Calcutta High Court (Appellete Side)
Union Of India & Ors vs Smt. Jhumur Chandra & Anr on 7 November, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
07.11.2017
srm
W.P.C.T. No. 62 of 2015
Union of India & Ors.
Versus
Smt. Jhumur Chandra & Anr.
With
W.P.C.T. No. 57 of 2015
Smt. Moumita Chandra
Versus
Union of India & Ors.
Mr. P.S. Bose, ld. Sr. Advocate
Mrs. Jyotsna Roy Mukherjee, ld. Advocate
...for the UOI.
Sk. Abul Safian, ld. Advocate
Mr. Kingshum Chatterjee, ld. Advocate
...for the Respondent No.1
in WPCT62/2015.
Mr. Asim Hati, ld. Advocate Mr. Tarun Kumar Sur, ld. Advocate Ms. Nibedita Barui, ld. Advocate ...for the Petitioner in WPCT 57/2015.
These writ applications arise out of one final order dated February 10, 2015 passed by the Central Administrative Tribunal, Calcutta Bench, Kolkata in the matter of Jhumur Chandra vs. Metro Railway in O.A. 350/00805/2014. The operative portion of the above order is quoted below:
"4. Smt. Moumita Chandra, the alleged 2nd wife of the deceased employee has declared today in Court that Smt. Jhumur Chandra the 1st and legitimate wife is alive. She also submitted that she is receiving the monthly 2 pension from the Railway authority. In addition she has also received all the retiral benefits from the respondent authorities o/e/ General Manager, Metro Railway, 33/1 Jaharlal Neheru Road, Kolkata‐71. That is both the learned counsel for applicant and alleged 2nd wife Smt. Moumita Chandra have submitted that the 1st wife, Smt. Jhumur Chandra is still alive.
5. In view of such, the respondent no.1 i.e. General Manager, Metro Railway is directed to initiate necessary action as per law or rules, regarding extending the retirement benefits to the legal wife, the applicant within a period of 15 days of getting a certified copy of this order.
6. OA is accordingly disposed of. No costs.
(Jaya Das Gupta) Member (A)"
It is submitted by Mr. P.S. Bose, learned Senior Advocate appearing on behalf of the Union of India, that an administrative member of a Tribunal created under Article 323A of the Constitution of India has no power to decide the issue involved in the original application sitting singly in view of the settled principles of law decided in the matter of State of M.P. vs. B.R. Thakare & Ors. reported in (2002) 10 SCC 338.
On the other hand, it is submitted by Mr. Sk. Abul Safian, learned Advocate appearing on behalf of Smt. Jhumur Chandra, that taking into consideration the entire facts and circumstances of the case, the learned Tribunal passed the order impugned in her favour.
Let it be recorded at the very outset that a point of law is to be decided in respect of two writ applications and as such these matters are taken up for hearing.
3
Sub‐section (6) of Section 5 of the Administrative Tribunal's Act, 1985 is quoted below:
"(6) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes or cases as the Chairman may by general or special order specify:
Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit."
It is the settled principles of law as decided in the matter of L. Chandra Kumar vs. Union of India reported in AIR 1997 SC 1225 that in order to safeguard the interests of the claimants who will come before the learned Tribunal created under Article 323A or Article 323B of the Constitution of India while allocating work to the Single Member - whether judicial or administrative - in terms of sub‐ Section (6), the Chairman should keep in view the nature of the litigation and 4 where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member.
Taking into consideration the above decision, the Supreme Court observed in the matter of B.R. Thakare & Ors. (supra) that even assuming that all powers of the Tribunal could be exercised by any Single Member, it can only be by a Judicial Member of the Tribunal and not any other member under the aforesaid order.
Upon perusal of the impugned order, we find that the same relates to mixed question of law and fact so far as the claim of Smt. Jhumur Chandra is concerned. The impugned order was passed by a Single Administrative Member of the Central Administrative Tribunal, Calcutta Bench, Kolkata. Therefore, the impugned order was passed in violation of the settled principles of law as discussed hereinabove. The same is quashed and set aside.
The matter is remanded back to the learned Tribunal for a decision de novo in accordance with law by a Division Bench of the learned Tribunal consisting of a Judicial Member expeditiously and preferably within a period of four months from the date of communication of this order without being influenced by any of the observations made by the learned Tribunal in the impugned order.
Let it further be recorded that we have not expressed our opinion on the merits of the case and all points are kept open for decision of the learned Tribunal.
These writ applications are, thus, disposed of.
5There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta, J. ) (Shekhar B. Saraf, J.)