Supreme Court of India
STATE OF WEST BENGAL & ORS.versusSAMAR KUMAR SARKAR
- Citation
- 2009 INSC 905
- Decided
- 14 July 2009
- Disposal
- Appeal(s) allowed
- Bench
- TARUN CHATTERJEE
Holding
Under Article 227, a High Court cannot withdraw a case from a tribunal and decide it itself; its supervisory power is limited to ensuring the tribunal functions within its authority and it should direct the tribunal to dispose of the matter expeditiously.
Summary
Samar Kumar Sarkar filed an application under Section 19 of the Administrative Tribunal Act, 1985 before the West Bengal Administrative Tribunal seeking appointment and related benefits. After repeated adjournments, he approached the Calcutta High Court with writ petitions under Articles 226 and 227, alleging the Tribunal's failure to decide. The High Court, invoking Article 227, ordered the Tribunal to transmit the case records to it and withdrew the matter for its own adjudication. The State appealed, contending that a High Court’s supervisory power under Article 227 does not permit it to transfer a case to itself, a power that is confined to Article 228. The Supreme Court examined the scope of Article 227, distinguishing it from the transfer provisions of Article 228 and emphasizing that the High Court may only ensure the Tribunal acts within its jurisdiction. It held that the High Court should have directed the Tribunal to dispose of the matter expeditiously rather than assuming jurisdiction. Consequently, the appeal was allowed, the High Court's order was set aside, and the Tribunal was instructed to decide the case within six months.
Issues considered
- Whether a High Court can, under Article 227 of the Constitution, withdraw an application pending before an administrative tribunal and decide it itself.
- Whether the power of superintendence under Article 227 includes the power to transfer cases to the High Court, or is limited to ensuring tribunals act within their authority.
- Whether the High Court should have directed the tribunal to dispose of the matter expeditiously instead of assuming jurisdiction.
Legislation cited
Subjects
Article 227High Court superintendenceAdministrative TribunalTransfer of jurisdictionConstitutional lawArticle 228Writ jurisdictionJudicial review
Judgment
[2009] 10 S.C.R. 896
A STATE OF WEST BENGAL & ORS. "'
V.
SAMAR KUMAR SARKAR
(Civil Appeal No. 4350 of 2009)
JULY 14, 2009
B .
[TARUN CHATIERJEE AND H.L. DATIU, JJ.]
Constitution of India, 1950: Article 227 - Power of High
Court under - Transfer of an application pending before the
c Administrative Tribunal by High Court to itself for
consideration and decision, by exercising its power under
Article 227 - Justification of - Held : Not justified - Power of
interference is limited to seeing that the Tribunal functions
within the limits of its authority - It is open to High Court to
D direct the tribunal to dispose of the matter expeditiously
•
instead of transferring the matter to itself
The question which arose for consideration was
whether the High Court was justified in withdrawing the
application pending before the Administrative Tribunal for
E its consideration, by exercising its power under Article
227 of the Constitution of India.
Allowing the appeal, the Court
F HELD : 1. Under Article 227 of the Constitution of
India, the High Court has been given power of
superintendence both in judicial as well as administrative
matters over all Courts and Tribunals throughout the
territories in relation to which it exercises jurisdiction. It
is in order to indicate the plenitude of the power
G
conferred upon the High Court with respect to Courts
and the Tribunals of every kind that the Constitution
conferred the power of superintendence on the High
Court. The power of superintendence conferred upon the
H 896
STATE OF WEST BENGAL & ORS. v. SAMAR 897
KUMAR SARKAR
;. High Court is not as extensive as the power conferred A
upon it by Article 226 of the Constitution. 1 hus, ordinarily
it is open to the High Court, in exercise of the power of
superintendence only to consider whether there is an
error of jurisdiction in the decision of the Court or the
Tribunal subject to its superintendence. [Para 10] [903-F- B
H; 904-A]
Thakur Jugal Kishore vs. Sitamarhi Central Cooperative
Bank Ltd, (1967) 3 SLR 163; Gujarat v. Vakhatsinghji
Vajesinghji Vaghela AIR 1968 SC 1481; Bathuttnal Raichand
Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858; Special Cell, c
New Delhi vs. Navjot Sandhu (2003) 6 SCC 641; Umaji
Keshao Rao Mesharam vs. Radhikabai, 1986 Supp. SCC
401; Rao Shiva Bahadur Singh v. State of Vindya Pradesh
(1956) 2 SCR 206, relied on.
