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R.K. Singh Vs. Union of India and others
LegalCrystal Citation : legalcrystal.com/487656
Court : Allahabad
Reported in : 1999(4)AWC3605
Judge : S.H.A. Raza and ;Bhanwar Singh, JJ.
Subject : Service
Decided On : Apr-11-1999
Acts : Administrative Tribunals Act, 1985 - Sections 20, 20(1) and 20(2); Indian Administrative Service Rules - Rule 16; Constitution of India - Articles 14, 15, 16, 266 and 227
Case Number : Writ Petition No. 1724 (s/B) of 1999
Appellant : R.K. Singh
Respondent : Union of India and others
Advocate for Appellant : A.P. Singh, Adv.
Advocate for Respondent : C.S.C. and; B.B. Saxena, Adv.
Cases Referred :
L. Chandra Kumar v. Union of India and
Service - competency of Tribunal - Section 20(1) of Administrative Tribunals Act, 1985 and Rule 16 of Indian Administrative Service Rules - original application before Central Administrative Tribunal against disciplinary action taken - application rejected on non exhaustion of alternative reme ..... --(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. Union of India, (1987) 2 ATC 889 (CAT) (Cult), it has been held by the Tribunal itself non-exhaustion of other remedies does not deprive the Central Administrative Tribunal to give directions to the department to make payment of an amount if the Central Administrative Tribunal is satisfied that the same is due. Union of India, (1986) 1 ATC 323 (CAT) (ND) as well as Umesh Rai v. Because we are of the view that the power of the Tribunal not to entertain original application is circumscribedto the word 'ordinarily'.Meaning thereby :that normally as the Court acts under Article 226 of the Constitution, petition without exhausting the alternative remedy are not entertained, but in exceptional circumstances which we have pointed out in the foregoing paragraphs, the High Court as well as the Central Administrative Tribunal can entertain a petition even without availing of the alternative remedy.
S.H.A. Raza, J.
1. The petitioner Is one of the seniormost officers of the Indian Administrative Service. He was suspended from service. Thereafter he filed an original application before the Central Administrative Tribunal sitting at Lucknow. The Central Administrative Tribunal refused to entertain the application mainly on two grounds ; Firstly, that the petitioner had not availed the alternative remedy as provided under Rule 16 of the Indian Administrative Service Rules by filing an appeal before the UnionGovernment, and secondly, that it has not been vested with the power to entertain an original application in view of the provisions contained in Section 20 of the Administrative Tribunals Act, 1985, which is reproduced as under :
'20. Application not to be admitted unless other remedies exhausted.--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of subsection (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,--
(a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievances ; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of subsections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial,'
2. The vires of aforesaid provision has been assailed on theground that the power of the High Court to entertain such petitions has been conferred on the Central Administrative Tribunals. It was urged that if the order is non est or the same has been passed without jurisdiction or it is of such a nature where relegating a person to alternative remedy will amount to miscarriage of justice, the High Court can entertain the writ petition under Article 226 of the Constitution of India. Hence the Central Administrative Tribunal can also entertain such original applications but as Section 20 of the Administrative Tribunals Act comes in the way before it. hence the said provision is ultra vires as the same is not just, proper and reasonable.
3. Before dealing with the subject we have to examine the jurisdiction of the Central Administrative Tribunal as to whether in appropriate cases, it can entertain the original applications without relegating a person to avail of the alternative remedy before knocking the door of the Tribunal in Abhinesh Chandra Dutta v. Union of India, (1987) 2 ATC 889 (CAT) (Cult), it has been held by the Tribunal itself non-exhaustion of other remedies does not deprive the Central Administrative Tribunal to give directions to the department to make payment of an amount if the Central Administrative Tribunal is satisfied that the same is due. In Charan Singh v. Union of India, (1986) 1 ATC 307 (CAT) (ND), it has been held by the Central Administrative Tribunal that where service rules do not empower the authorities to stay the impugned order despite a very just case and a very erroneous order, an application can be entertained by the Central Administrative Tribunal without insisting on exhaustion of other remedies. Similar view was taken by the Central Administrative Tribunal in A. N, Ramakrishnan Nair v. Divisional Engineer, Telegraphs, (1987) 3 ATC 974 (CAT) (Mad) ; R.P. Suri v. Union of India, (1986) 1 ATC 323 (CAT) (ND) as well as Umesh Rai v. Union of India, (1986) 1 ATC 774 (CAT) (Pat), in those cases, it has been observed by the Tribunal that where an order isimpugned for want of jurisdiction and the application is already admitted by the Central Administrative Tribunal, an objection as to non-exhaustion of remedies cannot be taken by the respondents. In Jnananda Sarma Pathak v. Union of India. (1987) 2 ATC 657 (CAT) (Cau), it was indicated that the expression 'expiry of six months' contemplated by Section 20(2)(b) for disposal of the appeal, is not a condition precedent for admitting an application against an order of suspension passed in contemplation of disciplinary proceedings.
