Delhi High Court - Orders
Sh. Vinay Brij Singh vs Union Of India And Anr on 25 March, 2021
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9400/2019
SH. VINAY BRIJ SINGH ..... Petitioner
Through: Mr. A.K. Bhardwaj, Ms. Jagriti
Singh, Mr. Karan Gautam and
Mr. Mayank Tripathy, Advs.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Ravi Prakash, CGSC with Mr.
Zoheb Hossain, Mr. Vivek Gurnani
and Mr. Shahan Ulla, Advs. for R1.
Mr. Aditya Singla, Sr. Standing
Counsel with Ms. Akanksha Mehta,
Adv. for DRI.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 25.03.2021 CM. No. 11521/2021 (for exemption) Exemption allowed subject to all just exceptions. Application stands disposed of.
W.P.(C) 9400/2019
1. The present petition has been filed by the petitioner with the following prayers:
"In the light of the aforesaid facts and circumstances, it is most humbly prayed before this Hon'ble Court to :
(i) Issue an appropriate writ, order or direction, to declare as illegal, and to quash and to set aside, the impugned order no.
76/2019 dated 18.06.2019 and to reinstate the petitioner along Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:56 with the consequential benefits of arrears of salary, rank and increments with interest @ 18% p.a.
(ii) Issue directions to the Respondents to continue the Petitioner in service with all consequential benefits till he attains the age of superannuation.
(iii) Exemplary cost be imposed on respondents for causing undue harassment to the Petitioner.
(iv) Any other relief which is found just and proper be passed in favour of the applicant in the interest of justice."
2. An issue of maintainability has been raised by the Court in view of the Judgment of the Supreme Court in the case of L. Chandrakumar v. Union of India ( 1997) 3 SCC 261 and also Ashok Kumar Aggarwal v. Union of India and Ors. W.P.(C) 1255/2019 decided on October 5, 2020.
3. It is a conceded case that the petitioner is a Central Government employee being a 1995 batch of IRS (IT&C) who has challenged the order of compulsorily retiring him under Clause (j) of Rule 56 of the Fundamental Rules.
4. There is no dispute that the subject matter of this writ petition shall lie before the Central Administrative Tribunal. The submission of Mr. A.K. Bhardwaj, learned counsel appearing for the petitioner is that impugned order has been passed by the respondents (i) in violation of principles of natural justice; (ii) it is an abuse of process of law and (iii) without following procedure inasmuch as the CVC / ACC have not been consulted. In support of the aforesaid submissions, Mr. Bhardwaj has relied upon the following Judgments:
1. The State of Gujarat and Ors. v. Suryakant Chunilal Shah, (1999) SCC (LS) 313
2. Whirlpool Corporation v. Registrar of Trade Marks, Mumbai Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:56 and Ors. (1998) 8 SCC 1
3. Subodh Kumar Trivedi v. State of UP and Ors. 2001 1 AWC 515 All
4. Maharashtra Chess Association v. Union of India (UOI) and Ors. 2019 (10) SCALE 67
5. Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556
6. Alok Kumar Choubey v. State of Madhya Pradesh and Ors.
W.P.(C) 1874/2019 decided by the Division Bench of High Court of Judicature of Madhya Pradesh, Jabalpur.
5. The aforesaid judgments primarily hold that jurisdiction of this Court under Article 226 can be invoked, (i) if there is a violation of principles natural justice; (ii) an abuse of process of law and not following the procedure contemplated; and (iii) even if there is alternate remedy available to the petitioner.
6. Suffice to state, the aforesaid judgments on which reliance has been placed shall not be applicable when the jurisdiction lies before the Central Administrative Tribunal under the provisions of the Administrative Tribunal Act, 1985 particularly in view of the Judgement of the Supreme Court in L. Chandrakumar (supra) wherein the Supreme Court in Para 93 has held as under:
"93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:56 entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
7. Suffice to state that the Tribunal is the Forum of first instance for an employee to approach on a service dispute. In fact, the aforesaid decision has been reiterated with regard to an identically placed officer who was also retired under the FR 56 (j) and who had approached the Supreme Court under Article 32 of the Constitution of India in the case titled as Ashok Kumar Aggarwal (supra). The Supreme Court has relegated the petitioner in that case to the Central Administrative Tribunal by referring to its earlier decision in L. Chandrakumar (supra). The Supreme Court in its order dated October 5, 2020 in Para 3 to 6 has held as under:
Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:563. A substantive petition has now been filed under Article 32 of the Constitution. The Union of India has filed a counter affidavit raising a preliminary objection to the maintainability of the petition under Article 32 on the ground that the petitioner must seek recourse to the remedy available in law before the CAT.
4. The submission has been opposed on behalf of the petitioner by Mr Mukul Rohatgi, and Mr Vikas Singh, learned Senior counsel, who urged that in view of the liberty granted by this Court on 21 October 2019, the writ petition under Article 32 is maintainable.
5. In view of the decision of this Court in L. Chandra Kumar v Union of India3 the petitioner must seek recourse to the remedy available in law before the CAT against the order compulsorily retiring him from service. The order of this Court dated 21 October 2010 recorded the statement of the petitioner seeking to withdraw the Special Leave Petition against the judgment of the High Court of Delhi dismissing the petition under Article 226 on the same ground with liberty to file a petition under Article 32. While permitting the withdrawal of the petition, liberty was granted but the grant of liberty would not amount to an adjudication on the maintainability of a petition under Article 32 of the Constitution. The Union of India is within its rights in submitting that the petitioner must seek recourse to the remedy before the CAT. That apart, the Solicitor General has pointed out that as many as sixty four persons have been compulsorily retired and some of them have challenged similar orders of compulsory retirement and their substantive OAs are pending before the CAT.
6. In view of what is set out above, we are of the view that it would not be appropriate to entertain a petition under Article 32. We accordingly dismiss the petition leaving it open to the petitioner to pursue the remedy available in law before the CAT."Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:56
8. In view of the clear position of law of the Supreme Court, it must be held that the present petition is not maintainable before this Court and is accordingly dismissed granting liberty to the petitioner to approach the Central Administrative Tribunal in accordance with law. CM. No. 11520/2021 (for directions) In view of the order passed in the writ petition, this application has become infructuous and dismissed as such.
V. KAMESWAR RAO, J MARCH 25, 2021/jg Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.03.2021 14:41:56