1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDICTION WRIT PETITION NO. 1552 OF 2009 State of Punjab through Deputy Secretary ) Department of Home Affairs and Justice ) Government of Punjab, Civil Secretariat ) Chandigarh. ).. Petitioner VERSUS 1) Sh. Sarabdeep Singh Virk, IPS ) s/o late Kuldeep Singh Virk ) now working as DGP, Maharashtra ) State previously working as Managing) Director Maharashtra Police Housing ) Corporation in the rank of Director ) General of Police , R/o 401, ) Maharashtra Police Officers’ Mess ) Worli, Mumbai. ) 2) Union of India through the Secretary ) in the Ministry of Home, Affairs, Govt.) of India, North Block, ) New Delhi 110 001. ) 3) State of Maharashtra through ) Additional Chief Secretary (Home) ) Mantralaya, Mumbai 400 032. ) 4) Justice S.K. Jain (Retd.) ) Inquiry Officer, Room No. 719 ) 7th Floor, Mini Secretariat ) Sector-9, Chandigarh. ).. Respondents 2 Mr. Salil Sagar, Senior Advocate, with Mr. Ajeet Manwani for the Petitioner. Mr. Mahesh Jethmalani, Senoir Advocate with Mr. Ravi Shetty i/b S.V. Marne for Respondent No.1. Mr. D.J. Khambatta, Additional Solicitor General, with Mr. Rui Rodriques for Respondent No.2. Mr. Ravi Kadam, Advocate General, with Mr. D.A. Nalawade, Government Pleader, and Ms.Geeta Shastri, Assistant Government Pleader, for Respondent No.3. CORAM : SWATANTER KUMAR, C.J. AND A.M. KHANWILKAR, J. JUDGMENT RESERVED ON : 18TH AUGUST 2009 JUDGMENT PRONOUNCED ON : 28th AUGUST 2009 JUDGMENT (PER SWATANTER KUMAR, C.J.) Heard. Rule. Rule made returnable forthwith. By consent of the parties, taken up for hearing and final disposal at the admission stage itself. 2. In the present Writ Petition, State of Punjab has questioned the legality, validity and correctness of the judgment and order dated 14th July 2009 passed by the Central Administrative Tribunal, Mumbai in O.A. No. 15 of 2009. The necessary facts are that the Applicant before the Tribunal, an IPS Officer of 1970 batch, 3 served in the State of Maharashtra from 1970 to 1984 in which year he was sent to State of Punjab, when, as stated by the Applicant, that State was in the grip of severe terrorism. He successfully handled the problems. He spent considerable time in the State of Punjab and was appointed as Director General of Police, Punjab. However, in the year 2007 some charges were levelled against the Applicant and a charge-sheet was served upon him on 20th February 2007 containing various allegations which were disputed by the Applicant. Even prior thereto, seeing the attitude of the State Government, the Applicant had approached the Government of India on 5th March 2007 for his repatriation to his parent cadre i.e. State of Maharashtra. Ultimately, on 10th April 2007, he was repatriated to the State of Maharashtra and he actually joined the service cadre on 27th April 2007. His repatriation was objected to by the State of Punjab and the Applicant informed the State of Punjab that he was taken on the roll of the Government of Maharashtra. On 4th October 2007, the Applicant was placed under suspension in terms of Rule 3(8)(d) of All India Services (Discipline & Appeal) Rules, 1969. An FIR was registered against him on 8th September 2007 which, again according to the Applicant, was fabricated one . The Applicant was alleged to have been arrested. The Applicant thereupon filed an O.A. 692/CH/2007 before Chandigarh Bench of 4 Central Administrative Tribunal challenging the order of suspension dated 4th April 2007 and charge sheet dated 20th April 2007. He also filed Petition in the Punjab & Haryana High Court under Section 482 of the Criminal Procedure Code. The Punjab & Haryana High Court vide its judgment dated 17th January 2008 held that the arrest of the Applicant was mala fide and vindictive. While making certain observations, the Court disbanded the investigating team and directed fresh inquiry by a new team. As far as the Application filed by the Applicant before the Central Administrative Tribunal, Chandigarh was concerned, the same was allowed and order of suspension dated 4th April 2007 was declared illegal and as far as the charge sheet dated 20th April 2007 was concerned, the Tribunal directed that the entire matter be remitted to the Central Government to take final decision. This order of the Tribunal was challenged before the High Court and vide its order dated 25th April 2008, the order of the Tribunal was stayed by the High Court, against which a Special Leave Petition was preferred and vide order dated 16th May 2008, the Supreme Court set aside the order of the High Court and upheld the directions of the