Allahabad High Court
Dwijendra Nath Roy Son Of Late P.N. Roy vs Union Of India (Uoi) Through Ministry Of ... on 8 October, 2007
Equivalent citations: 2008(1)AWC1046
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT
1. Since, in both the aforesaid writ petitions, common questions of fact and law are involved and both have been heard analogously, they are being decided by this common judgment, having binding effect upon both of them. Civil Misc. Writ Petition No. 23125 of 2004, which has been dealt with herein will be considered as leading case.
2. This writ petition has been filed under Article 226 of the Constitution to get an appropriate order passed, setting aside the office order dated 14th October, 2003 & the order of rejection of appeal, dated 6/10 February, 2004 and consequential orders in connection therewith. The writ petition was filed on 19th June, 2004 and the parties have exchanged the affidavits.
3. At the time of hearing of the writ petitions, learned Counsel appearing for the Union of India, raised an objection about the maintainability of such writ petitions directly before the writ Court.
4. Learned Counsel appearing for the petitioners, in objection thereto /contended that it is normal practice of the High Court that when the affidavits are exchanged and the writ petitions are pending for final hearing since long, the question of maintainability of the writ petitions on account of availability of the alternative remedy, should not be allowed to be raised.
5. However, it appears from the record that in the connected matter a Division Bench of this Court has already observed by an order dated 8th March, 2007 that the question of maintainability of such writ petitions directly before the writ Court is a valid point for due consideration. Against this background, we have to look into certain factual and legal aspects of the matter to arrive at an appropriate conclusion.
6. The petitioner is an employee of National Test House having its head office at Kolkata. This organisation is established with an object of testing, quality evaluation and calibration of material science as a major scientific institution of India. This Institution is at present under the administrative control of Ministry of Consumer Affairs, Food and Public Distribution, Government of India, New Delhi. We also find from the Annexure 1 to the writ petition, which is a Notification dated 5th February, 1993, that in exercise of powers conferred by the proviso to Article 309 of the Constitution, in supersession to earlier recruitment Rules, the President of India has made the National Test House (Group 'A' posts) Recruitment Rules, 1993, by way of publication in the Official Gazette, for regulating the method of recruitment to Group 'A' scientific posts in National Test House, Calcutta, Bombay, Madras and Ghaziabad under the Ministry of Commerce, Department of Supply. That apart, it also appears from other relevant documents annexed with the writ petitions that the National Test House is part and parcel of Government of India, Ministry of Consumer Affairs. President of India is the rule making authority as per the proviso under Article 309 of the Constitution of India. Therefore, there is no doubt in construing that the National Test House, if not part and parcel of the Government of India directly, it is included in the other authority, discharging functions solely on behalf of Government of India.
7. The question raised in the instant case, has been finally settled by the judgement of 7 Judges larger Bench, reported in 1997 SCC (L&S) 577, L. Chandra Kumar v. Union of India and Ors., the ratio of which, as propounded in paragraph 99, is quoted herein:
99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and Supreme Court under Articles 226/227 and 32 of the Constitution are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent be unconstitutional, the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform the supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B 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 Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
Hence, we have to examine nothing more except the fact whether there is jurisdiction, power and authority to the Central Administrative Tribunal in service matters of petitioners in the instant case, as per the provisions of Section 14 of The Administrative Tribunals Act, 1985 (for short 'the Act'). Section 14(1) (a) of the Act is relevant for the purpose of instant case, which is quoted herein:
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian.
8. A bare perusal of above quoted provision makes it crystal clear that all service matters concerning to not only All-India Service but also to any civil service of the Union or to any civil post under the Union, fall within the jurisdiction, power and authority of the Central Administrative Tribunal.
9. Learned Counsel appearing for the petitioners contended that pursuant to Section 14(2) of the Act, the Central Government must, by notification, provide, whether a particular department under the control of the Government of India and the corporations or societies owned or controlled by the Government, will go for the purpose of service matters, before the Central Administrative Tribunal.
10. Obviously, this contention suffers from misconception. When Section 14(1) of the Act is guiding in relation to recruitment, and matters concerning recruitment with regard to a civil post under Union and all service matters concerning thereto, no question of notification under Section 14(2) of the Act for such matters will arise, meaning thereby, the question of notification will only arise when the subject matter is unguided. Here, we are very much clear that 'a civil post under the Union' is covered by Section 14(1) of the Act, hence no notification as contended by the learned Counsel appearing for the petitioners is mandatory. By virtue of Section 14(1) of the Act itself, person concerned aggrieved by the departmental action, can directly invoke the jurisdiction of the Central Administrative Tribunal.
