Back
2009(5) Supreme 517
SUPREME COURT OF INDIA
Tarun Chatterjee and H.L. Dattu, JJ.
State of West Bengal & Ors. — Appellants
versus
Samar Kumar Sarkar — Respondent
Civil Appeal No. 4350 of 2009
(Arising out of SLP(C) No. 22165 of 2008)
Decided on : 14-07-2009
AIR 1968 SC 1481; (1975) 1 SCC 858; (2003) 6 SCC 641 – Relied upon.
AIR 1994 SC 1266 – Referred to.
(b) Constitution of India – Article 228 – Procedure for transfer of case is laid down in Article 228 and not under Articles 226 or 227 – Power under Article 228 can be exercised only if a substantial question of law is involved. (Paras 14 to 17)
1986 Supp. SCC 401; (1956) 2 SCR 206 – Relied upon.
(c) Constitution of India – Article 227 – Errors as to the interpretation of the Constitution is not out of the purview of Article 227 – High Court can not withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal. (Para 19)
(1967) 3 SCR 163; AIR 1958 SC 398 – Relied upon.
Facts of the case :
1. Power of the High Court under Article 227 of the Constitution of India to transfer an application filed under Section 19 of the Administrative Tribunal Act pending before the Administrative Tribunal to the High Court for its consideration and decision is in question in this appeal.
Finding of the Court :
It would have been proper if the High Court in exercising its jurisdiction under Article 227 had directed the Tribunal to dispose of the matter expeditiously, instead of transferring the matter to itself.
Result : Appeal allowed.
JUDGMENT
H.L. Dattu, J.—
1. Leave granted.
2. The petition raises an important question as to the power of the High Court under Article 227 of the Constitution of India to transfer an application filed under Section 19 of the Administrative Tribunal Act pending before the Administrative Tribunal to the High Court for its consideration and decision.
3. The facts in nutshell are, the respondent before the West Bengal Administrative Tribunal is the petitioner in this petition. The respondent in the present petition filed O.A. No. 912 of 2003 under Section 19 of the Administrative Tribunal Act, 1985, before the West Bengal State Administrative Tribunal, inter alia requesting the Tribunal to direct respondents therein to appoint the applicant to the post of Group ‘D’ in the office of District Land and Land Reforms Officer, Howrah, on the ground that he had served as Tahsil Mohurrior under the Block Land and Land Reforms Officer, Shyampur. After service of notice on the respondents, several adjournments were granted by the Tribunal to the parties to complete the pleadings. The application thereafter was posted before the Tribunal on 1.2.2005. The Tribunal had granted permission to the respondents therein to file its reply, if any, within three weeks. Aggrieved by the order so passed, the applicant had moved a petition before the High Court at Calcutta under Articles 226 and 227 of the Constitution, assailing the correctness or otherwise of the order dated 1.2.2005 and also praying for the very same reliefs that was sought in the application. The Court by its order dated 7.3.2005 had rejected the writ petition on the ground that the petition filed is premature.
4. The Tribunal could not hear the application for various reasons. Those reasons are not relevant for the purpose of disposal of this appeal. Therefore, we are not adverting to the orders passed by the Tribunal on several dates of hearing.
5. The respondent herein who was applicant before the Tribunal has filed one more writ petition under Article 226 and 227 of the Constitution in the High Court at Calcutta, wherein apart from others has requested the court for issuance of a writ in the nature of mandamus directing the respondents in the said application to give appointment to him with effect from 6.3.2000 and to release arrears of salary and other benefits. The writ petition No. 649 of 2007 was heard by the High Court on 7.7.2008. The High Court by its order dated 7.7.2008, directed the Registry of the West Bengal Administrative Tribunal to transmit all the original records of O.A. No. 912 of 2003 to the High Court for taking a decision in the matter. The findings and the observations of the High Court in its order dated 7.7.2008 are as under:
“In our view, with great respect, the learned Tribunal having found no time on earlier occasions, should have placed, at least on a particular date, this matter at the top of the list so that the matter could have been heard. In our order dated 16th August, 2007, it was observed that in the event the learned Tribunal could not hear out this matter, this Court will, in exercise of its power under Article 227 of the Constitution of India withdraw the same and hear out the matter, as the learned Tribunal has failed to decide the matter. Accordingly, we are of the view that the learned Tribunal has failed to decide the matter. We are not oblivious of the position of law that this Court cannot try the above matter at the first instance in view of the judgment of Supreme Court rendered in the case of L. Chandra Kumar vs. Union of India - A.I.R. 1997 SC 1125. But this Court having superintending power cannot remain passive institution when learned Tribunal abdicates its legal, if not constitutional duty. When a subordinate Court or Tribunal fails or neglects absolutely to function, it can be concluded without any hesitation that extra ordinary situation has arisen that endanger due process of law. In such situation to disclose constitutional
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
