Jharkhand High Court
Jagat Bandhu Mahapatra vs The State Of Jharkhand And Ors. on 6 November, 2007
Equivalent citations: [2008(2)JCR399(JHR)], 2008 LAB. I. C. (NOC) 693 (JHAR.) = 2008 (1) AIR JHAR R 893, 2008 (1) AIR JHAR R 893
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
1. In this writ petition, the petitioner has challenged the order of his transfer from the post of Director General-cum-Inspector General of Police, Jharkhand to Director General-cum-Commandant General of Home Guards and Fire Service, Jharkhand, issued by Notification, being Memo No. 8/M-2-110/2007-2969/Ranchi dated 3rd August, 2007 (Annexure-3).
2. The petitioner is a senior I.P.S. Officer. He was made Director General-cum-Inspector General of Police, Jharkhand in the month of September, 2006. According to the petitioner, his transfer is premature, arbitrary and violative of Article 14 and 16 of the Constitution of India and is unsustainable for the following reasons:
(i) Once being appointed as Director General-cum-inspector General of Police, Jharkhand, he is entitled to remain as such for a fixed tenure of two years irrespective of date of superannuation, as per the direction of the Hon'ble Supreme Court in Prakash Singh and Ors. v. Union of India and Ors. .
(ii) Once appointed as Director General-cum inspector General of Police, Jharkhand, he can be removed only with consultation of the State Security Commission and only in the case where action is taken against him under All India Services (Discipline & Appeal) Rules or following conviction in a Court of Law in a criminal offence or in a case of corruption or otherwise in capacitating him from discharging his duty.
(iii) The petitioner, having been posted on 27th September, 2006, is entitled to hold the office of the Director General-cum-Inspector General of Police, Jharkhand till 26th September, 2008 irrespective of his date of retirement in December, 2007.
(iv) By the premature transfer from the post of Director General-cum-Inspector General of Police, Jharkhand, the petitioner, who is entitled to hold the said post till 26th September, 2008, has been deprived of the extended period of service for which he was entitled to hold the office. His tenure cannot be curtailed.
(v) The respondents are bound to comply with the directions of the Hon'ble Supreme Court in Prakash Singl's case (Supra). It has been observed that in view of far reaching changes after the enactment of Police Act, 1861, the Government of India had appointed a National Police Commission on 15th November, 1977 for the purpose of fresh examination of the role and performance of the police, both, as a law enforcing agency, as also an institution to protect the rights of citizens. The Commission examined all issued and, after a period of three and half years, submitted its report in the year 1979, recommending certain basic reforms for the effective functioning of the police to enable it to promote the dynamic role of law and to render impartial service to the people.
(vi) The said recommendations of the Commission were not implemented.
(vii) A report was filed before the Hon'ble Supreme Court with recommendations, which, inter alia, recommends for:
a. Provision for State Security Commission at State level;
b. Transparent procedure for appointment of the Police Chief and the desirability of giving him minimum fixed tenure;
c. Separation of investigation work from maintenance of law and order; and d. A New Police Act, which should reflect the democratic aspirations of the people.
(viii) Other Committees, such as Malimath Committee for reforms of police like Criminal Justice System and the report for improvement of Criminal Justice System has also recommended in the similar lines.
(ix) The Supreme Court of India, taking note of the said recommendations of the Commissions/Committees, passed comprehensive directions in Prakash Singh's case (Supra), giving guidelines/directions to the Central Government, State Government and Union Territories for the purpose of reforms of the administration and working of the police force till framing of appropriate legislation.
(x) The petitioner, who is a senior most I.P.S. Office of 1972 batch, was appointed as Director General-cum-Inspector General of Police, Jharkhand on 27th September, 2006 after the said judgment of the Hon'ble Supreme Court.
(xi) Several resolutions were also passed in compliance of the said order/direction of the Hon'ble Supreme Court.
(xii) The petitioner was also appointed as Director General-cum-Inspector General of Police, Jharkhand in compliance of the guidelines of the Hon'ble Supreme Court.
(xiii) The petitioner, thereafter, discharged his duties as Director General-cum-Inspector General of Police to the satisfaction of all concerned. During his tenure parliamentary election in the State was peace fully and successfully held, despite Naxal problems. He also succeeded in controlling the crime and making recruitment in Police Department.
