1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 750 and 561 of 2005 Reserved On September 13,2010 and September 20, 2010 Decided on: 22.11.2010 CWP No. 750 of 2005 Dr.Desh Deepak ..Petitioner. Versus Union of India through Secretary and others ..Respondents. _______________________________________________________ For the Petitioner:- Mr.Puneet Bali,Advocate with Mr.Vibhav Jain and Mr.Lovneesh Kanwar, Advocates. For Respondent No.1:- Mr.T.S. Chauhan, Central Government Counsel. For Respondent No.2:- Mr.R.K.Sharma,Sr.Addl.Advocate General, with Mr.Rajinder Dogra,Additional Advocate General. CWP No. 561 of 2005 Dr.Desh Deepak ..Petitioner. Versus Union of India through Secretary and others ..Respondents. _______________________________________________________ For the Petitioner:- Mr.Puneet Bali,Advocate with Mr.Vibhav Jain and Mr.Lovneesh Kanwar, Advocates. For Respondent No.1:- Mr.T.S. Chauhan, Central Government Counsel. For Respondent No.2:- Mr.R.K.Sharma,Sr.Addl.Advocate General, with Mr.Rajinder Dogra,Additional Advocate General. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Sharma, Judge. Whether approved for reporting? Yes. Justice R.B. Misra,J . In CWP No. 750 of 2005, main prayers are made as below:- a) Quash D.O. letter No.Per(CR)-B(II)-1/95-PF,dated 26.2.1996 issued by the Commissioner-cum-Secretary 2 (personnel) Government of Himachal Pradesh, Annexure PB, whereby, Adverse Remarks have been conveyed to the petitioner. b) Quash Letter No. Per(CR)-B(II)-1/95-PF, dated October 1996, Annexure PD issued by the Commissioner- cum-Secretary to the Government of Himachal Pradesh. c) Quash Letter No. Per( CR)-B(II)-1/95-PF dated 8.6.1998 Annexure PF issued by Commissioner-cum- Secretary (personnel) to the Government of Himachal Pradesh, conveying decision on Memorial to the President of India. d) Quash the impugned order passed by the Central Administrative Tribunal, Principal Bench at New Delhi in OA No.854 of 1994, Annexure PN. e) Direct the respondents to reassess the grading of the petitioner by expunging the adverse remarks conveyed to him and also further direct them to carry out the necessary corrections in the service record of the petitioner and to accord necessary consequential relief to him. 2. In CWP No. 561 of 2005, main prayers are made as below:- a) Quash the impugned order dated 23rd February, 2001 i.e. Annexure PK (passed by the Appellate Authority and conveyed to the petitioner vide Annexure PK/1 dated 29th March, 2001). b) Quash the impugned judgment dated 13th July, 2004 i.e. Annexure PO passed by the Central Administrative Tribunal, Chandigarh Bench in O.A. No.46-HP-2003. 3 3. In Civil Writ Petition No.750 of 2005, the petitioner is mainly aggrieved by judgment and order dated 25.1.2000 dismissing O.A. No.854/99, (Dr.Desh Deepak Versus Union of India through the Secretary and another), by Central Administrative Tribunal Principal Bench at New Delhi, wherein the petitioner had prayed to quash the orders issued vide order dated 26.2.1996 conveying him the adverse remarks in his ACR for the year 1993-1994 and rejecting his representations thereof vide orders dated October, 1996 and 8.6.1998. 4. In Civil Writ Petition No. 561 of 2005, the petitioner has mainly challenged the judgment dated 13.7.2004 dismissing his O.A. No.46-HP-2003 by Central Administrative Tribunal, Chandigarh Bench, wherein Dr.Desh Deepak, herein the petitioner, had preferred said O.A. Under Section 19 of the Administrative Tribunals Act, 1985 (in short called 'Act' hereinafter), for quashing the enquiry report dated 5.9.1996 and punishment order dated 24.7.1998 as well as the appellate order dated 27.2.2001 conveyed to him vide letter dated 29.3.2001 with direction to the respondents to grant him all the consequential benefits. 5. The petitioner being aggrieved by different orders had approached to the Central Administrative for redressal of his grievances as indicated above. 6. Civil Writ Petition No. 561 of 2005 was admitted on 23.9.2005 by this Court and has now come up for final disposal. Similarly, Civil Writ Petition No. 750 of 2005 was admitted on 18.12.2007 and after completion of the pleadings has come up for final disposal. At the time of final disposal, preliminary objections have been raised, on behalf of Union of India through its learned 4 counsel, about the maintainability of the present writ petition, on the grounds that since the impugned order dated 25.1.2000 was passed in O.A. No.854/99 by Central Administrative Tribunal, Principal Bench New Delhi, therefore, jurisdiction lies with the High Court of Delhi, in view of the observations made by Hon'ble Supreme Court in L.Chandra Kumar V. Union of India (1997)3 SCC 261 paragraph 99, wherein it has been observed that “....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....”. 7. Mr.T.S. Chauhan learned counsel for Union of India has submitted that the petitioner if aggrieved by the impugned judgment of the Central Administrative Tribunal, Principal Bench, New Delhi, could have preferred Writ Petition before Delhi High Court and not before this High Court. 