Supreme Court - Daily Orders
Union Of India vs Shree Ram on 2 September, 2015
Bench: Dipak Misra, Prafulla C. Pant
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5208 OF 2009
UNION OF INDIA & ORS. … Appellants
VERSUS
SHREE RAM … Respondent
O R D E R
The respondent, a clerk in the services of the Railways, on completion of 20 years of service, submitted an application on 07.11.1984 seeking voluntary retirement with effect from 28.02.1985. The aforesaid request of the respondent was acceded to and a communication dated 25.02.1985 was addressed to him by the Works Manager, Kalka informing that he had been allowed to retire voluntarily with effect from 28.02.1985, i.e. on the expiry of notice period of three months. Before the effective date of voluntary retirement, the respondent filed an application dated 22.02.1085 before the competent authority of the Railway administration to allow him to withdraw the application for voluntary retirement. The said request was declined vide communication dated 28.2.1985. A further representation was sent but it met with no success.
Signature Not Verified
That compelled the respondent to Digitally signed by prefer Gulshan Kumar Arora Date: 2015.09.10 12:52:00 IST an appeal before the higher authorities but nothing Reason: substantial ensued.
2
As the factual matrix would show, the respondent, being aggrieved by the said action of the appellant, preferred Civil Writ Petition No. 1686 of 1985 which was dismissed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh on 10.05.1985. After dismissal of the writ petition, the respondent filed an application for review forming the subject matter of R.A. No.61/85 and eventually the Division Bench recalled its order of dismissal and admitted the writ petition. In course of time, the matter was listed before the learned Single Judge who after referring to the voluntary retirement scheme of the Railways allowed the writ petition granting consequential benefits.
We have heard Mr. A.K. Panda, learned senior counsel for the appellant and Mr. R.K. Kapoor, learned counsel for the respondent.
The question that has arisen for consideration is whether the writ petition could have been entertained by the High Court. The respondent is an employee under the Railway administration. The service disputes of a Railway employee is covered under Section 14 of the Administrative Tribunals Act, 1985 (for brevity, 'the Act'). The said Act came into force with effect from 1.07.1985. The Division Bench on 10.05.1985 dismissed the writ petition. There could not have been any error of exercise of jurisdiction at that point of time. It has passed an order of review recalling the order dated 17.10.1985. After recall of the order, the writ petition became alive. It is urged by Mr. Panda, learned senior counsel, that the High Court was obliged under Section 29 of the 3 Act to transfer the petition to the Central Administrative Tribunal.
Section 29(1) of the Act reads as follows :
“29. Transfer of pending cases.--(1) Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.” In view of the language employed in Section 29, the High Court should have transferred the case to the tribunal. Instead of transferring, as is manifest, the learned single Judge has adjudicated. In this context, we may profitably refer a passage from L. Chandra Kumar vs. Union of India & Ors. [AIR 1997 SC 1125] wherein it has been held thus :
“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 structure of our Constitution. While this jurisdiction cannot be ousted, other 4 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.” From the aforesaid passage, it is clear as day that the tribunal has to act as a court of first instance and the litigant cannot directly approach the High Court by overlooking the jurisdiction of the concerned tribunal and the orders passed by the tribunal can be challenged before the High Court and it shall be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned tribunal falls. In view of the aforesaid, the order passed by the High Court is without jurisdiction and, therefore, the matter has to go back to the tribunal for adjudication. We direct transfer of writ petition No.1686 of 1985 to the Central Administrative Tribunal at Chandigarh with a postulate that it shall be disposed of within three months from the date of receipt of the record. The Registry 5 of the High Court of Punjab and Haryana at Chandigarh is directed to transmit the record forthwith. If the records are not available with the Registry, liberty is granted to the petitioner to file a copy of the writ petition and the counter affidavit filed thereto before the tribunal which shall be treated as a transfer petition and be adjudicated. Needless to say, the issue of limitation cannot be raised as the writ petition was filed within a reasonable time.
The tribunal shall proceed to decide the matter in accordance with law. As it is an old matter, the tribunal shall positively decide the same by the time we have fixed.
The appeal is allowed and the order passed by the High Court is set aside. Writ Petition No.1686 of 1985 filed before the High Court stands transferred to the tribunal for adjudication in accordance with law within the time stipulated hereinabove. There shall be no order as to costs.
.....................,J.
(Dipak Misra) .....................,J.
(Prafulla C. Pant) New Delhi;
September 2, 2015.
ITEM NO.112 COURT NO.5 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 5208/2009
UNION OF INDIA & ORS. Appellant(s)
VERSUS
SHREE RAM Respondent(s)
Date : 02/09/2015 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE PRAFULLA C. PANT For Appellant(s) Mr. A.K. Panda, Sr. Adv.
Ms. Sunita Gautam, Adv.
Mr. D.S. Mahra, AOR For Respondent(s) Mr. R.K. Kapoor, Sr. Adv.
Ms. Rekha Giri, Adv.
Mr. Anis Ahmed Khan, Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed order is placed on the file)