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Gauhati High Court · body

1999 DIGILAW 225 (GAU)

Niranjan Ghose v. State of Assam and Another

1999-06-26

A.K.PATNAIK

body1999
The petitioner was a member of the Indian Administrative Service working in the State Govt of Assam. He retired from service on 31.5.97 on superannuation. After his retirement, he received a memorandum dated 17.9.98 issued by Chief Secretary to the Govt of Assam. In the said memorandum, it is stated that the Govt of Assam proposed to hold an enquiry against petitioner under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 read with Rule 6 (1) (b) of the All India Services (Death-cum-Retirement) Rules, 1958. Along with the said memorandum dated 17th September, 1998, the articles of charges and statement of imputations of misconduct in support of the articles of charges against petitioner have been annexed as Annexures I and II. The charges against the petitioner are that while he was holding the post of Secretary to the Govt of Assam, Excise Department, a notification was issued for merger of State Sales Tax with the State Excise Duty on 16.9.94 pursuant to a Cabinet decision taken on 22.12.92. But the petitioner withdraw the said notification dated 16.9.94 and issued another notification dated 20.9.94 without the approval of the Cabinet. The petitioner was therefore guilty of violating the provisions of the Assam Rules of Executive Business and Rule 3 of the All India Services (Conduct) Rules, 1968. Simultaneously, the petitioner was also served with a communication dated 17th September, 1998 of the Chief Secretary to the Govt of Assam informing him that the Govt of India by order dated 17.9.98 has conveyed sanction for institution of departmental proceedings against tfye petitioner for major penalty under Rule 6 (1) (b) (i) of the All India Services (Death-cum-Retirement) Rules, 1958. Along with the said communication dated 17th September, 1998, a copy of the order dated 17th September, 1998 of the Govt of India, Ministry of Personnel, sanctioning departmental proceedings against the petitioner was also enclosed. By the memorandum dated 17th September, 1998 the petitioner was asked to his submit his written statement of his defence. Along with the said communication dated 17th September, 1998, a copy of the order dated 17th September, 1998 of the Govt of India, Ministry of Personnel, sanctioning departmental proceedings against the petitioner was also enclosed. By the memorandum dated 17th September, 1998 the petitioner was asked to his submit his written statement of his defence. In reply, the petitioner sent a letter dated 29th September, 1998 to the Chief Secretary to the Govt of Assam stating inter alia that the alleged events took place during the period 1992-94 and he was not a position to recollect the then ground realities and that in the interest of equity, justice and fair play, the State Govt should drop the departmental proceedings initiated against the petitioner. When no reply was ifcceived by the petitioner from the Chief Secretary to the Govt of Assam, the petitioner wrote another letter dated 1st November, 1998 to the Chief Secretary, Govt of Assam, reiterating his request to drop the departmental proceedings against him. In the said letter dated 1st November, 1998 the petitioner also contended mat the departmental proceedings were initiated against him in violation of the provisions of Rule 6 (1) (b) of the All India Services (Death-cum-Retirement)-Rules, 1958 and therefore e should be dropped. Since, the departmental proceedings against the petitioner have not been dropped, the petitioner has filed this application under Article 226 of the Constitution for quashing the memorandum dated 17th September, 1998 issued by the Chief Secretary to the Govt of Assam as well as enquiry proposed to be held against the petitioner pursuant to the said memorandum. The petitioner has also prayed for a direction to the respondents to pay his pending financial and retirement benefits such as, gratuity, pension, commutation leave encasement etc. 2. Mr. SN Bhuyan, learned counsel for the petitioner submitted that the petitioner has retired from service on 31.5.97 and is no longer a member of an All India Service. The Central Administrative Tribunal therefore does not have jurisdiction under section 14 of the Administrative Tribunals Act 1985 (for short the Act) to decide the present dispute between the petitioner and the respondents. He argued that even if the Central Administrative Tribunal had jurisdiction under the Act to decide the dispute between petitioner and respondents, the High Court also has powers under Article 226 of the Constitution to entertain and decide the dispute. He argued that even if the Central Administrative Tribunal had jurisdiction under the Act to decide the dispute between petitioner and respondents, the High Court also has powers under Article 226 of the Constitution to entertain and decide the dispute. He explained that in the earlier case of SP Sampath Kumar vs. Union of India, AIR 1987 SC 386 the Supreme Court had held that the Tribunal constituted under the Act was riot supplemental to the High Court but a substitute for the High Court. But in the later case of L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261 the Supreme Court held that the Tribunal constituted under the Act played a supplementary role to the High Court under Article 226/227 of the Constitution and that the jurisdiction of the High Court under Article 226/227 of the Constitution was not ousted. Mr. Bhuyan relied on the decision of the Supreme Court in the case of State of AP vs. K. Mohanlal, (1998) 5 SCC 468 in which the Supreme Court took note of the aforesaid law laid down in the cases of SP Sampath Kumar and L. Chandra Kumar and observed that the power of judicial review of the decisions of the Tribunals is now expressly preserved as a basic feature of the Constitution in the judgment of Supreme Court in the case of L. Chandra Kumar. According to Mr. Bhuyan, therefore, even in respect of matters within the jurisdiction of the Central Administrative Tribunal, the High Court can exercise its power under Article 226 of the Constitution. He cited the decision of the Supreme Court in Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 in which it was held that if the High Court was inclined to entertain any application in respect of a matter arising out the TADA Act, this power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. 