UNION OF INDIA versus ALAPAN BANDYOPADHYAY

[2022] 16 S.C.R. 259

UNION OF INDIA

ALAPAN BANDYOPADHYAY

(Civil Appeal No. 197 of 2022)

JANUARY 06, 2022

[A. M. KHANWILKAR AND C. T RAVIKUMAR, JJ.]

Administrative Tribunals Act, 1985: ss.19, 25 – Power ofchairman to transfer cases from one bench to another – High Courtsetting aside the order of transfer passed by the tribunal fallingwithin the jurisdiction of another High Court - Maintainability/sustainability of the order – Power of judicial review over order oftransfer under Art. 226/227 of the Constitution – Respondent thenChief Secretary of the State of West Bengal, filed application u/s.19 before the tribunal, Kolkata Bench challenging the disciplinaryproceedings initiated against him alleging failure to attend reviewmeeting – Pending consideration, the appellant-UOI filed petitionu/s 25 seeking transfer of case from Kolkata to Delhi before thePrincipal Bench, Delhi – Transfer petition allowed – Challenge to,by the respondent before the High Court of Calcutta – High Courtset aside the order passed by Principal Bench, Delhi while passingadverse remarks against the Chairman of the tribunal – On appeal,held: Power of judicial review of an order transferring an originalapplication pending before Bench of the Tribunal to another Benchu/s. 25 can be judicially reviewed only by Division Bench of theHigh Court within whose territorial jurisdiction the Bench passingthe same, falls – Division Bench of the High Court does not havejurisdiction to set aside order passed by the Tribunal falling withinthe jurisdiction of another High Court – Any decision of tribunal(including u/s 25 of the Act) can only be scrutinized by HighCourt having territorial jurisdiction over the tribunal –Furthermore, no exceptional ground(s) exists to make scathing anddisparaging remarks and observations against the Principal Benchof the Tribunal, thus, liable to be expunged – Impugned judgmentand final order passed by the High Court at Calcutta is to be heldas one passed without jurisdiction and is ab initio void, and is setaside – Central Administrative Tribunal (Procedure) Rules, 1987 -rr. 6 , r. 4(5)(a) & (b) – Constitution of India, Arts. 226 & 227.

CDEF

260SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1. Once the High Court found the order impugnedas one passed by the Principal Bench, the High Court shouldhave confined its consideration firstly, to decide its own territorialjurisdiction for exercising the power of judicial review over theBorder or transfer in the correct perspective, without referenceto the bundle of facts constituting the cause of action forapplication before the Tribunal, Kolkata Bench founded on thecause of action referred to in Rule 6(2) of the Procedure Rulesthat decides the place of filing of an O.A. [Para 15][274-A-C]

1.2 The cause of action for filing an Original Applicationunder section 19 of the Act to redress any grievance and thecause of action for challenging an order of transfer of such anapplication from the Bench where it was filed and pending, toanother Bench are different and distinct. [Para 6][265-F-G]

1.3 Dictum laid down in L. Chandra Kumar v. Union of India‘s case clarified to mean that all decisions of tribunals would besubject to the scrutiny before division bench of the High Courtwithin whose territorial jurisdiction the particular tribunal falls.No further interpretation on the said issue is permissible. TheElaw declared by constitution bench cannot be revisited by benchof lesser quorum or by High courts. [Para 16][276-B-F]

1.4 The power of judicial review of an order transferring anoriginal application pending before Bench of the Tribunal toFanother Bench under Section 25 of the Act can be judiciallyreviewed only by Division Bench of the High Court within whoseterritorial jurisdiction the Bench passing the same, falls. [Para17][277-B-C]

1.5 No exceptional ground(s) exists in the case to makeGscathing and disparaging remarks and observations against thePrincipal Bench of the Tribunal. [Para 8][269-F-G]

1.6 Accordingly, impugned judgment and final order passedby the High Court at Calcutta is to be held as one passed withoutjurisdiction and hence, it is ab initio void. Impugned Judgementset aside. [Para 18][277-F-G]

L. Chandra Kumar v. Union of India (1997) 3 SCC261 : [1997] 2 SCR 1186 – followed.

Bhavesh Motiani v. Union of India 2019 SCC OnLineDel 11541 – approved.

Kusum Ingots and Alloys Limited v. Union of India &Anr. (2004) 6 SCC 254 : [2004] 1 Suppl. SCR 841;Nawal Kishore Sharma v. Union of India & Ors. (2014)9 SCC 329 : [2014] 7 SCR 1027; Navinchandra N.Majithia v. State of Maharashtra & Ors. (2000) 7 SCC640 : [2000] 3 Suppl. SCR 82 – held inapplicable.

Union of India v. Shainamol (2021) SCC OnLine SC962; J.K Industries Ltd. v. Union of India (2007) 13SCC 673 : [2007] 12 SCR 136 – referred to.

