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TMI Blog2022 (1) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... '. 3. The Appellant assails the final judgment and order dated 29.10.2021 passed by the High Court at Calcutta in WPCT No. 78/2021 whereby the High Court set aside the order dated 22.10.2021 passed by the Central Administrative Tribunal, Principal Bench (New Delhi) in P.T. No. 215/2021 transferring O.A. No. 1619/2021, filed by the Respondent herein, from Kolkata Bench to its files at the Principal Bench (New Delhi). In fact, order in P.T. No. 215/2021 was passed by the Chairman of the Tribunal in exercise of the power Under Section 25 of the Act. The Respondent herein, who was the then Chief Secretary of the State of West Bengal (since superannuated as an IAS officer), filed O.A. No. 1619/2021 before the Kolkata Bench of the Central Administrative Tribunal challenging the disciplinary proceedings initiated against him vide charge memo dated 16.06.2021 alleging failure to attend a review meeting chaired by the Hon'ble the Prime Minister of India on 28.05.2021 for assessing the loss of life, damage to property and infrastructure caused by the cyclonic storm 'YAAS'. He was charged thereunder for failure to maintain absolute integrity and devotion to duty and for exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter. (2) Notwithstanding anything contained in Sub-rule (1) persons who has ceased to be in service by reason of retirement, dismissal or termination of service may be at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. 5. There is no dispute regarding the power of the Chairman to transfer an Original Application pending before one Bench of the Tribunal to another bench, Under Section 25 of the Act. A perusal of the said provision would reveal that a party to any Application before any Bench of the Central Administrative Tribunal is statutorily entitled to make a separate application before the Chairman of the Central Administrative Tribunal for such a transfer. Upon transfer of an Original Application pending before a particular Bench of the Tribunal, lying within the territorial jurisdiction and power of judicial superintendence of any particular High Court other than High Court of Delhi at Delhi, to the Principal Bench at New Delhi lying within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t calls for resolution in this appeal. Yet another important aspect may also has to be borne in mind, idest that the cause of action for filing an Original Application Under Section 19 of the Act to redress any grievance and the cause of action for challenging an order of transfer of such an application from the Bench where it was filed and pending, to another Bench are different and distinct. The place for filing an Original Application against any order Under Section 19 would depend upon the bundle of facts constituting the cause of action which ultimately culminated in the said order sought to be impugned. Explanation to Section 19(1) defines the meaning of the word 'order' for the purposes of the said section. On the other hand, the cause of action for challenging the order of transfer/order declining the prayer for transfer is nothing but an order passed in the independent application for transfer of pending Original Application from the files of that particular Bench of the Tribunal where it was filed to another Bench in the invocation of or disinclination to invoke, the power Under Section 25 of the Act. 7. We have heard Shri Tushar Mehta, learned Solicitor General, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to take away Chairman's jurisdiction to transfer a case Under Section 25 of the Act as the cardinal principle of interpretation is that a Rule made under a statute could not override or supersede a provision of the parent statute itself. According to us the said decision and the contention founded on the said decision are relevant only for the purpose of deciding the correctness of the order of transfer passed by the Principal Bench of the Tribunal in exercise of the power Under Section 25 of the Act and not for deciding the jurisdictional High Court qua the order in P.T. No. 215/2021. 8. The Appellant also got a grievance that the High Court made some harsh or disparaging remarks in the impugned judgment against the Chairman of the Tribunal. The learned Solicitor General submitted that they were unsolicited and relied on various decisions to stress upon the requirement of their expunction. Nevertheless, we think it unnecessary to delve into all such contentions based on such decisions as Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the Respondent, fairly submitted that he would not contest on that issue and left it to us to decide. Obviously, the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on subsequent occasions also. In K.P. Tiwari v. State of M.P AIR 1994 SC 1031, this Court came across certain observations of a learned Judge of the High Court casting strictures against a Judge of the subordinate judiciary and the Court used the opportunity to remind all concerned that using intemperate language and castigating strictures at the lower levels would only cause public respect in judiciary to dwindle. The following observations of this Court need repetition in this context: The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err............................................. it has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, ought not to have been made against the Chairman of the Tribunal. To observe sobriety, we say that the remarks made by the High Court were unwarranted, uncalled for and avoidable being sharp reaction on unfounded assumptions. Ergo, we have no hesitation to hold that they were wholly unnecessary for the purpose of deciding the correctness or otherwise of the order of transfer. Hence, they are liable to be expunged. We do so. 9. Now, we will advert to the contentions advanced by Dr. Abhishek Manu Singhvi, learned Senior Counsel for the Respondent to support and sustain the impugned judgment and final order in WPCT No. 78/2021 whereby the order in P.T. No. 215/2021 was set aside. It is submitted that the High Court is justified in entertaining WPCT No. 78/2021 as the order of transfer passed in P.T. No. 215/2021 fell within its power of judicial superintendence. The further contention is that it could not be said that the power Under Section 25 of the Act was taken away solely because Rule 6 of the Procedure Rules was relied on to upturn the order in P.T. No. 215/2021. The learned Counsel, after drawing our attention to the factual background of the case, contended that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction on the Court. 19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor. 20. A distinction between a legislation and executive action should be borne in mind while determining the said question. 21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the Petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum. 11. In Nawal Kishore's case, the issue concerned was with respect to the jurisdiction of a particular High Court against an authority/person residing outside its territorial jurisdiction. That question was considered with reference to Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta. 13. Going by Section 25 of the Act, extracted hereinbefore, an independent application for transfer of an Original Application filed and pending before any bench of the Tribunal could be filed and the power to transfer lies with the Chairman. The Section mandates that if such an application is made, notice of it has to be given to the opposite party. At the same time, the Section also provides that on his motion and without any such notice the Chairman could transfer any case pending before one Bench, for disposal, to any other Bench of the Tribunal. Evidently, the said Section recognizes, the fundamental principles of justice and fair play namely that 'Justice must not only be done but it must be seen to have been done'. It would enable the Chairman to avert a 'reasonable suspicion' of or 'real likelihood' of bias. It could also be exercised on establishing any other sufficient and sustainable grounds. This power is to be used with great circumspection and sparingly. We do not think it necessary to elaborate on this issue as we have already stated that we are confining our consideration only to the specific question whether High Court at Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Kolkata Bench of the Tribunal founded on the cause of action referred to in Rule 6(2) of the Procedure Rules that decides the place of filing of an O.A.. To wit, those bundle of facts which would be necessary for the applicant to prove, if traversed, in order to support the right to a judgment from that Bench of the Tribunal. In such circumstances, the question of infringement or otherwise of the right of the Respondent herein to litigate before the Kolkata Bench of the Tribunal could not have been gone into, on merits, without deciding the seminal question whether the High Court of Calcutta itself had jurisdiction to undertake judicial review of the order passed by the Chairman in exercise of power Under Section 25 at the Principal seat of the Tribunal at New Delhi we do not have any hesitation in holding that the High Court at Calcutta could not have entertained the Writ Petition. 16. As noted earlier the order of transfer of O.A. No. 1619/2021 passed in P.T. No. 215/2021 was understood and dealt with by the High Court as an order passed by the Principal Bench of the Tribunal. Section 5(7) of the Act makes it clear that the Bench of the Central Administrative Tribunal at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts Under Articles 226/227 and the Supreme Court Under Article 32, of the constitution, was held unconstitutional besides holding Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus: 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 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. (Emphasis supplied). When once a Constitution Bench of this Court declared the law that "all decisions of Tribunals created Under Article 323A and Article 323B of the Constitution will be subject to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er transferring O.A. No. 1619/2021 vide order in P.T. No. 215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench Under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motiani's case (supra), relied on by the Respondent is also in line with the said position as in that case also, as against the order of transfer passed Under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus: The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the 'Tribunal'), by the O.A. No. 421/2018 pending before the Ahmedabad Bench has been transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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