4. It was asserted by Mr. A.P. Singh, learned counsel for the petitioner that a bare reading of the provision contained in Section 20 of the Administrative Tribunals Act would indicate that even an order which is non est, without jurisdiction or results into miscarriage of justice, will not be subjected to adjudication by the. Central Administrative Tribunal until and unless the person exhausts all the departmental remedies, hence that provision being not iust, fair or reasonable, deserves to be struck down.
5. Even under Article 226 of the Constitution of India, this Court generally does not entertain a writ petition where the aggrieved person has not exhausted the alternative remedies available to him although there is no provision in the Constitution of India creating any impediment in entertaining such petitions even if the person has not exhausted the alternative remedies. Such type of a rule or practice has been imposed by the Judges upon themselves but in appropriate cases, where the High Court feels that the order is non est or without jurisdiction or may result in miscarriage of justice, it entertains the writ petitions.
6. The Central Administrative Tribunal dealt with that question but indicated that the constitutional powers as vested with the High Court under Article 226 of the Constitution of India, have not been conferred on it, hence the Central Administrative Tribunal cannot entertain an original application until and unless theperson aggrieved exhausts all its alternative remedies. The Tribunal was of the view that as against the order of suspension, a complete procedure by filing an appeal under Rule 16 of the Central Administrative Tribunal (Procedure) Rules has been provided, hence the person should avail of that remedy. Mr. A.P. Singh submits that appeal to the Union Government is of no use rather it is illusory inasmuch as under Rules itself, the suspension order lapses after expiry of 90 days in view of the Notification No. GSR 130, dated July 13. 1998, published in the Gazette of India. Part II, Section 3(1) dated 25th July. 1998 pp. 500-502, No. 27. It was urged that whenever a person belonging to Indian Administrative Service is suspended and files an appeal, the appeal dusts in the office and no orders are passed and the person remains under suspension for 90 days, hence it cannot be said that filing an appeal before the Union Government is an alternative and effective remedy, rather it is an illusory, hence the Tribunal could not have rejected his earlier original applications. It appears that the earlier suspension order lapsed as the appeal was not decided within the time granted by the Central Administrative Tribunal, but as even when the suspension order lapsed, no orders for reinstatement of the petitioner was. passed, the petitioner again approached the Tribunal and then the Tribunal intervened and passed an interim order staying the suspension order.
7. The petitioner was again suspended, may be on fresh facts of case, on 8.9.1999 which has been assailed by the petitioner in this petition. It was urged that in view of the following observations of the Hon'ble Supreme Court in L. Chandra Kumar v. Union of India and others, (1987) 3 SCC 261, contained in para 93, the petitioner can, without approaching the Central Administrative Tribunal, invoke the jurisdiction of this Court under Article 226 of the Constitution of India :
'93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictionalpowers 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 powers to test the vires of subordinate Legislation 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 concernedmay be approached directly.' 8. Taking a clue from the aforesaid observation, it was submitted that as the pelitioner has challenged the vires of Section 20 of the Administrative Tribunals Act. 1985, the Court should entertain the petition and pass orders on the interim relief application considering the fact that the order which was passed suffers from colourable exercise of powers and is beyond the scope and ambit of Disciplinary and Appeal Rules, 1969. Before dealing with this question, we cannot skip over the observations of the Hon'ble Supreme Court in the case of L. Chandra Kumar (supra) contained in para 90 of the report wherein the following was observed :
'We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed toadjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis ; for instance, in service law matters, a large majority of cases Involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the iurisdiction of the High Courts under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.'
9. We need not enter into the question at this juncture as to whether the provisions of Section 20 of the Administrative Tribunals Act, 1985, in any way is destructive to powers of judicial review which is the basic structure of the Constitution. Because we are of the view that the power of the Tribunal not to entertain original application is circumscribedto the word 'ordinarily'. Meaning thereby : that normally as the Court acts under Article 226 of the Constitution, petition without exhausting the alternative remedy are not entertained, but in exceptional circumstances which we have pointed out in the foregoing paragraphs, the High Court as well as the Central Administrative Tribunal can entertain a petition even without availing of the alternative remedy.
10. We have dwelt into the facts which have been narrated by the petitioner in the writ petition. We are of the view that the Central Administrative Tribunal, considering the peculiar facts of the case, as set out in the writ petition may entertain the original application if ft is filed on the same facts which are indicated in the present writ petition without relegating the petitioner to avail of the alternative remedy before filing the original application and pass appropriate orders for interim relief on merits expeditiously. say within a week from the date of presentation of the original application.
11. With the aforesaid direction,the writ petition is dismissed only onthe ground of alternative remedybefore the Central AdministrativeTribunal.