# Arun Prakash Gupta v. U.O.I. & Ors

- **Citation:** (2024) 9 ILRA 648
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-24
- **Case number:** Writ-A No. 3089 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-prakash-gupta-v-u-o-i-ors-52417
- **Pages:** 7

## Headnote

A. Administrative Law - Judicial review -
Scope of the proceedings before the
Tribunal - Administrative Tribunals Act,
1985: Section 22 - The Tribunal while
adjudicating
a
service
dispute
is
empowered to enter into questions of fact,
and
decide
factual
issues
based
on
evidence, as is done by the Civil Court,
even though not bound by the provisions
of Code of Civil Procedure, 1908. In fact,
the Tribunal is a substitute for the Civil Court.
Prior
to
constitution
of
the
Central
Administrative Tribunal (CAT) under the Act,
1985, the remedy was before the Civil Court,
and therefore, an alternative forum has been
provided u/Article 323-A of the Constitution of
India. It can take evidence, evaluate it and
record findings of fact.

B. The proceedings of the High Court
u/Article 226 are summary proceedings,
whereas the proceedings of the Tribunal,
even though they are required to be
completed expeditiously, are not the same
as the High Court in this sense. The Tribunal
has been vested with powers to examine
questions of fact, to take evidence and decide
factual issues based thereon, whereas, the
powers of the High Court u/Article 226 of the
Constitution, do not permit such an exercise.
The Tribunal acts as the only courts of first
instance in respect of the areas of law for
which they have been constituted. 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, where the legislation
which creates the particular Tribunal is
challenged)
by
overlooking
the
jurisdiction of the Tribunal concerned.
(Para 7)

In the present case, the Tribunal has declined to
enter into the factual issues on a misconception,
as if it was exercising powers of judicial review
as are exercised by the High Courts u/Article
9 All. Arun Prakash Gupta Vs. U.O.I. & Ors.
649
226 of the Constitution, by way of summary
proceedings, wholly oblivious of the legal
position as aforesaid. This does not take away
the initial role of the Tribunal to act as a Court
/Tribunal of first instance. There are various
issues which should have been seen by the
Tribunal. (Para 8)

The impugned judgment is liable to be set
aside.
The
Transfer
Application
No.
33200001/2017 shall now stand restored before
the CAT at Lucknow and the same shall be
heard and decided afresh. In doing so, it shall
be open for it to exercise the powers and
jurisdiction vested in it u/s 22 of the Act, 1985,
rather it would be obliged to do so, if the
situation so requires. (Para 10)

Initially a writ petition was filed before the High
Court in the year 2000 which was transferred to
the Tribunal in 2017 and thereafter, it came to
be dismissed on 17.01.2024, the Tribunal is
requested to grant priority to the hearing of this
petition, and it is expected that the Tribunal
shall hear and decide the same within a period
of five months, from the date a copy of this
order is served before it. The parties are
permitted herein to bring on record, the
pleadings filed in this petition, before the
Tribunal within a period of four weeks from
today, for its convenience, which shall also be
taken into consideration accordingly. (Para 11)

Writ petition disposed of. (E-4)

Precedent followed:

## Text

648 INDIAN LAW REPORTS ALLAHABAD SERIES
passed the impugned judgment and order
and remanded the case to the learned trial
court for deciding afresh in violation of law
as discussed above because the appeal
could have been decided finally by the
appellate
court,
therefore,
it
is
not
sustainable in the eyes of law and liable to
be set aside by this Court with a direction
to the first appellate court to decide the
appeal in accordance with law.

22. The appeal is, accordingly,
allowed. The judgment and order dated
10.02.2022 passed in Civil Appeal No. 11 of
2021; Harilal vs. Jamuna Prasad by District
Judge, Ambedkar Nagar is hereby set aside.
The matter is remitted back to the first
appellate court with a direction to the first
appellate court to reconsider and pass a fresh
order, after affording opportunity of hearing
to the parties, in accordance with law and
observations made hereinabove in this order
expeditiously and preferably within a period
of three months, from the date of production
of certified copy of this order, without
granting unnecessary adjournment to either of
the parties as the proceedings are pending
since filing of the regular suit in the year
1997. No order as to costs.
----------
(2024) 9 ILRA 648
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 3089 of 2024

Arun Prakash Gupta ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Utsav Mishra, Gaurav Mehrotra

Counsel for the Respondents:
A.S.G.I., Anurag Srivastava, Raj Kumar
Singh

A. Administrative Law - Judicial review -
Scope of the proceedings before the
Tribunal - Administrative Tribunals Act,
1985: Section 22 - The Tribunal while
adjudicating
a
service
dispute
is
empowered to enter into questions of fact,
and
decide
factual
issues
based
on
evidence, as is done by the Civil Court,
even though not bound by the provisions
of Code of Civil Procedure, 1908. In fact,
the Tribunal is a substitute for the Civil Court.
Prior
to
constitution
of
the
Central
Administrative Tribunal (CAT) under the Act,
1985, the remedy was before the Civil Court,
and therefore, an alternative forum has been
provided u/Article 323-A of the Constitution of
India. It can take evidence, evaluate it and
record findings of fact.

B. The proceedings of the High Court
u/Article 226 are summary proceedings,
whereas the proceedings of the Tribunal,
even though they are required to be
completed expeditiously, are not the same
as the High Court in this sense. The Tribunal
has been vested with powers to examine
questions of fact, to take evidence and decide
factual issues based thereon, whereas, the
powers of the High Court u/Article 226 of the
Constitution, do not permit such an exercise.
The Tribunal acts as the only courts of first
instance in respect of the areas of law for
which they have been constituted. 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, where the legislation
which creates the particular Tribunal is
challenged)
by
overlooking
the
jurisdiction of the Tribunal concerned.
(Para 7)

In the present case, the Tribunal has declined to
enter into the factual issues on a misconception,
as if it was exercising powers of judicial review
as are exercised by the High Courts u/Article
9 All. Arun Prakash Gupta Vs. U.O.I. & Ors.
649
226 of the Constitution, by way of summary
proceedings, wholly oblivious of the legal
position as aforesaid. This does not take away
the initial role of the Tribunal to act as a Court
/Tribunal of first instance. There are various
issues which should have been seen by the
Tribunal. (Para 8)

The impugned judgment is liable to be set
aside.
The
Transfer
Application
No.
33200001/2017 shall now stand restored before
the CAT at Lucknow and the same shall be
heard and decided afresh. In doing so, it shall
be open for it to exercise the powers and
jurisdiction vested in it u/s 22 of the Act, 1985,
rather it would be obliged to do so, if the
situation so requires. (Para 10)

Initially a writ petition was filed before the High
Court in the year 2000 which was transferred to
the Tribunal in 2017 and thereafter, it came to
be dismissed on 17.01.2024, the Tribunal is
requested to grant priority to the hearing of this
petition, and it is expected that the Tribunal
shall hear and decide the same within a period
of five months, from the date a copy of this
order is served before it. The parties are
permitted herein to bring on record, the
pleadings filed in this petition, before the
Tribunal within a period of four weeks from
today, for its convenience, which shall also be
taken into consideration accordingly. (Para 11)

Writ petition disposed of. (E-4)

Precedent followed:

1. U.O.I. Vs Subrat Nath in Civil Appeal No.
7939 - 7940 of 2022 arising out of Special
Leave to Appeal (Civil) No. 3524 of 2022 (Para
3)

2. L. Chandra Kumar Vs U.O.I., (1997) 3 SCC
261 (Para 7)

Present petition assails the judgment and
order dated 17.01.2024, passed by the
Central Administrative Tribunal, Lucknow.

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Om Prakash Shukla, J.)

(1) This is a writ petition filed by the
petitioner challenging the judgment and
order dated 17.01.2024 passed by the
Central Administrative Tribunal, Lucknow
in a Transfer Application bearing No. 01 of
2017 (Arun Kumar Gupta Vs. Union of
India & Ors.).

2) The judgment and order dated
26.04.2024 reads as under:-

"1. Heard Shri Gaurav Mehrotra
along with Shri Utsav Mishra, learned counsel
for the petitioner and Shri Anurag Srivastava
along with Raj Kumar Singh, learned counsel
for the opposite parties no. 2 to 4.

2. Let Shri Anurag Srivastava,
learned counsel for the opposite parties no.
2 to 4 satisfy the Court firstly as to there
being any evidence to establish even on the
basis of preponderance of probabilities that
the petitioner herein conducted 17 tests
misusing his official position illegally.

3. Secondly, that he did not
conduct any test in respect of other samples
and issued a certificate in favour of M/s
Satyadeep Polypipes, Jalpaigudi and that
for the aforesaid illegal acts he accepted
money from the proprietor of the Firm.

4.
Thirdly,
whether
the
proceedings were initiated on the basis of
the oral complaint of Shri S. Goenka,
Proprietor of the said Firm or some other
material. If so, what was it.

5. Fourthly, whether there is any
evidence or any witness who may have seen
the petitioner preparing the certificate in
question and signing it.

6. Fifthly, whether the hand
writing expert, who has opined that the
650 INDIAN LAW REPORTS ALLAHABAD SERIES
signature on the certificate in question is
that of the petitioner, was produced during
inquiry proceedings. If not, what is the
consequence of it upon the validity of such
proceedings.

7. Sixthly, whether there is any
evidence that PVC Pipes were brought to
the premises of CIPET on a four wheeler as
considering their size it would not have
been possible to carry them on a two
wheeler but the number of the vehicle
which has come in evidence was ultimately
found to be that of a two wheeler,
therefore, what is the evidence about 17
tests being carried out on three samples of
resist PVC Pipes after bringing those pipes
found in the premises.

8. Seventhly, whether Shri S.
Goenka, who is alleged to have been made
the oral complaint, appeared before the
Inquiry Officer and was examined.

9. If any fax message was
received from him or his Firm supporting
the charges against the petitioner what
exercise was conducted by the Inquiry
Officer to verify the veracity of the said Fax
Message that it had been sent by Shri S.
Goenka or his Firm and what was the
evidence in this regard.

10. Learned counsel for the
parties shall also address the Court upon
the scope of power and jurisdiction of the
Central Administrative Tribunal while
considering and deciding an Original
Application
under
the
Administrative
Tribunals Act, 1985; whether its power are
akin to the powers of judicial review
available to the High Court under Article
226 of the Constitution of India or they are
akin to a Court or a Tribunal of first
instance, such as, the Civil Court and
whether the Tribunal has misdirected itself
by proceeding to decide the OA, as if, it
was exercising the powers of judicial
review for which it was guided by a
decision of Hon'ble the Supreme Court
rendered in the case of Union of India Vs.
Subrata Nath; Civil Appeal Nos. 79397940 of 2022 arising out of Special Leave
to Appeal (Civil) NO. 3524 of 2022.

11. List/ put up no 29.04.2024 as
fresh."

3) Although, we had put certain
queries to the opposite parties Counsel vide
our order dated 26.04.2024, which are
contained in Paragraph 2 to 9, but in
Paragraph 10 of our order, we had also
proposed to consider the scope of power
and
jurisdiction
of
the
Central
Administrative Tribunal while considering
and deciding an original application, under
the Administrative Tribunals Act, 1985
(hereinafter referred to as, the Act, 1985);
whether its powers are akeen to the powers
of judicial review, available to the High
Court under Article 226 in the Constitution
of India, or they are akeen to a Court or a
Tribunal of first instance, such as, the Civil
Court; and whether the Tribunal has
misdirected itself, by proceeding to decide
the O.A., as if, it was exercising the powers
of judicial review, for which it was guided
by a decision of Hon'ble the Supreme
Court, rendered in the case of Union of
India vs. Subrat Nath in Civil Appeal No.
7939-7940 of 2022 arising out of Special
Leave to Appeal (Civil) No. 3524 of 2022.

4) After hearing the matter, we are of
the opinion that the queries raised by us in
Paragraph 2 to 9, can be considered by the
Tribunal itself, as it may involve an inquiry
into questions of fact and the evidence
which was adduced in the disciplinary
9 All. Arun Prakash Gupta Vs. U.O.I. & Ors.
651
proceedings against the petitioner. As
regards, the scope and power of jurisdiction
of the Tribunal in this regard, the Act, 1985
was promulgated with a reference to
Article 323-A of the Constitution of India.
The very purpose of constitution of
Tribunals under the said Act and Article
323-A of the Constitution is to ensure a
forum for speedy and effective adjudication
of disputes pertaining to terms and
conditions of service of officers and
employees, whether they be of the Central
Government or the State Government, as
the case may be.

5) No doubt, the Tribunals constituted
under the Act, 1985 have certain powers
analogous to the High Court, such as to
decide the vires of an enactment, except the
Act, 1985 under which they have been
constituted, but at the same time, they are
also supposed to act as Courts or Tribunals
of first instance so as to thrash out findings
of fact also. It is a misconception, that
Tribunals while exercising the powers
under the Act, 1985 in fact exercise powers
of judicial review, stricto sensu, as the High
Court does under Article 226 of the
Constitution of India. It is not so. This
would be evident from the provisions of the
Act, 1985 itself. We may in this regard
refer to Section 4 of the Act, 1985, which
provides
for
establishment
of
an
Administrative Tribunal to exercise the
jurisdiction, powers and authority conferred
on such Tribunal, by or under the Act,
1985. The Tribunal consists of judicial and
administrative
members,
both.
The
jurisdiction, powers and authority of the
Tribunals have been dealt with in Chapter
III of the Act, 1985. Section 14 deals with
Central Administrative Tribunal, whereas
Section 15 deals with State Administrative
Tribunals, constituted under the Act, 1985.
Section
22
deals
with
powers
and
procedure of Tribunals and it reads as
under:-

"22. Procedure and Powers of
Tribunals - (1) A Tribunal shall not be
bound by the procedure laid down in the
Code of Civil Procedure, 1908 [5 of 1908],
but shall be guided by the principles of
natural justice and subject to the other
provisions of this Act and of any rules
made by the Central Government, the
Tribunal shall have power to regulate its
own procedure including the fixing of
places and times of its inquiry and deciding
whether to sit in public or in private.

