act there is no other provision under the Act deals with transfer of pending cases of Tribunal. In other words, there is no provision under the Administrative Tribunals Act, 1985 which provides for transfer of pending cases to the Tribunal prior to the constitution of the Tribunal.

4. True that, an order has been passed by the Chairman of the Tribunal under S.5(6) of the Act. There cannot be any doubt with respect to the question that the Chairman is competent to issue an order under S.5(6) of the Act. In this case, if cases falling under the matters entitled in the order dated 28/06/2011 are transferred at this stage prior to the constitution of the Tribunal, it would result in such a situation that in regard to the rest of the matters this Court would continue to retain the jurisdiction, powers and authority. It would thus create a situation where in respect of service matters falling under the provisions of S.15 of the Act this Court would retain jurisdiction even after the functioning of the Tribunal. The Act did not contemplate exercise of powers concurrently by the High Court and the Administrative Tribunal or partially by the High Court and partially by the Tribunal in respect of such matters. Once the Tribunal is constituted, in terms of the provisions under the Act, on and from that day the original jurisdiction of this Court would stand excluded. In other words, what is provided and intended is exclusion of jurisdiction of respective High Courts, as stated under S.15 of the Act on constitution of Administrative Tribunal. When once the Tribunal is constituted in relation to any of the matters that fall under S.15 of the Act this Court cannot retain the jurisdiction and the original jurisdiction would vest exclusively with the Tribunal. I am also persuaded to consider another situation. If in a particular situation, a case is to be avoided by Single Member Bench, after commencing its functioning as on today, there will not be any other Bench having jurisdiction to consider and take a decision on such a matter. In such event, as regards that particular party is concerned, he will be left with no remedy to redress his/her grievances. In fact, the letter of the Registrar of the Kerala Administrative Tribunal carries a request that certain pending cases, even if fall under any of the subjects enumerated thereunder, may not be transferred at present. That may entail a situation of concurrent jurisdiction and then, in respect of same subject-matters this Court and the Tribunal may take different views. Certainly, such situations would have to be avoided taking into account the very purpose of establishing Administrative Tribunals and also in the interest of justice.

5. The learned Advocate General was heard in this matter. It is submitted by the learned Advocate General that only on appointment of Member/Members besides the appointment of the Chairman, in terms of S.5(1) of the Act, it could be said that the Tribunal is constituted. In these circumstances, I am of the considered view that these cases are not transferable to the Kerala Administrative Tribunal at this stage.

Hence, Post all these cases on usual course or as and when moved.

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