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2013 DIGILAW 670 (JK)

Ram Kumar v. Union Of India

2013-11-20

Hasnain Massodi, M.M.Kumar

body2013
M.M. Kumar, C.J. 1. A short question of law raised in the instant petition filed by one Ram Kumar against the Union of India is "whether a judgment and decree passed by a Civil Court or execution proceedings, after enforcement of the Administrative Tribunals Act, 1985 could be subject matter of challenge before the Central Administrative Tribunal". Facts: 2. The petitioner was working under the Senior Divisional Personal Officer, Northern Railways. He was removed from service vide order dated 5/1985 (Annexure A). He challenged the order of removal by preferring a Civil Suit no. 72 of 1991, seeking a declaration that his removal from service was illegal and void. The proceedings in the Civil Suit continued and eventually the suit was decreed on 29.12.1993 in ex-parte proceedings. A copy of the judgment and decree has been placed on record (Annexure B) Then the writ petitioner initiated execution proceedings in the Court of Sub Judge (C.J.M.), Jammu. The Union of India through its officers of the Railways then filed O.A no. 1067-PB-94 challenging the validity of the judgment of the Civil Court before the Central Administrative Tribunal (for brevity `the Tribunal') on the ground that after enforcement of the Administrative Tribunals Act, 1985 (for brevity `the Act'), the subject matter of the suit squarely fell within the definition of service matters as defined in Section 3(q) of the Act. According to Section 28 of the Act the Civil Court was divested of jurisdiction to entertain or to proceed with any suit. The petitioner had filed execution application before the Civil Court, which has no jurisdiction to entertain such proceedings in view of specific bar created by Section 28 of the Act. Accordingly, a prayer was made before the Tribunal for quashing the judgment and decree as well as the proceedings before the executing Court. The Tribunal, after making reference to Section 28 of the Act, reached the following conclusion:- "It is very clear from the facts as brought to our notice that it was order of removal from service of Shri Ram Kumar which was a point in issue and it falls within the meaning- `service dispute' as given in Section 3(q) of the AT.Act, 1985. Under Section 14 and 19 of the A.T.Act, 1985 read with section 3(q) it is clear that jurisdiction for such dispute has been conferred on C.A.T w.e.f. the enforcement of the Act i.e. w.e.f. 1.11.1985. Under Section 14 and 19 of the A.T.Act, 1985 read with section 3(q) it is clear that jurisdiction for such dispute has been conferred on C.A.T w.e.f. the enforcement of the Act i.e. w.e.f. 1.11.1985. It is obvious thus that Civil Court had absolutely no jurisdiction to entertain the Civil Suit or pass any orders/decree thereon. Annexure A-1, A-2 have to be held to be illegal and void ab-initio and that Annexure A-3 is not maintainable before a Civil Court. We have been informed that Shri Ram Kumar, respondent, was never taken into service in view of the judgment mentioned above. For the reasons discussed above, this O.A. is allowed. Orders at Annexure A-1 and A-2 are quashed and set aside while declaring that Annexure A-3 was filed before a Court which does not have jurisdiction to entertain the suit or the execution application based on its decree." 3. Mr. Aditya Gupta, learned counsel for the petitioner has argued that the judgment and decree of the Civil Court could not have been set aside by the Tribunal along with the execution proceedings and the proper course for the respondents was to file an appeal under Section 96 of the Code of Civil Procedure. According to the learned counsel, Section 28, on which reliance has been placed by the Tribunal, does not go to the extent of ignoring the Civil Court decree and, therefore, ft would not cover the cases where proceedings have attained finality. In other words, there cannot be any challenge to a judgment and decree or any other proceedings for execution thereof. 4. Mr. Hari Hartar Singh, learned counsel for the respondents has, however, argued that after the enforcement of the Act with effect from 01.07.1985 all proceedings covered by Section 3 (q) read with Section 28 of the Act would automatically be transferred to the Tribunal. On the express language of Section 29 of the Act, only those appeals are saved which are pending before the High Courts. 5. Having heard the learned counsel for the parties and after perusal of record, we are of the considered view that the opinion expressed by the Tribunal does not warrant interference. 6. On the express language of Section 29 of the Act, only those appeals are saved which are pending before the High Courts. 5. Having heard the learned counsel for the parties and after perusal of record, we are of the considered view that the opinion expressed by the Tribunal does not warrant interference. 6. There is a complete ouster of jurisdiction of the Civil Court by virtue of express provision made in Section 28 of the Act, which at the relevant time permitted filing of an appeal to Hon'ble the Supreme Court alone under Article 136 of the Constitution. In order to appreciate the aforesaid position we set out below Section 28 of the Act in extenso:- 28. Exclusion of jurisdiction of courts except the Supreme Court - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except- (a) the Supreme Court; (b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. 7. A perusal of the aforesaid provision makes it evident that no court is competent on or from the date the Tribunals were established i.e. 01.07.1985 to exercise jurisdiction which have been vested in the Tribunal in relation to recruitment to any service or post or service matters. In the well known judgment of 7-Judge Bench of Hon'ble the Supreme Court in L. Chandra Kumar v. Union of India and ors, AIR 1997 SC 1125 their Lordships have concluded as under:- "99.........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 Court's even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. It will not, therefore, be open for litigants to directly approach the High Court's even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated." 8. It is further appropriate to mention that Section 29 of the Act deals with transfer of pending cases, including civil or other proceedings which were pending before any Court or authority immediately before the date of establishment of a Tribunal under the Act being a suit or proceeding the cause of action of which would have fallen within the jurisdiction of such Tribunal. The execution proceedings would thus be proceedings within the meaning of Section 29 of the Act and, therefore, after the enforcement of the Act the Civil Court would be divested of the jurisdiction in service matters. Reliance in that regard may be placed on a judgment of Hon'ble the Supreme Court rendered in the case of P.L. Kantha Rao v. State of Andhra Pradesh, (1995) 2 SCC 471 . Therefore, no Civil Court could proceed by entertaining execution proceedings in respect of a judgment and decree. It would automatically stand transferred to the Tribunal. The answer to the question posed in para 1 of this judgment has to be thus in the affirmative. 9. As a sequel to the above discussion this petition fails and the same is dismissed.