Delhi High Court
Dr. Vivek Ranjan Biswas & Ors. vs Union Of India And Ors. on 14 August, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5123/2013
% 14th August, 2013
DR. VIVEK RANJAN BISWAS & ORS. ..... Petitioners
Through: Counsel for the petitioner
(appearance not given).
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms. Richa Kapoor, CGSC.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. It appears that some litigants, and with respect if I may say so
some lawyers, in spite of knowing that disputes between the employees of
Union of India and the Union of India can only be decided by the Central
Administrative Tribunal (CAT), yet, approach this Court under Article 226
of the Constitution of India.
2. It is apposite, at this stage, to refer to para 99 of the
Constitution Bench judgment of the Supreme Court in the case of L.
Chandra Kumar Vs. Union of India and Ors. (1997) 3 SCC 261 and which
reads as under:-
"99. In view of the reasoning adopted by us, we hold that
Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to
the extent they exclude the jurisdiction of the High Courts and
the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and the
"exclusion of jurisdiction" clauses in all other legislations
enacted under the aegis of Articles 323A and 323B would, to the
same extent, be unconstitutional. The jurisdiction conferred
upon the High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is part of the
inviolable basic structure of our Constitution. While this
jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred
by Articles 226/227 and 32 of the Constitution. The Tribunals
created under Article 323A and Article 323B of the Constitution
are possessed of the competence to test the constitutional
validity of statutory provisions and rules. All decisions of these
Tribunals will, however, be subject to scrutiny before a Division
Bench of the High Court within whose jurisdiction the
concerned Tribunal falls. The Tribunals will, nevertheless,
continue to act like Courts of first instance in respect of the areas
of law for which they have been constituted. It will not,
therefore, be open for litigants to directly approach the High
Courts even in cases where they question the vires of statutory
legislations (except where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction
of the concerned Tribunal. Section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have
indicated."(underling & emphasis added)
2. A reference to aforesaid para shows that it is the Tribunal
which is the Court at first instance and this Court can exercise its powers
under Article 226 of Constitution of India only after a judgment is passed by
the CAT. In fact, Constitution Bench has said that even if there are
questions of vires of statutory legislations in case the disputes are covered
by the Administrative Tribunals Act, 1985 (hereinafter referred to as „the
Act‟), the same have to be decided by the CAT.
3. Counsel for the petitioners argues that this Court has all powers
under Article 226 of the Constitution of India because existence of
alternative remedy does not prevent the petitioners from approaching this
Court.
This argument in my opinion is specious to say the very least
inasmuch as the Constitution Bench has made it clear that cases have to be
filed in the first instance before the Tribunal constituted under the Act and
not before this Court.
4. In view of the above, the writ petition is dismissed with costs of
`5,000/- to be deposited with the Delhi High Court Legal Aid Committee.
Costs be deposited within a period of two weeks from today.
5. I may note that Registry of this Court is unnecessarily
pressurised by certain lawyers to list the matter in the Court in spite of clear
cut provisions of the Act and the Constitution Bench judgment of the
Supreme Court in the case of L. Chandra Kumar (supra). This I am saying
so because the counsel for the petitioners in response to the objection raised
by the Registry has filed a two pages note as to how this Court can exercise
powers under Article 226 of the Constitution of India, however, the counsel
admits that he has not even read the Constitution Bench judgment of the
Supreme Court in the case of L. Chandra Kumar (supra).
VALMIKI J. MEHTA, J
AUGUST 14, 2013
Ne