11. Central Administrative Tribunal is a forum for the purpose of due consideration of such matters, by virtue of Articles 323A and 323B of the Constitution, which have been introduced by way of forty-second amendment of 1976 w.e.f. 3rd January, 1977. The object of forming the Tribunal is to minimise the work load of the High Courts in deciding the matters under Article 226 of the Constitution and that way, such Tribunal was created as court of first instance. This is the true import of L. Chandra Kumar's case (supra). We cannot be forgetful that the question of alternative remedy and the question of the court of first instance, are the two different aspects all together. No doubt, the writ Court in a particular situation, can ignore a question of alternative remedy and can start hearing of a matter on merits instead of sending the same back for exhausting the alternative remedy. But, when the Central Administrative Tribunal is created as a court of first instance and all decisions of such Tribunal are subjected to scrutiny by a Division Bench of the High Court, this question cannot be ignored. If this Division Bench of the High Court hearing the writ matters regarding service passes an order ignoring the existence of the Central Administrative Tribunal and as a Court of first instance, it will become a jurisdictional error.
12. In our country, in different High Courts, there are different rules of hearing the matters under Article 226 of the Constitution. Some where it is to be heard by single Judge and some where it is to be heard by Division Bench and likewise, but in L. Chandra Kumar's case (supra) it has been categorically ruled that the Central Administrative Tribunal is a court of first instance i.e. first hearing will be made by the Tribunal and thereafter against the decision of the Tribunal, it will be heard by the Division Bench of the High Court. In this way, the larger Bench of Supreme Court has propounded a principle of universal application to all the High Courts that the matters arising out of the decisions of the Tribunal, will be cognizable, exclusively by the Division Bench of the High Court under Article 226 of the Constitution and the Tribunals will hear the matters as a court of first instance. Therefore, if the High Court, under Article 226 of the Constitution, ignores this aspect and holds that the alternative forum of adjudication can be ignored and even in such matters High Court can be directly approached, it would lead to an anomalous position and would frustrate the objective sought to be achieved by creating the Tribunal as a court of first instance.
13. Learned Counsel appearing for the petitioner wanted to rely upon a judgment of Division Bench , T.K. Rangarajan v. Government of T.N. and Ors., to establish that the High Court should proceed to hear the writ petition under Article 226 of the Constitution, although the petitioners have not invoked the jurisdiction of the Tribunal, which is not only the alternative forum of adjudication but also is a court of first instance.
Paragraph 10 of judgment in T.K. Rangarajan (supra) is as follows:
10. There cannot be any doubt that the aforesaid judgement of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute.
14. We have carefully gone through the judgment. The judgment not only arose out of an order passed by the High Court under Article 226 of the Constitution of India but also from Article 32 of the same for the same reliefs in an unprecedented situation when Tamil Nadu Government terminated all the employees who had resorted to strike on demands. The Supreme Court held (a) there is no fundamental right to go 6n strike; (b) there is no legal/statutory right to go on strike; (c) there is no moral or equitable justification to go on strike. Ultimately when found most of the employees were reinstated, Court held that they would take care in future in maintaining discipline since the aforesaid rights are not available but who are not reinstated they were directed to approach the Administrative Tribunal. Against these backgrounds paragraph 10 of the judgment will be looked into.
15. Hence, it can be safely said that the Division Bench has never said that the L. Chandra Kumar's case (supra) was not binding on it. In the particular facts of that case, in very very exceptional circumstances the Division Bench of the Supreme Court has held that there was no justifiable reason for the High Court not to entertain the petition on the ground of alternative remedy meaning thereby the aforesaid facts and circumstances and when Administrative Tribunal was non-functioning. In fact Court held when Tribunal is non-functioning, the employee can not be denied from invoking writ jurisdiction of the High Court otherwise they will become remediless . The exception passes the rule following the maxim exceptio probat regulam. However, there is no ratio available in the judgment making difference between alternative forum and court of first instance. The judgment in T.K. Rangarajan (supra) appears to be a judgment in persona whereas the judgment in L. Chandra Kumar's case (supra) is a judgment in rem.
16. In view of the discussions made above, we are of the considered opinion that both the writ petitions are not maintainable on the ground of availability of the court of first instance and are therefore, dismissed as such.
No order is passed as to costs.
However, passing of this order will not affect the petitioner's right, if any, to approach the Central Administrative Tribunal in accordance with law, if so advised.