(Prayer: This Writ Petition Is Filed Under Article 226 Of The Constitution Of India Praying To Call For The Entire Record's Leading To The Orders Dated 17.4.2012 And 28.5.2012; Quash The Order Dated 17.4.2012 Vide Annexure-P And Consequent Order Dated 23rd May 2012 Vide Annexure-R Passed By The 1st Respondent And Grant All Consequential Benefits.)
1. Government Advocate is directed to take notice for respondent Nos. 1 to 5. The petitioner was selected and appointed to the Indian Forest service and allotted to the Government of Karnataka. He was posted as Asst. Conservator of Forest in the year 1986. He has earned promotions to various cadres and presently he is in the cadre of Chief Conservator of Forest and working on deputation as Chief Vigilance Officer in Hindustan Steel Works Construction Limited.
2. The petitioner while working as Deputy Conservator of Forest/ Sagar, certain allegations have been made against him in respect of tree cutting and making payment etc. in this regard, the revenue officials who were also involved in the process of tree cutting, permission etc., under the Karnataka Preservation of Trees Act, due to non-payment of certain amounts to the beneficiaries, the matter was subjected before this Court. This Court was pleased to direct the Government to fix responsibility on the concerned Officers. On 14.3.2005 the Government ordered to recover the loss of Rs.88,375.08 and Rs.74,985/- caused to the Government by the petitioner, the then deputy conservator of forest and Smt. Radhadevi, IFS, DCF, respectively. Aggrieved by the order dated 14.3.2005 the petitioner and Smt. Kadhadevi, approached this Court questioning the validity of the order dated 14.3.2005 in W.P.No.3116/2006 and 13783/08. Both the matters were disposed of with certain observations relating to administrative lapses in issuing the order dated 14.3.2005. Thereafter, on 16.3.2011 Government held the petitioner responsible for the delay In making payments to the petitioners in W.P.No.9943/2000 and thereby causing loss to the Government and ordered to recover the amount of Rs.88,375/- from the petitioner. Aggrieved by the said order, the petitioner filed yet another writ petition before this Court in which this Court was pleased to observe that the "learned Senior counsel for the petitioner submits that the entire amount in dispute shall be deposited by his clients within four weeks from today. While recording the same, notice was ordered to the respondents. In the meanwhile, the Government issued a show-cause notice to the petitioner insofar as proposed recovery from the petitioner for which the petitioner had submitted his say on 15.4 2012. The Government taking into consideration the entire factual aspects passed an order recovering a sum of Rs.74,985.07 from the petitioner vide Annexure-P dated 17.04.2012. Consequently, the office of the Principal Accountant General (A and E), Karnataka, communicated how the recovery is required to be made namely by 15 installments from June 2012 to the drawing and disbursing Officer of Hindustan Steel Works Construction Limited, Calcutta., The petitioner is aggrieved by the order of the State Government dated 17.12.2004 (Annexure-P) and Annexure-R dated 28 5.2012 prosecuted the above writ petition. It is to be noted that the petitioner failed to implead the author of Annexure-R dated 28.5.2012 while questioning how the recovery is to be made from the petitioner. Petitioner's counsel submitted that the petitioner has remitted the recovery amount during pendency of the litigation.â
3. At the outset, the above writ petition is not maintainable before this Court on the sole ground that this Court has no jurisdiction to entertain the grievance of the petitioner who is an All India Service Officer. The proper forum for the petitioner is Central Administrative Tribunal, Bangalore Bench, Bangalore.
4. Section 14(1) (b) of The Administrative Tribunals Act, 1983 provides that the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority execisable immediately before that day by all Courts (except the Supreme Court) in relation to all service matter concerning (i)a member of any All-India Service; or (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 post under the Union; or (iii) a civilian[not being a member of an All- India Service or a person referred to in clause(c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation [or society] owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub- clause(ii) or sub-clause(iii) of clause(b), being a person whose services have been placed by a Union/State Government or any local or other authority or any corporation (or society) or other body, at the disposal of the Central Government for such appointment. The question therefore, is whether appointment under the Government in a Department can be stated to be appointment to any Civil Service of the Central Government or any Civil post under the Central Government. 'Civil Service of the State' includes all persons holding office under the Union/State. The holder of a Civil Post is a person serving or employed under the Union/State of the Civil Side as distinguished from defence services. The preliminary tests therefore are (i) whether the duties which the servants of Government are required to perform are in connection with the affairs of the Central Government (ii) whether the expenditure towards their pay and allowances are met by the Central Government; and (iii) whether their service conditions (recruitment, pay, pension, disciplinary action etc.) are regulated by Rules made by the Government. If the said tests are applied, there can be no doubt that the servants of the Government in a Department hold Civil Posts and they are appointed to Civil Service of the Central Government.
5. The Constitution Bench in L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261 held that the power of the High Court under Articles 226 and 227 of the Constitution and of Apex Court under Article 32 of the Constitution is a part of the basic structure of our Constitution. The Constitution Bench of the Apex Court also held that various tribunals created under Articles 323-A and 323-B of the Constitution, will function as court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular tribunal. Further at Para 93 it has been specifically held as under:
.. "93. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted."
By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."â
It is therefore crystal clear that the Tribunals will function as the only Court of first instance in respect of the areas of law for which they have been constituted and even where any challenge is made to the vires of legislation, excepting the legislation under which Tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court overlooking the jurisdiction of the Tribunal. The aforesaid propositions have been repeated again by the Constitution Bench. (in L. Chandra Kumar case).
6. In view of the said repeated and authoritative pronouncement by the Constitution Bench of the Apex Court, the approach made to this High Court by the petitioner for the first time in support of his service disputes over which the Central Administrative Tribunal has jurisdiction is not legally sustainable. The principles laid down in L. Chandra Kumar's case virtually embody a rule of law and in view of Article 141 of the Constitution, the same is binding on the High Court.
7. Having regard to the proposition laid down by the Apex Court, I am of the view that the writ petition be transferred to the Central Administrative Tribunal, Bengaluru Bench, Bengaluru, for disposal in accordance with law. Registry to transmit writ papers to Tribunal within two months.
8. Accordingly, the petition is disposed of.