Braj Kishore Thakur v. Union of India (1997) 4 SCC65 : [1997] 2 SCR 420– relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 197 of2022.

From the Judgment and Order dated 29.10.2021 of the High Courtof Calcutta in W.P.C.T. No. 78 of 2021.

Tushar Mehta, SG, Vikramjit Banrejee, ASG, K. M. Nataraj, Ms.Kanu Agrawal, Ms. Swarupama Chaturvedi, Ms. Shruti Agarwal, ArvindKumar Sharma, Advs. for the Appellant.

ADr. Abhishek Manu Singhvi, Shyam Divan, Abhratosh Majumdar,Abhay Behera, Sr. Advs., Debanjan Mandal, Kunal Vajani, SoumyaMajumdar, Sandip Dasgupta, Subhankar Nag, Victor Chatterjee, AmitBhandari, Ms. Sanam Tripathi, Saaqub Siddiqui, Kartikey Bhatt,Ms. Mahima Cholera, Gokula Krishnan, Kunal Mimani, Advs. for theRespondent.B

The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. Leave granted.

C2. legal conundrum calls for resolution in this case. The seminalquestion that created it is: ‘whether the bundle of facts that constitutethe cause of action for filing an Original Application under Section 19 ofthe Administrative Tribunals Act, 1985 (for short ‘the Act’) anddeterminative of the place of its filing would remain as the decisive factorin case such an application is subsequently transferred from the BenchDwhere it was filed to another Bench of the Tribunal falling under theterritorial jurisdiction of another High Court, to ascertain the jurisdictionalHigh Court to exercise the power of judicial review qua the order oftransfer passed by the Chairman of the Central Administrative Tribunalat New Delhi in exercise of power under Section 25 of the Act’.E3. The Appellant assails the final judgment and order dated29.10.2021 passed by the High Court at Calcutta in WPCT No.78/2021whereby the High Court set aside the order dated 22.10.2021 passed bythe Central Administrative Tribunal, Principal Bench (New Delhi) inP.T.No.215/2021 transferring O.A.No.1619/2021, filed by the respondentFherein, from Kolkata Bench to its files at the Principal Bench (NewDelhi). In fact, order in P.T.No.215/2021 was passed by the Chairmanof the Tribunal in exercise of the power under Section 25 of the Act.The respondent herein, who was the then Chief Secretary of the Stateof West Bengal (since superannuated as an IAS officer), filedO.A.No.1619/2021 before the Kolkata Bench of the CentralGAdministrative Tribunal challenging the disciplinary proceedings initiatedagainst him vide charge memo dated 16.06.2021 alleging failure to attenda review meeting chaired by the Hon’ble the Prime Minister of India on28.05.2021 for assessing the loss of life, damage to property andinfrastructure caused by the cyclonic storm ‘YAAS’. He was chargedthereunder for failure to maintain absolute integrity and devotion to dutyH

and for exhibiting conduct unbecoming of public servant. Pendingconsideration of the stated O.A. the Appellant herein moved TransferPetition being P.T.No.215/2021 under Section 25 of the Act, before thePrincipal Bench of the Tribunal at New Delhi seeking its transfer fromthe Kolkata Bench to the Principal Bench. That petition was allowed bythe Chairman of the Tribunal, sitting at the Principal Bench and thechallenge of which ultimately led to the passing of the impugned finaljudgment and order dated 29.10.2021 by the High Court. Since we areconfining the consideration only on the question as to which is thejurisdictional High Court having the power for judicial review as relatesthe order of transfer passed in P.T.No.215/2021 it is un-essential to referto, in detail, the various contentions raised in the stated O.A. to challengethe disciplinary proceedings as also the contentions raised before theHigh Court in WPCT No.78/2021 to challenge the correctness of thestated order of transfer. In troth, consideration of correctness or otherwiseof the decision of the High Court on merits would become inept if theHigh Court at Calcutta is found lacking jurisdiction to entertain thechallenge against the order in P.T.No.215/2021 passed under Section 25of the Act.

4. To properly consider this appeal, it is only appropriate to referto Section 25 of the Act and Rule 6 of the Central Administrative Tribunal(Procedure) Rules, 1987 (for brevity, the ‘Procedure Rules’). They readthus: -

“Section 25 of the Administrative Tribunals Act, 1985 :

25. Power of Chairman to transfer cases from one Bench toanother.- On the application of any of the parties and after noticeto the parties, and after hearing such of them as he may desire tobe heard, or on his own motion without such notice, the chairmanmay transfer any case pending before one Bench, for disposal, toany other Bench.”

“Rule 6 of the Central Administrative Tribunal (Procedure) Rules,1987 :

6. Place of filing applications.- (1) An application shall ordinarilybe filed by an applicant with the Registrar of the Bench withinwhose jurisdiction –

(i) the applicant is posted for the time being, or

A(ii) the cause of action, wholly or in part, has arisen;

Provided that with the leave of the Chairman the application maybe filed with the Registrar of the Principal Bench and subject tothe orders under section 25, such application shall be heard anddisposed of by the Bench which has jurisdiction over the matter.

B(2) Notwithstanding anything contained in sub-rule (1) personswho has ceased to be in service by reason of retirement, dismissalor termination of service may be at his option file an applicationwith the Registrar of the Bench within whose jurisdiction suchperson is ordinarily residing at the time of filing of the application.”

5. There is no dispute regarding the power of the Chairman totransfer an Original Application pending before one Bench of the Tribunalto another bench, under Section 25 of the Act. perusal of the saidprovision would reveal that party to any Application before any Benchof the Central Administrative Tribunal is statutorily entitled to make aDseparate application before the Chairman of the Central AdministrativeTribunal for such transfer. Upon transfer of an Original Applicationpending before particular Bench of the Tribunal, lying within theterritorial jurisdiction and power of judicial superintendence of anyparticular High Court other than High Court of Delhi at Delhi, to thePrincipal Bench at New Delhi lying within the territorial jurisdiction ofEHigh Court of Delhi, the question of maintainability may arise in case ofa challenge against the order of transfer. Yet another High Court mayemerge in the picture if the Chairman, sitting at the Principal Benchtransferred the O.A. not to the file of the Principal Bench, but to anotherBench lying within the territorial jurisdiction of yet another High Court.FIt is to be noted that the Chairman of the Tribunal can also pass an orderof transfer of an Original Application while sitting at any other Benchthan the Principal Bench. This possibility cannot be ruled out in view ofthe provisions under Section 5(4)(a) of the Act, which reads thus:-

“S.5. Composition of Tribunals and Benches thereof.- (1)…G(2)…

(4) Notwithstanding anything contained in sub-Section (1), theChairman –

(a) may, in addition to discharging the functions of the JudicialMember or the Administrative Member of the Bench to whichhe is appointed, discharge the functions of the Judicial Memberor, as the case may be the Administrative Member, of anyother Bench;”

6. The question of jurisdictional issue may get complicated furtherin case some of the applicants who joined together to file single OriginalApplication under Section 19 of the Act before particular Bench of theTribunal have chosen to challenge the order of its transfer, if passedunder section 25 of the Act, before different High Courts, based on theirplaces of residence. Occurrence of such situation is possible and cannotbe ruled out going by the provisions under Rule 4(5)(a) and (b) of theProcedure Rules, which read thus:

“Rule 4. Procedure for filing applications. -

4(5) (a) Notwithstanding anything contained in sub-rules (1) to(3) the Tribunal may permit more than one person to join togetherand file single application if it is satisfied, having regard to thecause and the nature of relief prayed for that they have commoninterest in the matter.

4(5) (b) Such permission may also be granted to an Associationrepresenting the persons desirous of joining in single applicationprovided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed[provided that at least one affected person joins such anapplication].”

All the above aspects have to be borne in mind while consideringthe question that calls for resolution in this appeal. Yet another importantaspect may also has to be borne in mind, idest that the cause of actionfor filing an Original Application under section 19 of the Act to redressany grievance and the cause of action for challenging an order of transferof such an application from the Bench where it was filed and pending, toanother Bench are different and distinct. The place for filing an OriginalApplication against any order under section 19 would depend upon thebundle of facts constituting the cause of action which ultimately culminatedin the said order sought to be impugned. Explanation to section 19(1)defines the meaning of the word ‘order’ for the purposes of the saidsection. On the other hand, the cause of action for challenging the order

Aof transfer/order declining the prayer for transfer is nothing but an orderpassed in the independent application for transfer of pending OriginalApplication from the files of that particular Bench of the Tribunal whereit was filed to another Bench in the invocation of or disinclination toinvoke, the power under Section 25 of the Act.

B7. We have heard Shri Tushar Mehta, learned Solicitor General,for the appellant and learned Senior Advocate Dr. Abhishek Manu Singhviappearing for the respondent. Both sides relied on various authorities todrive home their respective stand as relates the impugned judgment.The learned Solicitor General contended that challenge against theorder passed in P.T.No.215/2021 by the Central Administrative Tribunal,CPrincipal Bench at New Delhi, was maintainable only before the HighCourt of Delhi as the Principal Bench of the Tribunal lies within itsterritorial jurisdiction. To buttress the said contention the judgment of aConstitutional Bench of this Court in L. Chandra Kumar vs. Union ofIndia, reported in (1997) 3 SCC 261 is relied on. It was held therein thatDthe power vested in the High Court to exercise judicial superintendenceover the decisions of all courts and Tribunals within the respectivejurisdictions is also part of the basic structure of the constitution.Furthermore, it was held that the decisions of Tribunals would be subjectto the High Court’s Writ jurisdiction under Article 226/227 of theConstitution, before Division Bench of the High Court within whoseEterritorial jurisdiction the particular Tribunal falls. The learned SolicitorGeneral also referred to Section 5(7) of the Act which provides thatsubject to the other provisions of the Act, Benches of the CentralAdministrative Tribunal shall ordinarily sit at New Delhi (which shall beknown as the Principal Bench), Allahabad, Kolkata, Madras, NewFBombay and at such other places as the Central Government may, bynotification, specify, to support the contention that High Court at Calcuttadid not have jurisdiction to exercise judicial review of the orders inP.T.No.215/2021. Relying on the decision in Union of India vs. A.Shainamol, IAS and Anr., reported in (2021) SCC Online SC 962, it is