8. Whereas, on the other hand, Mr.Puneet Bali, learned counsel for the petitioner has vehemently argued that High Court of Himachal Pradesh has jurisdiction to adjudicate the present writ petitions against the impugned order passed by Central Administrative Tribunal, Principal Bench, at New Delhi. Mr. Bali has contended that the jurisdiction of this Court follows from the provisions of Article 226 of the Constitution of India. Clause (1) of Article 226 confers powers upon the High Court to issue orders or writs, to a person or an authority or the Government for enforcement of any of the rights conferred by Part-III and for any other purpose. Clause (2) of Article 226 categorically mentions that the power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising 5 jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. The provisions of Article 226, clause (1) and Clause (2) of the Constitution are reproduced hereunder:- “226. Power of High Courts to issue certain writs: (1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs including (write in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercises by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” 9. Mr. Bali has also made submissions on behalf of the petitioner as below:- (A) The petitioner is in the Indian Administrative Service allocated the Himachal Pradesh cadre. The orders impugned by the petitioner i.e. letter dated 26th February, 1996, Annexure PB, letter dated 19th October, 1996, Annexure PD and letter dated 8th of June 1998 have been issued by the State of Himachal Pradesh. The period of the Annual Confidential Report (ACRs) i.e. from 7.8.1993 to 31.3.1994, was assessed while he was working in Himachal Pradesh. (i) The fact that the Principal Bench, Central Administrative Tribunal at New Delhi has passed the orders, which are also under challenge before this Court would not have any bearing or impediment not to confer jurisdiction upon this Court, inasmuch as the Tribunals 6 are constituted under various provisions of the Constitution of India, in the present case the Central Administrative Tribunal has been constituted under Part XIV-A, Article 323-A and 323-B of the Constitution of India. Section 5 of the 'Act', contained in Chapter-II deals with establishment of Tribunals and Benches thereof. Section 5, sub-Section (1) inter alia provides that each Tribunal shall consist of a Chairman and such number of judicial, administrative members, as the appropriate Government may deem fit and subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunals may be exercised by the Benches thereof. Section 5, sub- Section (7) provides that the Central Administrative Tribunal Bench at New Delhi shall be known as the 'Principal Bench' . Section 16 of the 'Act' deals with the jurisdiction, powers and authority of a Joint Administrative Tribunal and inter alia provides that a Joint Administrative Tribunal for two or more States shall exercise all the jurisdiction, powers and authority exercisable by the Administrative Tribunals for each States. Section 18 of the 'Act' deals with the distribution of business amongst the Benches and provides that where any Benches of a Tribunal are constituted, the appropriate Government from time to time, by Notification, make provisions as to the distribution of business of Tribunal amongst the Benches. (ii) The provisions of the above mentioned Sections of the 'Act', are reproduced as under:- “5. Composition of Tribunals and Benches thereof: (1) Each Tribunal shall consist of a Chairman and such number of Vice- Chairman (and judicial and Administrative Members) as the appropriate Government may deem fit and subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunals may be exercised by the Benches thereof. (2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member. (7) Subject to the other provisions of this Act, the Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi (which 7 shall be known as the Principal Bench), Allahabad, Calcutta, Madras, New Bombay and at such other places as the Central Government may, by notification, specify.” “16. Jurisdiction, powers and authority of a Joint Administrative Tribunal: A Joint Administrative Tribunal for two or more States shall exercise all the jurisdiction, powers and authority exercisable by the Administrative Tribunal of for such States.” “18. Distribution of business amongst the Benches :(1) Where (any Benches of a Tribunal are constituted) the appropriate Government may from time to time, by notification, make provisions as to the distribution of business of the Tribunal amongst the Benches and specify the matters which may be dealt with by each Bench. (2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench of Tribunal, the decision of the Chairman thereon shall be final.” (iii) In the cases of Central Government Employees, when Union of India is a party and any order has been passed or conveyed to the concerned employee by Union of India, then the Principal Bench being seated in Delhi, where the office of Union of India is situated, can entertain an Original Application (O.A.). It is not unknown to law that two