Jharkhand High Court

Prof. (Dr) Basudeb Das vs Union Of India Through The Secretary on 4 March, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                        W.P.(S) No.917 of 2024
                         1


 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(S) No.917 of 2024
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Prof. (Dr) Basudeb Das, aged about 52 years, son of Late Sudha Krishna Das, resident of CIP Colony, Kanke, P.O. & P.S.-Kanke, District-Ranchi (Jharkhand).

                                 ...    ...    Petitioner
                          Versus

1. Union of India through the Secretary, Ministry of Health and Family Welfare, Government of India, Room No: 156- A, Nirman Bhawan, P.O. + P.S. & District -New Delhi- 110011.

2. Director General of Health Services, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, Room No: 446-A, Nirman Bhawan, P.O. + P.S. & District -New Delhi- 110011.

3. Under Secretary, CHS Division, Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, P.O. + P.S. & District -New Delhi-110011.

4. Director, Central Institute of Psychiatry, Ranchi having office at C.I.P, Kanke, P.O and P.S - Kanke, District-

Ranchi.                             ...  ...     Respondents
                            -------

CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Petitioner : Mr. Amritansh Vats, Advocate For the Respondents : Mr. Anil Kumar, A.S.G.I. Mr. Abhijeet Kumar Singh, Advocate

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Order No. 03/Dated 4th March, 2024

1. This writ petition is under Article 226 of the

Constitution of India wherein the order passed by the

learned Central Administrative Tribunal, Patna (Ranchi

Bench) dated 14.02.2024 passed in O.A./051/00927/2023

has been assailed whereby and whereunder the prayer of

the petitioner for quashing of order of transfer dated

28.11.2023 as contained in order no. C-13011/5/2023-

CHS-III, issued under the signature of Under Secretary,

Ministry of Health and Family Welfare, Govt. of India, (CHS

Division) and relieving order dated 28.11.2023 as

contained in Memo No.A.12020/1/2006-ESTT, issued

under the signature of Director, Central Institute of

Psychiatry, Ranchi has been rejected.

Further direction has been sought for quashing of

order of transfer dated 28.11.2023 as contained in order

no. C-13011/5/2023-CHS-III, issued under the signature

of Under Secretary, Ministry of Health and Family Welfare,

Govt. of India, (CHS Division) whereby the petitioner has

been transferred from Central Institute of Psychiatry,

Ranchi to G.N.C.T., Delhi.

Prayer has also been made for quashing of office

order dated 28.11.2023 as contained in Memo

No.A.12020/1/2006-ESTT, issued under the signature of

Director, Central Institute of Psychiatry, Ranchi whereby

the petitioner has been relieved from his duty and

responsibility with immediate effect to join GNCT with

direction to report to the Principal Secretary, Health,

GNCT, Delhi at Delhi Secretariat.

2. The facts which led the writ petitioner to file the writ

petition as per the pleading made in the writ petition are as

under :-

The petitioner was appointed on the post of

Assistant Professor, Psychiatry in CIP, Ranchi in 2006 and

since then, he is working there.

3. In the year 2008, the petitioner was promoted to the

post of Associate Professor (Psychiatry) and thereafter, in

the year 2012, the petitioner was promoted to the post of

Professor, (Psychiatry). The petitioner was promoted to the

post of Professor-Director (Psychiatry) w.e.f. 28.12.2019

vide office order dated 07.05.2021.

4. On 20.06.2023, the petitioner was served with the

show-cause notice issued under the signature of Deputy

Director, (Medical Education), Directorate General of

Health Services, Ministry of Health and Family Welfare,

Govt. of India whereby, the petitioner was asked to reply

against two allegations with respect to outsourcing of

house-keeping services and security guard services.

In response, the petitioner immediately made a detailed

reply vide letter dated 23.06.2023 addressed to the Deputy

Director, explaining each and every charges leveled against

him in details.

5. Again vide letter dated 22.09.2023, the petitioner

was again show-caused by the very same authority without

approval of the competent authority with respect to a

complete different issue/allegation asking him to reply with

respect to recruitment of nursing officers in the year 2021

and 2022. The petitioner responded to the aforesaid show

cause vide reply letter dated 27.09.2023.

6. Thereafter, the petitioner was again served with a

third show-cause notice dated 17.10.2023 by the very

same authority with respect to revenue expenditure spent

in buying library books and other allegations which has no

concern with the allegations with respect to previous two

show-cause notices. In reply thereto, the petitioner has

made a detailed reply vide letter dated 20.10.2023.

7. Since no charges were framed against him or any

disciplinary proceeding has been initiated against him,

meaning thereby that the respondent authorities have

found the replies to the show cause notices satisfactory

and hence not thought to proceed further in the said

matters.

8. But the petitioner received an order dated

20.10.2023 issued under the signature of Under Secretary,

Government of India whereby, the petitioner has been

directed to handover the charge of Director, CIP, Ranchi to

Dr. Tarun Kumar immediately and send the compliance

report to the Ministry by 5:00 p.m.

9. In compliance of the aforesaid order, having left

with no option, the petitioner has handed over the charge

of the post of Director, CIP, Ranchi to Dr. Tarun Kumar.

10. Thereafter, the petitioner immediately made detailed

representation vide letter dated 01.11.2023 to the

Secretary, Ministry of Health and Family Welfare,

Government of India requesting him to reinstate him as

Director, CIP, Ranchi as the petitioner has been removed

from the said post without following the due process of law

and no cogent and valid reason for the said action of

removal has been assigned.

11. Thereafter taking the aforesaid ground, the

petitioner approached before this Court by filing writ

petition being W.P.(S) No.6287 of 2023 challenging the

order of his removal from the post of Director which was

subsequently withdrawn vide order dated 23.11.2023 with

the liberty to approach before competent forum.

12. The petitioner received an order dated 28.11.2023,

as contained in order no. C-13011/5/2023-CHS-III and

Memo no. A. 12020/1/2006-ESTT whereby, he has been

transferred from CIP, Ranchi to GNCT of Delhi with

immediate effect and on the very same day vide office order

dated 28.11.2023, he has been relieved from his duties and

responsibilities at CIP, Ranchi with a direction to report to

the Principal Secretary, Health, GNCT, Delhi, at Delhi

Secretariat.

13. The petitioner approached the Central

Administrative Tribunal, Patna (Ranchi Bench) with an

interim prayer of stay of implementation of impugned order

but the learned Tribunal has rejected the interim prayer

vide order dated 11.12.2023.

14. The learned Tribunal finally decided the issue vide

impugned order dated 14.02.2024, impugned herein, by

which the original application has been dismissed on the

ground that the order of transfer of the writ petitioner is

not in violation of any statutory provision, no mala fide

intention in issuing the transfer order and the transfer

order was issued with the approval of the competent

authority, against which the present writ petition has been

preferred.

15. Mr. Amritansh Vats, learned counsel appearing for

the petitioner, has submitted that the order of transfer

although has been passed on administrative exigency, but

the order cannot be said to be administrative exigency if

the order impugned will be taken into consideration

wherein it would be evident from the affidavit filed on

behalf of the respondents before the learned Tribunal on

the issue of merit as is available in the written statement

filed on their behalf as under paragraph 5 onwards, hence,

the same cannot be said to be a transfer simplicitor, rather

based upon the punishment and, as such, as per the

settled position of law, the transfer by way of punishment

cannot be said to be proper but without taking into

consideration the aforesaid fact, the learned Tribunal has

refused to interfere with the same by coming to the

conclusion that there is no violation of any statutory

provision, no mala fide intention in issuing the transfer

order and the transfer order was issued with the approval

of the competent authority.

16. Learned counsel for the petitioner has submitted

that the ground was not taken by the petitioner of violation

of any statutory provision or vice of malice or the order was

not issued by the competent authority, rather, the ground

in challenging the order of transfer was that the same is by

way of punishment which is based upon the fact that

certain irregularity has been pointed out by the respondent

authorities in course of discharge of official duty by the

petitioner as Director, C.I.P., Ranchi. Therefore, it is a clear

cut case of order of transfer punitive in nature but without

deciding the aforesaid issue, the transfer order has been

declined to be interfered with by dismissing the original

application, as such, the impugned order needs to be

interfered with.

