Anupam Kumar vs Union Of India , Through Commerce ...
2021 Latest Caselaw 7439 Bom

                                                  4-WPL 10218 of 2021.odt


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                      WRIT PETITION (L.) No. 10218 OF 2021

       Anupam Kumar                  ....Petitioner
            Vs.
       Union of India,
       Through Commerce
       Secretary,
       Department of Commerce and Ors.... Respondents

       Mr. Rohan Cama a/w. Mr. Arshil Shah a/w. Ms. Parisha Shah
       a/w. Ms. Smita Durve a/w. Mrs. Sneha Marjadi i/b. Mr.
       Arshil Shah for Petitioner

       Mr. R.R. Shetty a/w. Mr. Anirudha Garge for Respondent-
       Union of India.

                                   CORAM:      K.K.TATED &
                                               N.R. BORKAR, JJ.

(VIDEO CONFERENGING)

DATED : MAY 07, 2021 P.C.

1. Heard learned counsel for parties.

2. By this petition under Article 226 of the Constitution of India, the Petitioner is challenging the Offce Order NO. 1/2021-2022 dated 7th April, 2021 issued by the Additional Director General of Foreign Trade, relieving the Petitioner from Mumbai Offce and directing to report the Department of Commerce, New Delhi.

3. The learned counsel Mr. R.R. Shetty appearing on behalf of the Respondent-Union of India submits that during the pendency of the present Writ Petition, they

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issued the Offce Order dated 5th May, 2021 permitting the Petitioner to work from home as a temporary measure till further directions. The order reads thus:

"Dated: 05th May 2021

PART-I OFFICER ORDER In pursuance of Directorate general of Foreign Trade Offce Order No.35/2021 (No.A--22012/6/2020-HRD-1/644) dated 17th March, 2021 and Offce of the Additional Director General of Foreign Trade Mumbai Offce Order No. 01/2021- 2022 dated 07.04.2021, Shri Anupam Kumar, Deputy DGFT has been taken on the strength of the Department of Commerce with effect from 21.04.2021(F/N) allowing him to join virtually on remote from Mumbai.

2. Shri Anupam Kumar, Deputy DGFT will work from home as temporary measure, till further directions. Further, based on the review of COVID situation and job requirement, the Department may direct him to attend offce physically as and when required.

3. Work allocation order in respect of Shri Anupam Kumar, Deputy DGFT is being issued separately.

4. This issues with the approval of the Competent Authority."

4. The learned counsel for the Respondent-Union of India further submits that the petition as it is fled, is not maintainable in view of the Apex Court's judgment in the matter of Chandra Kumar Vs. Union of India and Ors. in

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[1997(3) Supreme Court Cases page 261]. Paragraph 93 of the judgment reads thus:

"Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers 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 specifcally 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. Th3e Tribunals will consequently also have the power to test the vires of subordinate legislations 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 concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifcally empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add

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that the Tribunals will, however, continue to act as the only courts of frst instance in respect of the areas of law for which they have been constituted. 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 mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."

On the basis of these submissions, the learned counsel for the Respondent-Union of India submits that the petition requires to be dismissed.

5. At this stage the learned counsel appearing on behalf of the Petitioner submits that in view of the subsequent development and the Offce Order dated 5th may, 2021, let the matter be adjourned in June for hearing.

6. On his request, matter to appear on Board on 14th June, 2021.

(N.R. BORKAR, J.)                              (K.K.TATED, J.)




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