'Disturbing Observations' : Centre Challenges Calcutta High Court's Order Setting Aside Transfer Of Alapan Bandyopadhyay's Case To Delhi

The Supreme Court today considered a special leave petition by Centre challenging Calcutta High Court's order of setting aside the order passed by the CAT Principal bench to transfer former West Bengal Chief Secretary Alapan Bandyopadhyay's petition from Kolkata bench to New Delhi.

While passing the order, the Calcutta High Court had made scathing remarks such as "the modus operandi of the Union of India reeks of mala fides" and the CAT Principal Bench was "overzealous" to cater to the fiat of the government and paid "obeisance to the diktat of the Union of India".

Alapan Bandyopadhyay had created headlines in May, following his refusal to attend a meeting chaired by the Prime Minister in Kolkata in the wake of cyclone disaster. Soon after that, the Central Government recalled him to the Delhi. Before that order taking effect, the civil servant tendered his resignation. Later, disciplinary proceedings were initiated against him, which he challenged before the Kolkata Bench of the CAT.

Solicitor General of India Tushar Mehta started the submissions before a bench of Justices AM Khanwilkar and CT Ravikumar by saying that "it is a disturbing order both on the territorial jurisdiction of the High Court and also due to the observations made by the Court".

The bench pointed out that the High Court has proceeded on the basis that since the officer has resigned, he can file the petition at the place where he resides. The bench said that the High Court's order was passed referring to Rule 6(2) of the CAT(Procedure) Rules.

The SG replied that this issue could be raised only by the Delhi High Court, which has jurisdiction over CAT Principal Bench, and not the Calcutta High Court.

"The Calcutta High Court has no jurisdiction over the order passed by the Principal Bench of the Central Administrative Tribunal at Delhi", the SG said.

The SG also took objection to the strong remarks made by the Calcutta High Court against the Central Government and also the CAT Principal Bench.  "The observations made are disturbing. It's a Constitutional Court. When the observations are made by the Constitutional Court, then it becomes of significance. This Court has held in many cases that judges should not use intemperate language in orders", the SG said.

The bench said that it can expunge the observations but on merits it appeared that the HC order is tenable.

"Language we can take note of and we can expunge the same..on merits..a part of the cause of action arose in Calcutta. So what is the problem if Calcutta High Court passed the order?The original petition which was going to be transferred was filed in Calcutta. The cause of action arose there", Justice Khanwilkar asked.

The Solicitor General submitted that this has a question of serious ramifications, as "disgruntled officers", after retirement, can get cases filed in far away jurisdictions only to trouble the Union by creating artificial cause of action.  The SG cited the example of an officer, who worked in Delhi, filing a case in Sikkim after retirement merely on the place of residence.

The bench asked if there was an precedent directly on the point. The Solicitor General said that there are decisions to the effect that the mere place of residence will not confer jurisdiction and agreed to produce a compilation of the judgments.

The bench then adjourned the hearing till November 22. Senior Advocate Dr Abhishek Manu Singhvi, appearing for the respondent, submitted that he will also file a written note in the meantime to assist the court.  "This was an officer who was in West Bengal throughout his service", Singhvi mentioned.

Calcutta High Court Order

The Calcutta High Court bench of Justices Sabyasachi Bhattacharyya and Rabindranath Samanta had expressed strong reservations to the manner in which the principal Bench of Central Administrative Tribunal (CAT) favoured the Central government in its attempt to transfer a case moved by Alapan Bandyopadhyay, former Chief Secretary and incumbent Chief Advisor to the Chief Minister from the Calcutta to New Delhi.

The bench with dismay had observed that,

"The entire modus operandi adopted by the Union of India reeks of mala fides. 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."

Setting aside the transfer order, the Bench had observed,

"The 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 grund norm of the Indian legal fabric".

The Court further observed that such an action even by a quasi-judicial authority 'leaves a bad taste in the mouth' and also poses a threat to the federal structure as envisioned by the makers of the Constitution of India.

It was also noted that it is mandatory for notice to be served to the concerned party pursuant to Section 25 of the Administrative Tribunals Act, 1985 (1985 Act).

"The term "desire" used in Section 25 cannot confer unfettered authority on the Chairman to exercise such power according to his whims or fancy but has to be read mutatis mutandis with the prior requirement of notice "to the parties". Thus, it is implicit in Section 25 that notice and hearing must mandatorily be given to the parties and the Chairman's "desire to be heard" has to be qualified by reason and application of judicial mind", the Court observed further.

Background

Bandyopadhyay had moved the High Court challenging the order of the CAT's principal bench dated October 22, 2021 allowing Centre's transfer petition in the case filed by Bandyopadhyay before the Kolkata Bench of CAT.

Bandyopadhyay was embroiled in a tussle between the Modi government and Mamata Banerjee's state government back in May 2021. The central government initiated action against him after he failed to be present to receive Prime Minister Narendra Modi at the Kalaikunda airbase in West Midnapore.

His tenure as the Chief Secretary of West Bengal was cut short after the Centre in May 2021 had asked him to report to New Delhi. Soon after, Bandyopadhyay resigned and an inquiry was initiated against him by the Centre.

Case Title: Union of India v Alapan Bandyopadhyay

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