Central Administrative Tribunal directing the authorities to remit the disciplinary proceedings to the Central Government and even permitted the Applicant to be repatriated to the State of Maharashtra. Thereafter, 5 on 29th May 2008, the Applicant was given the posting of Director General of Police (Housing). It may also be noticed that another order dated 25th February 2008 was issued by the State of Punjab placing the Applicant under suspension. This order was also challenged by the Applicant before the Central Administrative Tribunal, Mumbai Bench in O.A. No. 157 of 2008 and the operation of the said order was stayed by the Tribunal. On 25th May 2008, the Applicant filed a representation before Respondent No.3 bringing to the notice of the concerned authorities the judgment of the Supreme Court and requiring them to act accordingly. The inquiry in furtherance to that charge sheet is stated to be in progress and ex- parte proceedings have been taken and the case was fixed for recording of ex-parte evidence. According to the stand of the Applicant, before the Central Administrative Tribunal, Mumbai Bench, the Respondents had no authority to conduct departmental inquiry and it is violative of the orders of the Supreme Court and officer conducting inquiry should be directed to stay the inquiry and the matter be sent to the Central Government. 3. The Applicant thereafter filed Original Application No. 15 of 2009 before the the Central Administrative Tribunal, Mumbai Bench, Mumbai, claiming the following prayers :- 6 “(a) This Hon’ble Tribunal may gracious be pleased to call for the records of the case from the Respondents and after examining the same, direct the Respondent No.1 to call for the records pertaining to the disciplinary proceedings against the Applicant in respect of charge-sheet dated 20.04.2007 and take objective decision about the same after calling for comments of the Applicant as per the judgment dated 03.04.2008 of Chandigarh Bench of this Hon’ble Tribunal read with the judgment dated 16.05.2008 of the Hon’ble Supreme Court. (b) This Hon’ble Tribunal may further be pleased to direct, in the unlikely event of Respondent No.1 coming to a conclusion that the enquiry against the Applicant need be held, that the same be held by Respondent No.1 or by Respondent No.2 i.e. the State of Maharashtra. (c) This Hon’ble Tribunal may further be pleased to restrain the Respondent No.3 from conducting disciplinary enquiry against the Applicant in pursuance of the charge-sheet dated 20.04.2007 till a decision is taken by the Respondent No. 1 about the said disciplinary proceedings. (d) This Hon’ble Tribunal may further be pleased to restrain the Respondent No.3 from initiating any further disciplinary proceedings against the Applicant without first sending the material to the Respondent No.1 for its objective decision. 7 (e) Costs of the Applicant be provided for. (f) Any other and further orders as this Hon’ble Tribunal deems fit in the nature and circumstances of the case be passed.” 4. Besides claiming the above reliefs, the Applicant had also prayed for interim orders restraining the continuation of the inquiry proceedings as well as for transmission of the records to the Central Government in terms of the Court order. When this Original Application came up for hearing before the Mumbai Bench of the Tribunal, a preliminary objection to the maintainability of the Application before the Tribunal was taken by the Respondents in that Application which was pressed by the Respondents primarily on the ground that the question of jurisdiction being a preliminary objection should be decided first and the merits of the case need not be examined by the Bench. This objection to jurisdiction was negatived by the Tribunal and it found that it had not been divested of its jurisdiction to deal with Original Application and it is not precluded from dealing with the matter. It also rejected the plea of doctrine of election raised by the Respondents and held as under :- “9. In the above premises, we hold that this Tribunal has got jurisdiction to deal with the 8 O.A., that it has not been divested of such jurisdiction by any authority and that it is not precluded from dealing with the matter. We are also of the view that the applicant is not precluded from raising the issues in this O.A. Under the circumstances, we find no merit in the submission made on behalf of Respondent No.3 that this Tribunal does not have jurisdiction to deal with this O.A. Besides, the doctrine of `election’ as contextually advanced on behalf of Respondent No.3 cannot be considered in its entirety de hors a discussion on the merits of the case. The preliminary objection is hereby rejected and the Registry is directed to list both the O.As. for hearing on 29.07.2009.” 