3. Mr. Bhuyan vehemently argued that the present case is one such rare and appropriate case of extreme nature in which the High Court should exercise its power under Article 226 of the Constitution. 3. Mr. Bhuyan vehemently argued that the present case is one such rare and appropriate case of extreme nature in which the High Court should exercise its power under Article 226 of the Constitution. He submitted that the under Rule 6 of the All India Services (Death-cum-Retirement) Rules, 1958, departmental proceedings can be instituted against a Govt servant who has retired from service in respect of an event which took place not more than four years before the institution of the departmental proceedings. In the instant case, the event in respect of which the departmental proceedings are sought to be instituted against the petitioner took place on 20.9.94 and four years (365 days x 4) have expire on 16.9.98 from the date of said event. Therefore, the institution of departmental proceedings against the petitioner by the impugned memorandum on 17.9.98 was beyond the jurisdiction of the respondents under the said Rule 6 of the All India Services (Death-cum-Retirement) Rules, 1958. Mr. Bhuyan further submitted that in any case the charges and statement of imputations against the petitioner do not show that any pecuniary loss has been caused to the Govt on account of the notification dated 29.9.94 alleged to have been issued by the petitioner. Hence the departmental proceedings instituted against the petitioner will cause unnecessary harassment to him. 4. Mr. PG Baruah, learned Advocate General, Assam on the other hand, submitted that the Supreme Court in the case of L.Chandra Kumar (supra) while holding that the jurisdiction of the High Court under Article 226/227 of the Constitution cannot be ousted observed that the Tribunals constituted under Articles 323 A and 323B will nevertheless continue to act as Courts of first instance in respect of the areas of law for which they have been constituted and it will not therefore be open for litigants to directly approach the High Court evert in cases where they question the virus of statutory legislation by overlooking the jurisdiction of the Tribunal. According to Mr. Baruah, since the petitioner was a member of an All India Service and the disputes in the writ petition relate of such All India Service, the petitioner should have first approached the Central Administrative Tribunal and should not have come to the High Court directly under Article 226 of the Constitution. According to Mr. Baruah, since the petitioner was a member of an All India Service and the disputes in the writ petition relate of such All India Service, the petitioner should have first approached the Central Administrative Tribunal and should not have come to the High Court directly under Article 226 of the Constitution. In this context, he argued that there may also be disputed questions of fact involved in the writ petition which can be only decided by the Central Administrative Tribunal under the Act and not by the High Court under Article 226 of the Constitution. 5. Alternatively, Mr. Baruah submitted that even if the High Court has jurisdiction under Article 226 of the Constitution to entertain the dispute between petitioner and respondents, this is not a case in which the High Court should interfere in the departmental proceedings initiated against the petitioner. He argued that by the impugned memorandum dated 17.9.98 the petitioner has only been asked to show cause or submit his written statement in respect of the charges and the High Court will not be justified in quashing the impugned memorandum. He relied on a decision of the Supreme Court in State of UP vs. Brahm Datt Sharma, AIR 1987 SC 943 in which the Supreme Court set aside the order of the High Court quashing a show cause notice issued to a Govt servant and directing the State Govt to pay arrears of salary; pension and other allowances to him. According to Mr. Baruah, therefore, interference by the High Court at the stage of notice to show cause in the present case would be premature. Finally, he contended that both the State Govt and Central Govt had applied their mind to the facts of the present case and had taken a view that departmental proceedings against the petitioner should be initiated and were permissible under the All India Services (Death-cum-Retirement) Rules, 1958 and the Court should not lightly interfere with the impugned memorandum dated 17.9.98. 