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HC: Modus operandi adopted by UOI reeks of mala fides; serving the cause of justice is on a much higher pedestal for UOI than an ordinary litigant

 Calcutta High Court 

The Calcutta High Court bench comprising of Justices Sabyasachi Bhattacharyya and Rabindranath Samanta Alapan Bandyopadhyay v. Union of India & Anr. set aside the order passed by the CAT Principal bench to transfer Bandyopadhyay's petition to New Delhi and directed the Kolkata Bench of CAT to decide the case on an expedited basis.

Background of the Case

Petitioner joined the Indian Administrative Service (IAS) in the year 1987 and thereafter worked continuously with the Government of West Bengal till his superannuation on May 31, 2021. The West Bengal Government made a request to the Central Government seeking agreement for extension of service of the petitioner for a period of three months from June 1, 2021, to August 31, 2021. The Central Government acceded to such request vide letter dated May 24, 2021. On May 25, 2021, the Government of West Bengal issued a notification for extension of the petitioner’s service as Chief Secretary, in which post he had been serving immediately prior to his attainment of the age of superannuation, from June 1 to August 31, 2021. On May 26, 2021, the super-cyclone “YAAS” hit parts of West Bengal and Odisha. Despite being in bereavement on the sad demise of the petitioner’s younger brother on May 16, 2021, and nephew, Ritwick Sanyal, on May 20, 2021, both due to Covid-19, the petitioner participated in the emergency visits to different cyclone-affected areas of West Bengal which were scheduled by the Chief Minister.

The Prime Minister of India visited the cyclone-affected areas of West Bengal, which included a meeting with the Chief Minister of West Bengal at the Kalaikunda Air Force Station in West Bengal. The Chief Minister, accompanied by the petitioner met the Prime Minister and handed over a report on the super-cyclone YAAS and discussed relevant matters.

On May 28, 2021, the State Government received a communication from the Central Government intimating the State that the Appointments Committee of the Cabinet had approved the placement of service of the petitioner with the Government of India and requesting the State Government to release the petitioner with immediate effect to report to New Delhi by 10 AM on May 31, 2021. Petitioner alleged that such decision was taken without the consent of the petitioner and/or the State Government, although the petitioner had all along belonged to the West Bengal Cadre of the IAS and that no empanelment or post was offered to the petitioner at all. Thus, learned senior counsel for the petitioner contended, such order was patently illegal and without jurisdiction. 


​​​​​​​The State Government conveyed its decision not to release the petitioner to the Central Government and issued a notification on May 31, 2021 (the date of superannuation of the petitioner) cancelling the earlier departmental notification dated May 25, 2021, by which the extension of service of the petitioner had been notified. 

​​​​​​​In the evening of May 31, 2021, itself, after the petitioner’s superannuation allegedly took effect, a Show Cause Notice under Section 51 of the National Disaster Management Act, 2005 was issued by the Ministry of Home Affairs to the petitioner, to which the petitioner replied in writing on June 3, 2021. On June 16, 2021, a major penalty charge sheet was issued to the petitioner by the Union of India, Ministry of Personnel and Public Grievance and Pensions (Department of Personnel and Training) under Rule 8 of the AIS (Discipline and Appeal) Rules, 1969, read with Rule 6 of the AIS (DCRB) Rules.

​​​​​​​The petitioner submitted that he replied to the charge sheet within due time by WS, where the issues of maintainability and jurisdiction of the initiation of disciplinary proceedings against the petitioner were also raised, among others.


​​​​​​​On October 7, 2021, the petitioner filed an application under Section 19 of the Administrative Tribunals Act, 1985 (in brief, “the 1985 Act”) before the Kolkata Bench of the Central Administrative Tribunal (CAT)

​​​​​​​Learned senior counsel for the petitioner submitted that about 5 p.m. on October 21, 2021, the advocates for the petitioner received a transfer petition filed under Section 25 of the 1985 Act, apparently on October 20, 2021, via e-mail. In the said petition, the Union of India had prayed for the transfer of Petition from the Kolkata Bench to the Principal Bench of the CAT at New Delhi.

