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2001 DIGILAW 643 (CAL)

Durgadas Purkayastha v. Union of India

2001-10-05

Alok Kumar Basu, Altamas Kabir

body2001
JUDGMENT Altamas Kabir, J.: This writ application arises out of an order dated 28th September, 2001, passed by the Chairman, Principal Bench of the Central Administrative Tribunal at Delhi, in P.T. No. 296 of 2001, under section 23 of the Administrative Tribunal Act, 1985, in connection with original Application No. 910/KOLK of 2001, which had been filed by the writ petitioner herein while functioning as the Judicial member of the Central Administrative Tribunal, Calcutta Bench. In the said application the petitioner had, inter alia, prayed for a declaration that he had the right to continue as such judicial member of the said Bench in terms of the provisions of sections 8, 9, 10 and 11 of the Administrative Tribunal Act, 1985, from the date of assumption of charge till he attained the age of 62 years, in the absence of a formal order of re-appointment. By virtue of the said order of 28th September, 2001, the prayer made for transfer of the matter was allowed by the Chairman. 2. As will appear from the averments made in the writ petition, the petitioner was appointed as judicial member of the Central Administrative Tribunal at Patna in terms of his appointment order dated 30th August, 1996, and subsequently, he was transferred to the Calcutta Bench in the month of December, 1996. 3. According to the petitioner, in the month of April, 2001, he came to learn that the Department of Personnel had issued a D.O. letter dated 16th February, 2001, inviting applications from intending candidates for filling up 7 anticipated vacancies, including one at the Kolkata Bench, where the petitioner was still functioning. The petitioner thereupon made representations to the Chairman, Central Administrative Tribunal, Principal Bench, for his reappointment as Judicial Member for a further period of five years or until he attained the age of 62 years. As the said representation remained un-disposed the petitioner moved the aforesaid application, inter alia, for the relief as indicated hereinabove. 4. From the materials on record, it appears that the petitioner's application before the learned Tribunal came up for hearing in the presence of all the parties on 17th September, 2001, and ultimately, the hearing was concluder on 21st September. 2001, when the learned Tribunal directed the respondents to produce the relevant records on 1st October, 2001, for passing final orders. From the materials on record, it appears that the petitioner's application before the learned Tribunal came up for hearing in the presence of all the parties on 17th September, 2001, and ultimately, the hearing was concluder on 21st September. 2001, when the learned Tribunal directed the respondents to produce the relevant records on 1st October, 2001, for passing final orders. However, in the meantime, the order passed by the Chairman, Principal Bench of the Central Administrative Tribunal at Delhi, was received by the Calcutta Bench on 28th September, 2001. 5. On 1st October, 2001, the learned Tribunal took note of the order of 28th September, 2001, passed by the Chairman allowing the prayer made on behalf of the respond ants under section 25 of the Administrative Tribunal Act, 1985, for transfer of the petitioner's application to some other Bench of the Central Administrative Tribunal. 6. As indicated hereinbefore, the writ petitioner has questioned the said order of transfer passed by the Chairman, Principal Bench of the Central Administrative Tribunal at Delhi on the ground that the same had been passed in violation of the provisions of section 25 of the aforesaid Act. 7. It was urged that since the entire matter had originated in Calcutta and the hearing had already been concluded and only final orders were required to be passed in the matter, the Chairman had acted in violation of the provisions of section 25 of the aforesaid Act in transferring the Original Application from the Calcutta Bench to some other Bench without notice to the petitioner and without giving him an opportunity of hearing as provided for. 8. At the initial stage, it appeared to us that this Court had no jurisdiction to consider the validity of the order passed by the Chairman, Principal Bench of the Central Administrative Tribunal at Delhi and the parties were given an opportunity to make their submissions in that regard. 9. In this connection, submissions were made, having particular regard to the provisions of Article 226 of the Constitution of India as it now stands. 9. In this connection, submissions were made, having particular regard to the provisions of Article 226 of the Constitution of India as it now stands. It was urged that in view of clause (2) of Article 226 of the Constitution, since a part of the cause of action had arisen within the jurisdiction of this Court and since the effect of the order of the Chairman was felt within the jurisdiction of this Court, as the records of the Original Application were to be transferred from the Calcutta Bench to some other Bench, this Court would have jurisdiction to entertain the writ application. 10. As against the said submissions made on behalf of the petitioner, it was submitted on behalf of the respondents that having regard to the provisions of the Administrative Tribunal Act, 1985, and more particularly, the decision of the Hon'ble Supreme Court in the case of L. Chandra Kumar vs. Union of India, reported in A.I.R. 1997 S.C. page 1125, it could no longer be contended that having regard to the provisions of clause (2) of Article 226 of the Constitution of India this Court would have jurisdiction to entertain a challenge thrown to the order of the Chairman, Principal Bench of the Central Administrative Tribunal, even if a part of the cause of action had arisen within the jurisdiction of this court. 11. It was urged that since the order of transfer under section 25 of the aforesaid Act had been passed at Delhi, the writ petitioner's remedy, if any, would lie not before this Court, but before the High Court having territorial jurisdiction over the order passed by the Chairman. 12. We have carefully considered the submissions made on behalf of the respective parties and we are inclined to agree with the submissions made on behalf of the respondents. 13. It may be noted that by section 28 of the Administrative Tribunal Act, 1985, the High Court's jurisdiction to entertain matters arising out of orders of the learned Tribunals constituted under the aforesaid Act was sought to be ousted. The matter fell for consideration before the Hon'ble Supreme Court in the case of S. P. Sampath Kumar vs. Union of India, reported in A. I. R. 1987 S. C. 386, where the validity of the aforesaid Act, including the provision of section 28 thereof was upheld. The matter fell for consideration before the Hon'ble Supreme Court in the case of S. P. Sampath Kumar vs. Union of India, reported in A. I. R. 1987 S. C. 386, where the validity of the aforesaid Act, including the provision of section 28 thereof was upheld. A series of judgments followed the decision of the Hon'ble Supreme Court in S. P. Sampath Kumar's case, but subsequently a Division Bench of the Hon'ble Supreme Court referred the aforesaid question and other questions to a Larger Bench for reconsideration. The matter was, therefore, reconsidered in the case of L. Chandra Kumar vs. Union of India (supra) and it was held that the power of judicial review over legislative action vested in the High Courts under Article 226 of the Constitution and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. It was also held that power vested in the High Courts to exercise judicial superintendence over the decision of all Courts and Tribunals, within their respective jurisdictions was part of the basic structure of the Constitution and that a situation, where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, was equally to be avoided. 14. The Hon'ble Supreme Court further observed that while discharging their duties the learned Tribunal could not act as a substitute for the High Courts and the Hon'ble Supreme Court and that their function is only supplemental and all decisions of the learned Tribunals would be subject to scrutiny before a Division Bench of the respective High Courts. 15. By virtue of the aforesaid decision, the High Court's power of judicial review in respect of orders passed by the learned Tribunals constituted under the Administrative Tribunal Act, 1985 and other similar Tribunals constituted under Articles 323A and 323B of the Constitution was reported but to the extent that such power of judicial scrutiny would be vested in a Division Bench of the respective High Court, having territorial jurisdiction in respect of the learned Tribunal which passed the order. 16. 16. In the instant case, although, the effect of the order of transfer passed by the Chairman is that the records of Original Application No. 910 of 2001 is to be transferred to some other Bench, the order, as such, having been passed by the Chairman, Principal Bench, Central Administrative Tribunal at Delhi, any challenge in respect thereof, would, in our view, lie before the High Court at Delhi in view of the observations made by the Hon'ble Supreme Court in L. Chandra Kumar's case (supra). 17. This writ application is, accordingly, dismissed on the ground of absence of jurisdiction, but with liberty to the writ petitioner to move before the appropriate High Court, if so advised. 18. There will be no order as to costs. 19. The interim order, as passed by us, is also vacated. 20. Stay, as prayed for, is considered and refused, having regard to the view taken by us hereinbefore. 21. If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. Alok Kumar Basu, J. : I agree. Writ application dismissed. Interim order vacated. Prayer for stay refused.