MUKESH KUMAR MEENA V. PRINCIPAL COMMISSIONER OF INCOME TAX

CW/7434/2021

AI Insights

The case revolves around the transfer of an Original Application (O.A. No.14/2021) filed by Mukesh Kumar Meena, a former Inspector in the Income Tax Department, from the Central Administrative Tribunal (CAT) Jodhpur Bench to the CAT Allahabad Bench. The transfer was initiated by the respondents to avoid conflicting views as similar cases were pending in Allahabad. Mukesh Kumar Meena challenged this transfer, arguing that his case was distinct and involved a full-fledged disciplinary proceeding, unlike the other cases which involved temporary employees removed without inquiry. The High Court found that the transfer was not justified as it did not consider the unique circumstances of Meena's case and emphasized the convenience of the petitioner in pursuing his case within the jurisdiction of his residence.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 750549 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 27-10-2021
• Assessment Year: misc
• Other Referred Cases: L.Chandra Kumar vs. Union of India, All India Institute of Medical Sciences vs. Sanjiv Chaturvedi and Ors.
• Laws Referred To: Central Administrative Tribunal Act, 1985, Central Administrative Tribunal (Procedure) Rules, 1987, CCS (CCA) Rules, 1965
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SUNIL BHANDARI
• Assessee Lawyers: ABHAYA BEHERA; ADITYA SINGHI
• Keywords: Administrative power; Disciplinary Proceedings; Territorial jurisdiction; Transfer of Case
• Section: 6; 25

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 7434/2021 Mukesh Kumar Meena S/o Badri Lal Meena, Aged About 31 Years, R/o 19, Bapu Nagar, Phalodi Jodhpur - 342301, Rajasthan. ----Petitioner Versus 1. Principal Commissioner Of Income Tax, Shifted To - Aaykar Bhawan, 13A Subhash Road Dehradun, Uttarakhand - 248001. Earlier At - Aaykar Bhawan, Meerut Road, Muazffarnagar - 251002, U.p. 2. Chief Commissioner Of Income Tax, Shifted To - 16/69, Aaykar Bhawan Civil Lines, Kanpur - 208001. Earlier At - Cgo Complex - 1, Kamla Nehru Nagar, Near Hapur Chungi Ghaziabad - 201002 ----Respondents For Petitioner(s) : Mr Abhaya Behera Sr. Advocate assisted by Mr Aditya Singhi (through VC) For Respondent(s) : Mr Sunil Bhandari HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE SUDESH BANSAL Judgment / Order 27/10/2021 (PER HON’BLE BISHNOI,J.) This writ petition is filed by the petitioner being aggrieved with the order dated 07.05.2021 passed by learned Chairman, Central Administrative Tribunal, Principal Bench, New Delhi, whereby the application P.T./68/2021 preferred on behalf of respondent-department has been allowed and O.A. No.14/2021 (2 of 11) [CW-7434/2021] pending before the Central Administrative Tribunal, Jodhpur Bench has been ordered to be transferred to Central Administrative Tribunal, Allahabad Bench with a direction to club it with O.As. No.1031/2017 and 1030/2017 pending before the Central Administrative Tribunal, Allahabad Bench. Brief facts of the case are that the petitioner was working as an Inspector in Income Tax Department and was posted in the Office of Principal Commissioner of Income Tax, Aligarh. A memorandum of charge was issued by Principal Commissioner of Income Tax, Aligarh and based on the said memorandum of charge, a departmental enquiry under Rule 14 of CCS (CCA) Rules, 1965 was initiated and Principal Commissioner of Income Tax, Muzaffarnagar passed an order on 12.09.2019 removing the petitioner from service. The petitioner preferred an appeal to the Jurisdictional Chief Commissioner of Income Tax, however, when the appeal was not decided, the petitioner preferred Original Application No.14/2021 before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur, under whose jurisdiction, the petitioner is at present residing. The CAT, Jodhpur on 12.01.2021 directed to register the O.A., admitted the same and issued notices to the respondents. The next date in the O.A. was fixed as 23.02.2021 and on the date fixed, counsel for the respondents put his appearance and sought four weeks’ time to file detailed counter affidavit, which was granted and the next date in the matter was fixed as 08.04.2021. In between, the respondents filed a transfer application under Section 25 of the Central Administrative Act, 1985 before (3 of 11) [CW-7434/2021] Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter to be referred as ‘the Principal Bench’) on 23.03.2021 seeking transfer of O.A. No.14/2021 filed on behalf of the petitioner before the CAT, Jodhpur Bench on the ground that three Income Tax Inspectors involved in the same incident, for which memorandum of charge was served upon the petitioner, which resulted into his removal from the service, have also been terminated and the said Inspectors have filed separate O.As., two before the CAT, Allahabad Bench and one before CAT, Lucknow Bench and the same are pending. It is urged that because same issue is pending before the various Benches of Tribunal and in order to avoid conflicting views of the various Benches, the O.A. filed by the petitioner be transferred to CAT, Allahabad Bench. It appears that after filing of the transfer application on 23.03.2021, one Misc. Application has also been filed by the respondents before the Principal Bench on 05.05.2021 levelling allegations against the CAT, Jodhpur regarding its prejudicial attitude while entertaining O.A. preferred on behalf of the petitioner. The petitioner has also filed his response to the transfer application before the Principal Bench on 05.05.2021. The learned Chairman of the Principal Bench has passed the impugned order dated 07.05.2021, transferred the O.A. No.14/2021 to CAT, Allahabad Bench from CAT, Jodhpur Bench and also ordered for clubbing it with O.A. Nos. 1031/2017 and 1030/2017 pending at CAT, Allahabad Bench. Assailing the impugned order dated 07.05.2021, learned counsel for the petitioner has argued that learned Chairman of the Principal Bench has grossly erred in transferring the O.A. preferred by the petitioner from CAT, Jodhpur Bench to (4 of 11) [CW-7434/2021] CAT, Allahabad Bench solely on the ground that two similar cases are pending before the CAT, Allahabad Bench. It is argued that the cases pending before the CAT, Allhabad Bench are distinguishable from the case of the petitioner. It is submitted that the petitioners in those cases were the temporary employees and were removed without there being any enquiry, whereas the petitioner has been terminated after holding full fledged enquiry under the CCS (CCA) Rules, 1965. It is further submitted that the petitioners before the CAT, Allahabad Bench were the temporary employees and they were removed without assigning any reason or without holding any enquiry and as such their cases cannot be equated with the case of the petitioner, who was a permanent employee and was removed from service as punishment after disciplinary proceedings. Learned counsel for the petitioner has further submitted that in the Administrative Tribunals Act, 1985, precedence has been given to the convenience of the Government servants for filing the petition before the Central Administrative Tribunal. Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 (hereafter to be referred as ‘the Rules of 1987’) allows a Government servant, who has retired or terminated from the Government service, to file a petition with the Registrar of the Bench, where such person is residing at the time of filing of the petition. It is contended that the petitioner at the time of filing O.A. and at present is residing within territorial jurisdiction of CAT, Jodhpur and with the transfer of his O.A. from CAT, Jodhpur to CAT, Allahabad, he will face hardship. It is submitted that the petitioner is not in employment and his financial position is not so good to engage another advocate at Allahabad. Apart from all (5 of 11) [CW-7434/2021] inconvenience of distance, if he is forced to fight a litigation far away from from his residence, he will suffer irreparable loss. Learned counsel for the petitioner has, therefore, prayed that writ petition of the petitioner may be allowed and the impugned order may kindly be set aside. Per contra, Mr Sunil Bhandari, learned counsel for the respondents have raised several preliminary objections. The principal preliminary objection raised by the learned counsel for the respondents is that this writ petition is not maintainable due to lack of territorial jurisdiction of this Court as the order impugned is passed by the learned Chairman, Central Administrative Tribunal, Principal Bench, New Delhi and the same can only be challenged before the Delhi High Court. In support of the above contentions, learned counsel for the respondent has placed reliance on the decision of Hon’ble Supreme Court rendered in