5. In the present Writ Petition, the Court is really not concerned with the proceedings other than departmental inquiry initiated against the Applicant and the order of suspension passed by the State of Punjab. The criminal proceedings and to that extent the order of the High Court of Punjab and Haryana at Chandigarh are really not very material for determination of the present controversy. The Applicant admittedly was served with a charge sheet dated 20th April 2007 by the State of Punjab and was placed under suspension vide order dated 4th April 2007. In the Original Application filed before the Central Administrative Tribunal, Chandigarh Bench being No.692/Ch/2007, the Applicant had prayed for quashing the order of suspension, charge sheet as well as the implementation of the order of the Government dated 10th April 9 2007 where deputation of the Applicant to the State of Punjab was terminated and interestingly the Applicant also prayed in that Application that the Respondents – State of Punjab be directed to forward the departmental inquiry against the Applicant which has been contemplated or to be contemplated in future to the State of Maharashtra. This Original Application was disposed of by a detailed judgment dated 3rd April 2008 by the Central Administrative Tribunal, Chandigarh Bench, where the Tribunal granted the following reliefs to the Applicant :- “46. In view of the above, this O.A. is partly allowed. The repatriating of the applicant to the State of Maharashtra under orders of Union of India, dated 10.4.2007, as also joining of the applicant in his parent cadre under the State of Maharashtra is held valid and justified. For the reasons recorded in the preceding paragraphs, the order of suspension dated 4.4.2007 is quashed and set aside, even though it also stands lapsed because the same has not been validly extended beyond 180 days, as required under the rules. It is held that final authority as to which Govt. is to take disciplinary action after termination/expiry of the period of deputation vests with the Central Govt. and its decision in this regards is to be final and binding. Accordingly, we direct the State of Punjab to remit the entire matter relating to disciplinary proceedings against the applicant to the Central Govt. for taking a final decision in this regard in accordance with the rules and the law.” 10 6. As already noticed, operation of this order of the Tribunal was stayed by the High Court vide its order dated 25th April 2008 passed in Civil Writ Petition No. 6821-CAT of 2008 which in appeal before the Supreme Court was set aside and the Supreme Court held as under :- “8. For the foregoing reasons the appeal partly succeeds. It is clarified that in view of repatriation of the appellant to the State of Maharashtra under order dated April 10, 2007 of the Union of India it would be open to the State of Maharashtra to give posting to the appellant as Director General of Police. This Court is informed by the learned counsel for the parties that CWP No. 6821-CAT of 2008, filed by the State of Punjab, is listed for final disposal before the High Court of Punjab and Haryana at Chandigarh on May 21, 2008. Having regard to the facts of the case the High Court of Punjab and Haryana is requested to dispose of CWP No. 6821-CAT of 2008 finally on or before May 31, 2009. The appeal is allowed to the extent indicated hereinabove.” 7. As is evident from the above narrated pleadings of the parties and the orders passed by the Tribunal, High Court and the Supreme Court that the matters in relation to order of suspension, validity of charge sheet dated 20th April 2007 are pending before the Court, still the State of Punjab has proceeded further with the departmental inquiry and as alleged by the Applicant it is in 11 progress ex-parte or otherwise at Chandigarh. The primary grievance of the Applicant in the Application before the Central Administrative Tribunal, Mumbai Bench was that the records have not been transmitted to the Union of India as per the orders of the Court and the Union of India should be requested to call for the said record and to take objective decision and in the alternative the inquiry proceedings be held by the State of Maharashtra and the State of Punjab be restrained from conducting inquiry on the basis of the charge sheet dated 20th April 2007. 