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2020 DIGILAW 257 (JK)

Arvinder Singh v. Union Territory of J&K

2020-06-22

SANJAY DHAR

body2020
ORDER The instant writ petition has been filed by the petitioner, claiming various reliefs, which are reproduced as under:- “(a) Certiorari:- Quashing the order bearing No. 41-EC of 2020 dated 16.06.2020 issued by the respondent No. 2 qua petitioner whereby the representation of the petitioner has been put under suspension. (b) Mandamus:- to allow the petitioner to continue to perform his duties on the basis of government policy dated 10.04.2020 and 08.06.2020" 2. Petitioner is aggrieved of impugned Order No. 41-EC of 2020 dated 16.06.2020 passed by respondent No. 2, whereby it has been observed that the petitioner is working in a non-darbar move office but he has unauthorizedly left Jammu in the garb of “as is where is basis”, by staying in the valley, which has resulted in his absence from duty. As per the said order, an enquiry has been initiated against his conduct and he has been placed under suspension with immediate effect. 3. There is no dispute to the fact that the subject matter of the writ petition falls within the definition of word “service matter” as contained in Section 3 (q) of the Administrative Tribunals Act, 1985. 4. It is an admitted position that upon coming into force of the Jammu and Kashmir Re-organization Act, 2019 (hereinafter referred to as ‘the Re-organization Act’), the Administrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’) has become applicable to Union Territory of the Jammu and Kashmir and Ladakh w.e.f 31.10.2019 and as a sequel thereto vide Notification No. G.S.R. 318 (E) dated 28.05.2020 published in the gazette of India, a Bench of the Central Administrative Tribunal (in short, ‘the CAT’) stands established at Jammu with its jurisdiction extending to UTs of Jammu and Kashmir and Ladakh. As per the aforesaid Notification, the place of sittings of the CAT is at Jammu and Srinagar. 5. Section 28 of the Act excludes the jurisdiction of all the Courts including the High Court to entertain and hear the service matters of the employees of the State/UT and the jurisdiction is vested with the Tribunal. Section 28 of the Act is relevant to the context in this regard and the same reads as under:- 28. 5. Section 28 of the Act excludes the jurisdiction of all the Courts including the High Court to entertain and hear the service matters of the employees of the State/UT and the jurisdiction is vested with the Tribunal. Section 28 of the Act is relevant to the context in this regard and the same reads as under:- 28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution.-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; or (b) any Industrial Tribunal, Labour Court or other authority under the Industrial Disputes Act, 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.” 6. In the instant case, it is an admitted position that the subject matter of the writ petition is covered by the definition of the “ service matters”, as such, the provisions contained in Section 28 of the Act come into play and the jurisdiction of this Court to entertain the writ petition stands ousted. 7. Faced with the above situation regarding maintainability of the writ petition, learned senior counsel for the petitioner has referred to and relied upon the judgment of the Hon’ble Supreme Court rendered in case titled, L. Chandra Kumar Vs. Union of India, (1997)3 SCC 261 8. In Rojer Mathew’s vs South Indian Bank Ltd. And ors. passed in Civil Appeal No. 8588 of 2019, the Hon’ble Supreme Court has observed that having Tribunals without benches in at least capitals of the States and UTs amounts to denial justice to citizens of those States and UTs. 9. In the instant case, a permanent Bench of the CAT stands established at Jammu and with its sittings in Srinagar. The notification for establishment of the Tribunal in this regard is very clear. Therefore, the contention of the learned senior counsel for the petitioner that there is no efficacious remedy available with the petitioner is absolutely without any merit. 10. In the instant case, a permanent Bench of the CAT stands established at Jammu and with its sittings in Srinagar. The notification for establishment of the Tribunal in this regard is very clear. Therefore, the contention of the learned senior counsel for the petitioner that there is no efficacious remedy available with the petitioner is absolutely without any merit. 10. The Hon’ble Supreme Court in the case of L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261 has observed that the jurisdiction conferred upon the High Courts under Articles 226 & 227 of the Constitution of India being a part of inviolable basic structure of our Constitution, the same cannot be ousted. The Hon’ble Supreme Court has further observed that by holding that all decisions of the Tribunals will be subject to jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India before a Division Bench of the High Court within whose territorial jurisdiction, the Tribunal concerned falls will serve two purposes. Firstly it will save the judicial review of legislative action vested in the High Courts under Articles 226 & 227 of the Constitution and secondly it will ensure filtering of frivolous claims through the process of adjudication in the Tribunal. The Hon’ble Supreme Court while making these observations has laid down guideline that a service dispute must be taken to the Administrative Tribunal as a Court of first instance and thereafter, the decision of the Tribunal can be subjected to judicial review by the Division Bench of the High Court in exercise of its powers under Articles 226 & 227 of the Constitution of India. 11. In the instant case, the petitioner has approached the High Court directly without availing the effective and efficacious remedy of approaching the CAT, which, as already stated, stands established vide Notification dated 28.05.2020 and even prior to that, vide Notification No. GSR 267 (E) dated 29.04.2020, the Chandigarh Bench of the CAT was conferred with the jurisdiction over the UTs of the Jammu and Kashmir and Ladakh. So it is not a case, where the petitioner does not have an alternative efficacious remedy but it is a case where the petitioner has invoked the writ jurisdiction of this court without availing the alternative remedy of approaching the CAT. So it is not a case, where the petitioner does not have an alternative efficacious remedy but it is a case where the petitioner has invoked the writ jurisdiction of this court without availing the alternative remedy of approaching the CAT. Therefore, the Court would not exercise its jurisdiction under Articles 226 & 227 of the Constitution of India. 12. For the foregoing reasons, it is concluded that this Court lacks jurisdiction to entertain and hear the instant writ petition. The same is, accordingly, held to be not maintainable and is dismissed as such. The petitioner is, however, at liberty to approach the CAT for redressal of his grievance, if any.