Calcutta High Court (Appellete Side)
(Dhananjoy Das & Anr vs State Of West Bengal & Ors.) on 6 April, 2022
Author: Harish Tandon
Bench: Harish Tandon
06.04.2022 WPST 106 of 2019
(Dhananjoy Das & Anr. Vs. State of West Bengal & Ors.)
Court : 04
with
Item
Matter
: PB-10&11
: WPST
CAN 1 of 2021
Status : OP
Transcriber: nandy
with
CAN 2 of 2021
with
CAN 3 of 2021
&
WPST 126 of 2019
(Dhananjoy Das & Anr. Vs. State of West Bengal & Ors.)
with
CAN 1 of 2021
with
CAN 2 of 2021
with
CAN 3 of 2021
Mr. Pratik Dhar, Senior Advocate
Mr. Pappu Adhikari, Advocate
Mr. Samir Halder, Advocate
......for the Petitioners
Mr. Sirsanya Bandopadhyay, Ld. Jr. Standing Counsel
Mr. Arka Kumar Nag, Advocate
......for the Sate
Mr. Soumya Majumdar, Advocate
Mr. Chittapriya Ghosh, Advocate
Ms. Priyanka Saha, Advocate
......for the Applicants (in CAN 2 & 3 of 2021)
Mr. Asoke Kumar Banerjee, Senior Advocate
Mr. Sarajit Sen, Advocate
Mr. Tapas Singha Roy, Advocate
Mr. Arkaprava Sen, Advocate
......for the Respondent No. 9
CAN 2 of 2021 & CAN 3 of 2021 The applications being CAN 2 & 3 of 2021 filed in WPST 106 of 2019 and CAN 2 & 3 of 2021 filed in WPST 126 of 2019 at the behest of a non-party to the tribunal application seeking their addition in the instant writ-petition as they stand on the same footing that of the other similarly circumstanced persons and 2 their interests have been vitally affected by the impugned order.
A preliminary objection has been taken by Mr. Pratik Dhar, learned Senior Counsel, appearing for the writ-petitioners in both the aforesaid two writ- petitions that the persons seeking their addition for the first time in the instant writ-petitions have no locus to maintain the said applications and placed reliance upon a judgment of the Supreme Court rendered in the case of Rajeev Kumar & Anr. Vs. Hemraj Singh Chauhan & Ors. reported in (2010) 4 SCC 554. It is thus submitted that in view of the Constitution Bench decision rendered in the case of L. Chandra Kumar Vs. Union of India reported in (1997) 3 SCC 261, the Tribunal is considered to be a Court of first instance and, therefore, the person who is not a party to a tribunal proceeding, cannot jump the forum and approach the High Court directly, more particularly, when the order of the Tribunal is assailed by the parties to the proceeding.
The learned Advocate appearing in support of the aforesaid two applications submits that the tenet of the order is such that it adversely affects their rights and in fact, they are the aggrieved persons and, therefore, they are to be treated as necessary and proper party in the instant proceeding. It is further submitted that in order to have the complete and effective adjudication of the issues involved in the instant writ-petition, their presence is necessary 3 and they are required to be heard as any order that would be passed in the instant writ-petition would have a direct impact on their service career.
Mr. Ashok Kumar Banerjee, learned senior Advocate, appearing for the respondent no. 9, opposes the said applications and submits that their addition would create an embarrassment to the parties and the issues involved would be unnecessarily complicated.
Mr. Sirsanya Bandopadhyay, learned Junior Standing Counsel, appearing for the State also opposes the said applications with the submission that the addition is impermissible in view of the law laid down in Rajeev Kumar (supra).
The first and foremost question involved in the instant application is whether a non-party to a tribunal proceeding can straightway approach the High Court seeking addition in a writ-proceeding without exhausting their remedy provided under the Administrative Tribunal Act. We are not unmindful to the proposition of law that in order to seek addition in a proceeding by a stranger, twin conditions are required to be satisfied. Firstly, whether he is a necessary party and secondly, a proper party. The necessary party is one, in whose absence there cannot be a complete and effective adjudication of the disputes involved in the proceedings; on the other hand, the proper party is one, whose presence is necessary for the complete and effective 4 adjudication of the disputes. At the first blush, bearing in mind the proposition of law relating to the addition of party in a judicial proceeding, it is imperative to consider the existence of the aforesaid twin conditions.
However, our attention is drawn to the judgment of the Supreme Court in the case of Rajeev Kumar & Anr. (supra) wherein the identical issue cropped up and the Apex Court held that allowing an application for impleadment in a writ proceeding filed before the High Court which originated from the order of the Administrative Tribunal is impermissible. The Bench further noticed the authoritative observations of the Constitution Bench decision rendered in case of L. Chandra Kumar (supra) wherein it is reiterated that by constituting a Tribunal under Articles 323A and 323B, the powers enshrined under Articles 226/227 and Article 32 of the Constitution cannot be taken away as they are the integral part of the basic structure. However, the Constitution Bench held that those Tribunals act as a Court of first instance and, therefore, no litigant shall be allowed to bypass or jump such forum and approach the High Court directly seeking their impleadment and ventilate their grievance.
It would be apposite and profitable to quote the relevant observations from the judgment rendered in Rajeev Kumar & Anr. (supra) which runs thus:
57. However, while answering the objection on their locus standi, the appellants referred to the decision of the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others - (1997) 3 SCC 261 and in particular to paragraph 99, page 311 at placitum f & g of the report and contended that in view of the law declared in Chandra Kumar (supra), they can come before the High Court and raise their grievances against the judgment of C.A.T. as their interests have been affected by that judgment even though they were not parties to the proceedings in which the said judgment was rendered.
8. This Court is of the view that the understanding of the ratio in Chandra Kumar (supra) by the learned counsel for the appellants in this case is not correct and the ratio in Chandra Kumar (supra) is just to the contrary.
9. The Constitution Bench in Chandra Kumar (supra) held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a part of the basic structure of our Constitution (See paragraphs 78 & 79, pages 301 and 302 of the report).
The Constitution Bench also held that various Tribunals created under Articles 323-A and 323-B of the Constitution, will function as Court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these Tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular Tribunal.
10. In paragraph 93, at page 309 of the report, the Constitution Bench specifically held:
"...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...."
(Emphasis added) The Constitution Bench explained the said statement of law by reiterating in the next sentence:
"..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 6 mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
11. On a proper reading of these two sentences, it is clear:
(a) The Tribunals will function as the only Court of first instance in respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which Tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court `overlooking the jurisdiction of the Tribunal'.
12. The aforesaid propositions have been repeated again by the Constitution Bench in the penultimate paragraph 99 at page 311 of the report in the following words:
"...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 Tribunal concerned...."
13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which C.A.T. has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a Court of first instance in respect of their service disputes, for adjudication of which C.A.T. has been constituted.
14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceeding before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the 7 Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the Constitution Bench of this Court in Chandra Kumar (supra), approach the High Court and treat it as the Court of first instance in respect of their grievances by `overlooking the jurisdiction of the Tribunal'. The C.A.T. also has the jurisdiction of Review under Rule 17 of CAT (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy.
15. As the appellants cannot approach the High Court by treating it as a Court of first instance, their Special Leave Petition before this Court is also incompetent and not maintainable.
In view of the law as expounded in the above noted decision we are of the view that the applicants of the instant applications cannot be permitted to intervene in the instant proceedings having stranger to the tribunal proceedings and, therefore, the applications being CAN 2 & 3 of 2021 filed in WPST 106 of 2019 and CAN 2 & 3 of 2021 filed in WPST 126 of 2019 are hereby dismissed.
However, the dismissal of the said applications shall not prevent the applicants to ventilate their grievances in accordance with law.
By consent of the parties let the application being CAN 1 of 2021 filed in the aforesaid writ- petitions, be listed on April 21, 2022.
The interim order granted earlier is extended till April 28, 2022.
(Harish Tandon, J.) (Rabindranath Samanta, J.) 8