6. The first question that is to decided in this case is whether the petitioner could approach the High Court directly under Article 226 of the Constitution before first approaching the Central Administrative Tribunal. Section 14 (1) of the Administrative Tribunals Act 1985 which provides for jurisdiction, powers and authority of the Central Administrative Tribunal is quoted herein below : “14. The first question that is to decided in this case is whether the petitioner could approach the High Court directly under Article 226 of the Constitution before first approaching the Central Administrative Tribunal. Section 14 (1) of the Administrative Tribunals Act 1985 which provides for jurisdiction, powers and authority of the Central Administrative Tribunal is quoted herein below : “14. Jurisdiction, powers and authority of the Central Administrative Tribunal - (1) 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) in relation to: (a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; (b) all service matters concerning (i) A member of any All India Service; or (ii) a person (not being a member of an All India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian (not being a member of an All India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence and pertaining to the service of such member, person or civilian, in connection with the affairs of any local or other authority within the territory of India or under the control of the Government of India or of any corporation (or society) owned or controlled by the Government. (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Govt or any local or other authority or any Corporation (or society) or other body, at the disposal of the Central Government for such appointment. Explanation. Explanation. For the removal of doubts, it is hereby declared that references to 'Union' in this sub-section shall be construed as including references also to a Union territory." Section 14 (1) of the Act quoted above would show that Central Administrative Tribunal has jurisdiction, powers and authority in relations to all service matters concerning a member of any All India Service. The expression 'service matters' has been defined in section 3 (q) of the Act as follows: "3. Definitions : In this Act, unless the context otherwise requires, .... (q) 'service matters', in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation (or society) owned or controlled by the Government, as respects : (i) remuneration (including allowances), pension and other retirement benefits, (ii) (iii) (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matters whatsoever” Thus service matters in relation to a person, means all matters relating to the conditions of his service including remuneration (including allowances) pension and other retirement benefits, tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation, leave of any kind, disciplinary matters and any other matter whatsoever. Therefore when a person retires from an All India Service and his remuneration, pension and other retirement benefits and leave encasement are withheld on account of disciplinary proceedings, the dispute between him and the authority will be dispute in relation to service matters of such person, and such a dispute will fall within the jurisdiction, powers and authority of the Central Administrative Tribunal under section 14 of the Act. The fact that he has retired from service will not take away such a dispute from the jurisdiction, powers and authority of the Central Administrative Tribunal under Section 14 of the Act 7. It is not disputed that the petitioner was a member of Indian Administrative Service which is an All India Service. The fact that he has retired from service will not take away such a dispute from the jurisdiction, powers and authority of the Central Administrative Tribunal under Section 14 of the Act 7. It is not disputed that the petitioner was a member of Indian Administrative Service which is an All India Service. In this writ petition under Article 226 of the Constitution, the petitioner has prayed for quashing the impugned memorandum dated 17th September, 1998 issued by the Chief Secretary, Govt of Assam by which disciplinary proceedings are proposed to be initiated against the petitioner under Rule 8 of All India Services (Discipline and Appeal) Rules, 1969 read with Rule 6 (1) (b) of the All India Services (Death-cum-Retirement) Rules, 1958. This is therefore a disciplinary matter falling within the meaning of 'service matters' as defined in section 3 (q) of the Act. In the writ petition, the petitioner has also prayed for a direction on the respondents to pay the petitioner his financial and retirement benefits, such as, gratuity, pension commutation, leave encasement etc. These are matters relating to remuneration, pension and other retirement benefits, leave of any kind which are also service matters within meaning of Section 3 (q) of the Act. All the reliefs claimed in this writ petition can be granted by the Central Administrative Tribunal in exercise of its jurisdiction, powers and authority under section 14 of the Act. 8. In the case of L. Chandra Kumar (supra), the Supreme Court held that the jurisdiction of High Courts under the Articles 226/227 of the Constitution is a part of the inviolable basic structure of our Constitution and that this jurisdiction cannot be ousted but other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 of the Constitution. In the said case, the Supreme Court further held that the Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules but the decisions of these Tribunal will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. But the Supreme Court in no uncertain terms held : "The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. But the Supreme Court in no uncertain terms held : "The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the virus of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned." Thus, the Central Administrative Tribunal is to be the Court of the first instance in respect of service matters of All India Services and the petitioner can not directly approach this Court for reliefs in respect of such matters by overlooking the jurisdiction of the Central Administrative Tribunal. 9. For the aforesaid reasons, the interim order passed by this Court 20.11.98 is vacated and this writ petition is disposed with the observation that the petitioner may approach the Central Administrative Tribunal for relief, both interim and final. No Costs.