Uttarakhand High Court
Sanjiv Chaturvedi vs Union Of India And Others on 19 June, 2017
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 225 (SB) of 2017
Sanjiv Chaturvedi. ........Petitioner.
Versus
Union of India
and others. ...... Respondents.
Present:
Mr. Sanjiv Chaturvedi, petitioner, in person.
Mr. Rakesh Thapliyal, ASG for Union of India.
Mr. Rajiv Singh Bisht, Brief Holder for State of Uttarakhand.
Coram:
Hon'ble K.M. Joseph, CJ.
Hon'ble Alok Singh, J.
Hon. K. M. Joseph, C.J. (Oral)
1. Petitioner has approached this Court seeking following reliefs:
"1). Call for records and issue a Writ, Order or Direction in the nature of Certiorari to quash the office order No. 5-1/675/2015/ACR Cell/Estt.-I dated 11.01.2017 issued by All India Institute of Medical Sciences, New Delhi (Annexure-A75), vide which Annual Performance Appraisal Report (APAR) of financial year 2015-16 was served to the petitioner and Respondent-6, along with declaring the entire APAR as annexed with the said office order, as ab initio null and void and non-est, in law including all the entries, remarks and grading recorded therein, as well as quash order of Accepting Authority conveyed vide Institute letter No.17-8/2016/ACR- Cell/Estt.I(Pt.I) dated 15/20th April, 2017 (Annexure- A43).
2). Issue a Writ, Order or Direction in the nature of Mandamus commanding the Respondent No.1, to declare the grading of Petitioner as OUTSTANDING for the 2 financial year 2015-16 in accordance with Rule 5 (1) of All India Services (APAR) Rules, 2007, in view of submission of Self-Appraisal of 100% accomplishment, in assignments left with him and average of past five years grading being OUTSTANDING.
3). Issue a Writ, Order or Direction in the nature of Mandamus to direct the respondent No. 1 to take appropriate action against respondent No. 8 & 9 in terms of rule 3 of All India Services (Conduct) Rules, 1968 & rule 7 of All India Services (Discipline and Appeal) Rules, 1969 and relevant provisions applicable to Central Civil Services Officer for violating statutory rules and causing undue harassment to the petitioner, only for discharging his official duties.
4). Grant exemplary cost and compensation as deemed fit by this Hon'ble Court, in view of irreparable loss /persecution faced by the Petitioner, only because of sincerely and honestly discharging his duties, as Chief Vigilance Officer, in initiating lawful action in corruption cases of respondents, so as to do justice to the Petitioner.
5) Issue a Writ, order or direction in the nature of mandamus, directing the Respondent No.1 to bring appropriate safeguards, to save Appraisal Report of honest civil servants from being spoiled by corrupt superiors, and to cover such cases of conflict of interest in performance appraisal. "
2. Briefly put, the case of the petitioner appears to be as follows:
3. Petitioner joined Indian Forest Service and was allocated 3 Haryana Cadre and subsequently, he was allocated Uttarakhand Cadre in 2015. On 29.06.2012, petitioner joined AIIMS, at New Delhi under Central Deputation on the post of Chief Vigilance Officer. It is petitioner's case that he initiated inquiry into corruption charges against Mr. Vineet Chaudhary, IAS, working as Deputy Director (Administration) of the AIIMS, who has strong political influence, as he worked earlier with Mr. J.P. Nadda, who is now Union Health Minister. Action taken by the petitioner as CVO found validation at the hands of the CBI and Parliamentary Committee. Chairman of the Standing Parliamentary Committee issued notice to the Health Ministry for violating the commitment given to the Committee on 08.06.2012 regarding appointment of petitioner by sending transfer proposal of the petitioner. There is reference to letter written by Mr. J.P. Nadda, who was a Member of Parliament, for removal of the petitioner from the post of CVO. According to the petitioner, he has been graded outstanding throughout his service career except in the financial year 2015-16 where he has been graded 'zero'. Thereafter, on the basis of Rules, he made representation to Mr. J.P. Nadda, who was Accepting Authority, which was also rejected. Feeling aggrieved, petitioner has approached this Court, in person.
4. Heard Mr. Sanjiv Chaturvedi, petitioner, in person, Mr. Rakesh Thapliyal, ASG for Union of India and Mr. Rajiv Singh Bisht, Brief Holder for the State of Uttarakhand.
5. Mr. Rakesh Thapliyal, ASG for Union of India, raised preliminary objection regarding the maintainability of the writ petition. He pointed out that as per the judgment of Hon'ble Apex Court in the case of L. Chandra Kumar Vs. Union of India reported in 1997 (3) SCC 261, the petitioner must approach the Tribunal under the Administrative Tribunals Act, 1985.
6. When this preliminary objection was raised, petitioner took time to make submissions in this regard and today, he made 4 submissions with regard to applicability of the said judgment.