contended that the mere residence of the Applicant in certain placeGwould not amount to cause of action conferring jurisdiction upon theBench of the Tribunal located at that place. Indubitably, this contentionis relevant only for challenging the maintainability of an OriginalApplication before any particular Bench of the Tribunal. The learnedSolicitor General relied on the decision of this Court in JK IndustriesHLtd. & Anr. vs. Union of India & Ors., reported in (2007) 13 SCC 673 to

contend that Rule 6 of the Procedural Rules ought not to have beeninterpreted by the High Court so as to take away Chairman’s jurisdictionto transfer case under Section 25 of the Act as the cardinal principle ofinterpretation is that rule made under statute could not override orsupersede provision of the parent statute itself. According to us thesaid decision and the contention founded on the said decision are relevantonly for the purpose of deciding the correctness of the order of transferpassed by the Principal Bench of the Tribunal in exercise of the powerunder Section 25 of the Act and not for deciding the jurisdictional HighCourt qua the order in P.T.No.215/2021.

8. The Appellant also got grievance that the High Court madesome harsh or disparaging remarks in the impugned judgment againstthe Chairman of the Tribunal. The learned Solicitor General submittedthat they were unsolicited and relied on various decisions to stress uponthe requirement of their expunction. Nevertheless, we think it unnecessaryto delve into all such contentions based on such decisions as Dr. AbhishekManu Singhvi, learned Senior Counsel appearing for the respondent,fairly submitted that he would not contest on that issue and left it to us todecide. Obviously, the High Court found undue haste in the matter ofdisposal of P.T.No.215/2021 and that also persuaded the High Court tomake such scathing observations and remarks in fact, against the PrincipalBench of the Tribunal. But then, perusal of the materials on recordwould reveal that WPCT No.78/2021 filed before the High Court thatculminated in the impugned judgment was also passed with almost equalspeed. That apart, both the order in P.T.No.215/2021 and the finaljudgment and order in WPCT No.78/2021 were passed, respectively, bythe Tribunal and the High Court, after hearing both parties. The fact thatthe impugned judgment contain observations and remarks amounting todisparagement and as such, scathing in effect is not in dispute. We donot think it necessary to reproduce them in this judgment in the statedcircumstances. However, contextually it will be apposite to refer toparagraphs 11 to 13 of the decision of this Court in Braj Kishore Thakurv. Union of India (AIR 1997 SC 1157). It was held therein thus:

“11. No greater damage can be caused to the administration ofjustice and to the confidence of people in judicial institutions whenJudges of higher Courts publicly express lack of faith in thesubordinate Judges. It has been said, time and again, that respectfor judiciary is not in hands by using intemperate language and by

casting aspersions against lower judiciary. It is well to rememberthat Judicial Officer against whom aspersions are made in thejudgment could not appear before the higher Court to defend hisorder. Judges of higher Courts must, therefore, exercise greaterjudicial restraint and adopt greater care when they are tempted toemploy strong terms against lower judiciary.

12. quarter of century ago Gajendragadkar, J. (as he thenwas) speaking for Bench of three Judges of this Court, in thecontext of dealing with the strictures passed by High Court againstone of its Subordinate Judicial Officers (Suggesting that hisdecision was based on extraneous considerations) stressed theneed to adopt utmost judicial restraint against using strong languageand imputation of corrupt motives against lower judiciary more so“because the Judge against whom the imputations are made hasno remedy in law to vindicate his position” [Ishwari Prasad Mishrav. Mohammad Isa, (1963) 3 SCR 722: (AIR 1963 SC 1728)].This Court had to repeat such words on subsequent occasionsalso. In K.P. Tiwari v. State of M.P., AIR 1994 SC 1031, thisCourt came across certain observations of learned Judge of theHigh Court casting strictures against Judge of the subordinatejudiciary and the Court used the opportunity to remind all concernedthat using intemperate language and castigating strictures at thelower levels would only cause public respect in judiciary to dwindle.The following observations of this Court need repetition in thiscontext:

“The higher Courts every day come across orders of the lowerCourts which are not justified either in law or in fact and modifythem or set them aside. That is one of the functions of the superiorCourts. Our legal system acknowledges the fallibility of the Judgesand hence provides for appeals and revisions. Judge tries todischarge 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 mostlywork under charged atmosphere and are constantly under apsychological pressure with all the contestants and their lawyersalmost breathing down their necks more correctly up to theirnostrils. They do not have the benefit of detached atmosphereof the higher Courts to think coolly and decide patiently. Every

error, however, gross it may look, should not, therefore, be attributedto improper motive.”

13. Recently, we had to say the same thing though in differentwords in Kashi Nath Roy v. State of Bihar (1996) 4 JT (SC) 605:(1996 AIR SCW 2098) in similar situation. We then said thus(Para 7 of AIR):

“It cannot be forgotten that in our system, like elsewhere, appellateand revisional Courts have been set up on the pre-supposition thatlower Courts would in some measure of cases go wrong indecision-making, both on facts as also on law, and they have beenknit-up to correct those orders. The human element, in justicingbeing an important element, computer-like functioning cannot beexpected of the Courts: however, hard they may try and keepthemselves precedent-trodden in the scope of discretions and inthe manner of judging. Whenever any such intolerable error isdetected by or pointed out to superior Court, it is functionallyrequired to correct that error and may, here and there, in anappropriate case, and in manner befitting, maintaining the dignityof the Court and independence of judiciary, convey its message inits judgment to the officer concerned through process ofreasoning, essentially persuasive, reasonable, mellow but clear,and result-orienting, but rarely as rebuke. Sharp reaction of thekind exhibited in the afore-extraction is not in keeping withinstitutional functioning. The premise that Judge committed amistake or an error beyond the limits of tolerance, is no ground toinflict condemnation on the Judge-Subordinate, unless there existedsomething else and for exceptional grounds.”On our careful scanning of the circumstances and situationsobtained in this case we are persuaded to think that no exceptionalground(s) exists in the case on hand to make scathing and disparagingremarks and observations against the Principal Bench of the Tribunal.At the same time, it is to be noted that the said order was, in fact, passedby the Chairman of the Tribunal on formal application moved by theappellants herein and after hearing both parties. As matter of law theChairman could pass an order of transfer under Section 25 of the Actsuo motu. Hence, the said observations and remarks, in troth, ought notto have been made against the Chairman of the Tribunal. To observesobriety, we say that the remarks made by the High Court were

Aunwarranted, uncalled for and avoidable being sharp reaction onunfounded assumptions. Ergo, we have no hesitation to hold that theywere wholly unnecessary for the purpose of deciding the correctness orotherwise of the order of transfer. Hence, they are liable to be expunged.We do so.

B9. Now, we will advert to the contentions advanced by Dr.Abhishek Manu Singhvi, learned Senior Counsel for the respondent tosupport and sustain the impugned judgment and final order in WPCTNo.78/2021 whereby the order in P.T.No.215/2021 was set aside. It issubmitted 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 itsCpower of judicial superintendence. The further contention is that it couldnot be said that the power under Section 25 of the Act was taken awaysolely because Rule 6 of the Procedure Rules was relied on to upturnthe order in P.T.No.215/2021. The learned counsel, after drawing ourattention to the factual background of the case, contended that the HighDCourt had rightly exercised the power of judicial review and looked intothe correctness of the order of transfer passed by the Chairman of theTribunal (the Principal Bench of the Tribunal) in the invocation of thepower under Section 25 of the Act. The said contention is primarilyfounded on Article 226(2) of the Constitution of India that confers powerson High Court in relation to territories within which the case of action,Ewholly or in part arises and also on the position settled by this Court inthe decisions in Kusum Ingots and Alloys Limited vs. Union of India &Anr. (2004) 6 SCC 254, in Nawal Kishore Sharma vs. Union of India &Ors. (2014) 9 SCC 329 and in Navinchandra N. Majithia vs. State ofMaharashtra & Ors. (2000) 7 SCC 647. Compendium of judgments/Forders under Section 25 of the Act has also been produced along withthe written submissions on behalf of the respondent to support thecontentions that the transfer order was illegal, arbitrary, passed in violationof the principals of natural justice and on irrelevant considerations. Wemay hasten to note that all those judgments/orders, except one, viz., the

decision reported in 2019 SCC Online Del 11541 (Bhavesh Motiani vs.GUnion of India), were passed by the Principal Bench of the Tribunalrejecting applications for transfer of pending Original Applications in theexercise of power under Section 25 of the Act. Hence, they are notsignificant in deciding the stated moot question. We will refer to inBhavesh Motiani’s case little later.H

10. We have carefully considered the contentions raised on behalfof the respondent by placing reliance on the aforesaid decisions of thisCourt. In Kusum Ingots’ case (supra), the question involved was “whetherthe seat of Parliament would be relevant factor for determining theterritorial jurisdiction of High Court to entertain writ petition underArticle 226 of the Constitution of India when the constitutionality of aParliamentary Act is under challenge”. After referring to the expression“cause of action” for territorial jurisdiction to entertain writ petition, interms of Article 226(2) of the Constitution, this Court held thus:“18. The facts pleaded in the writ petition must have nexus onthe basis whereof prayer can be granted. Those facts whichhave nothing to do with the prayer made therein cannot be said togive rise to cause of action which would confer jurisdiction onthe Court.

