340 crpc in service matter
yogesh
(Querist) 14 February 2013
This query is : Resolved
Sir, I filed the M.A in Original Application in service matter case before CAT under section 340 CrPC read with section 195 Crpc for enquiry of offences which occured during judicial proceedings as case is pending there..The regsitry has made formal clarification as it pertains to service matter the CAT whether entertain application is doubtful
I pointed towards"Any Court" which menas whether civil, criminal or any tribunal established by Act..
They have convinced to some extent, in case if they persists then moving to High Court is advisable?
Since 340 Application is filed when the matter is pending, what happens if my application interalias is disposed off in merits, then after disposal one can move to H.C under section 341 CrPC??
Anirudh
(Expert) 15 February 2013
I am afraid, CAT has not been declared as "court" for the purpose of Sec. 195 Cr.PC.
Guest
(Expert) 15 February 2013
Dear Anirudh,
CATs are also courts specifically created at the time of Shri Gulzari Lal Nanda, Hon. Home Minister, during the Jawahar lal Nehru regime, as PM, to deal with service cases of Government employees, as in courts for civil matters disposal of those cases used to be abnormally delayed along with other civil cases. On establishment of CATs, all the existing cases of public servant with civil courts were remitted to the respective CATs.
So, in my views, CATs are also civil courts, specialised for dealing with service cases of public servants.
About Sec.195, the said section pertains to "Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence."
So, in view of the history of CATs and the section specifically dealing with public servants, you may probably like to review your opinion.
Anirudh
(Expert) 15 February 2013
Dear Mr. Dhingra,
Pl. see Section 195(3) and also the CAT Act. While CAT has been declared under Section 22 (3) to have power of the civil court under the CPC 1908 for certain purposes, CAT has not been declared as a court for the purposes of Sec. 195(3).
Guest
(Expert) 15 February 2013
Dear Anirudh,
You may probably like to re-read sec.195(3), which clearly says, "court means a Civil, Revenue or Criminal Court, and INCLUDES a TRIBUNAL constituted by or under a Central, provincial or State Act."
CAT, i.e., Central Administrative TRIBUNAL, very well is categorised as a court, by the provisions of sec.195(3), itself.
Hope, you would like to agree with me.
However, I would be obliged if you please mention any section of any Act, which specifically precludes CAT from being treated as a court. That would definitely help me to enhance my knowledge.
Anirudh
(Expert) 15 February 2013
Dear Mr. Dhingra,
Section 195(3) reads as under:
"(3) In clause (b) of sub-section (1), the term "court" means a Civil, Revenue or Criminal Court, and INCLUDES A TRIBUNAL CONSTITUTED BY OR UNDER A CENTRAL, PROVINCIAL OR STATE ACT, IF DECLARED BY THAT ACT TO BE A COURT FOR THE PURPOSE OF THIS SECTION."
In the case if CAT, though it was constituted under a Central Act, the further stipulation "if declared by that Act to be a court FOR THE PURPOSE OF THIS SECTION" (meaning Section 195) is not satisfied.
Guest
(Expert) 15 February 2013
Dear Mr. Anirudh,
You may perhaps like to broaden your views about Administrative Tribunal with reference to Sec.14(1) and 22(3) of The Administrative Tribunals Act, 1985, which clearly specify, "Save as otherwise expressly provided in this Act, the Central Administrative Tribunal 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)...." Naurally, as I understand, CAT would do all the functions of a court for the service matters pertaining to the Government servants. You may also like to refer to sec.17 of the Administrative Tribunals Act, which deals with the power to punish for contempt, as the sec.195 denotes.
About the sentence, "save as otherwise expressly provided in this Act," I have not yet been able to lay hand on any sentence in the Act, which precludes the Tribubal to act on section 195.
I wish you should not have jumped to your conclusion or presemption without interpreting the relative laws. What I feel, your initial statement, as "I am AFRAID, CAT has not been declared as 'court' for the purpose of Sec. 195 Cr.PC." was based on your own presumptive perception.
However, as I have already requested, hope you would like to help me to enhance my knowledge in finding out and making a mention of any specific section of any Act, what to say CAT Act, which specifically precludes CAT from being treated as a court for the purpose of sec.195.