17. Per contra, Mr. Anil Kumar, learned Additional

Solicitor General of India, has defended the order passed

by the learned Tribunal.

18. Such submission has been made basis upon the

ground that the learned Tribunal has taken note of the fact

that certain irregularity has been committed as has been

pointed out on behalf of the respondents by way of filing

written statement and considering the same to be an

administrative exigency, the writ petitioner has been

transferred from Ranchi to Delhi in the capacity of his

substantive post, i.e., post of Professor, hence, the order of

transfer is in the administrative exigency.

19. The submission has been made that the ground

which is being taken by the petitioner that the order is

punitive in nature is not at all available if the order of

transfer dated 28.11.2023 will be taken into consideration

wherein the order of transfer is simplicitor having no

reference of any punishment even there is no reference of

any irregularity said to be committed by him.

20. The submission has been made that so far as the

aforesaid irregularity is concerned, the same is altogether

different aspect of the matter and if any irregularity has

been found out in discharge of official duty by a public

servant, it is the prerogative of the appointing authority to

proceed to initiate a regular departmental proceeding which

has got nothing to do with the order of transfer.

21. But equally the law is well settled that if the

departmental proceeding is contemplated against a public

servant, then in order to have fair and proper enquiry, two

options are left either to put the employee concerned under

suspension or to transfer him from one place to another.

22. The respondent authorities have not put the writ

petitioner under suspension, rather, thought it proper to

transfer him so that there might not be any influence of the

petitioner in conducting the proper enquiry with respect to

the alleged irregularity committed by him while discharging

his duty in the capacity of Director, C.I.P., Ranchi.

23. Therefore, it is incorrect on the part of the petitioner

to raise the ground of malice, rather it is a transfer

simplicitor which is on administrative exigency to have a

fair enquiry with respect to the allegation said to be

committed by the petitioner.

24. The learned ASGI, basing upon the aforesaid

ground has submitted that the learned Tribunal has taken

into consideration the aforesaid ground while dismissing

the original application, which cannot be said to suffer

from an error, hence, the present writ petition is fit to be

dismissed.

25. We have heard learned counsel for the parties, gone

across the finding recorded by the learned Tribunal in the

impugned order as also the pleading as available in the writ

petition wherein written statement filed on behalf of the

respondents has also been appended to.

26. This Court, on the basis of the appreciation of the

factual aspect based upon the pleading, is required to

consider the following issues :-

(i) Whether the order of transfer can be said to be

punitive?

(ii) Whether the order of transfer can be said to suffer

from the vice of malice?

(iii) Whether the appointing authority has got power to

transfer on administrative exigency so as to have the

proper enquiry with respect to the allegation of

commission of irregularity by one or the other, herein

the present petitioner, in discharge of official duty.

27. All these issues since are interlinked, the same are

being taken up together hereinafter.

28. But before answering the aforesaid issues, this

Court thought it just and proper to refer certain

pronouncements of Hon'ble Apex Court in the matter of

showing interference in the order of transfer.

29. The Hon'ble Apex Court in the case of Shilpi Bose

(Mrs) and Others v. State of Bihar and Others, AIR

1991 SC 532, at paragraph 4, has held that the courts

ordinarily should not interfere with the order instead

affected party should approach the higher authorities in

the department. If the courts continue to interfere with

day-to-day transfer orders issued by the government and

its subordinate authorities, there will be complete chaos in

the administration which would not be conducive to public

interest, for ready reference, paragraph 4 of the aforesaid

judgment is being quoted and referred hereunder as :-

4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights.

Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.

30. Further, in the case of Union of India and Others

v. S.L. Abbas, (1993) 4 SCC 357, the Hon'ble Apex Court

has observed that the order of transfer can be questioned

in a court or tribunal only where it is passed mala fide or

where it is made in violation of the statutory provisions, for

ready reference paragraph 10 is quoted hereunder as :-

10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the respondents' contention that if such an order is questioned in a court or the tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the court or the tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.

