Union Of India vs Alapan Bandyopadhyay on 6 January, 2022
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Supreme Court of India
Union Of India vs Alapan Bandyopadhyay on 6 January, 2022
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, C.T. Ravikumar
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.197 OF 2022
(Arising out of SLP(C)No.18338/2021)
Union of India Appellant
VERSUS
Alapan Bandyopadhyay Respondent
J U D G M E N T
C.T. RAVIKUAMR, J.
1. Leave granted.
2. A legal conundrum calls for resolution in this
case. The seminal question that created it is:
‘whether the bundle of facts that constitute the
cause of action for filing an Original
Application under Section 19 of the
Administrative Tribunals Act, 1985 (for short
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2022.01.06
15:55:27 IST
‘the Act’) and determinative of the place of its
Reason:
filing would remain as the decisive factor in
2case such an application is subsequently
transferred from the Bench where it was filed to
another Bench of the Tribunal falling under the
territorial jurisdiction of another High Court,
to ascertain the jurisdictional High Court to
exercise the power of judicial review qua the
order of transfer passed by the Chairman of the
Central Administrative Tribunal at New Delhi in
exercise of power under Section 25 of the Act’.
3. The Appellant assails the final judgment and
order dated 29.10.2021 passed by the High Court
at Calcutta in WPCT No.78/2021 whereby the High
Court set aside the order dated 22.10.2021 passed
by the Central Administrative Tribunal, Principal
Bench (New Delhi) in P.T.No.215/2021 transferring
O.A.No.1619/2021, filed by the respondent herein,
from Kolkata Bench to its files at the Principal
Bench (New Delhi). In fact, order in
P.T.No.215/2021 was passed by the Chairman of the
Tribunal in exercise of the power under Section
25 of the Act. The respondent herein, who was
the then Chief Secretary of the State of West
3
Bengal (since superannuated as an IAS officer),
filed O.A.No.1619/2021 before the Kolkata Bench
of the Central Administrative Tribunal
challenging the disciplinary proceedings
initiated against him vide charge memo dated
16.06.2021 alleging failure to attend a review
meeting chaired by the Hon’ble the Prime Minister
of India on 28.05.2021 for assessing the loss of
life, damage to property and infrastructure
caused by the cyclonic storm ‘YAAS’. He was
charged thereunder for failure to maintain
absolute integrity and devotion to duty and for
exhibiting conduct unbecoming of a public
servant. Pending consideration of the stated O.A.
the Appellant herein moved a Transfer Petition
being P.T.No.215/2021 under Section 25 of the
Act, before the Principal Bench of the Tribunal
at New Delhi seeking its transfer from the
Kolkata Bench to the Principal Bench. That
petition was allowed by the Chairman of the
Tribunal, sitting at the Principal Bench and the
challenge of which ultimately led to the passing
4
of the impugned final judgment and order dated
29.10.2021 by the High Court. Since we are
confining the consideration only on the question
as to which is the jurisdictional High Court
having the power for judicial review as relates
the order of transfer passed in P.T.No.215/2021
it is un-essential to refer to, in detail, the
various contentions raised in the stated O.A. to
challenge the disciplinary proceedings as also
the contentions raised before the High Court in
WPCT No.78/2021 to challenge the correctness of
the stated order of transfer. In troth,
consideration of correctness or otherwise of the
decision of the High Court on merits would become
inept if the High Court at Calcutta is found
lacking jurisdiction to entertain the challenge
against the order in P.T.No.215/2021 passed under
Section 25 of the Act.
4. To properly consider this appeal, it is only
appropriate to refer to Section 25 of the Act and
Rule 6 of the Central Administrative Tribunal
(Procedure) Rules, 1987 (for brevity, the
5
‘Procedure Rules’). They read thus: –
“Section 25 of the Administrative
Tribunals Act, 1985 :
25. Power of Chairman to transfer cases
from one Bench to another.- On the
application of any of the parties and
after notice to the parties, and after
hearing such of them as he may desire to
be heard, or on his own motion without
such notice, the chairman may transfer
any case pending before one Bench, for
disposal, to any other Bench.”“Rule 6 of the Central Administrative
Tribunal (Procedure) Rules, 1987 :
6. Place of filing applications.- (1) An
application shall ordinarily be filed by
an applicant with the Registrar of the
Bench within whose jurisdiction –
(i) the applicant is posted for the time
being, or
(ii) the cause of action, wholly or
in part, has arisen;
Provided that with the leave of the
Chairman the application may be filed
with the Registrar of the Principal Bench
and subject to the orders under section
25, such application shall be heard and
disposed of by the Bench which has
jurisdiction over the matter.
(2) Notwithstanding anything contained in
sub-rule (1) persons who has ceased to be
in service by reason of retirement,
dismissal or termination of service may
be at his option file an application with
the Registrar of the Bench within whose
jurisdiction such person is ordinarily
residing at the time of filing of the
6application.”
5. There is no dispute regarding the power of the
Chairman to transfer an Original Application
pending before one Bench of the Tribunal to
another bench, under Section 25 of the Act. A
perusal of the said provision would reveal that a
party to any Application before any Bench of the
Central Administrative Tribunal is statutorily
entitled to make a separate application before
the Chairman of the Central Administrative
Tribunal for such a transfer. Upon transfer of an
Original Application pending before a particular
Bench of the Tribunal, lying within the
territorial jurisdiction and power of judicial
superintendence of any particular High Court
other than High Court of Delhi at Delhi, to the
Principal Bench at New Delhi lying within the
territorial jurisdiction of High Court of Delhi,
the question of maintainability may arise in case
of a challenge against the order of transfer. Yet
another High Court may emerge in the picture if
the Chairman, sitting at the Principal Bench
7
transferred the O.A. not to the file of the
Principal Bench, but to another Bench lying
within the territorial jurisdiction of yet
another High Court. It is to be noted that the
Chairman of the Tribunal can also pass an order
of transfer of an Original Application while
sitting at any other Bench than the Principal
Bench. This possibility cannot be ruled out in
view of the provisions under Section 5(4)(a) of
the Act, which reads thus:-
“S.5. Composition of Tribunals and
Benches thereof.- (1)…
(2)…
(3)…
(4) Notwithstanding anything contained
in sub-Section (1), the Chairman –
(a) may, in addition to discharging
the functions of the Judicial Member
or the Administrative Member of the
Bench to which he is appointed,
discharge the functions of the
Judicial Member or, as the case may
be the Administrative Member, of any
other Bench;”
6. The question of jurisdictional issue may get
complicated further in case some of the
applicants who joined together to file a single
Original Application under Section 19 of the Act
8
before a particular Bench of the Tribunal have
chosen to challenge the order of its transfer, if
passed under section 25 of the Act, before
different High Courts, based on their places of
residence. Occurrence of such a situation is
possible and cannot be ruled out going by the
provisions under Rule 4(5)(a) and (b) of the
Procedure Rules, which read thus:
“Rule 4. Procedure for filing
applications. -
4(5) (a) Notwithstanding anything
contained in sub-rules (1) to (3) the
Tribunal may permit more than one person
to join together and file a single
application if it is satisfied, having
regard to the cause and the nature of
relief prayed for that they have a
common interest in the matter.
4(5) (b) Such permission may also be
granted to an Association representing
the persons desirous of joining in a
single application provided, however,
that the application shall disclose the
class/grade/categories or persons on
whose behalf it has been filed [provided
that at least one affected person joins
such an application].”
All the above aspects have to be borne in mind
while considering the question that calls for
resolution in this appeal. Yet another important
9
aspect may also has to be borne in mind, idest
that the cause of action for filing an Original
Application under section 19 of the Act to
redress any grievance and the cause of action for
challenging an order of transfer of such an
application from the Bench where it was filed and
pending, to another Bench are different and
distinct. The place for filing an Original
Application against any order under section 19
would depend upon the bundle of facts
constituting the cause of action which ultimately
culminated in the said order sought to be
impugned. Explanation to section 19(1) defines
the meaning of the word ‘order’ for the purposes
of the said section. On the other hand, the cause
of action for challenging the order of
transfer/order declining the prayer for transfer
is nothing but an order passed in the independent
application for transfer of pending Original
Application from the files of that particular
Bench of the Tribunal where it was filed to
another Bench in the invocation of or
10
disinclination to invoke, the power under Section
25 of the Act.
7. We have heard Shri Tushar Mehta, learned
Solicitor General, for the appellant and learned
Senior Advocate Dr. Abhishek Manu Singhvi
appearing for the respondent. Both sides relied
on various authorities to drive home their
respective stand as relates the impugned
judgment. The learned Solicitor General contended
that a challenge against the order passed in
P.T.No.215/2021 by the Central Administrative
Tribunal, Principal Bench at New Delhi, was
maintainable only before the High Court of Delhi
as the Principal Bench of the Tribunal lies
within its territorial jurisdiction. To buttress
the said contention the judgment of a
Constitutional Bench of this Court in L. Chandra
Kumar vs. Union of India, reported in (1997) 3
SCC 261 is relied on. It was held therein that
the power vested in the High Court to exercise
judicial superintendence over the decisions of
all courts and Tribunals within the respective
11
jurisdictions is also part of the basic structure
of the constitution. Furthermore, it was held
that the decisions of Tribunals would 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 learned Solicitor General also
referred to Section 5(7) of the Act which
provides that subject to the other provisions of
the Act, Benches of the Central Administrative
Tribunal shall ordinarily sit at New Delhi (which
shall be known as the Principal Bench),
Allahabad, Kolkata, Madras, New Bombay and at
such other places as the Central Government may,
by notification, specify, to support the
contention that High Court at Calcutta did not
have jurisdiction to exercise judicial review of
the orders in P.T.No.215/2021. Relying on the
decision in Union of India vs. A. Shainamol, IAS
and Anr., reported in (2021) SCC Online SC 962,
it is contended that the mere residence of the
12
Applicant in a certain place would not amount to
cause of action conferring jurisdiction upon the
Bench of the Tribunal located at that place.
Indubitably, this contention is relevant only for
challenging the maintainability of an Original
Application before any particular Bench of the
Tribunal. The learned Solicitor General relied on
the decision of this Court in JK Industries Ltd.
& Anr. vs. Union of India & Ors., reported in
(2007) 13 SCC 673 to contend that Rule 6 of the
Procedural Rules ought not to have been
interpreted by the High Court so as to take away
Chairman’s jurisdiction to transfer a case under
Section 25 of the Act as the cardinal principle
of interpretation is that a rule made under a
statute could not override or supersede a
provision of the parent statute itself. According
to us the said decision and the contention
founded on the said decision are relevant only
for the purpose of deciding the correctness of
the order of transfer passed by the Principal
Bench of the Tribunal in exercise of the power
13
under Section 25 of the Act and not for deciding
the jurisdictional High Court qua the order in
P.T.No.215/2021.
8. The Appellant also got a grievance that the High
Court made some harsh or disparaging remarks in
the impugned judgment against the Chairman of the
Tribunal. The learned Solicitor General submitted
that they were unsolicited and relied on various
decisions to stress upon the requirement of their
expunction. Nevertheless, we think it
unnecessary to delve into all such contentions
based on such decisions as Dr. Abhishek Manu
Singhvi, learned Senior Counsel appearing for the
respondent, fairly submitted that he would not
contest on that issue and left it to us to
decide. Obviously, the High Court found undue
haste in the matter of disposal of
P.T.No.215/2021 and that also persuaded the High
Court to make such scathing observations and
remarks in fact, against the Principal Bench of
the Tribunal. But then, a perusal of the
materials on record would reveal that WPCT
14
No.78/2021 filed before the High Court that
culminated in the impugned judgment was also
passed with almost equal speed. That apart, both
the order in P.T.No.215/2021 and the final
judgment and order in WPCT No.78/2021 were
passed, respectively, by the Tribunal and the
High Court, after hearing both parties. The fact
that the impugned judgment contain observations
and remarks amounting to disparagement and as
such, scathing in effect is not in dispute. We do
not think it necessary to reproduce them in this
judgment in the stated circumstances. However,
contextually it will be apposite to refer to
paragraphs 11 to 13 of the decision of this Court
in Braj Kishore Thakur v. Union of India (AIR
1997 SC 1157). It was held therein thus:
“11. No greater damage can be
caused to the administration of
justice and to the confidence of
people in judicial institutions
when Judges of higher Courts
publicly express lack of faith in
the subordinate Judges. It has
been said, time and again, that
respect for judiciary is not in
hands by using intemperate language
and by casting aspersions against
lower judiciary. It is well to
15remember that a Judicial Officer
against whom aspersions are made in
the judgment could not appear
before the higher Court to defend
his order. Judges of higher Courts
must, therefore, exercise greater
judicial restraint and adopt
greater care when they are tempted
to employ strong terms against
lower judiciary.