7. It is submission of the petitioner that the said decision may not bar this Court under Article 226 from examining the complaints raised by him and it is only this Court, which can grant some of the reliefs sought in the writ petition. He would, in fact, point out that in some of the cases, this Court has interfered despite bar. He pointed out the orders passed by this Court in WPSB No. 429 of 2016 and 11 of 2017. It is also pointed out that petitioner, in WPSB No. 429 of 2016, which came to be disposed of without relegating the petitioner, was incidentally represented by Mr. Rakesh Thapiyal and still objection is raised by him that writ petition is not maintainable. He also referred to the fact that Delhi High Court has also interfered in such matter. He further submits that this is a case, which involves infraction of fundamental rights. Petitioner's right to file writ petition stand established when he received 'zero' grading, as a result of which his career is at stake. He has earned outstanding entries, for the work which he has done. It is also his case that he has been apprised for the work, which he was called upon not to do.
8. He would in this regard relied on the judgments of Hon'ble Apex Court in the case of State of Bihar Vs. Lal Krishna Advani reported in 2003 (8) SCC 361 and Harbanslal Sahnia Vs. Indian Oil Corporation reported in 2003 (2) SCC 107. In paragraph 7 of Harbanslal Sahnia's case the Hon'ble Apex Court has held as under:
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of 5 availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in 1998 (8) SCC 11]. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
9. He would also emphasize that Tribunal may not be in a position to grant some of the reliefs sought in writ petition namely relief no. 4 and 5. Petitioner points out that he wants that criminal action be taken against the respondents for being responsible in the matter and the Tribunal would be powerless in this regard.
10. The Hon'ble Apex Court in paragraphs no. 90, 93 and 99 in the case of L. Chandra Kumar Vs. Union of India reported in 1997 (3) SCC 261 has held as under:
"90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring 6 ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
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 entrusted with such an obligation. Their function in this respect is only supplementary and all such 7 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 concerned High Court 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 concerned Tribunal.
99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the 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 323A and 323B 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 part of the inviolable basic 8 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. 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 concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
11. Under the Administrative Tribunals Act, "service matter" is defined under Section 3 (q). Section 14 provides for jurisdiction, powers and authority of Tribunals. Power is conferred on the Tribunal to punish for contempt.
12. Section 22 deals with procedure and powers of Tribunals. It reads as follows:
"Section 22 - Procedure and powers of Tribunals (1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of 9 places and times of its inquiry and deciding whether to sit in public or in private.
(2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and [after hearing such oral arguments as may be advanced].
(3) A Tribunal shall have, for the purposes of [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence of affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(i) any other matter which may be prescribed by the Central Government."
13. The petitioner would draw our attention to sub-Section 3 of Section 22 and contend that there is no power vested with Tribunal to grant some of the reliefs, which are sought in the writ 10 petition, particularly, the compensation claimed and criminal action sought.
14. We may point out that under sub-Section 3 of Section 22, the legislative intention is to confer certain powers on the Tribunal, which are vested in a Civil Court under the Code of Civil Procedure. They apparently refer to matters, which are procedural in nature and they do not purport to put any limitation on the substantial powers of the Tribunal. As we have noticed, it is open to the Tribunal even to consider vires of any provision, a power which is ordinarily conferred on superior courts, no doubt, with the exception, that the Tribunal cannot examine the vires of Act, under which it is created.
15. At any rate, the main prayer which is sought in the writ petition clearly would fall within the province of the Tribunal. Having regard to the law laid down by Hon'ble Apex Court in the case of L. Chandra Kumar (supra), we would think that it is not case of the ordinary rule that a party must be relegated to avail alternative remedy. Petitioner is correct in pointing out that mere fact that there are alternative remedies may not result in ouster of jurisdiction of Court under Article 226 /227 of the Constitution of India. Powers under Article 226/227 are conferred by the Constitution. Those powers are available to be exercised in an appropriate case by the High Court, as pointed out by Hon'ble Apex Court in a catena of decisions including the judgment relied on by the petitioner. As for instance, if fundamental rights are in peril, then the Court may interfere despite existence of alternative remedy in an appropriate case but that principle may not apply in a case where matter is governed by the Administrative Tribunals Act, having regard to what is expressly laid down in paragraph 99 of L. Chandra Kumar's case (supra). The fact that in some other cases the Court may have intervened cannot advance the case of the petitioner. In this case, at least objection has been raised on 11 behalf of the respondents, at the earliest stage when the matter came up. Any erroneous entertainment of any other writ petition will not confer any right on the petitioner to persuade us to overlook the law laid down by the Hon'ble Apex Court. Therefore, we would think that petitioner must be relegated to approach Tribunal under the Administrative Tribunals Act, 1985. We leave it open to the petitioner to raise all the reliefs as are available to him. We also leave it open to the petitioner to approach this Court seeking any relief, which may be rejected by the Tribunal on the ground that it does not have jurisdiction. We leave open all the contentions of the petitioner, which he can urge before the Tribunal. Without prejudice to the said rights, we relegate the petitioner to approach the Administrative Tribunal. No order as to costs.
(Alok Singh, J.) (K.M. Joseph, C.J.)
19.06.2017 19.06.2017
SKS