.• D
2. The errors as to the interpretation of the
Constitution is not out of the purview of Article 227
although the High Court could not, under the powers
conferred by this Article, withdraw a case to itself from a
Tribunal and dispose of the same, or determine merely the E
question of law as to the interpretation of the Constitution
arising before the Tribunal. Under Article 226, the power
of interference may extend to quashing an impugned
order on the ground of a mistake apparent on the face of
the record. But under Article 227 of the Constitution, the
F
power of interference is limited to seeing that the Tribunal
functions within the limits of its authority. [Paras 19 and
20] [906-D-H]
Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop.
Bank Ltd. (1967) 3 SCR 163; Nagendra Nath Bora v. G
Commissioner of Hills Division and Appeals, AIR 1958 SC
398, relied on.
3. It would have been proper if the High Court in
exercising its jurisdiction under Article 227 had directed H
898 SUPREME COURT REPORTS [2009] 10 S.C.R.
A the Tribunal to dispose of the matter expeditiously,
instead of transferring the matter to itself. [Para 21) [907-
A]
Case Law Reference :
B (1967) 3 SLR 163 relied on Para 6
AIR 1968 SC 1481 relied on Para 11
(1975) 1 sec 858 relied on Para 12
(2003) 6 sec 641 relied on Para 13
c
1986 Supp. sec 401 relied on Para 15
(1956) 2 SCR 206 relied on Para 16
(1967) 3 SCR 163 relied on Para 19
D
AIR 1958 SC 398 relied on Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4350 of 2009.
E From the Judgment & Order dated 07.07.2008 of the High
Court of Calcutta in W.P.S.T. No. 649 of 2007.
Tara Chandra Sharma and Neelam Sharma for the
Appellants.
F Shravan Kumar, Neeraj Shekhar and Amit Kumar Singh
for the Respondent.
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. Leave granted.
G
2. The petition raises an important question as to the
power of the High Court under Article 227 of the Constitution
of India to transfer an application filed under Section 19 of the
Administrative Tribunal Act pending before the Administrative
H
STATE OF WEST BENGAL & ORS. v. SAMAR 899
KUMAR SARKAR [H.L. DATIU, J.]
~
Tribunal to the High Court for its consideration and decision. A
3. The facts in nutshell are, the respondent before the West
Bengal Administrative Tribunal is the petitioner in this petition.
The respondent in the present petition filed 0.A. No. 912 of
2003 under Section 19 of the Administrative Tribunal Act, 1985, B
before the West Bengal State Administrative Tribunal, inter alia
requesting the Tribunal to direct respondents therein to appoint
the applicant to the post of Group · D' in the office of District
Land and Land Reforms Officer, Howrah, on the ground that
he had served as Tahsil Mohurrior under the Block Land and
Land Reforms Officer, Shyampur. After service of notice on the
c
respondents, several adjournments were granted by the Tribunal
to the parties to complete the pleadings. The application
thereafter was posted before the Tribunal on 1.2.2005. The
_. Tribunal had granted permission to the respondents therein to
file its reply, if any, within three weeks. Aggrieved by the order D
so passed, the applicant had moved a petition before the High
Court at Calcutta under Articles 226 and 227 of the
Constitution, assailing the correctness or otherwise of the order
dated 1.2.2005 and also praying for the very same reliefs that
was sought in the application. The Court by its order dated E
7.3.2005 had rejected the writ petition on the ground that the
petition filed is premature.
4. The Tribunal could not hear the application for various
reasons. Those reasons are not relevant for the purpose of F
disposal of this appeal. Therefore, we are not adverting to the
orders passed by the Tribunal on several dates of hearing.
5. The respondent herein who was applicant before the
Tribunal has filed one more writ petition under Article 226 and
227 of the Constitution in the High Court at Calcutta, wherein G
apart from others has requested the court for issuance of a writ
in the nature of mandamus directing the respondents in the said
application to give appointment to him with effect from 6.3.2000
and to release arrears of salary and other benefits. The writ
petition No. 649 of 2007 was heard by the High Court on H
900 SUPREME COURT REPORTS [2009] 10 S.C.R.
A 7.7.2008. The High Court by its order dated 7.7.2008, directed
the Registry of the West Bengal Administrative Tribunal to
transmit all the original records of O.A. No. 912 of 2003 to the
High Court for taking a decision in the matter. The findings and
the observations of the High Court in its order dated 7.7.2008
B are as under:
"In our view, with great respect, the learned Tribunal having
found no time on earlier occasions, should have placed,
at least on a particular date, this matter at the top of the
list so that the matter could have been heard. In our order
c dated 16th August, 2007, it was observed that in the event
the learned Tribunal could not hear out this matter, this
Court will, in exercise of its power under Article 227 of the
Constitution of India withdraw the same and hear out the
matter, as the learned Tribunal has failed to decide the
D matter. Accordingly, we are of the view that the learned
Tribunal has failed to decide the matter. We are not
oblivious of the position of law that this Court cannot try
the above matter at the first instance in view of the judgment
of Supreme Court rendered in the case of L. Chandra
E Kumar vs. Union of India -A.1.R. 1997 SC 1125. But this
Court having superintending power cannot remain passive
institution when learned Tribunal abdicates its legal, if not
constitutional duty. When a subordinate Court or Tribunal
fails or neglects absolutely to function, it can be concluded
F without any hesitation that extra ordinary situation has
arisen that endanger due process of law. In such situation
to disclose constitutional obligation to the citizens of India,
this Court has power, in our opinion, not only to withdraw
the case of this nature, but to try the same. The word
G "Superintendence" is of wide connotation. It has inclusive
meaning which inter alia are to oversee, monitor so that
things is done or act is accomplished with logical
conclusion and finally in case of failure to take upon itself
to do and accomplish what ought to have been done by
H person or forum subordinate to it.
STATE OF WEST BENGAL & ORS. v. SAMAR 901
KUMAR SARKAR [H.L. DATTU, J.]
Hence, we direct the Registry of the learned Tribunal A
to transmit all the original records of O.A.No. 912 of 2003
(Samar Kr. Sarkar vs. State of W.B. and Ors.) to this
Court, for taking a decision in this matter.
The records shall be transmitted to this Court by
B
special messenger, cost of which shall be paid by the
applicant and this shall be brought to this Court within
fortnight from the date of service of copy of this order."
6. Aggrieved by the aforesaid order, the respondents in
the application are before us in this civil appeal. c
7. The learned Senior Counsel for the appellant submitted
that the impugned order of the High Court in withdrawing the
application O.A.No. 912 of 2003 (Samar K. V. vs. State of West
Bengal and Others) pending before West Bengal D
Administrative Tribunal for its consideration and decision is
contrary to law and also decision of this Court in the case of
Thakur Jugal Kishore vs. Sitamarhi Central Cooperative
Bank Ltd., (1967) 3 SLR 163, wherein it is stated, that,
·needless to add that errors as to the interpretation of the
E
Constitution is not out of the purview of Article 227, although
the High Court could not, under the powers conferred by this
Article, withdraw a case to itself from a Tribunal and dispose
•· of the same, or determine merely the ·question of law as to the
_ interpretation of Constitution arising before the Tribunal. It is
further submitted that the High Court has no inherent power to
F
transfer a case to itself outside the provisions contained in
Article 228 of the Constitution of India and since the instant
case is not covered by Article 226 of the Constitution of India,
the High Court committed a grave error in directing the transfer
of the case pending before the State Administrative Tribunal G
to itself. It is further submitted that the order and direction
issued by the High Court is contrary to the direction and
observation made by this Court in .the case of L.
Chandrakumar vs. Union of India and Others.
H
902 SUPREME COURT REPORTS [2009] 10 S.C.R.
A 8. The learned Counsel for the contesting respondent
submitted that the petitlon that was filed before the High Court
was both under Articles 226 and 227 of the Constitution and
therefore, the High Court in exercise of its supervisory
jurisdiction was justified in directing the Tribunal to transmit all
B the records pertaining to the case of the respondent, since there
was inordinate delay by the Tribunal in deciding an application
which did not involve either complicated questions of fact or the
law.