8. According to the State of Punjab which had taken objection to the jurisdiction before the Tribunal at Mumbai, the proceedings were pending in the High Court as well as departmental Enquiry was pending in the State of Punjab. Furthermore, the Applicant had on his own commenced the proceedings before the Central Administrative Tribunal, Chandigarh Bench, as well as the Punjab and Haryana High Court and thus firstly he was debarred from presenting any application before the Tribunal at Mumbai and secondly, in any case, the Tribunal at Mumbai has no jurisdiction to entertain and decide the Original Application No. 15 of 2009. This contention relating to objection of jurisdiction was not accepted by the Tribunal and it was held that the Tribunal at Mumbai was not 12 divested of such jurisdiction and it was also observed that the objection founded on the doctrine of “election” as contextually advanced cannot be considered in its entirety and has to be considered on merits of the case. 9. We must keep in mind that the objection with regard to jurisdiction was raised as a preliminary issue and thus the non- Applicants before the Tribunal have to accept what is stated in the application and the supporting documents to be prima facie correct. The plea of jurisdiction can normally be raised as a plea of demurer. We have noticed that facts are hardly in dispute. The submissions made in the application and the documents which are the very foundation of the cause of action and institution of the present application before the Tribunal Bench at Chandigarh and High Court of Punjab and Haryana are also not disputed. There being no factual controversy, the Tribunal was expected to decide the issue of jurisdiction on these undisputed facts i.e. facts leading to order of suspension, issuance of charge-sheet and transmission of the proceedings to the competent authority. 10. The Administrative Tribunal Act, 1985 provides for jurisdiction, powers and authority of Tribunals to deal with the 13 matters. Under Section 35 of the Act, the Central Government is empowered to frame rules which, in fact, have been framed being Central Administrative Tribunal (Procedure) Rules, 1987. As per Rule 4, the application has to be presented in the prescribed form and by complying with other formalities stated in the said Rule. As far as filing of an application is concerned, it is stated that ordinarily an application shall be filed with the Registrar of the Bench which is the place of filing application. Which bench will have jurisdiction to entertain an application has been specified in the said Rule 6, which reads as under:- “6. Place of filing application.- (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 14 the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.” 11. No other rule or provision of the Act has been brought to our notice or even relied upon by any of the Counsel appearing for the parties which would have any bearing on the matter in issue before us. Bare reading of the above provision shows that the place where the applicant is posted for the time being shall be the place of filing application. The application could be filed with the Registrar of that Bench ordinarily. The other aspect which would vest jurisdiction with a particular bench is whether the cause of action, wholly or in part, has arisen within its jurisdiction. In terms of the proviso, the application can be filed with the leave of the Chairman at the principal bench and the same shall be disposed of by the bench which has jurisdiction. Sub-rule (2) of Rule 6 applies to the person who is retired, dismissed or terminated from the service. In Rule 6(1), the greater emphasis has been laid by the framers of the rule on the expression “ordinarily”. This expression has to be understood in its correct perspective and by giving it connotation, it deserves on plain reading. The expression “ordinarily” has been explained In the Law of Lexicon by P. Ramanatha Aiyar. ( General Editor Justice Y.V. Chandrachud, Former Chief Justice, Supreme 15 Court of India, 1997 Edition), the expression “ordinarily” has been explained : “as the word “ordinarily” does not mean solely or in the main. It only means regularly and habitually, not casually. It cannot obviously mean “always”. The plain and popular meaning of the word “ordinarily” means usually, normally and exceptionally as contrasted with the extraordinarily. “ 12. The word “ordinarily” has been explained by the Supreme Court in different contexts on different views, as quoted in Supreme Court on Words and Phrases by Justice R.P. Sethi. “The expression “ordinarily” may mean “normally, as has been held by this Court in