31. Similarly, in the case of State of U.P. and Others

v. Gobardhan Lal, (2004) 11 SCC 402 it has been held by

Hon'ble Apex Court that an order of transfer should

normally be eschewed and should not be countenanced by

the courts or tribunals as though they are Appellate

Authorities over such orders, which could assess the

niceties of the administrative needs and requirements of

the situation concerned. For ready reference paragraph 8 of

the aforesaid judgment is being referred hereunder as:-

8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own

decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

32. Further, Hon'ble Apex Court in the case of Mohd.

Masood Ahmad v. State of U.P. and Others, (2007) 8

SCC 150 has been pleased to observe that an order of

transfer is a part of the service conditions of an employee

which should not be interfered with ordinarily by a court of

law in exercise of its discretionary jurisdiction under Article

226 unless the court finds that either the order is mala fide

or that the service rules prohibit such transfer, or that the

authorities who issued the orders, were not competent to

pass the orders, for ready reference, paragraph 7 is being

quoted hereunder as :-

7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India [(1993) 1 SCC 148], National Hydroelectric Power Corpn.

Ltd. v. Shri Bhagwan [(2001) 8 SCC 574], State Bank of India v. Anjan Sanyal [(2001) 5 SCC 508]. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. [(1997) 3 ESC 1668 : 1998 All LJ 70]

and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. [(1997) 3 ESC 1866 : 1998 All LJ 245] has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.

33. It is thus, evident from the aforesaid judgments that

the High Court in exercise of power of judicial review

requires to show least interference in the matter of transfer

on the basis of the principle that who will be posted at

which place it is the exclusive domain of the appointing

authority.

34. This Court is now proceeding on the basis of the

aforesaid legal position to answer the aforesaid issues, as

referred hereinabove.

35. The admitted fact herein is that the petitioner while

working as Director, some irregularity has been complained

against him said to be against discharge of the official duty.

The further admitted fact is that the said irregularity has

not been culminated into a regular enquiry, rather, only

the show cause notices were issued to have a response.

36. The authority in the meanwhile, has taken a

decision to relinquish the charge of the post of Director

from the petitioner vide order dated 20.10.2023. The said

order is under challenge in a separate proceeding before

the learned Central Administrative Tribunal.

37. The another order dated 28.11.2023 was passed by

the competent authority of transferring the writ petitioner

from the post of Professor, C.I.P., Ranchi to G.N.C.T., Delhi

with immediate effect.

38. The further fact needs to be referred herein is that

the petitioner by virtue of the holder of the substantive post

of Professor, was directed to function as Director but the

moment the charge of the post of Director has been taken

away, he became Professor and at that moment he was

transferred from C.I.P., Ranchi to G.N.C.T., Delhi vide order

dated 28.11.2023.

39. The petitioner, being aggrieved with the order of

transfer, had approached to learned Tribunal by filing the

original application being O.A. No.051/00927/2023. In the

said original application, the prayer for interim relief has

also been sought for but the said interim relief having not

been granted vide order dated 11.12.2023, thereafter one

writ petition being W.P.(S) No. 7183 of 2023 has been filed

before this Court.

40. This Court has refused to interfere with the order

passed by the learned Tribunal refusing grant of ad interim

stay of transfer, however, with a request to the learned

Tribunal to dispose of the original application, based upon

the same the original application has been disposed of after

taking into consideration the written statement filed on

behalf of the respondents.

41. The said order is under challenge in this proceeding

taking the grounds as referred hereinabove.

42. The petitioner has taken the ground of transfer said

to be punitive in nature. The nature of order is to be

considered by going through the order of transfer itself and,

as such, this Court has though it proper to peruse the

order of transfer dated 28.11.2023.

43. This Court, having perused the same, has found

that the petitioner has been transferred from C.I.P., Ranchi

to G.N.C.T., Delhi with immediate effect. It is a two lines

order, for ready reference, the same is being quoted and

referred hereunder as :-

"Dr. Basudeb Das, Director Professor (Psychiatry) is hereby transferred from CIP, Ranchi to GNCT of Delhi with immediate effect and until further orders."

44. The issue of lack of jurisdiction has not been raised,

however, the issue of malice and the order being punitive in

nature have been taken as ground to assail the impugned

order of transfer.

45. The contention has been made on behalf of the

petitioner by referring to the ground taken by the

respondents in the written statement wherein the ground

inter alia has been taken that on the ground or irregularity

said to be committed in discharge of the official duty, he

has been transferred so as to have a fair and proper

enquiry with respect to the conduct of the petitioner while

discharging his duty as Director, C.I.P., Ranchi.

46. The ground, therefore, has been taken that the

same has been taken as an administrative exigency by the

appointing authority which led the appointing authority to

transfer the writ petitioner vide order dated 28.11.2023

from C.I.P., Ranchi to G.N.C.T., Delhi.

47. The word 'administrative exigency' is having the

broader sense. The moment the word 'administrative

exigency' is referred in the order of transfer, it is to be

construed that the authorities have exercised their

prerogative to transfer one or the other public servant so as

to provide better administration of service.

48. The same is to be taken into consideration by

coming to the facts and circumstances of the present case

wherefrom it is evident that the petitioner has been alleged

with the irregularity in discharge of the official duty while

working as Director, C.I.P., Ranchi.

49. Therefore, the ground has been taken that if the

writ petitioner will be allowed to remain in the place where

the irregularity has been said to be committed by him while

functioning as Director, then there might be a situation of

not fair and proper enquiry as the ground has been taken

by the respondents in the written statement as under para

5 onwards appended to the present writ petition.

50. This Court is of the view that if the appointing

authority has come to such conclusion based upon the

alleged irregularity said to be committed by the petitioner

to have a fair enquiry, the same cannot be said to suffer

from an error, rather, it will come under the fold of the

definition of 'administrative exigency' so that the enquiry

may not be influenced and the enquiry be conducted

without any interruption and interference of the writ

petitioner.

51. Learned counsel for the petitioner has tried to

impress upon this Court that where is the occasion to

transfer the writ petitioner if the allegation of irregularity

has been said to be there.

52. It has been submitted that in such circumstances

the authority ought to have put the writ petitioner under

suspension so that there might not be any influence of the

writ petitioner in the enquiry which is to be conducted with

respect to the alleged irregularity.

53. This Court, however, is surprised with this

argument reason being that the learned counsel for the

petitioner appears to be ready for suspension instead of

transfer, meaning thereby, learned counsel for the

petitioner is also in agreement with the fact that the writ

petitioner is required to be not present so that there may

not be adverse influence in the enquiry said to be initiated.

But the same can also be done as per the petitioner by

putting him under suspension.

54. This Court requires to refer herein that the

suspension and transfer are two different aspects of the

service career of one or the other public servant.

Suspension can be based in two eventualities; first in

contemplation of departmental proceeding and second by

way of punishment, if provided under the relevant conduct

rule.

55. It is also not in dispute that the suspension

although is not a punishment having no stigma but equally

it cannot be disagreed that the suspension is having an

adverse impact so far as the society is concerned.

56. Further, if a public servant is put under

suspension, he will be also at monetary loss since in place

of salary he will be paid the subsistence grant/allowance.

57. If in such circumstances, the respondents have

taken a decision not to put the writ petitioner under

suspension, the same can be said to be bona fide approach

of the respondents, otherwise the option was already there

with the respondents to put the writ petitioner under

suspension in contemplation of the departmental

proceeding.

58. But, instead of resorting to the order of suspension,

the writ petitioner has been transferred to Delhi so as to

have the fair enquiry in his absence. Such situation has

been warranted for the respondents since the writ

petitioner, during the relevant period, was the Director of

the establishment of C.I.P., Ranchi and if in his presence

the enquiry would be conducted, there might be a chance

of adverse influence of the petitioner causing interruption

in the enquiry.

59. The said reasoning of the respondents, as per the

ground taken before the Tribunal in transferring the writ

petitioner, to have a fair and uninterrupted enquiry will

come under the fold of administrative exigency.

60. The learned Tribunal, after taking into

consideration the aforesaid fact, according to our

considered view, cannot be said to have committed an error

in holding that there is no violation of any statutory

provision or vice of malice or the order was not issued by

the competent authority.