or more Courts or Tribunals can have territorial jurisdiction over a particular cause of action. (B) Neither the State Government nor Union of India has Challenged to the jurisdiction of the Principal Bench at the time of adjudication of the O.A. of the petitioner. (i) Neither the State Government or the Union of India in their Written Statements have taken the objection in relation to the jurisdiction of this Court to deal with the present controversy. After hearing the counsel for both the parties, this Court was pleased to issue “Rule nisi / admit the matter for final hearing”. Even at that time, the issue in relation to jurisdiction was not raised. It is trite law that any objection in relation to the jurisdiction of a Tribunal or a Court has to be taken up at the outset. Since even in the pleadings of Union 8 of India or the State Government, the objection in relation to jurisdiction has not been taken up, it is deemed to have been taken up and they are now stopped from raising this issue at the time of final arguments and that too, after a period of almost 2-1 ½ years from the date of admission, i.e 18.11.2007, more so, only at the time of arguments. (C) In the case of L. Chandra Kumar (supra) learned counsel for Union of India has relied upon paragraph 99 of L. Chandra Kumar (supra). (i) It is well settled that a judgment of a Court has to be read out in reference to the dispute in question and the reference of dispute before the Seven-Judge Bench of the Hon'ble Supreme Court, while deciding L.Chandra Kumar's Case was under:- “AHMADI, C.J. - The special leave petitions, civil appeals and writ petitions which together constitute the present batch of matters before us owe their origin to separate decisions of different High Courts and several provisions in different enactments which have been made the subject of challenge. Between them, they raise several distinct questions of law; they have, however, been grouped together as all of them involve the consideration of the following broad issues:- (1) Whether the power conferred upon parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by Sub-clause (d) of clause (3) of Article 323-B of the Constitution, totally exclude the jurisdiction of 'all 'courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution? (2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/ rule? 9 (3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?” (ii) It is clear that the issue in relation to the jurisdiction of the High Courts dealing with cases of employees/officials working with the affairs of the State has not been discussed or was under reference before the Hon'ble Supreme Court of India. The observations of the Hon'ble Supreme Court in paragraph 99 L. Chandra Kumar (supra) are in relation to the order of reference. Otherwise also, there are various legislations like, Debts Recovery Tribunals Act, Securities & Exchange Board of India Act, Companies Act, 1956, Income Tax Act, 1961, etc., where Tribunals are constituted at various places to hear original suits, claims or appeals etc. The writ petition is filed where the original cause of action accrues, because the original orders are also under challenge. The concerned Tribunal is not a contesting party to any Appeal or Writ Petition filed by an individual in case of such-like Tribunals and therefore, it is a convenient jurisdictional forum for both the contesting parties inasmuch as the effective part of cause of action accrues in a particular place and the seat of the Government is also within that jurisdiction and therefore, by virtue of Article 226(2) of the Constitution of India, the concerned High Court would have the jurisdiction. (D) Paragraphs 78 and 79 of L.Chandra Kumar's case, are reproduced as under:- (i) “78.. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Farmers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independency of the 10 judiciary . These attempts were directed at ensuring that the judicial would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulted from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an intgral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or exclused. 79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdiction is also part of the basic 11 structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation is equally to be avoided.” (ii) A perusal of above mentioned paragraphs of the judgment would show that the Hon'ble Supreme Court held that the power of judicial review over legislative action vested in the High Courts under Article 226 is essential feature of the Constitution, constitute part of its basic structure. The observations made by the Hon'ble Supreme Court, thus, in para 79, are that the High Courts have to exercise judicial superintendence over decision of all Court and Tribunals within their respective jurisdiction. The words used “within their respective jurisdiction” have to be read in reference to the provisions of Article 226(2) of the Constitution of India, because in the case of “L. Chandra Kumar Versus Union of India and others”, “what will be the jurisdiction