Hem Chand vs Union Of India & Ors

Amrita Sinha, J

The petitioner was an officer of the Indian Police Service. He is guided by the All India Service (Death cum Retirement Benefit) Rules, 1958 herein after the '1958 Rules'. He is aggrieved by the decision of the respondent authorities in withholding 100% of his pension on permanent basis. According to the petitioner the same is contrary to Rule 6 of the 1958 Rules.

It has been submitted that the action of the respondents is wholly without jurisdiction inasmuch as the petitioner has never been held guilty in any judicial proceedings, nor has he caused any pecuniary loss to the Central or the State Government by misconduct and negligence. The sentence passed against him under the Prevention of Corruption Act, 1988 has been suspended and he has been released on bail. The issue is sub judice and pending finalisation of the said proceeding the respondent authorities ought not to take any decision for withholding 100% of his pension on permanent basis.

It has been argued that no amount of recovery can be made from the petitioner as he ceased to be a member of the All India Service on attaining his age of superannuation. The fundamental right of the petitioner as guaranteed under Article 20(2), 21 of the Constitution of India has been infringed by the impugned action of the respondents.

The petitioner has inter alia prayed for issuance of a writ of mandamus to withdraw and/or recall, rescind and cancel the impugned order dated 28th December, 2018.

The learned Additional Solicitor General appearing on behalf of the Union of India raises a preliminary objection with regard to the maintainability of the writ petition before this court.

It has been submitted that the cause of the petitioner, being a member of the All India Police Service, will be amenable before the Central Administrative Tribunal and the writ petition is liable to be dismissed on the ground of lack of jurisdiction to entertain the same.

The learned advocate places reliance on Section 14 of the Administrative Tribunals Act, 1985 hereinafter referred to as 'the 1985 Act', which 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.

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.

The learned counsel places reliance upon the judgment delivered by the Constitution Bench of the Hon'ble Supreme Court of India in the matter of L. Chandra Kumar vs Union of India & Ors. reported in (1997)3 SCC 261 in support of his stand that the High Court lacks jurisdiction to entertain the issue.

The learned counsel also relies upon the decision delivered by this court in the matter of Smt. Anjali Mukherjee vs Commissioner of Police, Lalbazar & Ors. reported in 2007(3) CLT 456 wherein 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.

The learned advocate representing the State respondents adopts the submissions of the learned Additional Solicitor General and further relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Rajeev Kumar & Anr. Vs Hemraj Singh Chauhan & Ors. reported in (2010)4 SCC 554 wherein the court 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.

The respondents pray for dismissal of the writ petition.

In reply to the objection raised by the respondents with regard to the maintainability of the writ petition the petitioner submits that the remedy under Article 226 of the Constitution cannot be curtailed. The same is the basic structure of the Constitution. The High Court under Article 226 of the Constitution has unlimited powers and the same can be exercised the moment there is breach of fundamental rights as enshrined in the Constitution of India.

It has been submitted that in regular cases the Tribunal can decide the issue but in special cases a litigant is entitled to choose the forum between the High Court and the Tribunal. In such case the jurisdiction of the Tribunal becomes alternative.

It has been contended that alternative remedy is not a bar to approach the High Court in its writ jurisdiction especially when the fundamental right as guaranteed under Article 21 of the Constitution has been infringed by the respondents.

It has been submitted that the order impugned in the writ petition is a nullity. As the impugned order is a nullity it has to be taken that the same does not exist in law.

It has been pointed out that maintainability of the writ petition has to be looked into and decided after taking into consideration the facts of the concerned case. All questions relating to service matters cannot be dealt with by the Tribunal. As the life and livelihood of the petitioner has been put at stake this court ought to entertain the writ petition and decide the same on merits. The order impugned suffers from perversity and the petitioner submits that the impugned order is liable to be set aside by this court.

The petitioner has claimed that the rule of alternative remedy is not absolute. It is a rule of discretion of the Constitutional Court under Article 226 of the Constitution of India. It has been contended that Article 226 being a part of the basic structure of the Constitution the same cannot be taken away by a statute or Parliament. Reliance has been placed upon the decision by the Hon'ble Supreme Court in the matter of Jammu & Kashmir National Panthers Party vs Union of India & Ors. reported in (2011)1 SCC 228 paragraph 26 and also on paragraph 78 of the judgment of L. Chandra Kumar (supra).

The petitioner argued that the rule of alternative remedy does not apply and the High Court may admit the writ petition if a) there has been violation of the fundamental right of the petitioner, b) there has been violation of the principles of the natural justice and c) if the proceeding is without jurisdiction.

Reliance has been placed on the decisions delivered by the Hon'ble Supreme Court in the matter of Himmatlal Harilal Mehta AIR 1954 SC 403 paragraph 5 and in the case of Whirlpool Corporation vs Registrar of Trade Maks, Mumbai & Ors. reported in (1998)8 SCC 1 on the aforesaid proposition.

The petitioner has also relied upon the case of L. Chandra Kumar (supra) paragraph 99 wherein the court held that the jurisdiction conferred upon the High Courts under Article 226/227 of the Constitution of India 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 learned senior counsel appearing on behalf of the petitioner painstakingly contends that a) there has been an ex facie gross violation of the fundamental rights of the petitioner as enshrined under Articles 14 and 21 of the Constitution, b) there has been ex facie gross violation of the principles of natural justice and c) the very initiation of the proceeding under Rule 6 of the 1958 Rules is patently without jurisdiction.