(xiv) The petitioner, all of a sudden, was served with the impugned notification dated 3rd August, 2007 whereby he has been removed from the post of Director General-cum-Inspector General of Police, Jharkhand and in his place, one Sri V.D. Ram, who is junior to the petitioner, has been posted as Director General-cum-Inspector General of Police, Jharkhand.
(xv) The impugned order of transfer is malicious, as the same has been issued at the behest of an M.L.A., who happens to be closely related with Respondent No. 3.
(xvi) The petitioner has challenged the said transfer order before the Hon'ble Supreme Court in W.P.(C) No. 450 of 2007, which was disposed of as withdrawn.
3. A counter affidavit has been filed by the State respondents, seriously objecting the maintainability of the writ petition before this Court after the same was disposed of by the Supreme Court as withdrawn. The maintainability of the petition has been also challenged on the ground that the petitioner being the member of Indian Police Service (for short I.P.S.), his case falls within the ambit of the provisions of Section 14 read with Section 3(q) of the Administrative Tribunals Act, 1985 and within the jurisdiction of the Central Administrative Tribunal.
4. The respondents further contested the writ petition on the following grounds;
(i) The impugned transfer order has already been given effect to and pursuant to the said order, the petitioner himself has joined and has been working on the post of Director General-cum-Commandant General of Home Guards and Fire Services, Jharkhand vide his joining report dated 13th August, 2006 (Annexure-A).
(ii) Sri V.D. Ram, Respondent No. 3, who has been appointed as Director General-cum-Inspector General of Police, Jharkhand in place of the petitioner, has also joined the post and has been working as such which is evident from his joining report dated 4th August, 2007 (Annexure-B).
(iii) The petitioner has withdrawn his writ petition filed in the Supreme Court without obtaining any permission to approach this Court under Article 226 of The Constitution of India.
5. Mr. Rajiv Ranjan, learned Counsel, appearing on behalf of the petitioner, submitted that the respondent's objection that the writ petition is not maintainable before this Court under Article 226 of the Constitution is without any substance. The writ petition filed under Article 32 of the Constitution before the Supreme Court has been withdrawn. The writ jurisdiction of the Supreme Court and the High Court is concurrent. The Supreme Court has not gone into the merits of the case and has not decided any issue. Thus, the writ petition before this Court under Article 226 of the Constitution is not barred. Even dismissal of the Special Leave Petition by non-speaking order does not constitute any res judicata and does not bar a writ petition under Article 226 of the Constitution before High Court.
6. In support of the said submissions, learned Counsel for the petitioner referred to the following decisions of the Supreme Court:
I. Daryao and Ors. v. State of U.P. and Ors.
II. Kunhay Ammed and Ors. v. State of Kerala and Anr.
III. S. Shanmugavel Nadur v. State of T.N. and Anr. (2002) & SCC 361 IV. K. Venkatachalam v. A. Swamickan and Anr.
7. Learned Counsel further submitted that even though there is remedy before the Central Administrative Tribunal, the jurisdiction of the High Court under Article 226 of the Constitution of India can be invoked. A Tribunal cannot usurp the power of judicial review of the High Court under Article 226 of the Constitution. He relied on the following decisions of the Supreme Court:
I. L Chandra Kumar v. Union of India and Ors. .
Madras Bar Association v. Union of India III. Arunima Baruah v. Union of India and Ors.
8. Learned Counsel submitted that the impugned transfer order is violative of the decision of the Supreme Court in Prakash Singh's case (Supra). He contended that in absence of any appropriate legislation, the Supreme Court can issue directions/ orders to fill up the gap for enforcement of The fundamental right and to do complete justice. He referred to and relied on the following decisions of the Supreme Court:
I. Vineet Narain and Ors. v. Union of India and Anr. (1993) 1 SCC 226 II. Vishaka and Ors. v. State of Rajasthan and Ors.
III. Vellore Citizens' Welfare Forum v. Union of India and Ors.
9. Learned Advocate General, appearing on behalf of the State respondents, on the other hand, submitted that the decisions referred to by the petitioner are not at all applicable to the facts and circumstances of the case. The petitioner being the Member of I.P.S., he cannot directly approach the High Court under Articles 226 and 227 of the Constitution of India. The Tribunal is like a Court of first instance in respect of the areas of law for which the same has been constituted by the statute and it will not be open to the persons, falling under the provisions of the Administrative Tribunals Act, to directly approach the High Court, even in cases where the vires of the statutory legislations, overlooking the jurisdiction of the concerned Tribunal. He relied on the following decisions of the Supreme Court:
