The Supreme Court has reserved its judgement in a plea filed by the Centre against the order passed by Calcutta High court which stopped the transfer of case concerning disciplinary proceedings against former West Bengal chief secretary Alapan Bandyopadhyay from West Bengal to Delhi.
The Bench comprising Justice A.M. Khanwilkar and Justice C.T. Ravikumar heard the plea and reserved its order.
Solicitor General Tushar Mehta submitted that,
“The incident took place when the Chief Secretary refused to participate in the meeting organised by the PM, he is an all-India service officer and his service cadre is controlled from Delhi. The disciplinary authority is also based in Delhi. The chargesheet is also issued in Delhi. He was given an option to file it at the place where the cause of action arises or at the place where he resides under Rule 6, now that is under the rule i.e. Subordinate legislation. It says that the person who is retired can file it where he is staying but the subordinate legislation would not over-write the statutory provision and the statutory power conferred upon the chairman of the tribunal. According to me, for the purpose of High Court, this was the cause of action. Exercise of power by the chairman….”
“There are possible scenarios let’s say the chairman could’ve withdrawn it to himself i.e. Delhi and assigned it to any bench, he could have under Section 25 transferred the matter to, say, Bombay or any other bench of CAT because it says disposal to any other bench. Would Calcutta HC have declared it wrong?”
The bench questioned Calcutta High Court would have otherwise got jurisdiction to decide it, why at this stage it cannot decide? To which, Mehta responded, “Because what was impugned before the Calcutta High Court was an order passed beyond the territorial limits of the Calcutta withdrawing the matter from Calcutta’s jurisdiction. The impugned order is not passed in Calcutta.”
Broadly, Mehta argues that the Calcutta High Court lacks territorial jurisdiction while setting aside the transfer order of the Chairman of CAT, Delhi. He pointed out that the same could only be done by the Delhi High Court which has jurisdiction over the Chairman of CAT bench, not the Calcutta High Court. He further referred to L. Chandrakumar judgment and stated that territorial High Court can exercise jurisdiction over a Tribunal.
The High Court committed an error by entertaining the matter on the broader concept of cause of action by saying that the underlying dispute arose in Kolkata. The concept of “part of the cause of action” cannot be invoked while dealing with the challenge against an order passed by a Tribunal.
“The principal bench surprisingly considered the merits of the dispute between parties by pre-judging that most of the evidence and witnesses would be from Delhi. Even before the matter was admitted, at the pre-admission stage, it was impossible for the bench to anticipate. No, I am sorry! The transfer power is vested, you have to see from where the evidence is coming. These are the grounds that are considered. This is a serious exception, the entire modus operandi adopted “reeks of mala fides”. It is unfortunate that the principal bench of CAT nurtured such things by passing transfer orders. The CAT bench was overzealous to cater to the government and paid obeisance to the diktat of the Union of India,”
Further, he assured the bench that no precipitative action will be taken against the petitioner till the bench delivers the judgment.
Meanwhile, Senior Advocate Abhishek Singhvi, appearing for Bandyopadhyay, referred to his note and submitted that the petitioner is a resident of Kolkata and belonged to West Bengal cadre in IAS and was posted there throughout his service even after his retirement. The disciplinary action was initiated against him on the basis of his non-participation in the event organised by the Prime Minister of India after his retirement.
While calling the L. Chandrakumar judgment misleading, he referred to the case Brij Mohan and Sadhna Kandhu judgments and denied a series of facts submitted by the Solicitor General.
Bandyopadhyay joined the IAS in 1987 and worked with the Government of West Bengal till his superannuation on May 31, 2021. The West Bengal Government made a request to the Central Government seeking agreement for extension of his service for three months, for which the Government of West Bengal issued a notification for extension of his service as Chief Secretary.
In May 2021, when the Yaas cyclone hit parts of West Bengal and Odisha, the writ petitioner visited the affected areas with the Chief Minister of Bengal and also met the Prime Minister during his visit. On May 28, 2021, the State Government received a communication from the Central Government intimating the State that the Appointment Committee of the Cabinet had approved the placement of service of Bandyopadhyay with the Government of India and requested the State Government to release him with immediate effect to report to New Delhi on May 31, 2021.
The petitioner alleged that such decision was taken without his consent or the consent of the State Government, although the petitioner had all along belonged to the West Bengal cadre of the IAS and that no empanelment or post was offered to the petitioner at all.
The State Government conveyed its decision not to release the petitioner to the Central Government and issued a notification cancelling the earlier departmental notification dated May 25, 2021 by which the extension of service of the petitioner had been notified. Further, the Central Government asked the State Government to release the petitioner for reporting to New Delhi to which the State Government responded by informing that the petitioner had resigned in the afternoon of May 31, 2021.
A Show Cause Notice under Section 51 of the National Disaster Management Act, 2005 was issued by the Ministry of Home Affairs to the petitioner, to which the petitioner replied in writing on June 3, 2021. After 13days, a major penalty chargesheet was issued to the petitioner by the Union Ministry of Personnel and Public Grievance and Pensions (Department of Personnel and Training) under Rule 8 of the AIS (Discipline and Appeal) Rules, 1969, read with Rule 6 of the AIS (DCRB) Rules related to the incident which took place in the meeting at the Kalaikunda Air Force Station.
An Inquiry Authority was appointed on August 31, 2021, which issued a notice fixing a preliminary hearing on October 18, 2021 at New Delhi and Disciplinary proceedings were initiated against him. The petitioner filed an application under Section 19 of the Administrative Tribunals Act, 1985 before the Kolkata Bench of the CAT.
Later in the course of events, the Union of India filed a transfer petition from Kolkata Bench to the Principal Bench of CAT at New Delhi which was allowed and Bandyopadhyay challenged the same in the High Court, Calcutta.
The Calcutta High Court set aside the transfer order by stating,
“The impugned order of the Principal Bench not only violates the legal right conferred on the writ petitioner under Rule 6 of the CAT Rules, 1987, read with Sections 35 and 36 of the 1985 Act, as well as the petitioner’s fundamental right of equality before the law, as enshrined in Article 14 of the Constitution, which is the ground norm of the Indian legal fabric but also leaves a bad taste in the mouth due to the mode of operation of a quasi-judicial (if not judicial) authority and also poses a threat to the federal structure as envisioned by the makers of the Constitution of India.”
The High court while showing disappointment in the Principal Branch of CAT observed that, “It is unfortunate that the Principal Bench of the CAT nurtured such efforts by passing the impugned transfer order, thereby paying obeisance to the diktat of the Union of India, which has been repeatedly held by the Supreme Court and various High Courts not to be a favoured litigant. Rather, the responsibility of meting out justice and serving the cause of justice is on a much higher pedestal for the Union of India than an ordinary individual litigant.”
Case Name- UOI Vs Alapan Bandyopadhyay