(2) A Tribunal shall decide every
application made to it as expeditiously as
possible and ordinarily every application
shall be decided on a perusal of documents
and written representations and after
hearing oral arguments, if any, allowed by
the Tribunal in the circumstances of the
case

(3) A Tribunal shall have, for the
purposes of holding any inquiry, the same
powers as are vested in a civil court under
the Code of Civil Procedure, 1908 [5 of
1908], while trying a suit, in respect of the
following matters, namely, --

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b) requiring the discovery and
production of documents;

(c)
receiving
evidence
on
affidavits;

(d) subject to the provisions of
Sections 123 and 124 of the Indian
Evidence
Act,
1872
[1
of
1872],
652 INDIAN LAW REPORTS ALLAHABAD SERIES
requisitioning
any
public
record
or
document or copy of such record or
document from any office;

(e) issuing commissions for the
examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing a representation
for default or deciding it ex parte;

(h) setting aside any order of
dismissal of any representation for default
or any order passed by it ex parte; and

(i) any other matter which may be
prescribed by the Central Government."

6) Although, the Tribunal is not
bound by the procedure laid down in the
Code of Civil Procedure, 1908, but it is to
be guided by the principles of natural
justice and the provisions of the Act, 1985.
Sub-section 3 of the Section 22 clearly
provides that the Tribunal shall have, for
the purposes of discharging its functions
under this Act, the same powers as are
vested in a Civil Court under the Code of
Civil Procedure, 1908, while trying a suit,
in respect of matters already quoted
hereinabove.

7) The very vesting of such powers of
summoning and enforcing attendance of
any person and examining him on oath;
requiring discovery and production of
documents;
receiving
evidence
on
affidavits; requisitioning any public record
or document, or copy of such record or
document from any office subject to the
provisions
mentioned
therein;
issuing
commissions for examination of witnesses
or documents, as are exercised by a Civil
Court while trying a suit, which is a court
of first instance, it is evident, that the
Tribunal while adjudicating a service
dispute is empowered to enter into
questions of fact, and decide factual issues
based on evidence, as is done by the Civil
Court, even though not bound by the
provisions of Code of Civil Procedure,
1908. In fact, the Tribunal is a substitute
for the Civil Court. Prior to constitution of
the Central Administrative Tribunal under
the Act, 1985, the remedy was before the
Civil Court, and therefore, an alternative
forum has been provided under Article
323-A of the Constitution of India. It can
take evidence, evaluate it and record
findings of fact. The powers of the High
Court under Article 226 of the Constitution
of India on the other hand, do not permit
such an exercise. The proceedings of the
High Court under Article 226 are summary
proceedings, whereas the proceedings of
the Tribunal, even though they are required
to be completed expeditiously, are not the
same as the High Court in this sense. The
Tribunal has been vested with powers to
examine questions of fact, to take evidence
and decide factual issues based thereon.
This aspect has also been considered by a
Seven Judges Bench decision of the
Supreme Court of India in L. Chandra
Kumar Vs. Union of India, (1997) 3 SCC
261, wherein it has been observed in
Paragraph 93 - "We may add that the
Tribunal 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." However, for the benefit
of the Tribunal, the entire Paragraph 93 is
quoted hereinbelow:-

"93. Before moving on to other
aspects,
we
may
summarise
our
conclusions on the jurisdictional powers of
these
Tribunals.
The
Tribunals
are
competent to hear matters where the vires
9 All. Arun Prakash Gupta Vs. U.O.I. & Ors.
653
of statutory provisions are questioned.
However, in discharging this duty, they
cannot act as substitutes for the High
Courts and the Supreme Court which have,
under our constitutional set-up, been
specifically
entrusted
with
such
an
obligation. Their function in this respect is
only supplementary and all such decisions
of the Tribunals will be subject to scrutiny
before a Division Bench of the respective
High
Courts.
The
Tribunals
will
consequently also have the power to test
the vires of subordinate legislations and
rules. However, this power of the Tribunals
will be subject to one important exception.
The Tribunals shall not entertain any
question regarding the vires of their parent
statutes following the settled principle that
a Tribunal which is a creature of an Act
cannot declare that very Act to be
unconstitutional. In such cases alone, the
High Court concerned may be approached
directly. All other decisions of these
tribunals, rendered in cases that they are
specifically empowered to adjudicate upon
by virtue of their parent statutes, will also
be subject to scrutiny before a Division
Bench of their respective High Courts. 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."