19. Passing of legislation by itself in our opinion does not conferany such right to file writ petition unless cause of action arisestherefor.

20. distinction between legislation and executive action shouldbe borne in mind while determining the said question.

21. parliamentary legislation when it receives the assent of thePresident of India and is published in the Official Gazette, unlessspecifically excluded, will apply to the entire territory of India. Ifpassing of legislation gives rise to cause of action, writ petitionquestioning the constitutionality thereof can be filed in any HighCourt of the country. It is not so done because cause of actionwill arise only when the provisions of the Act or some of themwhich were implemented shall give rise to civil or evil consequencesto the petitioner. writ court, it is well settled, would not determinea constitutional question in vacuum.”

11. In Nawal Kishore’s case, the issue concerned was with respectto the jurisdiction of particular High Court against an authority/personresiding outside its territorial jurisdiction. That question was consideredwith reference to Article 226(2) of the Constitution. It was held that writcould be issued if cause of action wholly or partially had arisen withinthe territorial jurisdiction of High Court concerned even if the person orauthority against whom writ is sought for is located outside its territorialjurisdiction. However, it was held that in order to maintain such writ

Apetition, the petitioner had to establish that such respondents infringedhis legal rights within the limits of the High Court’s jurisdiction. In NavinChandra N. Majithia’s case, again the jurisdictional issue was consideredwith reference to Article 226(2) of the Constitution and held that theHigh Court concerned would have jurisdiction to entertain writ petitionif any part of the cause of action arose within its territorial limits evenBthough the seat of government or authority or residence of persons againstwhom direction, order or writ is sought to be issued is not within itsterritory.

12. On careful scanning of the aforesaid decisions relied on bythe respondent and consideration of the nature of the question that callsCfor decision in the case on hand and also what we have observed earlier,we find that the above decisions have no applicability for deciding thestated moot question. We will further elaborate the non-applicability ofthose decisions in the course of further consideration of the matter. Weare not dealing with the cause of action for filing O.A.No.1619/2021

Dbefore the Kolkata Bench of the Tribunal in this Judgement. Even if thebundle of facts constituting cause of action for filing the said O.A. conferson the Kolkata Bench of the Tribunal the jurisdiction to entertain thesame, the question here is whether its transfer from the said Bench tothe Principal Bench vide order dated 20.10.2021 in P.T.No.215/2021 bythe Chairman of the Central Administrative Tribunal (the Principal Bench)Ein invocation of powers under Section 25 of the Act falls within theterritorial jurisdiction and power of superintendence of the High Court atCalcutta and the fate of the challenge against the order in WPCT No.78/2021 dated 29.10.2021 would depend upon its answer. We may hastento state that if the challenge in the writ petition was against an orderFpassed by the Kolkata Bench of the Tribunal in O.A.No.1619/2021 therecan be no doubt with respect to the jurisdiction of the High Court atCalcutta.13. Going by Section 25 of the Act, extracted hereinbefore, anindependent application for transfer of an Original Application filed andGpending before any bench of the Tribunal could be filed and the power totransfer lies with the Chairman. The Section mandates that if such anapplication is made, notice of it has to be given to the opposite party. Atthe same time, the Section also provides that on his motion and withoutany such notice the Chairman could transfer any case pending beforeone Bench, for disposal, to any other Bench of the Tribunal. Evidently,H

the said Section recognizes, the fundamental principles of justice andfair play namely that ‘Justice must not only be done but it must be seento have been done’. It would enable the Chairman to avert ‘reasonablesuspicion’ of or ‘real likelihood’ of bias. It could also be exercised onestablishing any other sufficient and sustainable grounds. This power isto be used with great circumspection and sparingly. We do not think itnecessary to elaborate on this issue as we have already stated that weare confining our consideration only to the specific question whetherHigh Court at Calcutta was having jurisdiction to entertain the challengeagainst the order in P.T.No.215/2021.