C 9. The relevant Articles of the Constitution of India may be
extracted:
"Article 227 : Power of superintendence over all Courts by
the High Court:
D (1) Every High Court shall have superintendence over all
Courts and Tribunals throughout the territories in relation
to which it exercises jurisdiction. .
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may -
E
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe
forms for regulating the practice and proceedings •
F of such Courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
Courts.
G (3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of such
Courts and to attorneys, advocates and pleaders practicing
therein:
PROVIDED that any rules made, forms prescribed
H
(
STATE OF WEST BENGAL & ORS. v. SAMAR 903
KUMAR SARKAR [H.L. DATTU, J.)
or tables settled under clause (2) or clause (3) shall not A
be inconsistent with the provision of any law for the time
being in force, and shall require the previous approval of
the Governor.
(4) Nothing in this article shall be deemed to confer on a B
High Court powers of superintendence over any Court or
Tribunal constituted by or under any law relating to the
Armed Forces.
Article 228: Transfer of certain cases to High Court:
c
If the High Court is satisfied that a case pending in a Court
subordinate to it involves a substantial question of law as
to the interpretation of the Constitution the determination
of which is necessary for the diposal of the case, it shall
withdraw the case and may - o
a. either dispose of the case itself, or
•
b. determine the said question of law and return the
case to the Court from which the case has been so \
withdrawn together with a copy of its judgment on E
such question, and the said Court shall on receipt
thereof proceed to dispose of the case in
conformity with such judgment."
10. Under Article 227, the High Court has been given F
power of supe'rintendence both in judicial as well as
administrative matters over all Courts and Tribunals throughout
the territories in relation to which it exercises jurisdiction. It is
in order to indicate the plentitude of the power conferred upon
the High Court with respect to Courts and the Tribunals of every G
kind that the Constitution conferred the power of
superintendence on the High Court. The power of
superintendence conferred upon the High Court is not as
extensive as the power conferred upon it by Article 226 of the
Constitution. Thus, ordinarily it will be open to the High Court,
H
904 SUPREME COURT REPORTS [2009] 10 S.C.R.
A in exercise of the power of superintendence only to consider
whether there is an error of jurisdiction in the decision of the
Court or the Tribunal subject to its superintendence.
11. In the case of Gujarat vs. Vakhatsinghji Vajesinghji
Vaghela, AIR 1968 SC 1481, this Court held, that Article 227
B
of the Constitution of India gives the High Court the power of
superintendence over all Courts and Tribunals throughout the
territories in relation to which it exercises jurisdiction. It is held
that this jurisdiction cannot be limited or fettered by any act of
the State Legislature. It is held that the supervisory jurisdiction
c extends to keeping the subordinate Tribunals within the limits
of the authority and to seeking that they obey the law.
12. In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta,
(1975) 1 SCC 858, this Court again reaffirmed that the power
D of superintendence of the High Court under Article 227 being •
extraordinary was to be exercised most sparingly and only in
appropriate cases. High Court's function is limited to see that
the subordinate court or Tribunal functioned within the limits of
its authority. The Court further said that the jurisdiction under
E Article 227 could not be exercised 'as the cloak of an appeal
in disguise'.
13. This Court in the case of State through Special Cell,
New Delhi vs. Navjot Sandhu, (2003) 6 SCC 641, held that
Article 227 of the Constitution of India gives the High Court the
F power of superintendence over all Courts and Tribunals
throughout the territories in relation to which it exercise
jurisdiction. The powers under Article 227 are wide and can
be used, to meet the ends of justice. However, the power under
Article 227 is a discretionary power and it is difficult to attribute
G to an order of the High Court, such a source of power, when
the High Court itself does not in terms purport to exercise any
.
such discretionary power.
14. Article 228 of the Constitution covers a different field
H from that covered by Articles 226 and 227 of the Constitution.
STATE OF WEST BENGAL & ORS. v. SAMAR 905
KUMAR SARKAR [H.L. DATIU, J.]