8) When we peruse the impugned
judgment in the light of what we have
discussed hereinabove with regard to the
scope of the proceedings before the Tribunal
and the powers & jurisdiction vested in it
under the Act, 1985, we find that the Tribunal
has declined to enter into the factual issues on
a misconception, as if it was exercising
powers of judicial review as are exercised by
the High Courts under Article 226 of the
Constitution of India, by way of summary
proceedings, wholly oblivious of the legal
position as aforesaid. The similarity of the
jurisdiction of the Tribunal vis-à-vis the High
Court has been clearly discussed and
explained by the Supreme Court in Paragraph
93 of its judgment in L. Chandra Kumar
(Supra). This does not take away the initial
role of the Tribunal to act as a Court /
Tribunal of first instance. There are various
issues which should have been seen by the
Tribunal, especially, the points which we
have noticed in our order dated 26.04.2024,
quoted hereinabove, but have not been
discussed.

9) On being confronted, learned
Counsel for the opposite parties could not
dispute the factual and legal position, so far
as, the scope of the proceedings of the
Tribunal constituted under the Act, 1985, and
the jurisdiction of the Tribunal under the said
Act.

10) We are therefore, of the opinion, for
the reasons aforesaid, the impugned judgment
is liable to be set aside and accordingly, the
same is set aside. The Transfer Application
No. 33200001/2017 shall now stand restored
before the Central Administrative Tribunal at
Lucknow and the same shall be heard and
decided afresh, keeping in mind the
observations made hereinabove, especially
the points raised in our order dated
26.04.2024. In doing so, it shall be open for it
to exercise the powers and jurisdiction vested
in it under Section 22 of the Act, 1985, rather
it would be obliged to do so, if the situation
so requires.
654 INDIAN LAW REPORTS ALLAHABAD SERIES

11) Considering the fact, that initially
a writ petition was filed before the High
Court in the year 2000 which was
transferred to the Tribunal in 2017 and
thereafter, it came to be dismissed on
17.01.2024, we request the Tribunal to
grant priority to the hearing of this petition,
and we expect that the Tribunal shall hear
and decide the same within a period of five
months, as prayed by the petitioner's
Counsel, from the date a copy of this order
is served before it. We permit the parties
herein to bring on record, the pleadings
filed in this petition, before the Tribunal
within a period of four weeks from today,
for its convenience, which shall also be
taken into consideration accordingly. This
shall be done on affidavit.

12) The writ petition is accordingly
disposed of in the aforesaid terms.
----------
(2024) 9 ILRA 654
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 3446 of 2024

Bahori Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravi Pratap Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Post retiral dues -
Pension - Recovery - Where the pay or
other emoluments due to an employee is
determined and paid by the employer, and
subsequently the employer finds, (usually
on audit verification) that on account of
wrong understanding of the applicable
rules by the officers implementing the
rules, excess payment is made, courts
have recognised the need to give limited
relief in regard to recovery of past excess
payments, to reduce hardship to the
innocent employees, who benefited from
such wrong interpretation. (Para 9)

Recovery from the employees, when the excess
payment has been made for a period in excess
of five years, before the order of recovery is
issued as well as recovery if made from the
employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far
outweigh
the
equitable
balance
of
the
employer's
right
to
recover,
would
be
impermissible. (Para 9)

B. If any recovery has been proposed or
executed against the employee after his
retirement
or
at
the
time
of
his
retirement, such recovery may not be
permissible. If at the time of making
excess payment, if any, any specific and
categoric undertaking is received from the
employee, such amount may be recovered
but in absence of such undertaking at the
time of making excess payment, recovery
would be impermissible. (Para 10)

C. In terms of GO dated 16.01.2007, it has
been categorically indicated that at the
time of retirement or after the retirement,
record of the employee of last 34 months
may be examined, not beyond that, but in
the present case, record of the petitioner is
being examined from the year 2008, which is
much beyond the period of 34 months. (Para 6)

The impugned recovery is in violation of GO
dated 16.01.2007 (infra), which has been
interpreted and affirmed by the Apex Court in
re; Sushil Kumar Singhal (infra). Further, such
recovery has been executed in absence of any
specific undertaking of the present petitioner at
the time of making payment of such amount, if
any. (Para 11)

Writ petition allowed. (E-4)

Precedent followed: