Shri Savitur Prasad v. Union Of India And ORS.

$~17 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 10404/2017 SHRI SAVITUR PRASAD ..... Petitioner Through:

Mr.Mohit Chaudhary, Mr.Rishabh Jain, Ms.Garima Sharma and Mr.Divayansh K.Sharma, Advocates versus UNION OF INDIA AND ORS.

..... Respondents Through:

Mr.Sanjeev Narula, Advocate and Ms.Kaanan Gupta, Advocate for R-1, R-2, R-3 and R-5

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

O R D E R

% 23.11.2017 CM No.42503/2017 Allowed subject to just exceptions.

W.P.(C) No.10404/2017 & CM No.42502/2017 In this petition, quashing of suspension order of 21st November, 2017 (Annexure P-10) is sought by petitioner's counsel alleging that the impugned order is without jurisdiction and is vitiated by malafides and is outcome of extreme victimization. It is also submitted that the impugned order is without application of mind and is irrational. To submit so, learned counsel for petitioner relies upon a decision of Supreme Court reported as Whirpool Corporation Vs. Registrar of Trademarks, Mumbai & Ors. (1998) 8 SCC 1 and decision of Delhi High Court in Meenu Tomar Vs. The

Registrar, Cooperative Societies & Ors. (2016) 230 DLT 479 (DB). Learned counsel for respondents No.1, 2, 3 and 5 raises a preliminary jurisdictional objection to entertaining this writ by submitting that the jurisdiction lies with the Central Administrative Tribunal, Delhi as the subject matter of this petition essentially pertains to service matter concerning All-India Service. So, it is submitted that petitioner be relegated to avail remedies before the Central Administrative Tribunal, Delhi. Upon hearing and on perusal of Section 14 of the Administrative Tribunal Act, 1985 and the decisions cited, I find that instant case comes within the jurisdiction of Central Administrative Tribunal, Delhi. It is being so said in view of Supreme Court's Constitution Bench decision in L.Chandra Kumar Vs. Union of India & Ors.

(1997) 3 SCC 261 wherein it has been categorically held as under:- "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.

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."

Applying aforenoted dictum of Supreme Court in L.Chandra Kumar (supra) to the instant case, I find that reliance placed by petitioner's counsel upon two Judge Bench decision of Supreme Court in Whirlpool Corporation (supra) and a Division Bench decision of this Court in Meenu Tomar (supra) is of no avail as the jurisdictional issue was not the subject matter of discussion in the decisions relied upon by the petitioner's counsel. In view of the aforesaid, petitioner is relegated to avail of the remedies before the Central Administrative Tribunal, Delhi. With the aforesaid directions, the petition and the application are disposed of.

(SUNIL GAUR) JUDGE NOVEMBER 23, 2017 mamta