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
2

case 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
6

application.”

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
15

remember 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
28

jurisdiction 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



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