12. A quarter of a century ago
Gajendragadkar, J. (as he then was)
speaking for a Bench of three
Judges of this Court, in the
context of dealing with the
strictures passed by High Court
against one of its Subordinate
Judicial Officers (Suggesting that
his decision was based on
extraneous considerations) stressed
the need to adopt utmost judicial
restraint against using strong
language and imputation of corrupt
motives against lower judiciary
more so “because the Judge against
whom the imputations are made has
no remedy in law to vindicate his
position” [Ishwari Prasad Mishra v.
Mohammad Isa, (1963) 3 SCR 722:
(AIR 1963 SC 1728)]. This Court had to repeat such words on
subsequent occasions also. In K.P.
Tiwari v. State of M.P., AIR 1994
SC 1031, this Court came across
certain observations of a learned
Judge of the High Court casting
strictures against a Judge of the
subordinate judiciary and the Court
used the opportunity to remind all
concerned that using intemperate
language and castigating strictures
at the lower levels would only
cause public respect in judiciary
16
to dwindle. The following
observations of this Court need
repetition in this context:
“The higher Courts every day
come across orders of the lower
Courts which are not justified
either in law or in fact and modify
them or set them aside. That is
one of the functions of the
superior Courts. Our legal system
acknowledges the fallibility of the
Judges and hence provides for
appeals and revisions. A Judge
tries to discharge his duties to
the best of his capacity. While
doing so, sometimes, he is likely
to err……………………………………… it has also
to be remembered that the lower
judicial officers mostly work under
a charged atmosphere and are
constantly under a psychological
pressure with all the contestants
and their lawyers almost breathing
down their necks more correctly up
to their nostrils. They do not
have the benefit of a detached
atmosphere of the higher Courts to
think coolly and decide patiently.
Every error, however, gross it may
look, should not, therefore, be
attributed to improper motive.”
13. Recently, we had to say the
same thing though in different
words in Kashi Nath Roy v. State of
Bihar (1996) 4 JT (SC) 605: (1996
AIR SCW 2098) in a similar
situation. We then said thus (Para
7 of AIR):
“It cannot be forgotten that in our
system, like elsewhere, appellate
and revisional Courts have been set
17
up on the pre-supposition that
lower Courts would in some measure
of cases go wrong in decision-
making, both on facts as also on
law, and they have been knit-up to
correct those orders. The human
element, in justicing being an
important element, computer-like
functioning cannot be expected of
the Courts: however, hard they may
try and keep themselves precedent-
trodden in the scope of discretions
and in the manner of judging.
Whenever any such intolerable error
is detected by or pointed out to a
superior Court, it is functionally
required to correct that error and
may, here and there, in an
appropriate case, and in a manner
befitting, maintaining the dignity
of the Court and independence of
judiciary, convey its message in
its judgment to the officer
concerned through a process of
reasoning, essentially persuasive,
reasonable, mellow but clear, and
result-orienting, but rarely as a
rebuke. Sharp reaction of the kind
exhibited in the afore-extraction
is not in keeping with
institutional functioning. The
premise that a Judge committed a
mistake or an error beyond the
limits of tolerance, is no ground
to inflict condemnation on the
Judge-Subordinate, unless there
existed something else and for
exceptional grounds.”
On our careful scanning of the circumstances and
situations obtained in this case we are persuaded
to think that no exceptional ground(s) exists in
18
the case on hand to make scathing and disparaging
remarks and observations against the Principal
Bench of the Tribunal. At the same time, it is to
be noted that the said order was, in fact, passed
by the Chairman of the Tribunal on a formal
application moved by the appellants herein and
after hearing both parties. As a matter of law
the Chairman could pass an order of transfer
under Section 25 of the Act suo motu. Hence, the
said observations and remarks, in troth, ought
not to have been made against the Chairman of the
Tribunal. To observe sobriety, we say that the
remarks made by the High Court were unwarranted,
uncalled for and avoidable being sharp reaction
on unfounded assumptions. Ergo, we have no
hesitation to hold that they were wholly
unnecessary for the purpose of deciding the
correctness or otherwise of the order of
transfer. Hence, they are liable to be expunged.
We do so.
9. Now, we will advert to the contentions advanced
by Dr. Abhishek Manu Singhvi, learned Senior
19
Counsel for the respondent to support and sustain
the impugned judgment and final order in WPCT
No.78/2021 whereby the order in P.T.No.215/2021
was set aside. It is submitted that the High
Court is justified in entertaining WPCT
No.78/2021 as the order of transfer passed in
P.T.No.215/2021 fell within its power of judicial
superintendence. The further contention is that
it could not be said that the power under Section
25 of the Act was taken away solely because Rule
6 of the Procedure Rules was relied on to upturn
the order in P.T.No.215/2021. The learned
counsel, after drawing our attention to the
factual background of the case, contended that
the High Court had rightly exercised the power of
judicial review and looked into the correctness
of the order of transfer passed by the Chairman
of the Tribunal (the Principal Bench of the
Tribunal) in the invocation of the power under
Section 25 of the Act. The said contention is
primarily founded on Article 226(2) of the
Constitution of India that confers powers on High
20
Court in relation to territories within which the
case of action, wholly or in part arises and also
on the position settled by this Court in the
decisions in Kusum Ingots and Alloys Limited vs.
Union of India & Anr. (2004) 6 SCC 254, in Nawal
Kishore Sharma vs. Union of India & Ors. (2014) 9
SCC 329 and in Navinchandra N. Majithia vs. State
of Maharashtra & Ors. (2000) 7 SCC 647.
Compendium of judgments/orders under Section 25
of the Act has also been produced along with the
written submissions on behalf of the respondent
to support the contentions that the transfer
order was illegal, arbitrary, passed in violation
of the principals of natural justice and on
irrelevant considerations. We may hasten to note
that all those judgments/orders, except one,
viz., the decision reported in 2019 SCC Online
Del 11541 (Bhavesh Motiani vs. Union of India),
were passed by the Principal Bench of the
Tribunal rejecting applications for transfer of
pending Original Applications in the exercise of
power under Section 25 of the Act. Hence, they
21
are not significant in deciding the stated moot
question. We will refer to in Bhavesh Motiani’s
case a little later.
10. We have carefully considered the contentions
raised on behalf of the respondent by placing
reliance on the aforesaid decisions of this
Court. In Kusum Ingots’ case (supra), the
question involved was “whether the seat of
Parliament would be a relevant factor for
determining the territorial jurisdiction of a
High Court to entertain a writ petition under
Article 226 of the Constitution of India when the
constitutionality of a Parliamentary Act is under
challenge”. After referring to the expression
“cause of action” for territorial jurisdiction to
entertain a writ petition, in terms of Article
226(2) of the Constitution, this Court held thus:
“18. The facts pleaded in the writ petition
must have a nexus on the basis whereof a
prayer can be granted. Those facts which
have nothing to do with the prayer made
therein cannot be said to give rise to a
cause of action which would confer
jurisdiction on the Court.
19. Passing of a legislation by itself in
22
our opinion does not confer any such right
to file a writ petition unless a cause of
action arises therefor.
20. A distinction between a legislation and
executive action should be borne in mind
while determining the said question.
21. A parliamentary legislation when it
receives the assent of the President of
India and is published in the Official
Gazette, unless specifically excluded, will
apply to the entire territory of India. If
passing of a legislation gives rise to a
cause of action, a writ petition
questioning the constitutionality thereof
can be filed in any High Court of the
country. It is not so done because a cause
of action will arise only when the
provisions of the Act or some of them which
were implemented shall give rise to civil
or evil consequences to the petitioner. A
writ court, it is well settled, would not
determine a constitutional question in a
vacuum.”
11. In Nawal Kishore’s case, the issue concerned was
with respect to the jurisdiction of a particular
High Court against an authority/person residing
outside its territorial jurisdiction. That
question was considered with reference to Article
226(2) of the Constitution. It was held that
writ could be issued if cause of action wholly or
partially had arisen within the territorial
jurisdiction of High Court concerned even if the
23
person or authority against whom writ is sought
for is located outside its territorial
jurisdiction. However, it was held that in order
to maintain such a writ petition, the petitioner
had to establish that such respondents infringed
his legal rights within the limits of the High
Court’s jurisdiction. In Navin Chandra N.
Majithia’s case, again the jurisdictional issue
was considered with reference to Article 226(2)
of the Constitution and held that the High Court
concerned would have jurisdiction to entertain a
writ petition if any part of the cause of action
arose within its territorial limits even though
the seat of government or authority or residence
of persons against whom direction, order or writ
is sought to be issued is not within its
territory.
12. On a careful scanning of the aforesaid decisions
relied on by the respondent and consideration of
the nature of the question that calls for
decision in the case on hand and also what we
have observed earlier, we find that the above
24
decisions have no applicability for deciding the
stated moot question. We will further elaborate
the non-applicability of those decisions in the
course of further consideration of the matter. We
are not dealing with the cause of action for
filing O.A.No.1619/2021 before the Kolkata Bench
of the Tribunal in this Judgement. Even if the
bundle of facts constituting cause of action for
filing the said O.A. confers on the Kolkata Bench
of the Tribunal the jurisdiction to entertain the
same, the question here is whether its transfer
from the said Bench to the Principal Bench vide
order dated 20.10.2021 in P.T.No.215/2021 by the
Chairman of the Central Administrative Tribunal
(the Principal Bench) in invocation of powers
under Section 25 of the Act falls within the
territorial jurisdiction and power of
superintendence of the High Court at Calcutta and
the fate of the challenge against the order in
WPCT No.78/2021 dated 29.10.2021 would depend
upon its answer. We may hasten to state that if
the challenge in the writ petition was against an
25
order passed by the Kolkata Bench of the Tribunal
in O.A.No.1619/2021 there can be no doubt with
respect to the jurisdiction of the High Court at
Calcutta.
13. Going by Section 25 of the Act, extracted
hereinbefore, an independent application for
transfer of an Original Application filed and
pending before any bench of the Tribunal could be
filed and the power to transfer lies with the
Chairman. The Section mandates that if such an
application is made, notice of it has to be given
to the opposite party. At the same time, the
Section also provides that on his motion and
without any such notice the Chairman could
transfer any case pending before one Bench, for
disposal, to any other Bench of the Tribunal.
Evidently, the said Section recognizes, the
fundamental principles of justice and fair play
namely that ‘Justice must not only be done but it
must be seen to have been done’. It would enable
the Chairman to avert a ‘reasonable suspicion’ of
or ‘real likelihood’ of bias. It could also be
26
exercised on establishing any other sufficient
and sustainable grounds. This power is to be
used with great circumspection and sparingly. We
do not think it necessary to elaborate on this
issue as we have already stated that we are
confining our consideration only to the specific
question whether High Court at Calcutta was
having jurisdiction to entertain the challenge
against the order in P.T.No.215/2021.
14. Before delving into the moot question any further
we deem it appropriate to refer to the impugned
judgment to know in what manner the order of
transfer passed in P.T.No.215/2021 was understood
by the High Court. In other words, whether the
High Court while passing the impugned judgment
treated the order impugned before it as an order
passed in the O.A.No.1619/2021 pending before the
Kolkata Bench of the Tribunal that lies within
its territorial jurisdiction by that Bench of the
Tribunal or as an order passed at the Principal
Bench of the Tribunal lying outside its
jurisdiction transferring that very Original
27
Application to another Bench of the Tribunal. A
scanning of the impugned order itself would
reveal that the High Court perfectly understood
and treated the order impugned before it in WPCT
No.78/2021, being the order in P.T.No.215/2021,
as an order passed by the Principal Bench of the
Tribunal at New Delhi, transferring
O.A.No.1619/2021. This, in our opinion, is the
correct understanding of the said order, as it
was passed in P.T.No.215/2021, filed by the
Appellant herein who was also a party to
O.A.No.1619/2021, calling for an order in
exercise of the power under Section 25 of the
Act, before the Principal Bench. This aspect is
very clear from paragraphs 22, 23, 24, and 25 of
the impugned judgement of the High Court. They
read thus:
“22. The questions which acquire relevance
to decide the present writ petition are as
follows:
23. Is the present writ petition
maintainable before this court, in view of
the impugned order being passed by the
Principal Bench situated at New Delhi?
24. Did the Principal Bench act beyond its
28jurisdiction in passing the impugned
order?
25. Was the Principal Bench, CAT justified
in law in passing the impugned order on
merits?”