​​​​​​​The transfer petition was taken up for hearing on October 22, 2021, by the Principal Bench at New Delhi and, allegedly, the present writ petitioner sought direction to file a comprehensive written objection and took an objection as to maintainability, apart from other arguments on merits. Tribunal passed an order on October 22, 2021, itself, allowing the transfer petitioner finally and directing the Registrar to intimate the order to the Kolkata Bench of the CAT.​​​​​​​


The present writ petition challenges the said Order dated October 22, 2021, passed in Petition by the Principal Bench, CAT.​​​​​​​

Issues

The questions which were taken up in the present Writ Petition were:


​​​​​​​Is the present writ petition maintainable before this court, in view of the impugned order being passed by the Principal Bench situated at New Delhi? 

​​​​​​​Did the Principal Bench act beyond its jurisdiction in passing the impugned order? 

​​​​​​​Was the Principal Bench, CAT justified in law in passing the impugned order on merits?


​​​​​​​Order of the Court

The bench noted that the cause of action for filing the present writ petition was the transfer order, which was allegedly in violation of the petitioner’s fundamental right to equality before the law, as guaranteed by Article 14 of the Constitution of India, as also the right conferred on the petitioner by Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987.

Rule 6 of the CAT Rules designates the place of filing an application before the CAT. The petitioner argues that he is governed by sub-Rule (2) of Rule 6 in view of his retirement on May 31, 2021, whereas the respondents contend that sub-Rule (1) of Rule 6 is the governing clause, which confers jurisdiction on the Principal Bench of the CAT at New Delhi to take up the writ petitioner’s application under Section 19 of the 1985 Act.


It was said that the impugned order was passed by the Principal Bench having its seat in New Delhi, the “cause of action” for the present writ petition cannot be said to be restricted to the legality of the order alone, but primarily the infringement, by such order, of the fundamental and legal rights of the petitioner to litigate before the Kolkata Bench, within the territorial jurisdiction of which he resides and works. 

With respect to the incident that happened with the prie Minister, Court observed that,

That apart, the alleged incident of May 28, 2021, which is the genesis of the show cause notice and the entire litigation, took place in Kalaikunda, situated in West Bengal. Some of the relevant events, such as the alleged issuance of letter by the Chief Minister of West Bengal narrating her version of the event, also took place in Kolkata. In fact, the alleged violation of norms and Rules by the petitioner by leaving the meeting with the Prime Minister, disobeying the direction to report at New Delhi, etc., if any, admittedly happened in West Bengal. As such, the major part of the bundle of facts which comprise the cause of action took place in West Bengal, conferring territorial jurisdiction on this court within the ambit of Article 226 (2) of the Constitution.”

With regard to the next Question of Jjurosdiction Court held that,

“As far as the second question, pertaining to jurisdiction of the New Delhi Bench, CAT to entertain the petitioner’s application is concerned, let us first consider Rule 6 of the CAT Rules, 1987. SubRule (1) concerns officers still in service and designates the present place of posting, alternatively, the place where the cause of action, wholly or in part, has arisen as the places which have territorial jurisdiction. The proviso to sub-Rule (1) allows the applicant, with the leave of the Chairman, to file an application with the Registrar of the Principal Bench, which shall be heard and disposed of by the Bench which has jurisdiction over the matter.”

"Sub-Rule (2), on the other hand, concerns persons who have ceased to be in service by reason of retirement, dismissal or termination of service, who are given the blanket option to file the application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application."

“Section 25 of the 1985 Act empowers the Chairman of the CAT to transfer cases from one Bench to another. Such power, however, has to be read in the context of Rule 6 of the 1987 CAT Rules, made under Sections 35 and 36 of the 1985 Act and, thus, having the force of law. .Section 25 provides two modes of exercise of the Chairman’s power to transfer – on the application of any of the parties and suo motu. In case of suo motu exercise of such power on his own motion, the Chairman is exempt from issuing notice to the parties.”

Court highlighted that The term “desire” used in Section 25 cannot confer unfettered authority on the Chairman to exercise such power according to his whims or fancy but has to be read mutatis mutandis with the prior requirement of notice “to the parties”. Thus, it is implicit in Section 25 that notice and hearing must mandatorily be given to the parties and the Chairman’s “desire to be heard” has to be qualified by reason and application of judicial mind. 

It was further added that,

In the present case, the writ petitioner, who resides in Kolkata, was served with a notice of less than 24 hours in the early evening of October 21, 2021 to appear before the Principal Bench of the CAT, situated in New Delhi, on the very next morning, that is, on October 22, 2021. The extreme alacrity of the Principal Bench did not stop there, but it went on to hear out and dispose of the entire transfer petition finally, on merits, on the very next day, by refusing to grant the present writ petitioner (opposite party in the transfer petition) reasonable time to come ready with a comprehensive objection, arguments and appropriate citations. Promptness is appreciated, but over-zealousness to cater to the fiat of the Government, be it Central or State, is not, by courts of law, a tradition.  

The application under Section 19 of the 1985 Act, filed at the behest of the writ petitioner, was at an inchoate, pre-admission stage and could not be said to be “pending” within the purview of Section 25 of the said Act. 51 and, the Principal Bench had no right to finally transfer the matter to itself without proper notice and opportunity of hearing to both sides, including the present writ petitioner. 

“The Principal Bench of the CAT acted entirely without jurisdiction in exercising the power conferred specifically on the Chairman by Section 25, which is operative only within the parameters of the 1985 Act, read in conjunction with the CAT Rules, 1987, in particular Rule 6 (2) of the latter, by arrogating to itself jurisdiction which it does not have, in view of the writ petitioner having already exercised his unqualified option under Rule 6 (2) by filing the application under Section 19 before the Kolkata Bench of the CAT, within the jurisdiction of which the petitioner ordinarily resides.

With respect to the third issue Court held that,

“on the merits of the transfer order under challenge, some aspects relating to jurisdiction, as discussed above, also touch the merits of the adjudication. Apart from the inexplicable hot haste of the Principal Bench to cater to the pseudourgency of the Union of India (the urgency, if any, is of the writ petitioner since the Inquiry Authority is bent upon concluding the inquiry prior to the disposal of O.A. 1619 of 2021). The Principal Bench, surprisingly, considered virtually the merits of the dispute between the parties in the O.A. by pre-judging that most the evidence and witnesses would be from New Delhi, even before the matter was admitted. At the pre-admission stage, it was impossible for the Bench to judge (read, anticipate) the weightage to be given to forthcoming evidence and witnesses. The alleged recalcitrance of the writ petitioner on May 28, 2021 took place within the territorial jurisdiction of the Kolkata Bench, the articles of charge against the petitioner were levelled in the teeth of the communication of the Chief Minister herself from Kolkata, which could also be a potentially importance piece of evidence. Other eye-witnesses of the incident, if any, would be available in Kalaikunda in West Bengal, and not in New Delhi. 57. No appropriate notice and/or hearing was given to the writ petitioner, as mandated under Section 25 of the 1985 Act, since the transfer was not in suo motu exercise of power by the Tribunal but on the application of the Union of India”

Court held that,

"The entire modus operandi adopted by the Union of India reeks of mala fides. It was unfortunate that the Principal Bench of the CAT nurtured such efforts by passing the impugned transfer order, thereby paying obeisance to the diktat of the Union of India, which had been repeatedly held by the Supreme Court and various High Courts not to be a favoured litigant. Rather, the responsibility of meting out justice and serving the cause of justice is on a much higher pedestal for the Union of India than an ordinary individual litigant."

The impugned order of the Principal Bench not only violates the legal right conferred on the writ petition under Rule 6 of the CAT Rules, 1987, read with Sections 35 and 36 of the 1985 Act, as well as the petitioner’s fundamental right of equality before the law, as enshrined in Article 14 of the Constitution, which is the grundnorm of the Indian legal fabric, but also leaves a bad taste in the mouth due to the mode of operation of a quasi-judicial (if not judicial) authority and also poses a threat to the federal structure as envisioned by the makers of the Constitution of India.

Court relied on the case of Union of India & Anr. –vs- A. Shainamol, IAS & Anr.,  wherein Supreme Court, in the said judgment, dealt with the scope of Rule 6, sub-Rule (1), and not sub-Rule (2) of the CAT Rules, 1987, as opposed to the instant case. Moreover, as the cited judgment unfolds, it becomes clear that the decision therein was rendered on the facts of the particular case. Paragraph No. 43 of the said citation, on which the respondents placed much stress, exemplifies the above proposition and does not come in aid to advance the respondents’ case in any manner whatsoever.

At least it was made abundantly clear that neither the merits of O.A. 1619 of 2021 nor those of the inquiry against the writ petitioner have been entered into at all by this Court. All observations made in this order pertain solely to the short compass of adjudication of the present writ petition and shall not prejudice the rights and contentions of the parties before any forum, legal, quasi-judicial or administrative.

Case Details

Case Title: Alapan Bandyopadhyay v. Union of India & Anr.

BenchJustices Sabyasachi Bhattacharyya and Rabindranath Samanta 

Read Order  

SOURCE ; .latestlaws.com

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