The petitioner candidly 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. It has been argued that the High Court is competent to exercise jurisdiction and grant the reliefs prayed for by the petitioner in the instant case.

It has been contended that the said alternative remedy is neither adequate nor efficacious. It has been submitted that the said forum is not capable to adjudicate each and every issue that has been raised in the writ petition. The maintainability of the writ petition ought to be seen in the light of the facts and circumstances of each case. The facts involved in the instant case are compelling and as they satisfy the aforesaid three grounds the petitioner ought to be permitted to invoke the writ jurisdiction of the instant court and the writ petition be decided on merits.

The petitioner relies upon instances where the Hon'ble Supreme Court has upheld the interference by the Hon'ble High Court notwithstanding the presence of an alternative remedy [see M.P. State Agro Industries Development Corporation Limited & Anr. vs Jahan Khan reported in (2007)10 SCC 88 paragraphs 12 and 13].

The petitioner has made an alternative prayer to directly transfer the instant writ petition to the competent Central Administrative Tribunal, in the event, the court is not inclined to exercise its discretion to admit the writ petition with an interim protection, till such time, the matter is taken up by the Tribunal.

As an issue has been raised with regard to the maintainability of the writ petition, I propose to consider the said objection before entering into the merits of the case.

The issue of entertaining writ petitions relating to service matters of the members of the Union or the State has arisen in umpteen numbers of cases. More or less similar arguments have always been advanced by the litigants that alternative remedy will not be a bar to approach the writ jurisdiction of the High Court.

To decide whether the forum of the Tribunal will be alternative in respect of service matters relating to the members of the Union or the State let me consider the various provisions of the 1985 Act.

Section 14 of the 1985 Act clearly lay down that the Central Administrative Tribunal shall exercise jurisdiction, powers and authority exercisable by all courts in relation to all service matters concerning a member of any All India Service. Admittedly, the petitioner was a member of the All India Service. 'Service matters' in accordance with the 1985 Act include the superannuation benefits. The petitioner has categorically claimed that his pension has been illegally withheld. The cause of the petitioner is, therefore, squarely covered under the 1985 Act.

The petitioner has placed heavy reliance on the concept of Article 226 being a part of the basic structure of the Constitution. The petitioner has relied upon paragraphs 78 and 99 of the judgment of L. Chandra Kumar (supra) wherein the Supreme Court held that the power of judicial review over legislative action vested in the High Court under Article 226 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Court to test the constitutional validity can never be ousted or excluded.

Though the petitioner has placed reliance on the former paragraphs the respondents have placed reliance upon the later paragraphs of the judgment of L. Chandra Kumar (supra) wherein 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).

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.

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.

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.

The submission of the petitioner that his case is a unique one and requires adjudication by the High Court is not accepted. Each and every litigant may feel the same. Assuming that it is so, even then, as the jurisdiction to adjudicate the same vests with the Tribunal, the High Court cannot usurp jurisdiction to decide the issue.

The petitioner has advanced the submission that the remedy before the Tribunal is not efficacious. As there is total ouster of jurisdiction the said submission of the petitioner is of no consequence. The petitioner does not have any other choice or alternative but to approach the Tribunal for redressal of his grievances. The forum of the Tribunal is not 'alternative' but the 'only' forum available to the petitioner at this stage.

The submission of the petitioner that the jurisdiction under Article 226 of the constitution cannot be curtailed is well settled. The same 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 thereafter the remedy under Article 226 becomes available to the petitioner. It may be that the grievance of the petitioner is redressed before the Tribunal and he is not required to approach the constitutional court. But as of now, the petitioner has to approach the forum, as set up under Article 323A of the Constitution and there is no respite from the same.

The decisions relied upon by the petitioner lays down and reiterate the well settled principles of law. 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 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.

The petitioner has made an alternative prayer for transferring the instant petition to the Tribunal, in the event, the writ court is not inclined to exercise jurisdiction.

The provision to transfer cases to the Tribunals is envisaged in Section 29 of the 1985 Act. The nomenclature of the Section indicates - transfer of pending cases. The provision lays down that every suit or other proceeding pending before any court or any other authority immediately before the date of establishment of the Tribunal, under the Act, shall stand transferred on that day, to such Tribunal.

The aforesaid provision makes it explicitly clear that it is only the pending cases, cause of which is such that it would have been, if it had arisen after the date of establishment, within the jurisdiction of the Tribunal that can be transferred. There is no provision for transfer of a fresh proceeding in respect of matters falling within the jurisdiction of the Tribunal. The analogy being, that after the establishment of the Tribunal under the 1985 Act, no other court has the jurisdiction to accept and entertain, far less, decide the petition in respect of matters which fall within the jurisdiction of the Tribunal. When a court does not have jurisdiction to entertain a petition, it implies that, the said court lacks inherent jurisdiction to pass any order in the said petition. Any order passed by a court lacking jurisdiction is coram non judice, and a nullity in the eye of law. Accordingly, the prayer of the petitioner for transferring his case to the Tribunal cannot be acceded.

In view of the discussions made hereinabove no relief can be granted to the petitioner in the instant case.

W. P No. 8421 (W) of 2019 is dismissed.

However, dismissal of the writ petition will not stand in the way of the petitioner from approaching the appropriate forum, in accordance with law, if so advised.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.