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2007 DIGILAW 518 (CAL)

ANJALI MUKHERJEE v. COMMISSIONER OF POLICE, LAL BAZAR

2007-07-16

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2007
BHASKAR BHATTACHARYA, J. ( 1 ) THIS mandamus-appeal is at the instance of an unsuccessful writ-petitioner and is directed against order dated December 22, 2005 passed by a learned single Judge of this Court by which His Lordship rejected the writ-application on the ground that in view of the provisions contained in Administrative tribunal Act, 1985, (hereinafter referred to as the Act) the writ-application was not maintainable. ( 2 ) BEING dissatisfied, the present mandamus-appeal has been preferred. ( 3 ) MR. Mukherjee, the learned advocate appearing on behalf of the appellant laboriously contended before us that the learned single Judge refused to exercise jurisdiction vested in His Lordship by not entertaining the writ-application. According to Mr. Mukherjee, the writ-petitioner, not being an employee of the State Government, but a widow of a retired employee, there was no scope of moving the State administrative Tribunal under the provision of section 19 of the Act. Mr. Mukherjee further contends that in the writ-application the grievance of the writ-petitioner was against the Accountant General, west Bengal, as well as the Manager of a branch of the United Bank of india through which the family pension is disbursed to the writ petitioner and those persons cannot be said to be the employees of the state Government and as such, the Tribunal cannot have any jurisdiction over those persons. Mr Mukherjee, therefore, prays for setting aside the order passed by the learned single Judge and for disposal of the writ-application on merit. ( 4 ) TO appreciate the points raised by Mr. Mukherjee, it will be profitable to refer to the prayers made by the writ-petitioner in the writ-application which are quoted below: "a) Writ and/or order and direction in the nature of Mandamus or any other writ and/or writs and/or orders and/or direction, commanding the respondents to take steps for releasing and/or making payment of various dues of Late Mani Lal Mukherjee, Sub-Inspector of Police of Calcutta Police to your petitioner with interest thereon including 7 years' full pension in terms W. B. S. R. Part-II within a short date that may be fixed. b) Writ and/or Order/direction in the nature of prohibition for not to deduct Rs. 684/- per month from the family pension of your petitioner being drawn through the Bank. b) Writ and/or Order/direction in the nature of prohibition for not to deduct Rs. 684/- per month from the family pension of your petitioner being drawn through the Bank. c) Writ/order/direction in the nature of Certiorari directing the respondents for production of all documents and records in connection with payment and dues on account of Provident fund, gratuities, leave encashment, Group Insurance, Refixation of Pay under ROPA, 1990 and concomitant benefits, and arrear pension for the period of 1. 2. 1991 to November, 1998, etc. which are/were lying before the respondents before the Registrar, Appellate Side so that conscionable justice can be rendered. " ( 5 ) AT this stage, the provisions contained in section 3 (q) and section 15 of the Act are also quoted below as those are relevant: "3 (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) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever; 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- (a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil past under the State; (b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation [or society] owned or controlled by the State government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation [or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. (2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and corporations (or societies) controlled or owned by the State Government. Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies]. Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies]. (3) Save as otherwise expressly provided in this Act, the administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all Courts (except the Supreme Court [***]) in relation to- (a) recruitment, and matters concenting recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and (b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of sub section (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs. (4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the central Administrative Tribunal extends or is exercisable. " ( 6 ) AFTER hearing the learned counsel for the parties and after going through the aforesaid provisions contained in the Act, we find that for the purpose of invoking the jurisdiction of the State Administrative tribunal, it is not necessary that the applicant must be a Government employee. All that is necessary is that the dispute must be covered by section 15 of the Act and the phrase 'all service matters' appearing in section 15 in the light of the definition of 'service matters' provided in section 3 (q) is wide enough to include the dispute as regards the amount of family pension payable to a widow of a retired employee. In the case before us, the grievance of the writ-petitioner is that the respondent authorities have illegally deducted some amount from the family pension payable to her. Therefore, the aforesaid dispute clearly comes within the purview of the words 'service matters' so as to invoke the jurisdiction of the State Administrative Tribunal. ( 7 ) THE right to have family pension is acquired by a Government employee in lieu of his service rendered to the Government on his death, the same being payable to his widow and other dependent as provided, in the conditions of service. Therefore, if there is any dispute as to the entitlement of the amount of family pension payable either to the widow of a retired employee or other dependents, such dispute must be resolved at the first instance by the concerned Tribunal at the behest of an aggrieved person. We, therefore, find no substance in the contention of Mr. Mukherjee that in order to maintain an application under section 19 of the Act before the State Administrative tribunal, the applicant must be the Government employee himself. We have already seen that according to the provisions contained in section 15 of the Act, even an applicant who has been wrongfully refused employment can also approach the Tribunal for his relief though he did not get the employment at all. Therefore, the applicant need not be an employee of the State Government. ( 8 ) WE also find no substance in the contention of Mr. Mukherjee that as in the concerned Rules framed under the Act, the form of the application under section 19 of the Act refers to only the name of the employee stating his designation or his office address, it necessarily followed that such application could only be made by a government employee. The aforesaid form indicates that if an existing government employee approaches the Tribunal, he should describe his official address and designation, but that does not mean that a retired government employee or a person who is not a government servant but having grievance within the meaning of section 15 the Act cannot move the Tribunal for his remedy. The aforesaid form prescribed in the Rules cannot have overriding effect over the substantive provisions contained in the Statute. ( 9 ) MR. The aforesaid form prescribed in the Rules cannot have overriding effect over the substantive provisions contained in the Statute. ( 9 ) MR. Mukherjee lastly contended that existence of alternative remedy before the Tribunal is not a bar in entertaining a writ-application and in support of such contention he relied upon the following three decisions: (i) V. Vellaswami v. Inspector General of Police, Tamil Nadu, reported in AIR 1982 SC 82 ; (ii) Whirlpool Corporation v. Registrar of Trade Marks, reported in AIR 1999 SC 22 (iii) T. K. Rangarajan v. Government of Tamil Nadu, reported in AIR 2003 SC 3032 . ( 10 ) IN all the aforesaid decisions, the Supreme Court reiterated the well-settled proposition of law that mere existence of an alternative remedy is not an absolute bar in entertaining a writ-application. We do not for a moment dispute the aforesaid proposition of law. But in the case before us, in view of the decision of the Supreme Court in the case of L. Chandukumar v. Union of India, reported in AIR 1997 SC 1125 , the jurisdiction of a learned single Judge of a High Court to entertain a writ-application in respect of the matters covered under the Act is ousted. Therefore, this is not a case of considering the question of existence of an alternative remedy, but is really a case of ouster of jurisdiction of the learned single Judge of a High Court. Consequently, the learned single Judge rightly refused to entertain the writ-application over which His Lordship had no jurisdiction, such right having been curtailed by the provision contained in the Act. ( 11 ) WE, therefore, find no reason to interfere with the order passed by the learned single Judge. This mandamus-appeal is, thus, devoid of any substance and is dismissed accordingly. ( 12 ) WE make it clear that we have not gone into the merit of the case and the dismissal of this mandamus-appeal will not stand in the way of the appellant in approaching the appropriate forum in accordance with law. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed