ORDER
P. Vishwanatha Shetty, J.
1. The petitioner in this petition was a police constable in the service of the State. In this petition, he has called in question the correctness of the order dated 11th January 1999, a copy of which has been produced as Annexure ‘R’ to this petition, passed by the Karnataka Administrative Tribunal, Bangalore (hereinafter referred to as the ‘Tribunal’) affirming the order of dismissal passed against him.
2, Sri Mahesh, learned Counsel appearing for the petitioner challenging the correctness of the impugned order Annexure-R, made two submission. Firstly, he submitted that since the impugned order was passed by the Administrative Member of the Tribunal, the same is liable to be set aside on the ground that the Administrative Member had no authority in law to pass the impugned order. In this connection, he referred to us Section 5 of the Administrative Tribunals Act (hereinafter referred to as the Act,) and more particularly Sub-sections (5) and (6) of the said section. In support of this submission he relied on a decision of Supreme Court in the case of STATE OF MADHYA.PRADESH v. B.R. THAKARE AND ORS., and also the decision of the Division Bench of this Court in the case of S.S Rao v. THE STATE OF KARNATAKA AND ANR. made in Writ Petition Nos. 38654/1999 c/w 16850 and 17524 of 1999, disposed of on 7th August 2001. Secondly, he submitted that the Tribunal has failed to consider that the misconduct alleged against the petitioner was not proved and the finding recorded by the Appeal Authority is perverse in Law. However, Sri. Prabhakar, learned Additional Government Advocate tried to support the order impugned. He submitted that on appreciation of the evidence on record, when the Inquiry officer has found that the petitioner was guilty of the misconduct alleged against him and the said finding having been accepted by the Disciplinary Authority and also by the Tribunal, there is absolutely no justification for this Court to interfere with the order impugned passed by the Tribunal.
3. Having heard the learned Counsel for the petitioner and learned Additional Government Advocate for the state, we are of the view that the impugned order is liable to be set aside on the short ground that the Administrative Member of the Tribunal had no authority in law to pass the impugned order. The petitioner had called in question the correctness of the Order passed by the Disciplinary Authority dismissing him from service. It is not disputed that the impugned Order was passed by the Administrative Member of the Tribunal. Sub-section (1) of Section (5) of the Act provides that the Tribunal shall consist of a Chairman and such number of Vice-chairman and Judicial and Administrative Members as the appropriate Government may deem fit and subject to the other provisions of the Act, the jurisdiction, powers and authority of the Tribunal may be exercised by the Benches thereof. Sub-section 2 of Section 5 of the Act provides that subject to the other provisions of the Act, a Bench shall consists of one judicial Member and one Administrative Member. However, Sub-section (6) of Section 5 of the Act provides that notwithstanding anything contained in Sub-sections (1) (2) and (4) of the said section, it shall be competent for the chairman or any other Member authorised by the Chairman to that effect on that behalf could 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 classes of cases as the Chairman may, by general or special order specify. It is useful to extract Sub-section 6 of Section 5 of the Act, which reads as hereunder:
“(6) notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised 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.”
Therefore, from the reading of Sub-section (6) of Section 5 of the Act, it is clear that notwithstanding what is stated in the preceding sub-section of the said section, it is either competent to the Chairman himself to exercise the jurisdiction, power and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases, as he may, by general or special order specify, or to authorise any other Member of the Tribunal to exercise such powers. The Chairman of the Tribunal, by means of order dated 26th March, 1998, in exercise of the power conferred on him under Sub-section (6) of Section 5 of the Act, authorised a single Member of the tribunal to dispose of various types of cases referred to in the said order. The relevant portion of the said order reads as hereunder:
“In continuation of order No. KAT/BRD/CB/28/97 dated 6th June 1997, the following classes of cases and matters are also ordered to be heard and disposed of by a single Member Bench with immediate effects:
1. Sanction of all types of increments.
2. Declaration of probationary and officiating period.
3. Allowances : Travelling allowance, Halting D.A, Fixed Travelling Allowance, Hill Allowance, Project Allowance, Risk Allowance, Physically Handicapped Allowance and all other allowance excluding allowances attached to pay, like Dearness Allowance, H.R.A, C.C.A