It lays down the procedure regarding transfer of a case pending A
in Courts subordinate to the High Court. This power is not to
be founded both under Articles 226 and 227 of the Constitution.
The conditions that require to be fulfilled before Article 228 of
the Constitution can be applied are, that a case must be
pending in the Court svbordinate 'to the High Court, the case B
must involve a substantial question of law as to the
interpretation of the Constitution or the Government of India Act,
1935 and the determination of the question of law must be
necessary for disposal of the case. Once these three conditions
are fulfilled, the Article requires that the High Court will withdraw c
the case and then may either dispose of the case itself or
determine the question of law and return the case to the Court
from which the case has been withdrawn.
15. Reference may also made to the decision of this Court
in the case of Umaji Keshao Rao Mesharam vs. Radhikabai, D
• 1986 Supp. sec 401, wherein, it was held that Article 228
confers upon the High Court the power to transfer a case
pending in a Court subordinate to it for disposal by itself if "it
involves a substantial question of law as to the interpretation
of the Constitution". E
16. In Rao Shiva Bahadur Singh vs. State of Vindya
Pradesh, (1956) 2 SCR 206, it is stated by this Court that the
High Court if satisfied that a case pending in a Court
subordinate to it involves a substantial question of law as to the F
interpretation of the Constitution, the determination which is
necessary for the disposal of the case, may withdraw the case
either to dispose of the case itself or determine the said
question of law and Jeturn the case to the Court from which it
has been so withdrawn so as to enable the said Court to G
proceed to dispose of the case in conformity with the judgment
of the High Court.
17. Therefore, the High Court in exercise of power under
Article 228 of the Constitution can withdraw a case from
subordinate Court and decide the whole case by itself or decide H
906 SUPREME COURT REPORTS [20p9] 10 S.C.R.
A the question of law and return the case to the Court from which
it is withdrawn. But the primary ingredient for exercise of the
power under this Article is that the case should contain a
substantial question of law, which requires an interpretation of
the Constitution.
B
18. But, at this stage, we are not concerned in this appeal
with Article 228 of the Constitution but only with Article 227 of
the Constitution and more specifically with the correctness of
•
the order passed by the Division Bench of the High Court,
wherein the High Court has withdrawn the application pending
c before the Administrative Tribunal for its consideration and
decision.
19. With regard to the power of the High Court in
withdrawing a case from the Tribunal for deciding it by itself by
D exercising its power under Article 227, this Court in the case ..
of Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Coop.
Bank Ltd., (1967) 3 SCR 163, held that Article 227 is of wider
ambit; it does not limit the jurisdiction of the High Court to the
hierarchy of Courts functioning directly under it under the Civil
E Procedure Code and Criminal Procedure Code but it gives the
High Court power to correct errors of various kinds of all Courts
and Tribunals in appropriate cases. Needless to add that errors
as to the interpretation of the Constitution is not out of the
purview of Article 227 although the High Court could not, under
F the powers conferred by this Article, withdraw a case to itself
from a Tribunal and dispose of the same, or determine merely
the question of law as to the interpretation of the Constitution
arising before the Tribunal.
20. It was held in the case of Nagendra Nath Bora vs.
G Commissioner of Hills Division and Appeals, AIR 1958 SC
398, that under Article 226, the power of interference may
extend to quashing an impugned order on the ground of a
mistake apparent on the face of the record. But under Article
227 of the Constitution, the power of interference is limited to
H seeing that the Tribunal functions within the limits of its authority.
STATE OF WEST BENGAL & ORS. v. SAMAR 907
KUMAR SARKAR [H.L. DATIU, J.]
21. In the light of the above discussions, in our view, it would A
have been proper if the High Court in exercising its jurisdiction
under Article 227 had directed the Tribunal to dispose of the
matter expeditiously, instead of transferring the matter to itself.
22. In the result, the appeal is allowed. The impugned order
8
is set aside. The High Court is requested to return all the
documents pertaining to O.A.No. 912 of 2003 to the
Administrative Tribunal forthwith. The Tribunal is directed to
consider the matter promptly and dispose of the same within
six months from the date of the pronouncement of this judgment. C
No order as to costs.
D.G. Appeal allowed.
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