State Of Gujarat vs R.S. Yadav And Anr.
2002 Latest Caselaw 274 Del

JUDGMENT

S.B. Sinha, C.J.

1. The order dated 29th September 2000 of the Chairman of the Central Administrative Tribunal in MA 1213/2000 arising out of OA No. 598/2000 is in question in this petition.

FACTS:

2. The first respondent is an IPS officer borne on Gujarat Cadre. He, at all material times, was and still has been holding the post of Deputy Superintendent of Police. He, allegedly, in a sensational case of kidnapping of three year old girl from a school, arrested innocent persons and added Section 302 of the Indian Penal Code without any concrete evidence of the murder of the child although she was recovered alive. The investigation was handed over to the Central Bureau of Investigation. On 17th April 1999, the first respondent was transferred to Junagarh whereupon he left Junagarh without obtaining any permission. It is alleged that since then he had remained absent unauthorisedly. The CBI found serious irregularities and lapses during investigation whereupon the first respondent was placed under suspension on 21st February 2000. He, on or about 7th April 2000, filed an application before the Principal Bench of Central Administrative Tribunal purported to be under Section 19 of the Administrative Tribunal Act, 1985. He also filed an application under Rule 6(1) of the Administrative Tribunal (Procedure) Rules, 1987 praying for permission to file application before the Principal Bench as also an application purported to be under Section 25 of the Act for hearing of the petition therein. In the said application, he inter alia contended that he was on medical leave and had been undergoing medical treatment at Ram Manohar Lohia Hospital, New Delhi as also at Gurgaon. The then Chairman of the Tribunal by order dated 11th April 2000 passed an ex-parte order allowing the prayer for filing the application.

3. The petitioner herein, having been noticed, filed counter-affidavit where inter alia it was contended that the Principal Bench of the Tribunal had no jurisdiction. It was contended that as the entire cause of action had arisen in Gujarat, the Ahmedabad Bench of the Tribunal had the jurisdiction to entertain the said application. The charge-sheet was also issued against the first respondent on 3rd May 2000. The matter was heard on 5th May 2000 whereupon notices were issued upon the second respondent. By reason of the impugned order dated 29th September 2000 although the entire cause of action had arisen in the State of Gujarat but held that the exercise of jurisdiction of the Tribunal in passing the order dated 11th April 2000 cannot be said to be wrong.

4. Mr. R.P. Bhatt, learned senior counsel appearing on behalf of the petitioner would contend that Section 25 of the said Act as also Rule 26 of the said Rules must be read harmoniously. And so read, it must be held that the Chairman of the learned Tribunal has committed a serious illegality in entertaining the petition at the first instance and directing the said petition to be heard in the Principal Bench. The learned counsel would contend that Sections 14 and 19 of the said Act clearly provide for the jurisdiction of the Tribunal which would be entitled to deal with the matter and Section 25 provides for an exception thereto and in that view of the matter, the scope thereof must be held to be limited.

5. Mr. S.K. Dubey, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the proviso appended to Rule 6 which itself serves as an exception to the main provision, confers a jurisdiction upon the Tribunal not only to entertain the petition but also to direct that the said petition shall be heard in a Bench although it had no jurisdiction in relation thereto.

In his application under Rule 6(1) of the Rules, it was stated as under:

"3. That the applicant wishes to state that he is presently on medical leave and is undergoing medical treatment at Ram Manohar Lohia Hospital as well as Gurgaon and is residing in the National Capital Region. He is suffering from acute SpondylIT is and Hypertension. the copies of the Medical Report of the applicant are annexed with the O.A. as Annexure-P/10.

4. That the part of cause of action having arisen in Gujarat and part in New Delhi and/or National Capital Region, the applicant is entitled to file the Original Application in the Ahmedabad Bench or in the Principal Bench of the Tribunal. Besides the applicant apprehends threat to his life and limb in Gujarat as by undertaking sincere and honest investigation into certain serious criminal offences, he has locked horns with the high and mighty of the state including the State Home Minister as well as senior police officers, politicians and media barons. The applicant further submitted that threats were also imparted to his advocates against representing him before any authority. In this connection, a representation was made to the D.G.P., Gujarat, which is annexed with the Original Application as Annexure-P/13.

5. That even if it is assumed that the matter is required to be filed before the Ahmedabad Bench of the Tribunal, the applicant not only has to travel all the way to Ahmedabad in his poor medical condition and against medical advice, but also apprehends serious threat to his life at the hands of persons against whom he has initiated criminal action, in the course of performance of his duty."

6. The order dated 11th April 2000 passed by the Chairman on the said application is as under:

"PT 73/2000 MA 787/2000 in F.No. 545/7.4.2000 11.4.2000

Present Shri K.T.S. Tulsi, Sr, Counsel with Shri D.N. Srivastava, Counsel for applicant.

Prayer contained in PT No. 73/2000 is allowed. The O.A. is permitted to be registered and retained with the Principal Bench.

Having regard to the claim made in the present OA, we direct notices to be issued to respondents both on merits of the OA as also prayer for interim relief, returnable on 26.4.2000. Issue dusty Notices.

  (V.K. Majotra)     (Ashok Agarwal
  Member (A)        Chairman
       O.A. not admitted." 