Kailash Chandra v. Union of India: [1962] 1 SCR 374 : AIR 1961 SC 1346 and Krishan Gopal v. Prakashchandra: [1974]1 SCC 128 but, the said expression must be understood in the context in which it has been used. “Ordinarily” may not mean “solely” or “in the name” .... When in a common parlance the expression “Ordinarily” is used, there may be an option. There may be cases where an exception can be made out. It is never used in reference to a case where there is no exception. It never means “primarily”. In Kailash Chandra v. Union of India : [1962]1 SCR 374 : AIR 1961 SC 1346, it is stated : “This intention is made even more clear and beyond doubt by the use of the word `ordinarily’. `Ordinarily’ means `in the large majority of cases but not invariably’. State of 16 A.P. v. V. Sarma Rao, (2007)2 SCC 159.” 13. In light of the above, it must be understood that the expression `ordinarily’ does not indicate an absolute mandate and has an inbuilt element of relaxation. Thus, it will have to be construed and applied depending on the facts and circumstances of a given case. The element of discretion given by the Legislature to the Tribunal has to be exercised in consonance with the settled principles relating to the aspect of proper jurisdiction and cause of action. These are two essential features which must necessarily precede entertainment and decision of an application filed before the Tribunal. 14. It is a settled principle that the objection relating to jurisdiction should be taken and persisted upon right at the initial stage of the proceedings and some times a party raising such an objection can even be precluded from raising such question at a later stage, of course, keeping in view the facts and circumstances of that case. This principle was stated in the case of Indermani Kirtipal v Union of India, AIR 1996 SC 1567. 15. In the case of Koopilan Uneen’s daughter Pathumma v 17 Coopilans Uneen’s sonKuntala, AIR 1981 SC 1693, the Supreme Court also stated the three ingredients for taking such an objection saying that the objection should be taken in the Court of first instance; it should be taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement and that there has been a consequent failure of justice and it was further laid down that all these three conditions must co-exist. 16. Another very important aspect which we need to clarify before dealing with the questions raised before us is that the law provides a clear distinction between lack of inherent jurisdiction and jurisdictional error. Where the proceedings are instituted before the Court or Tribunal which have no jurisdiction, decision of such Court or Tribunal suffer from defect of lack of inherent jurisdiction. The former is primarily a question relating to law while the later may be an error of fact. Besides the above distinction, exercise of jurisdiction may be improper or it may be a case of excess of jurisdiction. In other words, lack of inherent jurisdiction would normally render the judgment a nullity while in other cases it may render the judgment as irregular. Jurisdictional error could both be without or excess of jurisdiction. Even under the English law in relation to Courts and/or Tribunals, the crucial distinction between 18 error on face of record and those which do not has governed this field. To simplify it further, cases would fall in three different categories i.e. excess of jurisdiction; improper exercise of jurisdiction and significant error of law. The consequences and result of each of such error can be different and distinct in law. (Ref.: Administrative Law Outline of Lecture : Jurisdiction by Glen Gibbons). 17. In Ex parte Wurth; Re Tully (1954) 55 SC (NSW) 47, it was stated that the traditional doctrine of jurisdictional error begins with the seemingly self-evident proposition that an inferior Court or Tribunal does not have unchallengeable power to define the extent of its own jurisdiction. The decision made in excess of jurisdiction are open to interference by superior Courts. It is also stated that a jurisdictional error may also occur through the non-fulfilment of a procedural requirement, at least where the requirement is a condition precedent to jurisdiction. The ways in which jurisdictional error can arise has also been explained as follows :- “Nevertheless, the House of Lords by a majority (Lords Reid, Pearce and Wilberforce, Lords Morris and Pearson dissenting) held that the Commission had committed a jurisdictional error and that its decision was therefore invalid. Lord Reid said : 19 “It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity.