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2020 DIGILAW 160 (CAL)

Pabitra Kumar Mitra v. Union Of India

2020-02-07

AMRITA SINHA

body2020
JUDGMENT Amrita Sinha, J. - The petitioner is serving in the post of Senior Chief Medical Officer (Senior Administrative Grade) in the Central Government Health Scheme under Ministry of Health and Family Welfare. 2. The petitioner is aggrieved by the transfer order dated 26th September, 2019 issued by the under Secretary to the Government of India, Ministry of Health and Family Welfare, New Delhi and the letters dated 3rd September, 2019 and 22nd November, 2019 as well as the decision of the respondent authorities not to consider the petitioner for transfer and/or promotion to the post of Additional Director, Central Government Health Scheme as he has less than one year of service left to attain the age of 62 years. 3. At the very outset the learned advocate representing the Union of India raises a preliminary objection with regard to the maintainability of the writ petition under Article 226 of the Constitution of India at this stage. It has been submitted that the service of the petitioner will be covered under the Administrative Tribunals Act, 1985 and the petitioner ought to approach the Central Administrative Tribunal for necessary relief. 4. The Ld. Advocate for the respondents rely upon the decision delivered by the Hon'ble Supreme Court of India in the matter of L. Chandra Kumar -vsUnion of India & Ors., (1997) 3 SCC 261 in support of his objection. 5. To counter the argument of the respondents the petitioner has relied upon the decisions delivered by the Hon'ble Supreme Court in the matter of Whirpool Corporation -vs- Registrar of Trademarks, Mumbai & Ors., (1998) 8 SCC 1 (paragraphs 14 and 15) and Maharashtra Chess Association -vsUnion of India &Ors., (2019) 12 Scale 167 . The petitioner also relies upon the observation made by the Hon'ble Supreme Court in paragraphs 98 and 99 of the decision of L. Chandra Kumar (supra). 6. The petitioner has strenuously submitted that the jurisdiction of the High Court to entertain the writ petition cannot be curtailed under any circumstances. Whenever there is a breach in the principles of natural justice, equity and fair play the Writ Court can entertain the issue. It has been submitted that alternative remedy is not an absolute bar to approach the High Court for necessary relief in the event there is palpable illegality in the action of the respondents. 7. Whenever there is a breach in the principles of natural justice, equity and fair play the Writ Court can entertain the issue. It has been submitted that alternative remedy is not an absolute bar to approach the High Court for necessary relief in the event there is palpable illegality in the action of the respondents. 7. Before entering into the merits of the case I propose to deal with the issue of jurisdiction of the High Court to entertain the writ petition at this stage. 8. Admittedly the petitioner is a member of All India Service under the Central Government. The service of the petitioner is covered under the Administrative Tribunals Act, 1985. 9. Section 14 of the Administrative Tribunals Act, 1985 mentions that save as otherwise expressly provided in the Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day, by all courts in relation to all service matters concerning a member of any All India Service. 10. According to Section 3(9) of the 1985 Act '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 with respect of tenure including premature retirement and superannuation. 11. In the latter paragraphs of the judgment of L. Chandra Kumar (supra) the court took note of the fact that there is no constitutional prohibition upon the subordinate judiciary or Tribunals to perform supplemental role in exercise of judicial review. Article 32(3) of the Constitution mentions that without prejudice to the powers conferred on the Supreme Court under Clauses (1) and (2), Parliament may, by law, empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). 12. The court dealt with the alternative institutional mechanisms for settlement of disputes and the need for speedy resolution of service disputes. The court took note of the Malimath Committee Report and noticed that the pendency of the High Court has substantially increased. 13. 12. The court dealt with the alternative institutional mechanisms for settlement of disputes and the need for speedy resolution of service disputes. The court took note of the Malimath Committee Report and noticed that the pendency of the High Court has substantially increased. 