I. L Chandra Kumar v. Union of India and Ors.
II. Kendriya Vidyalaya Sangatban and Anr. v. Suhhas Sharma
10. Learned Advocate General submitted that the transfer is covered under the expression "any other matter whatsoever" appearing in Sections 3(q), 14 and 28 of the Administrative Tribunals Act, 1985 and the High Court has no jurisdiction to entertain such application. He relied on a decision of the Division Bench of the Patna High Court in Sujit Kumar Singh v. The Stale of Bihar and Ors. 1991(1) PLJR 198. Learned Advocate General further submitted that the petitioner tried his level best to obtain similar order by filing a writ petition before the Supreme Court under Article 32 of the Constitution, but the Supreme Court did not interfere with the impugned order. The petitioner then chose to withdraw the writ petition. The said writ petition having not been entertained by the Supreme Court, an other writ petition on the same cause and ground cannot be entertained by this Court in exercise of jurisdiction under Article 226 of the Constitution.
11. Having heard learned Counsel for the parties and considered the facts, materials appearing on record and decisions referred to and relied on their behalf, following questions fell for determination by this Court:
I. Whether the petitioner, being a member of I.P.S., can directly approach this Court under Article 226 of the Constitution of India?
II. Whether the writ petition filed before the Supreme Court ' having been disposed of as withdrawn without according permission to the petitioner to file writ petition before the High Court under Article 226 of the Constitution, this writ petition is maintainable?Point No. 1
12. The issue arising out of the first point is no longer res integra. In L. Chandra Kumar's case (Supra), the Supreme Court, while dealing with the point, recorded its conclusion in Paragraph 93 of the said judgment, which is reproduced herein below:
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 set-up, been specifically 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 beet 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.
(emphasis supplied) The same conclusion is repeated in Paragraph 99 of the said judgment.
13. Further in Kendriya Vidyalaya Sangathan's case (Supra), the Supreme Court has quoted the said paragraph with approval in Paragraph No. 11 of the judgment and set aside the contrary order of the High Court, directing the High Court to transfer the writ petition to Central Administrative Tribunal. The Supreme Court in appreciation of the decision in L Chandra Kumar's case (Supra) has held that the same is a product of judicial craftsmanship and a landmark in the development of constitutional law. The High Court ought not to permit the aggrieved person to bypass the remedy of moving the Administrative Tribunal in the first instance. Paragraph Nos. 19 and 20 of the said decision are worth quoting:
19. I must say that the decision in Chandra Kumar case is a product of judicial craftsmanship and a landmark in the development of constitutional law in our republic. Even if this judgment does not ipso facto apply to the J & K State Constitution, there is no apparent reason why the ratio of this judgment should not be applied to the exercise of jurisdiction by the J & K High Court under Sections 103 and 104 of the J & K Constitution. The wholesome principle evolved by this Court in Chandra Kumar could be extended to Sections 103 and 104 as well; otherwise it would lead to an anomalous result of the Central government servants/employees of the Central Government-controlled corporations etc. working in J & K being left with the option of bypassing the Tribunal, without falling in the line with their counterparts working elsewhere. It needs to be noticed that the employees of Kendriya Vidyalaya were brought within the purview of the Act by virtue of the notification dated 17-12-1998 issued under Sub-section (2) to Section 14.
20. As regards the territorial operation of the Administrative tribunals Act, as my learned brother has pointed out, it extends to the whole of India including Jammu and Kashmir. The Full Bench of the High Court has also recognized this position and clarified that the Tribunal will function as an additional or alternative forum without affecting the constitutional jurisdiction of the High Court. Therefore, the contention that the machinery under the Administrative Tribunals Act to decide the disputes or complaints specified therein cannot function within the State of J & K. does not deserve further consideration. However, it is clarified that in the light of the pronouncement in Chandra Kumar case Section 28 of the Act does not have the effect of affecting the power of judicial review of constitutional courts. At the same time, as laid down in Chandra Kumar the High Court ought not to permit the aggrieved person to bypass the remedy of moving the Administrative Tribunal in the first instance.
14. In Vinay Kumar Pandey v. The State of Jharkhand and Ors. 2003 (4) JLJR 382, this Court has held that the High Court has power to exercise judicial superintendence over the decision of all the Courts/Tribunals within its jurisdiction and it is open to the aggrieved party to move before the Division Bench of the High Court. It has been held that the jurisdiction/power under the Central Administrative Tribunal shall be exercised in the matter, which falls under Section 14 of the said Act. However, any decision shall be subject to the scrutiny by the Division Bench of the High Court.
