Union of India and Others v. P. Mani Paul Puthoor Melarayil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940** **WA.No. 703 of 2015** **AGAINST THE ORDER/JUDGMENT IN WPC 36111/2004 of HIGH COURT OF KERALA DATED 05-01-2015** ## **APPELLANTS/RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, NEW DELHI.** - **2 THE COMMISSIONER CENTRAL EXCISE AND CUSTOMS, I.S.PRESS ROAD, KOCHI-18.** - **3 THE ADMINISTRATIVE OFFICER (DDO) OFFICE OF THE COMMISSIONER OF CUSTOMS (PREVENTIVE), I.S.PRESS ROAD, KOCHI-18.** - **4 THE ASSISTANT COMMISSIONER (ADMINISTRATION), CENTRAL EXCISE AND CUSTOMS, I.S.PRESS ROAD, KOCHI-13.** - **5 THE PAY AND ACCOUNTS OFFICER CUSTOMS HOUSE, KOCHI-9.** **BY ASSISTANT SOLICITOR GENERAL, SRI.N.NAGARESH** ## **RESPONDENT/PETITIONER:** **P.MANI PAUL PUTHOOR MELARAYIL HOUSE, PERUMBADAVAM.P.O., ELANJI, ERNAKULAM DISTRICT. 686 665.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WA.No. 703 of 2015** **2** **'C.R.'** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 703 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of May, 2018 ## **JUDGMENT** ## **Ravikumar, J:** This appeal arises from the judgment dated 05.01.2015 passed by a learned single Judge of this Court in W.P.(C) No. 36111 of 2004. The respondents therein are the appellants. The respondent herein/the writ petitioner has filed the writ petition seeking the following reliefs: “(i) to issue a writ in the nature of certiorari or any other appropriate writ or order to set aside the Exhibits P2 and P4. ii) To issue a writ in the nature of mandamus or any other appropriate writ or order or direction directing the respondents to pay the entire eligible DCRG, Leave salary, Arrears of pension and Bonus for 2003-04 less the amount paid to the petitioner on 2.11.2004. iii) To issue a writ in the nature of mandamus or any other appropriate order or direction directing the respondents to pay 18% interest to the delayed payment of retirement benefit from the date of retirement till the date of payment. iv) To declare that the respondents are not entitled to recover the excess salary paid to the petitioner due to the wrong fixation of pay during the period 1984-1991 without any default of the petitioner. v) To direct the respondents to consider the Ext.P3 in the light of the decisions cited in it and pass orders in accordance with law.” 2. The writ petition was considered on merits and the leaned **WA.No. 703 of 2015** **3** single Judge as per the impugned judgment allowed it and quashed Ext.P3. As a sequel to the quashment of Ext.P3, a direction was issued to the appellant/respondent therein to pay the entire eligible DCRG, leave salary, arrears of pension and bonus for the period 2003-04 to the writ petitioner within the period fixed thereunder. Furthermore, the respondents were directed to pay interest at the rate of 12% per annum from the date of writ petition till realisation, on the amount, so payable. This appeal has been filed in the said circumstances. 3. Heard. The core contention of the learned counsel for the appellant is that the learned single Judge had over looked the fact that this Court totally lacks to entertain the abovementioned writ petition as the jurisdiction to decide the issues involved therein vests with the Central Administrative Tribunal, at the first instance going by the provisions under Sections 14 and 28 of the Administrative Tribunals Act, 1985 (for short 'the Act') as also the decision of the Hon'ble Apex Court in **L.Chandrakumar v. Union of India** reported in AIR 1997 SC 1125. Hence, the judgment passed by the learned single Judge is liable to set aside, it is contended. **WA.No. 703 of 2015** **4** 4. The afore extracted prayers made in the writ petition itself would undoubtedly go to show that the issue involved in the writ petition is one pertaining to service matter. The pleadings in the writ petition would further reveal that the petitioner was working as Havildar in Central Excise and Customs and he retired from its service on 31.05.2004, i.e., after the coming into force of the Administrative Tribunals Act. The grievance of the petitioner is that his pay during the period between 06.05.1984 and 29.09.1991, while he was placed under suspension was wrongly fixed and it resulted in the erroneous fixation of his terminal benefits. Thus the facts borne out from the pleadings of the writ petitioner would reveal that the grievance, which he sought to redress, pertains to service matter and the fact he retired from Central Civil Service would not and could not change its nature. In the context it is relevant to refer to Section 14 of the Act which reads as follows : “ **14. Jurisdiction, powers and authority of the Central Administrative Tribunal** .