of the High Court over a particular Tribunal” is not defined. The word “jurisdiction” used in paragraphs 79 and 99 of L. Chandra Kumar's case has co-relation with the jurisdiction conferred upon the High Court in Article 226 clause (2) of the Constitution of India. The territorial jurisdiction described in L. Chandra Kumar's judgment (supra) is in relation to Article 227 of the Constitution of India which describes the superintending power of the High Court over the Courts/Tribunals throughout the territories in relation to which it exercises jurisdiction. The writ jurisdiction of the High Court germinates from Articles 226 and 226(2) clearly defines that the fact that the seat of such Government or authority or such person is not within the territorial jurisdiction will not bar the writ jurisdiction of the High Court if cause of action has arisen within its territorial jurisdiction. In the present case, the primary cause of action arose in the State of Himachal Pradesh as the petitioner was working in the cadre of Himachal Pradesh Government. The petitioner filed O.A. in question before the Principal bench, C.A.T, New Delhi, only for the reason that he was serving on deputation with the Ministry of Health & Family Welfare w.e.f. 17.12.1995 to 17.12.1999. 12 (E) The Constitution Bench of Hon'ble Supreme Court in “Haji Esmail Noor Mohd. & C. Versus Competent Officer” AIR 1967 S.C. 1244, categorically held that wherein the order of the original authority merges with that of appellate authority outside the territorial jurisdiction of the concerned High Court, the appropriate High Court can issue a writ against the order of the original authority. The said judgment was passed in the year, 1967, i.e. prior to the amendment of Article 226 wherein Article 226(2) was introduced. (F) The Hon'ble Supreme Court of India in “Eastern Coal Fields Ltd Versus Dugal Kumar” (2008) 14 S.C.C. 295 has observed that in case the ground of lack of territorial jurisdiction is not taken up at the time of admission hearing, later on the respondents are stopped from taking the said ground. In the present case, the ground of lack of territorial jurisdiction of this Hon'ble Court has been taken for the very first time by the Union of India, at the time of final arguments. Furthermore, as per record, Union of India has not filed any Written Statement in the present case. In the light of above facts and the law laid down by the Hon'ble Supreme Court , Union of India is estopped from taking the plea of lack of territorial jurisdiction of this Court, as the same was not taken, when the present case came up for admission hearing. (G) The Hon'ble Supreme Court in “Kusum Ingots & Alloys Ltd. Versus Union of India” (2004) 6 S.C.C. 254, has observed that in view of Article 226(2) of the Constitution of India, indisputably even if a small faction of cause of action accrues within the jurisdiction of the High Court, the said High Court will have jurisdiction in the said matter. The Hon'ble Supreme Court further observed in the aforesaid matter in paragraphs 25, 26 and 27 that in a given case, when the original authority is constituted at one place and the Appellate/Revisional Authority is constituted at another, a writ petition would be maintainable at both the places. (H) In the present case, it is admitted fact that the original order was passed by Respondent No.2, i.e. State of Himachal Pradesh. The Hon'ble Supreme Court in Kusum Ingot's case (supra), further held that where there are more than one Forum available with the petitioner, it is for the petitioner to choose from the said Forum. The same view was taken by Hon'ble Supreme Court of India in “Ambika Industries Vs. CCE” (2007) 6 SCC 769, wherein the Hon'ble Supreme Court of India held in paras 40 and 41 that in view of expression “cause of action” used in 13 Article 226(2) of the Constitution, indisputably even if a small fraction thereof accrues within the jurisdiction of the court, the court will have jurisdiction in the matter. It was further observed in Ambica Industries case (supra) that where the first Forum passing the order was located in the State, other than the State where the Appellate Tribunal was located, the appropriate High Court to file the writ proceedings would be the court where the original order passed. In the present case, admittedly the original order passed by Respondent No.2 i.e. the State of Himachal Pradesh. (I) The Hon'ble Supreme Court in “Navinchandra N. Majithia Versus State of Maharashtra” (2000) 7 SCC 640, has held that in view of Article 226(2) of the Constitution of India, a High Court will have jurisdiction if any part of cause of action arises within the territorial limits of its jurisdiction even though the seat of Govt. or authority or residence of person against whom direction, order or writ is sought to be issued is not within the said territory. (J) No prejudice is caused to respondent No.1 as the original order passed by State of Himachal Pradesh and all the relevant record is available with the State of H.P. Furthermore, the present writ petition was filed in the year 2005 and the