 

7. In its impugned judgment, the learned Tribunal did not agree with the contention of the respondent that cause of action had arisen partly in Delhi. It was, however, held hat as he had sought for the leave of the Chairman the file the application before the Registrar of the Principle Bench and the same had been agreed to, it was held:

"...he has sought the leave of the Chairman to file the application with the Registrar of the Principal Bench. This has been agreed to by the Chairman in exercise of the discretion vested in him under Section 25 of the Act read with Rule 6 of the Procedure Rules. In the order dated 11.4.2000 the Chairman has not only permitted the O.A. to be registered in the Principal Bench but has also ordered that the same may be "retained" in the Principal Bench for disposal. Apart from the fact that the applicant states that he is sick and undergoing treatment in Dr. R.M.L. Hospital, New Delhi in PT 73/2000 he has also submitted that he apprehends threat to his life and his family in Gujarat and on this ground also he had sought the permission of the Chairman under Section 25 to retain the application for disposal before the Principal Bench."

It was further observed:

"The power vested with the Chairman to transfer a case from one Bench to another Bench will include the power not to do so which would mean that he can order case filed in one Bench to be retained in that Bench itself, which is what has happened in the present case. The Hon'ble Chairman has ordered that the case which he has permitted to be registered in the Principal Bench and pending need not be transferred to any other Bench for hearing and disposal but the same will be disposed of here."

8. The approach of the learned Tribunal, in our view, was entirely erroneous. The Chairman of the Tribunal in his order dated 11th April 2000 did not assign any reason. Although the Chairman had the jurisdiction to permit the application to be registered but before directing that the same should be retained with the Principal Bench, it was obligatory on his part to comply with the principles of natural justice. The said order dated 11th April 2000 was, therefore, a nullity.

9. Section 25 of the Act reads thus:

"25. Power of Chairman to transfer cases from one Bench to another.-

On the application of any of the parties and after notice to the parties and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench."

10. Rule 6 of the Central Administrative Tribunal Procedure Rules, 1987 reads thus:

"6. Place of filing applications:

(1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction:

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

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

Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders 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 have ceased to be in service by reason of retirement, dismissal or termination of service may 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."

11. Section 25 is by way of an exception. An order under Section 25 can be passed only upon giving an opportunity of hearing to the parties as also after hearing such of them, he may desire to be heard, such a power must be exercised in the interest of justice.

12. The power of transfer from one Bench to another is an extraordinary power and the said power cannot be exercised on mere ipse dixit. The applicant, invoking the said jurisdiction of the Chairman, must make out a strong case therefor and the Chairman of the Tribunal must satisfy himself about the exigencies of situation for passing such an order. The contentions of the parties, the balance of convenience are some of the factors which must weigh with the Chairman before such an order is passed. A final order under Section 25 of the Act ex-parte can never be passed.

13. Furthermore, even the Medical Certificates filed by the respondent herein ex-facie could not be relied upon. The first certificate was issued by one Dr. Narender Yadav who is a child specialist. In his certificate dated 24th March 2000, it was stated:

"TO WHOM IT MAY CONCERN

This is to certify that Mr. R.S. Yadav, whose signatures are given below is suffering from Viral HepatIT is Hypertension. He has been notified physical rest w.e.f. 24-3-2000 to 6.4.2000 for restoration of his health.

Sd/-

Dr. Narender Yadav 24.3.2000"

14. The said certificate, on its own showing, was not valid for medico legal purpose.

15. The second certificate was issued by the Central Government Heald Scheme, Delhi which was meant for officers recommended for leave or extension of continuation of leave. According to the petitioner herein, the respondent was unauthorizedly absent and did not take any leave whatsoever.

16. The said certificate dated 20th October 1999 is in the following terms:

"No. 178907

CENTRAL GOVERNMENT HEALTH SCHEME, DELHI

Signature of Applicant Sd/- (Illegible) 20.10.99

Medical Certificate for officers recommended for leave or extension of continuation of leave.

I, Dr. Sen Gupta after carefully personal examination of the case hereby certified that Sh. R.S. Yadav of the Gujarat Police, 16, HQ Ministry/office whose signature given above, is suffering from HepatIT is Hypertension and considered that a period of absence from duty of one month with effect from 20.10.99 absolutely necessary for the restoration of his/her health.

Dated, the Sd/-

MEDICAL OFFICER C.G.H.S. Dispensary"

17. The Medical Certificates filed by the petitioners even if given face value and taken to be correct in their entirety, do not suggest that he was so critically ill that it would not be possible for him to be in the State of Gujarat for any purpose whatsoever. In any event, no reason has been assigned as to why the said certificates had been relied upon. The learned Chairman of the Tribunal further failed to take into consideration that the said certificates had served out their purposes and there was absolutely further no reason to pass the impugned order particularly when the respondent had been placed under suspension and a charge-sheet had been issued.

18. In this view of the matter, we are of the opinion that it is not necessary to go into the view of Section 25 of the Act and Rule 6 of the Rules, as has been contended by the petitioner in the writ petition.

19. We, therefore, allow this petition, set aside the order passed by the Tribunal and direct the Tribunal to transfer the case to the Central Administrative Tribunal, Ahmedabad Bench. In the facts and circumstances of the case, the petitioner shall also be entitled to costs.