4. Discharge of probationer, under Rule (5) of K.C.S(prob) Rules, 1977.
5. Compulsory Retirement, not as measure of punishment, but only under Rule 285 of K.C.S.Rs
6. Compassionate ground appointments;
7. All appointments wherein validity of Acts/rules/Regulation are not involved.”
From the reading of the said Order, it is clear that the said notification authorised a single Member of the Tribunal, among other things, to dispose of cases pertaining to disciplinary proceedings which relates to imposition of minor penalties under Rule 12 of KCS (CCA) Rules, 1957, Relevant portion of the Order dated 6th June 1997 reads as hereunder:
“1. xxx
2. xxx
3. Disciplinary proceedings, wherein the procedure followed is for contemplation of minor penalties, i.e., under Rule 12 of KCS (CCA) Rules, 1957,
4. xxxx
5. xxxx
6. xxxx…”
from the reading of the order referred to above, there cannot be any doubt that it does not indicate that the Chairman of the tribunal has authorised either a judicial or Administrative Member of the Tribunal to dispose of the cases pertaining to imposition of major penalty against a delinquent official, which includes the dismissal or removal of such delinquent official. Further, the subsequent notification dated 26th March 1998 vide No. KAT/BRD/CB/11/98 issued by the Chairman of the Tribunal also does not indicate that a Member of the Tribunal also does not indicate that a Member of the Tribunal was conferred with a power to dispose of the cases pertaining to the matter which relates to imposition of major penalty. As noticed by us earlier, the petitioner had challenged before the Tribunal the order made against him dismissing him from service. Therefore, we are of the view that the impugned Order passed by the Administrative Member of the Tribunal is liable to be set aside only on the short ground that he had no jurisdiction to pass the said Order. Further, the Supreme Court in the case of B.R. Thakare (supra) has taken the view that even in cases where the powers of the Tribunal could be exercised by a single Member, it could be only by a Judicial Member of the Tribunal and not by any other Member. It is useful to refer to the observation made by the Supreme Court in the said decision, which reads as hereunder;
“3. Even assuming that all the powers of the tribunal could be exercised by any single Member, it can only be by a judicial Member of the Tribunal and not any other member under the aforesaid order.
4. Shri B.S. Banthia, learned Counsel appearing for the respondents drew our attention to the decision of this Court in Indermani Kirtipal v. Union of India and Ors. and admitted that a decision by a Single Member of the Tribunal is not without jurisdiction particularly when a party had acquiesced in the proceedings before the single Member of the Tribunal. He therefore, submitted that there is no need for this Court to interfere with such an order made by a Single Member of the Tribunal.
5. We are not resting our decision on lack of jurisdiction of a Single Member of the Tribunal as we are more concerned with the administration of justice. The tribunal had been constituted in substitution of the High Court as was noticed by this Court in Chandra Kumar’s case (supra) . To have proper administration of justice while alloting work to single Member, whether judicial or administrative, the chairman should keep in mind the nature of the litigation and where questions of law and its interpretation are involved, they should be assigned to Division Bench of which one of them is a judicial Member. Keeping this wholesome principle in view, we think the order made by the Tribunal should be set aside in the circumstances, we allow these appeals, set aside the order made by the tribunal and remit the matters to the Tribunal for consideration as aforesaid on merits by a Divisional Bench of which one of them is a judicial Member.”
4. Therefore, in the light of what is stated above, the order Annexure-R passed by the Tribunal is liable to be set aside and the matter is required to be remitted to the Tribunal for fresh consideration. Under these circumstances, we find it unnecessary to consider the second contention urged by learned Counsel for the petitioner on merits and the same is left open to be considered by the Tribunal.
5. In the light of the discussion made above, the Order dated 11th January 1999 made by the Administrative Member of the Tribunal is hereby set aside and the matter is remitted to the Tribunal for fresh consideration. The contentions urged by learned Counsel for the petitioner on merits are left open to be urged before the Tribunal.
6. In terms stated above, this petition is allowed and disposed of. However, no Order is made as to costs.
Sri M.B. Prabhaker, learned Additional Government Advocate is given four week’s time to file Memo of appearance.