L.Chandra Kumar vs. Union of India, 1997 SCC (L& S) 577. It is also contended that even if it is assumed that the order impugned can be challenged before this Court, then also, the writ petition against the impugned order is not maintainable before the Division Bench and the petitioner has to file a writ petition before the Single Bench of this Court only. On merits, learned counsel for the respondents has submitted that the learned Chairman of the Principal Bench had not committed any illegality in passing of the impugned order dated 07.05.2021 as similar matters were pending before the CAT, Allahabad Bench and to avoid conflicting views, the O.A. preferred by the petitioner has rightly been ordered to be transferred to CAT, Allahabad Bench. (6 of 11) [CW-7434/2021] Learned counsel Mr Bhandari has further contended that the respondents have demonstrated before the learned Chairman of the Principal Bench about the prejudicial attitude of the CAT, Jodhpur while entertaining the O.A. filed by the petitioner and the learned Chairman, after taking into consideration all the facts and circumstances of the case, has rightly ordered for transfer of the O.A. filed by the petitioner from CAT, Jodhpur Bench to CAT, Allahabad Bench and the said order is not liable to be interfered with and, therefore, the writ petition filed by the petitioner is liable to be dismissed. Heard learned counsel for the rival parties. First of all we deal with the preliminary objections raised by the learned counsel for the respondents. Rule 6 of the Rules of 1987 provides that 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 the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. It is not disputed by the respondents that the petitioner at the time of filing O.A. and at present is residing within territorial jurisdiction of CAT, Jodhpur Bench. Section 25 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as ‘the Act of 1985’) confers powers upon Chairman to transfer cases from one Bench to another. Section 25 of the Act of 1985 is reproduced hereunder: “25. Power of Chairman to transfer cases from one Bench to another.—On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, (7 of 11) [CW-7434/2021] or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.” As per the above provision, learned Chairman of the Principal Bench can transfer any case pending before one Bench to any other Bench either on application by any of the parties or on his own motion, however, if any party seeks transfer, then notice is required to be given to other party and if the Chairman decides to transfer any case from one Bench to another on his own motion, no notice is required to be given to the person, who has filed O.A. We are of the view that the power conferred upon the Chairman of CAT of transferring a case from one Bench to another is essentially an administrative power because the learned Chairman does not function as a tribunal while entertaining any application seeking transfer of a case from one Bench to another. The Hon’ble Supreme Court in All India Institute of Medical Sciences vs. Sanjiv Chaturvedi and Ors. reported in 2019 SCC OnLine SC 118 while taking into consideration Section 25 of the Act of 1985 has held as under: “58. The power under Section 25 of the Act to transfer cases from one Bench to another is essentially an administrative power of the Chairman of CAT. Such power is to be exercised by the Chairman on his own motion or on the application of any of the parties after notice to the parties, and after hearing such of them as he may desire to be heard. The Chairman may, on his motion, transfer any case pending before one Bench to another without notice. 59……….. (8 of 11) [CW-7434/2021] 60……….. 61. A Tribunal created under the Act as also its Chairman derives its powers from the Act and can only exercise such powers as are conferred by the Act. The Chairman of the Tribunal exercising its power under Section 25 of the Act does not function as a Tribunal….” In such circumstances, when the impugned order transferring the O.A. No.14/2021 from CAT, Jodhpur Bench to CAT, Allahabad Bench has been passed by the learned Chairman of the Principal Bench on administrative side, the objection raised by the counsel for the respondents regarding the territorial jurisdiction of this Court is without any merits and the same is, therefore, dismissed. However, the objection raised by the counsel