61. The reason for coming to such agreement by this

Court is that if the writ petitioner would have been put

under suspension, then only it could have been said that

the respondents with the vice of malice, has put the writ

petitioner under suspension but that is not the situation

herein, rather, he has been transferred from Ranchi to

Delhi and it is the settled position of law that the transfer

is the incidence of service and it is the prerogative of the

appointing authority to transfer the public servant from

one place to another.

62. Moreover, as has been informed that the writ

petitioner belongs to Group-A Health Service and, as such,

the post which he is holding is transferrable across the

country and in that view of the matter, if he has been

transferred from Ranchi to Delhi, the same cannot be said

to be punitive in nature.

63. The power of judicial review to the Court exercising

the power conferred under Article 226 of the Constitution

of India is very least as per the judgment rendered by

Hon'ble Apex Court as referred hereinabove.

64. This Court since is dealing with the order passed by

the learned Tribunal wherein the power of judicial review is

to be exercised as per the judgment rendered by Hon'ble

Apex Court in the case of L. Chandra Kumar v. Union of

India and Others, reported in (1997) 3 SCC 261 whereby

and whereunder the power of judicial review has been dealt

with which is to be exercised by the High Court in exercise

of power conferred under Article 226 of the Constitution of

India, for ready reference the relevant paragraph of the

aforesaid judgment is being quoted and referred hereunder

as :-

"99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323- B, 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 323-A and 323-B 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 a 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 323-A and Article 323-B 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 Tribunal concerned 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 Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."

65. This Court after having discussed the fact as also

the legal position is now proceeding to discuss about the

scope of judicial review conferred to the High Court under

Article 226 of the Constitution of India in showing

interference with the award passed by the adjudicator as

has been held by the Hon'ble Apex Court in Syed Yakoob

vs. Radhakrishnan, A.I.R. 1964 SC 477. Paragraph no.7

of the said judgment is being reproduced as under:-

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals :

these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be

challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."

66. In Hari Vishnu Kamath vs. Ahmad Ishaque and

Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme

Court has held in paragraph no.21 as under:-

"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

67. In Sawarn Singh and Anr. vs. State of Punjab

and Ors., (1976) 2 SCC 868 their Lordships, while

discussing the power of writ under Article 226 of the

Constitution of India for issuance of writ of certiorari, has

been pleased to hold at paragraph nos.12 and 13 as

hereunder:-

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

68. In Heinz India (P) Ltd. and Anr. vs. State of U.P.

and Ors., (2012) 5 SCC 443, their Lordships have been

pleased to hold at paragraph nos.66 and 67 as hereunder:-

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on

evidence and whether such findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."

69. In the case of West Bengal Central School Service

Commission & Others Vs. Abdul Halim & Others

reported in (2019) 18 SCC 39, their Lordships have been

laid down pleased to hold at paragraph no. 30 that the

power of the judicial review must be exercised by the Court

after determining that the impugned is vitiated by an error

apparent on the face of the record and not the same has

been established by a process of reasoning, Para-30 of the

aforesaid judgment reads as under:-

"30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the fact of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the fact of the record, as held by this Court in Satyanarayan Vs. Mallikarjuna reported in AIR 1960 SC 137. If the

provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari."

70. In the case of T.C. Basappa Vs. T. Nagappa

reported in (1955) 1 SCR 250, their Lordship hold that the

patent error in a decision can be corrected by writ of

certiorari, when it is manifested by the error apparent on

the face of the proceedings. The relevant portion of the

aforesaid judgment is quoted hereunder:-

"10. ... ... An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the fact of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. ..."

71. The power of judicial review has been dealt by the

Hon'ble Apex Court in the aforementioned judgments,

wherein such power can be exercised, if error on the face of

the order impugned, challenged under the Article 226 of

Constitution of India, appears to be there.

72. As per the discussion made hereinabove, this Court

is of the view that it is not such a case where the power of

judicial review is to be exercised.

73. Accordingly, this Court is of the view that the

impugned order needs no interference, as such, the instant

petition fails and is dismissed.

(Sujit Narayan Prasad, J.)