15. When once the High Court found the order impugned
as one passed by the Principal Bench we have no
hesitation to hold that the High Court should
have confined its consideration firstly, to
decide its own territorial jurisdiction for
exercising the power of judicial review over the
order dated 22.10.2021 passed by the Principal
Bench in P.T.No.215/2021 in the correct
perspective, without reference to the bundle of
facts constituting the cause of action for filing
O.A.No.1619/2021 before the Kolkata Bench of the
Tribunal founded on the cause of action referred
to in Rule 6(2) of the Procedure Rules that
decides the place of filing of an O.A.. To wit,
those bundle of facts which would be necessary
for the applicant to prove, if traversed, in
order to support the right to a judgment from
that Bench of the Tribunal. In such
29
circumstances, the question of infringement or
otherwise of the right of the respondent herein
to litigate before the Kolkata Bench of the
Tribunal could not have been gone into, on
merits, without deciding the seminal question
whether the High Court of Calcutta itself had
jurisdiction to undertake judicial review of the
order passed by the Chairman in exercise of power
under Section 25 at the Principal seat of the
Tribunal at New Delhi we do not have any
hesitation in holding that the High Court at
Calcutta could not have entertained the Writ
Petition.
16. As noted earlier the order of transfer of
O.A.No.1619/2021 passed in P.T.No.215/2021 was
understood and dealt with by the High Court as an
order passed by the Principal Bench of the
Tribunal. Section 5(7) of the Act makes it clear
that the Bench of the Central Administrative
Tribunal at New Delhi is known as the Principal
Bench. It is in this context and the relevant
factors as also the situations likely to cause
30
conflicting decisions by different High Courts
referred to hereinbefore in the preceding
paragraphs of this judgment that the decision of
this Court in L. Chandra Kumar’s case assumes
relevance. Earlier, we made a brief reference
about the law laid down in the said decision. One
of the broad issues that was considered by the
Constitution Bench was as follows:
“Whether the power conferred upon Parliament or
the State Legislatures, as the case may be, by
sub-clause(d) of clause(2) of Article 323 A or
sub- clause(d)of clause(3) of Article 323 B of
the Constitution, to totally exclude the
jurisdiction of ‘all courts’, except that of the
Supreme Court under Article 136, in respect of
disputes and complaints referred to in clause(1)
of Article 323A or with regard to all or any of
the matters specified in clause (2) of Article
323B, runs counter to the power of judicial
review conferred on the High Courts under Article
226/227 and on the Supreme Court under Article 32
of the Constitution? During such consideration
31
the constitutional validity of Section 28 of the
Act, the “exclusion of jurisdiction” clause was
also considered by this court. It reads thus:-
S.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 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 or exercise
any jurisdiction, powers or authority in
relation to such recruitment or matters
concerning such recruitment or such
service matters.
In view of the reasoning adopted the constitution
Bench held Section 28 of the Act and the
“exclusion jurisdiction” clauses in all other
legislations enacted under the aegis of Article
323A and 323B, to the extent they exclude the
jurisdiction of the High Courts under Articles
32
226/227 and the Supreme Court under Article 32,
of the constitution, was held unconstitutional
besides holding clause 2(d) of Article 323A and
clause 3(d) of Article 323B, to the same extent,
as unconstitutional. Further, it was held thus:-
“The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the
Constitution is part of the inviolable
basic structure of our Constitution. While
this jurisdiction cannot be ousted, other
Courts and Tribunals may perform a
supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the
Constitution. The Tribunals created under
Article 323A and Article 323B of the
Constitution are possessed of the
competence to test the constitutional
validity of statutory provisions and rules.
All decisions of these Tribunals will,
however, be subject to scrutiny before a
Division Bench of the High Court within
whose jurisdiction the concerned Tribunal
falls.”
(Emphasis supplied).