13. The court laid down that the Tribunals created pursuant to Article 323A or under Article 323B of the Constitution are competent to hear matters specifically entrusted upon them and all decisions of the Tribunals will be subject to the High Court's writ jurisdiction under Article 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. The court held that the Tribunals will have the power to test the vires of subordinate legislation and rules. It is only when the vires of the parent statute pursuant to which a Tribunal has been created is challenged the High Court concerned may be approached directly. The court categorically held that the Tribunals will continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. The court clarified that it will not be open for litigants to directly approach the High Court even in cases where they question the statutory vires of the legislation by overlooking the jurisdiction of the Tribunal concerned. 14. The court upheld the constitution of the Tribunals with the sole idea of offloading the tremendous pendency of the variety of cases in the High Court. The Tribunals were set up primarily to streamline the cases for speedy dispensation of justice in relation to service disputes. Section 14 of the 1985 Act adequately covers the service dispute of the petitioner. 15. Though the petitioner admits that the Central Administrative Tribunal has the jurisdiction to entertain the issue, but at the same time contends that the jurisdiction of the Tribunal is alternative to the forum of the High Court. 16. Availability of an alternative remedy is not an absolute bar to approach the Writ Court is well settled and upheld by the Hon'ble Supreme Court in the decisions relied upon by the petitioner. In this case the issue is of ouster of jurisdiction and not the availability of alternative remedy. 17. The Hon'ble Supreme Court in Rajeev Kumar & Anr. Availability of an alternative remedy is not an absolute bar to approach the Writ Court is well settled and upheld by the Hon'ble Supreme Court in the decisions relied upon by the petitioner. In this case the issue is of ouster of jurisdiction and not the availability of alternative remedy. 17. The Hon'ble Supreme Court in Rajeev Kumar & Anr. -Vs- Hemraj Singh Chauhan & Ors., (2010) 4 SCC 554 held that the Tribunals created under Articles 323A and 323B of the Constitution will function as the only court of first instance in respect of errors of law for which they have been constituted. It further held that the principle laid down in the case of L. Chandra Kumar (supra) embodied a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. 18. In Smt. Anjali Mukherjee -vs- Commissioner of Police, Lalbazar & Ors., (2007) 3 CalLT 456 the court held that in view of the decision passed in the case of L. Chandra Kumar (supra) the jurisdiction of the learned Single Judge of the High Court to entertain a writ petition in respect of matters covered under the Administrative Tribunals Act is ousted. The learned Single Judge of the High Court does not have the jurisdiction to entertain the writ application. 19. There can be no second opinion that the jurisdiction under Article 226 of the Constitution cannot be curtailed. The jurisdiction of the High Court under Article 226 to deal with service matters of Central Government employees has been ousted by a statute whose vires has been upheld by the Hon'ble Supreme Court. The same implies that the remedy of the petitioner to approach the High Court at the very first instance has been taken away by operation of law. The petitioner can always approach the High Court, but at an appellate stage on judicial review of the order passed by the learned Tribunal as held by the Hon'ble Supreme Court in the matter of Maharashtra Chess Association (supra). The writ remedy is available to the petitioner, but not at this stage. The first stage i.e. the initiation of the proceeding has to be before the Tribunal and only thereafter does the remedy under Article 226 become available to the petitioner. 20. The writ remedy is available to the petitioner, but not at this stage. The first stage i.e. the initiation of the proceeding has to be before the Tribunal and only thereafter does the remedy under Article 226 become available to the petitioner. 20. The Supreme Court upheld both the views, first the basic structure of the Constitution and second the constitution of the Tribunals under Articles 323A & 323B. The court held that the Division Bench of the High Court has the power to exercise judicial review of the order passed by the Tribunal but not prior to that. The authoritative pronouncement of the Constitution Bench of the Supreme Court is binding upon the High Court as per Article 141 of the Constitution. The High Court is bound to follow the same. 21. In view of the discussion made hereinabove, in my opinion, the petitioner ought to approach the learned Tribunal as the court of first instance for necessary relief and the prayers made in the writ petition cannot be entertained by the High Court at this stage. 22. The writ petition is accordingly dismissed for lack of jurisdiction to entertain the issue. 23. The dismissal of the writ petition will, however, not stand in the way of the petitioner from approaching the appropriate forum, in accordance with law, if so advised. 24. W.P. No. 24198 (W) of 2019 is dismissed. 25. Urgent certified photocopy of this order, if applied for, be supplied to the parties on compliance of usual legal formalities.