for the respondents regarding non-maintainability of this petition before the Division Bench is also considered for rejection only because the impugned order, though is passed by the learned Chairman of the Principal Bench on administrative side but is only liable to be challenged as per the judgment of Hon’ble Supreme Court in L.Chandra Kumar vs. Union of India (supra) before the Division Bench of this Court. Now coming merits to the impugned order dated 07.05.2021, it is noticed that the learned Chairman of the Principal Bench has clearly opined that the petitioner is entitled to file O.A. before the CAT, Jodhpur Bench as he is residing within the territorial jurisdiction of that Bench after his services were terminated but has persuaded to transfer the O.A. filed by the petitioner before the CAT, Allahabad Bench solely on the ground that the O.As. of other employees, whose services were (9 of 11) [CW-7434/2021] terminated in relation to the same incident are pending consideration before the CAT, Allahabad Bench and CAT, Lucknow Bench. It appears that learned Chairman has not taken into consideration the fact that two Income Tax Inspectors, who have filed O.As. before the CAT, Allahabad Bench were temporary employees and their services were terminated without initiation of any disciplinary proceeding, whereas the petitioner was the permanent employee and removed from service after full fledged disciplinary proceedings and in such circumstances, it cannot be said that the case of the petitioner is similar to those temporary employees, whose services have been terminated without any enquiry. It is interesting to note that the respondents, in their transfer application, came with the case that four persons viz. Ajit Singh, Manoj Kumar, Roop Narayan Meena and petitioner Mukesh Kumar Meena were involved in the matter and their services have been terminated, out of them, two persons viz. Manoj Kumar and Roop Narayan Meena have filed separate O.As. before the CAT, Allahabad Bench, whereas Ajit Singh has filed O.A before CAT, Lucknow Bench while petitioner has filed O.A. before the CAT, Jodhpur Bench. However, the learned Chairman has ordered for transferring the O.A. filed by the petitioner only to CAT, Allahabad Bench but has not passed any order in respect of the O.A. filed by employee Ajit Singh pending at CAT, Lucknow Bench. It is difficult to comprehend why the O.A. pending before the CAT, Lucknow Bench has not been ordered to be transferred to CAT Allahabad. For this reason also, the order impugned is not liable to be sustained. (10 of 11) [CW-7434/2021] Apart from the above, Sub-Rule (2) of Rule 6 of the Rules of 1987 clearly provides that the persons, whose services have been terminated, can file application before the Bench of a CAT, where they are residing. The said provision is inserted with the view to give precedence to the convenience of dismissed or retired employees and such precedence cannot be disturbed without there being any exceptional circumstances. It is also to be noticed that the petitioner is not in service and if he is forced to fight legal battle at the distant place from the place of his residence, it may cause hardship and inconvenience to him as he will not be able to pursue his case with full zeal. The contention of the learned counsel for the respondents regarding prejudicial treatment accorded to them by the CAT, Jodhpur Bench appears to be afterthought only because in the transfer application preferred on 23.03.2021, no such contention regarding prejudicial attitude of the CAT, Jodhpur Bench has ever been raised but the same has been raised by filing a misc. application when the reply to the transfer petition is filed by the petitioner. Be that as it may, learned Chairman of the Principal Bench has not ordered for transferring the O.A. No.14/2021 on the ground that respondents were treated prejudicially by the CAT, Jodhpur Bench, therefore, the said contention of the learned counsel for the respondents is also liable to be rejected. In the result, this writ petition succeeds and is allowed. The impugned order dated 07.05.2021 passed by learned Chairman, Central Administrative Tribunal, Principal Bench, New (11 of 11) [CW-7434/2021] Delhi is hereby set aside. The CAT, Jodhpur Bench shall hear and decide the O.A. No.14/2021 on its merits. There shall be no order as to cost. (SUDESH BANSAL),J (VIJAY BISHNOI),J masif/-PS "