14. Before delving into the moot question any further we deem itappropriate to refer to the impugned judgment to know in what mannerthe order of transfer passed in P.T.No.215/2021 was understood by theHigh Court. In other words, whether the High Court while passing theimpugned judgment treated the order impugned before it as an orderpassed in the O.A.No.1619/2021 pending before the Kolkata Bench ofthe Tribunal that lies within its territorial jurisdiction by that Bench of theTribunal or as an order passed at the Principal Bench of the Tribunallying outside its jurisdiction transferring that very Original Application toanother Bench of the Tribunal. scanning of the impugned order itselfwould reveal that the High Court perfectly understood and treated theorder impugned before it in WPCT No.78/2021, being the order inP.T.No.215/2021, as an order passed by the Principal Bench of theTribunal at New Delhi, transferring O.A.No.1619/2021. This, in ouropinion, is the correct understanding of the said order, as it was passedin P.T.No.215/2021, filed by the Appellant herein who was also partyto O.A.No.1619/2021, calling for an order in exercise of the power underSection 25 of the Act, before the Principal Bench. This aspect is veryclear from paragraphs 22, 23, 24, and 25 of the impugned judgement ofthe High Court. They read thus:

“22. The questions which acquire relevance to decide the presentwrit petition are as follows:

23. Is the present writ petition maintainable before this court, inview of the impugned order being passed by the Principal Benchsituated at New Delhi?

24. Did the Principal Bench act beyond its jurisdiction in passingthe impugned order?

A25. Was the Principal Bench, CAT justified in law in passing theimpugned order on merits?”

15. When once the High Court found the order impugned as onepassed by the Principal Bench we have no hesitation to hold that theHigh Court should have confined its consideration firstly, to decide itsBown territorial jurisdiction for exercising the power of judicial reviewover the order dated 22.10.2021 passed by the Principal Bench inP.T.No.215/2021 in the correct perspective, without reference to thebundle of facts constituting the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal founded on the cause ofaction referred to in Rule 6(2) of the Procedure Rules that decides theCplace of filing of an O.A.. To wit, those bundle of facts which would benecessary for the applicant to prove, if traversed, in order to support theright to judgment from that Bench of the Tribunal. In suchcircumstances, the question of infringement or otherwise of the right ofthe respondent herein to litigate before the Kolkata Bench of the TribunalDcould not have been gone into, on merits, without deciding the seminalquestion whether the High Court of Calcutta itself had jurisdiction toundertake judicial review of the order passed by the Chairman in exerciseof power under Section 25 at the Principal seat of the Tribunal at NewDelhi we do not have any hesitation in holding that the High Court atCalcutta could not have entertained the Writ Petition.E

16. As noted earlier the order of transfer of O.A.No.1619/2021passed in P.T.No.215/2021 was understood and dealt with by the HighCourt as an order passed by the Principal Bench of the Tribunal. Section5(7) of the Act makes it clear that the Bench of the Central AdministrativeTribunal at New Delhi is known as the Principal Bench. It is in thisFcontext and the relevant factors as also the situations likely to causeconflicting decisions by different High Courts referred to hereinbeforein the preceding paragraphs of this judgment that the decision of thisCourt in L. Chandra Kumar’s case assumes relevance. Earlier, we madea brief reference about the law laid down in the said decision. One ofGthe broad issues that was considered by the Constitution Bench was asfollows:

“Whether the power conferred upon Parliament or the StateLegislatures, as the case may be, by sub-clause(d) of clause(2)of Article 323 or sub- clause(d)of clause(3) of Article 323 ofHthe Constitution, to totally exclude the jurisdiction of ‘all courts’,

except that of the Supreme Court under Article 136, in respect ofdisputes and complaints referred to in clause(1) of Article 323Aor with regard to all or any of the matters specified in clause (2)of Article 323B, runs counter to the power of judicial reviewconferred on the High Courts under Article 226/227 and on theSupreme Court under Article 32 of the Constitution? During suchconsideration the constitutional validity of Section 28 of the Act,the “exclusion of jurisdiction” clause was also considered by thiscourt. It reads thus:-

S.28. Exclusion of jurisdiction of courts except the Supreme Courtunder article 136 of the Constitution.- On and from the date fromwhich any jurisdiction, powers and authority becomes exercisableunder this Act by Tribunal in relation to recruitment and mattersconcerning recruitment to any Service or post or service mattersconcerning members of any Service or persons appointed to anyService or post, [no court except –

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authorityconstituted under the Industrial Disputes Act, 1947 (14 of 1947)or any other corresponding law for the time being in force,

shall have], or be entitled or exercise any jurisdiction, powers orauthority in relation to such recruitment or matters concerningsuch recruitment or such service matters.

In view of the reasoning adopted the constitution Bench heldSection 28 of the Act and the “exclusion jurisdiction” clauses in all otherlegislations enacted under the aegis of Article 323A and 323B, to theextent they exclude the jurisdiction of the High Courts under Articles226/227 and the Supreme Court under Article 32, of the constitution,was held unconstitutional besides holding clause 2(d) of Article 323Aand 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 Articles226/227 and upon the Supreme Court under Article 32 of theConstitution is part of the inviolable basic structure of ourConstitution. While this jurisdiction cannot be ousted, other Courtsand Tribunals may perform supplemental role in discharging thepowers conferred by Articles 226/227 and 32 of the Constitution.