15. In Sujit Kumar Singh's case (Supra), the Division Bench of the Patna High Court has held that "transfer" is covered by Clauses (i) to (iv) of Section 3(q) of the Administrative Tribunals Act and the High Court has no jurisdiction to entertain such an application challenging the validity of transfer of a member of All India Services under Articles 226 and 227 of the Constitution of India.
16. The decisions referred to above by the learned Counsel for the petitioner to meet the said point in the cases of L Chandra Kumar (Supra), Madras Bar Association (Supra) and Arunima Baruah (Supra) lead to different conclusions and do not help him.
17. In view of the said decisions of the Supreme Court, it has to be held that the High Court cannot permit the aggrieved person to bypass the remedy of moving the Administrative Tribunal in the first instance and cannot entertain the writ petition, questioning the validity/legality of the transfer order of the petitioner, which is covered under the expression "any other matter whatsoever" appearing in Section 3(q)(v) of the Administrative Tribunals Act. The petitioner cannot be, thus, permitted to bypass the remedy of approaching the Administrative Tribunal and prefer writ petition in the first instance under Article 226 of the Constitution.
Point No. I is, thus, answered against the petitioner.
Point No. II:
18. In view of the above finding on Point No. I this point remains academic for the purpose of the instant case.
19. According to learned Counsel for the petitioner, simple withdrawal of the writ petition filed under Article 32 of the Constitution before the Supreme Court does not create any bar in filing a subsequent writ petition before the High Court under Article 226 of the Constitution of India.
20. Learned Advocate General, on the other hand, submitted that once the writ petition, involving the same issue, has not been entertained by the Supreme Court, withdrawal of the writ petition from the Supreme Court without any permission to file a writ petition before the High Court creates a bar for moving the High Court under Article 226 of the Constitution. In Daryao's case (Supra), the Supreme Court, while considering the maintainability of the writ petition before the Supreme Court under Article 32 of the Constitution after rejection of the similar petition by the High Court under Article 226 of the Constitution, considered the various aspects and also noticed and discussed number of decisions on the issue to confine its conclusion only to the point of res judicata. In Paragraph No. 19 of the said judgment, the Supreme Court held as follows:
(19) We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated, if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie, dismissal in limine even without passing a speaking in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that make, it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a oar of res judicata against a similar petition filled under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.
21. In Kunhayammed's case (Supra), relied upon by the petitioner, the Supreme Court again considered the point of res judicata along with the doctrine of merger and he'd that the dismissal of Special Leave Petition at the stage of gront of leave does not culminate in merger of the impugned decision. The same view has been taken in S. Shanmugavel Nadar's case (Supra) with regard to the effect of summary dismissal of a Special Leave Petition on technical grounds. It has been held that doctrine of merger is not applicable in such case.
22. In K. Venkutachalam's case (Supra), it has been ruled that the High Court has got wide jurisdiction under Article 226 of the Constitution, which covers all violations of the law or the Constitution when recourse cannot be had to other remedies provided by law.
23. None of the decisions deals with the point in issue as to whether the writ petition can be entertained by the High Court under Article 226 of the Constitution when similar writ petition has been disposed of by the Supreme Court, as withdrawn, without giving any liberty to the petitioner to move the High Court under Article 226 of the Constitution. In my view, though the scope of writ/order or direction, which the High Court can issue in appropriate case under Article 226, is concurrent with the scope of similar writ/order or direction, which can be issued by the Supreme Court under Article 32, the hierarchy and superiority of the Supreme Court cannot be ignored. As because similar writ petition dismissed in limine by the High Court can be entertained by the Supreme Court under Article 32 of the Constitution, the vice- versa cannot be said to be proper. When a writ petition is dismissed in limine by the Supreme Court or dismissed as withdrawn without according permission to file writ petition under Article 226, in order to maintain judicial propriety, it will not be proper to entertain similar writ petition by the High Court.
24. In view of the above, it is, therefore, held that this writ petition, under Article 226 of the Constitution, cannot be also entertained, as no such permission has been accorded by the Hon'ble Supreme Court while permitting the petitioner to withdraw the writ petition filed under Article 32 of the Constitution.
Point No. 11 is thus also decided against the petitioner.
In the result, it is held that this writ petit on is not maintainable and is, accordingly, dismissed