-(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in **WA.No. 703 of 2015** **5** ## relation to- a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; b) all service matters concerning- xx xx xx (ii) a person not being a member of an All-India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or” 5. In the light of the aforesaid indisputable facts and a conjoint reading of Sub-section 14(b)(ii) and 14 (c) would reveal that the jurisdiction to decide such matters vests with the Central Administrative Tribunal. Section 28 of the Act reads thus : “ **28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution** .- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) **WA.No. 703 of 2015** **6** or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.” 6. In the light of Section 28 there is an exclusion of the jurisdiction of all the Courts except the Hon'ble Supreme Court. We are not obvious of the decision of the Hon'ble Apex Court in **L.Chandra Kumar v. Union of India and others** [ AIR 1997 SC 1125]. In the light of Section 28 of the Act it could not be said that there is total lack of jurisdiction with the High Courts in respect of such matters in view of the decision of the Apex Court in **L.Chandra Kumar** 's case (supra). But, what is now available with a High Court is only the power of judicial review. In other words, this Court also could not act as court of first instance in respect of matters falling within the power of the Administrative Tribunals constituted under the 'Act'. That apart, in the light of the said decision, the power of judicial review over such decisions in respect of those matters rendered by the Central Administrative Tribunal, could be exercised only by a Division Bench of the High Court concerned. In short, in respect of service matters, as per Section 14, the jurisdiction lies with the Central Administrative Tribunal and **WA.No. 703 of 2015** **7** as a court of first instance this Court cannot entertain such matters. In other words, what is available with the High Court is only the power of a judicial review which certainly is not the original jurisdiction. When the indisputable position obtained from the pleadings in the writ petition is that it is a matter falling under Section 14 of the Act and the question to be considered is whether this Court ought to have entertained the writ petition. There can be no two views in the matter in view of the aforesaid provisions of law. 7. In the light of the aforesaid facts, the writ petition could not have been entertained by this Court owing to total lack of jurisdiction. When there is lack of inherent jurisdiction, the parties cannot confer the jurisdiction. In such circumstances, the learned single Judge ought not to have considered the writ petition on merits. True that without specifically taken note of the contention that there is total exclusion of jurisdiction in entertaining the matter, what was raised by the appellants in the counter affidavit filed in the writ petition is that the petitioner had not availed the statutory remedy available under the Administrative Tribunal Act. **WA.No. 703 of 2015** **8** 8. In the light of the aforesaid conclusion, in view of the position of law and also the provision of law, the question to be looked into is whether mere fact that this question was not at all specifically raised and considered could be a reason to sustain this impugned judgment. We are afraid that we cannot sustain the judgment in view of the judgment of the Hon'ble Apex Court in **Chandrabhai K. Bhoir & Ors. v. Krishna Arjun Bhoir & Ors.** [AIR 2009 SC 1645]. True that was a case where the question raised for consideration was whether a judgment passed by a court lacks to jurisdiction or without jurisdiction could act _res judicata_ . In the said decision the Apex Court held: “In any view of the matter, an order passed without jurisdiction would be a nullity. It will be a _coram non judice_ . It is _non est_ in the eye of law”. 9. When in the light of the said enunciation of law by the Hon'ble Apex Court and in the light of our conclusions arrived at in this case based on the factual aspects and the provisions under the 'Act', it can only be said that the judgment of the learned single Judge is one passed without jurisdiction and therefore, a nullity, which is therefore non est in the eye of law. **WA.No. 703 of 2015** **9** In such circumstances, this appeal is liable to be allowed. Consequently, this Writ Appeal is allowed. The impugned judgment is set aside. However, we make it clear that this judgment will not stand in the way of the respondent herein/writ petitioner in pursuing with his grievance in appropriate manner before the appropriate forum, in accordance with law. Sd/- ## **C.T. RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** ttb/24.05. /TRUE COPY/ PS TO JUDGE