The Tribunals created under Article 323A and Article 323B of theConstitution are possessed of the competence to test theconstitutional validity of statutory provisions and rules. All decisionsof these Tribunals will, however, be subject to scrutiny before aDivision Bench of the High Court within whose jurisdiction theconcerned Tribunal falls.”

(Emphasis supplied).

When once Constitution Bench of this court declared the lawthat “all decisions of Tribunals created under Article 323A and Article323B of the Constitution will be subject to the scrutiny before DivisionCBench of the High Court within whose jurisdiction the concerned Tribunalfalls”, it is impermissible to make any further construction on the saidissue. The expression “all decisions of these Tribunals” used by theConstitution Bench will cover and take within its sweep orders passedon applications or otherwise in the matter of transfer of OriginalApplications from one Bench of the Tribunal to another Bench of theDTribunal in exercise of the power under Section 25 of the Act. In otherwords, any decision of such Tribunal, including the one passed underSection 25 of the Act could be subjected to scrutiny only before DivisionBench of High Court within whose jurisdiction the Tribunal concernedfalls. This unambiguous exposition of law has to be followed scrupulouslyEwhile deciding the jurisdictional High Court for the purpose of bringing inchallenge against an order of transfer of an Original Application fromone bench of Tribunal to another bench in the invocation of Section 25 ofthe Act. The law thus declared by the Constitution Bench cannot berevisited by Bench of lesser quorum or for that matter by the HighCourts by looking into the bundle of facts to ascertain whether theyFwould confer territorial jurisdiction to the High Court within the ambit ofArticle 226(2) of the Constitution. We are of the considered view thattaking another view would undoubtedly result in indefiniteness andmultiplicity in the matter of jurisdiction in situations when decision passedunder Section 25 of the Act is to be called in question especially in casesGinvolving multiple parties residing within the jurisdiction of different HighCourts albeit aggrieved by one common order passed by the Chairmanat the Principal Bench at New Delhi.

17. The undisputed and indisputable position in this case is thatthe WPCT No.78/2021 was filed to challenge the order dated 22.10.2021Hin P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench

at New Delhi, (by the Chairman of the Tribunal in exercise of the powerunder Section 25 of the Act sitting at the Principal Bench) transferringO.A.No.1619/2021 to its files. On applying the said factual position tothe legal exposition in L. Chandra Kumar’s case (supra) it is crystalclear that the Principal Bench of the Central Administrative Tribunal atNew Delhi, which passed the order transferring O.A.No.1619/2021 videorder in P.T.No.215/2021 falls within the territorial jurisdiction of HighCourt of Delhi at New Delhi. Needless to say that the power of judicialreview of an order transferring an Original Application pending before aBench of the Tribunal to another Bench under Section 25 of the Act canbe judicially reviewed only by Division Bench of the High Court withinwhose territorial jurisdiction the Bench passing the same, falls. In fact,the decision in Bhavesh Motiani’s case (supra), relied on by the respondentis also in line with the said position as in that case also, as against theorder of transfer passed under Section 25 of the Act by the PrincipalBench of the Central Administrative Tribunal at New Delhi Writ Petitionwas 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 dated30.11.2018 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 transferredto the Principal Bench of the Tribunal.”

In the instant case, the High Court at Calcutta has usurpedjurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021,challenging the order passed by the Central Administrative Tribunal, NewDelhi, in P.T.No.215/2021, even after taking note of the fact that thePrincipal Bench of the Tribunal does not lie within its territorial jurisdiction.

18. In the circumstances, based on our conclusion the impugnedjudgment and final order in WPCT No.78/2021 passed by the High Courtat Calcutta is to be held as one passed without jurisdiction and hence, itis ab initio void. Accordingly, it is set aside. The writ petition being WPCTNo.78/2021 filed before the High Court at Calcutta is accordinglydismissed, however, with liberty to the petitioner therein/the respondentherein to assail the same before the jurisdictional High Court, if so advised.In that regard, we clarify the position that we have not made any findingor observation regarding the correctness or otherwise of the order dated

[2022] 16 S.C.R.

A22.10.2021 passed by the Principal Bench of the Tribunal (in fact, by theChairman of the Tribunal) in P.T.No.215/2021. Needless to say that inthe event of filing of such Writ Petition, it shall be considered on itsown merits, in accordance with law.

19. The appeal is allowed in the above terms. Pending applications,Bif any, stand disposed of.

Nidhi Jain and Amarendra Kumar(Assisted by : Pragya Samal, LCRA)

Appeal allowed.