Sudhir Kumar, Advocate
(Expert) 15 February 2013
so far none has tried. The querist may succeed although may be through a rough route
yogesh
(Querist) 15 February 2013
Sir,
In case if it dismissed or refused to make any complaint whether Appeal by the way of writ petition can be filed before H.C only on this order under
section 341 of CrPC
1) Any person on whose application any court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such court, may appeal to the court to which such former court is subordinate within the meaning of sub-section (4) of' section 95, and the superior court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.
Nadeem Qureshi
(Expert) 15 February 2013
Dear Yogesh
section 341 of Crpc is related to appeal against the order passed by the court on an application/complaint filed u/s 340 of Cr.PC
yogesh
(Querist) 15 February 2013
Thanks Qureshi Sir for reply..In CAT O.A ( Original Application) is filed and Miscallneous Application can be filed by the way of M.A only which is in the Main Application
We can move to the High court under Appellate Jurisdiction by the way of Writ Petition only
So here in this case if the M.A is disposed of by dismissing it without disposing of the main (O.A) Application.Then Criminal Miscallneous Appeal Application is maintainable u/s 341 CrPC only aginst the MA. order? or writ petition invoking jursidiction is to be done ??
Anirudh
(Expert) 15 February 2013
Dear Mr. Dhingra,
You have asked me to indicate any specific section of any Act, what to say CAT Act, which specifically precludes CAT from being treated as a court for the purpose of sec.195.
I would like to point out to you that it is not the question of specific exclusion, rather specific empowerment that we have to look for.
For instance, in the National Green Tribunal Act, 2010 under Section 19(5) you will find that the Tribunal has been specifically declared as a Civil Court for the purpose of Section 195 Cr.PC.
No such declaration been made in regard to Central Administrative Tribunal. Thus, CAT, does not satisfy the requirement of Section 195(3) of Cr.PC. Therefore provisions of Sec. 195 Cr.PC cannot be invoked as far as the proceedings before the CAT is concerned.
Guest
(Expert) 15 February 2013
Mr. Anirudh,
So, what is your interpretation about sec.17 of the Administrative Tribunals Act?
It is a matter of commonsense, unless specific exclusion clause is inserted and clause identical in nature of section 195 is inserted in the act, that does not mean that the Tribunal would be incompetent to deal with cases of contemp.
In fact, as usual, you try to read words, not the spirit of law by reading between the lines.
Irrespective of whether you agree with my interpretation or not, I am fully confident about my interpretation about section 195.
Anyway, I wish you challenge CAT on this aspect with specific reference to sec.195 and get yourself satisfied by the nature of judgment.
Anirudh
(Expert) 15 February 2013
Dear Mr. Dhingra,
Sec. 17 of CAT Act relates to Contempt provisions.
That is different from the Sec. 195 Cr.P.C. provisions.
I am not trying to read any words not available in the Act. Section 195(3) very clearly says "... and includes a Tribunal constituted under a Central, Provincial or State Act IF DECLARED BY THAT ACT to be a Court for the purposes of this Section."
Thus, I am not trying to read any words which is not available in the Act.
To prove that such a specific declaration is required in case of Tribunals, i have made available for example, the provisions of Green Tribunal where such specific declaration exists.
I respect your confidence about the interpretation. I have no illusion whatsoever that my agreement or disagreement will anyway enhance or diminish your confidence.
I have currently no need or occasion to challenge CAT on this aspect.
Thanks for the healthy debate/discussion.
In the process, I really learnt a few things.
Guest
(Expert) 16 February 2013
Dear Mr. Anirudh,
You may keep on with your conviction, But, hope you can very well understand that each and every act cannot be expected to contain the exact wording, what is written in some other act. That is why, there is a need to take the spirit of law, rather than going by words of sentences and trying to read between the lines.
Anyway, Mr. Yogesh's case can prove to be ideal to confirm or contradict your views, if you take up the case for the other party against him.
I only know that if the instance happens in a CAT case pertaining to contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence, the CAT, being a lawfull established court, cannot overlook that.
Just think over the following questions that arise out of your conviction:
1) Is CAT not a lawful authority against public servants?
2) Is CAT not dealing with offences relating to documents given in evidence?
3) Being a lawfully established court, should the CAT feel handicapped if the offence pertaining to the above two aspects happens before that or against its decision?