When once a Constitution Bench of this court
declared the law that “all decisions of Tribunals
created under Article 323A and Article 323B of
the Constitution will be subject to the scrutiny
before a Division Bench of the High Court within
whose jurisdiction the concerned Tribunal falls”,
it is impermissible to make any further
33
construction on the said issue. The expression
“all decisions of these Tribunals” used by the
Constitution Bench will cover and take within its
sweep orders passed on applications or otherwise
in the matter of transfer of Original
Applications from one Bench of the Tribunal to
another Bench of the Tribunal in exercise of the
power under Section 25 of the Act. In other
words, any decision of such a Tribunal, including
the one passed under Section 25 of the Act could
be subjected to scrutiny only before a Division
Bench of a High Court within whose jurisdiction
the Tribunal concerned falls. This unambiguous
exposition of law has to be followed scrupulously
while deciding the jurisdictional High Court for
the purpose of bringing in challenge against an
order of transfer of an Original Application from
one bench of Tribunal to another bench in the
invocation of Section 25 of the Act. The law thus
declared by the Constitution Bench cannot be
revisited by a Bench of lesser quorum or for that
matter by the High Courts by looking into the
34
bundle of facts to ascertain whether they would
confer territorial jurisdiction to the High Court
within the ambit of Article 226(2) of the
Constitution. We are of the considered view that
taking another view would undoubtedly result in
indefiniteness and multiplicity in the matter of
jurisdiction in situations when a decision passed
under Section 25 of the Act is to be called in
question especially in cases involving multiple
parties residing within the jurisdiction of
different High Courts albeit aggrieved by one
common order passed by the Chairman at the
Principal Bench at New Delhi.
17. The undisputed and indisputable position in this
case is that the WPCT No.78/2021 was filed to
challenge the order dated 22.10.2021 in
P.T.No.215/2021 of the Central Administrative
Tribunal, Principal Bench at New Delhi, (by the
Chairman of the Tribunal in exercise of the power
under Section 25 of the Act sitting at the
Principal Bench) transferring O.A.No.1619/2021 to
its files. On applying the said factual position
35
to the legal exposition in L. Chandra Kumar’s
case (supra) it is crystal clear that the
Principal Bench of the Central Administrative
Tribunal at New Delhi, which passed the order
transferring O.A.No.1619/2021 vide order in
P.T.No.215/2021 falls within the territorial
jurisdiction of High Court of Delhi at New Delhi.
Needless to say that the power of judicial review
of an order transferring an Original Application
pending before a Bench of the Tribunal to another
Bench under Section 25 of the Act can be
judicially reviewed only by a Division Bench of
the High Court within whose territorial
jurisdiction the Bench passing the same, falls.
In fact, the decision in Bhavesh Motiani’s case
(supra), relied on by the respondent is also in
line with the said position as in that case also,
as against the order of transfer passed under
Section 25 of the Act by the Principal Bench of
the Central Administrative Tribunal at New Delhi
Writ Petition was filed by the aggrieved party
only before the High Court of Delhi. This is
36
evident from the very opening sentence of the
said judgment, which reads thus:
“The present petition has been filed being
aggrieved by order dated 30.11.2018 passed
by the Central Administrative Tribunal,
Principal Bench, New Delhi (the ‘Tribunal’),
by the O.A.No.421/2018 pending before the
Ahmedabad Bench has been transferred to the
Principal Bench of the Tribunal.”
In the instant case, the High Court at Calcutta
has usurped jurisdiction to entertain the Writ
Petition, viz., WPCT No.78/2021, challenging the
order passed by the Central Administrative
Tribunal, New Delhi, in P.T.No.215/2021, even
after taking note of the fact that the Principal
Bench of the Tribunal does not lie within its
territorial jurisdiction.
18. In the circumstances, based on our conclusion the
impugned judgment and final order in WPCT
No.78/2021 passed by the High Court at Calcutta
is to be held as one passed without jurisdiction
and hence, it is ab initio void. Accordingly, it
is set aside. The writ petition being WPCT
No.78/2021 filed before the High Court at
Calcutta is accordingly dismissed, however, with
37
liberty to the petitioner therein/the respondent
herein to assail the same before the
jurisdictional High Court, if so advised. In that
regard, we clarify the position that we have not
made any finding or observation regarding the
correctness or otherwise of the order dated
22.10.2021 passed by the Principal Bench of the
Tribunal (in fact, by the Chairman of the
Tribunal) in P.T.No.215/2021. Needless to say
that in the event of filing of such a Writ
Petition, it shall be considered on its own
merits, in accordance with law.
19. The appeal is allowed in the above terms. Pending
applications, if any, stand disposed of.
………………..,J.
(A.M. KHANWILKAR)
………………..,J.
(C.T. RAVIKUMAR)
NEW DELHI;
January 06, 2022