[Breaking] Delhi High Court issues notice to Central Government in Alapan Bandyopadhyay's review petition

The Delhi High Court on Friday issued notices on a review petition filed by former West Bengal Chief Secretary Alapan Bandyopadhyay challenging the Central Administrative Tribunal (CAT) Chairman's decision to transfer his case from Kolkata Bench to Delhi. .The notices were issued by a bench of Justices Rajiv Shakdher and Jyoti Singh which has listed the matter for further hearing on May 20. .Bandyopadhyay's petition was dismissed last month by a bench headed by the then Chief Justice DN Patel and Justice Jyoti Singh. .Todays, Senior Advocate Abhishek Manu Singhvi appeared for the petitioner and told the court his junior counsel had repeatedly requested the court for a passover in the matter but he was forced to argue the case."Solicitor General (SG) and Additional Solicitor General (ASG) were opposing him. After all, the experience matters. In a sensitive matter like this, if there had been a passover or another date there would have been a fair crack of the whip. At the end of the day it is undeniable that two senior lawyers opposed and no senior counsel was on this side," he told the court. .As ASG Vikramjit Banerjee opposed the petition, Justice Shakdher remarked that if this was his stand then he will record the same in the order and no passover will be granted on request of junior counsels appearing for the Centre. "He (Singhvi) says they asked for a passover. That is a fact because my colleague (Justice Jyoti Singh) has informed me that it was declined. It is practise of this court to give passovers. I have been here longer than some of the other people here,” Justice Shakdher said. Continuing to addressing the ASG, Justice Shakder asked if it would be fair to go on with the case and pass orders if some senior law officer for the Centre was briefed by were unable to appear at the time.“Let me put it like this. Suppose there is a request for passover because AG or SG is appearing in the matter and I deny it and tell the junior counsel to argue, would it be fair? This will form a wrong precedent. If tomorrow you are in the other court and I ask your junior to go on, what choice does he have? If the government of India tomorrow briefs you in a matter and some rookie lawyer is with you and says Mr Banerjee will be here. Should I say go on?", the judge asked.The ASG however told the court that matter was argued by the junior counsel for nearly 45 minutes and therefore a fair hearing was given. .Justice Shakdher responded that if that is the case, it would be fair game if the next time, no matter who the law officer appearing is, the court passes orders in their abasence. He then cited the 1981 incident of Australian Cricket Captain Greg Chappell directing one of his bowlers to bowl underarm in a cricket match against New Zeland. “In cricket when a person walks out of crease, there are two types of people; one is those who run you out and the other ask you to come back to the crease. Gregg Chappell incident is there. Till date he is blamed for it. It all depends whether we want to be fair to it or not”, he remarked..Singhvi then cited a matter of Thursday wherever similar thing happened in the Supreme Court when SG Tushar Mehta's counsel argued for nearly 45 minutes before Justice Khanwilkar's bench but later the SG came and said he will argue. "Justice Khanwilkar was angry but he asked us what we want to do and we agreed... We are not here for bheek. But if this is the stand then we will also take similar position from now on," he said. .Justice Shakdher finally said,“We are issuing notice. But I was saying more as a judge of the court that we have evolved some practise and I assure you that if the situation were to be reverse and if I refuse or my colleague refused… Flip the coin. Say that if I had refused and if had told Mr Kirtiman Singh (Centre’s counsel) to go on, despite that fact that he has not brief to go. What does he do then? He has two options either he sits and says he can’t argue or he actually argues. Therefore, I am saying nothing will happen, it is only round two. Consider it and please give wise counsel to your client.” .The West Bengal government and the Central government have been locked in a tug of war over Bandyopadhyay following a political controversy arising out of Prime Minister Narendra Modi’s review meeting on cyclone Yaas in 2021.It was alleged that Bandyopadhyay turned up late to the meeting presided by the PM, after which the Department of Personnel and Training (DoPT) initiated proceedings against him. The Centre subsequently set up a panel to probe the charges against him.This move was challenged by him before the Kolkata Bench of CAT. However, the matter was transferred to Delhi before any hearing could take place. Bandyopadhyay challenged the order of the CAT Chairman before the Calcutta High Court, which set it aside.Subsequent to an appeal by the Centre, the Supreme Court set aside the order of the Calcutta High Court, holding that any decision of the CAT at Delhi, including the one passed under Section 25 of the Administrative Tribunals Act, 1985, could be subjected to scrutiny "only before a Division Bench of a High Court within whose jurisdiction the tribunal concerned falls.".Bandyopadhyay then moved the Delhi High Court challenging the transfer of the case. His plea stated that the order passed by the Principal Bench of CAT was in complete violation of the principles of natural justice, equity and fair play as he was not even granted a right to file his written objections to the transfer petition filed by the Centre, which was allowed on the very first day of its listing.“The petitioner is the former Chief Secretary to the Government of West Bengal and retired on 31st May, 2021. The petitioner ordinarily and permanently resides in Kolkata. Therefore, the petitioner had an unqualified right under Rule 6(2) of the Central Administrative Tribunal (Procedure) Rules, 1987 to file the Original Application before the Kolkata Bench. Further, the entire cause of action in respect of the Original Application as well as the underlying disciplinary proceedings against the Petitioner occurred within the jurisdiction of the Kolkata Bench,” the petition said.Appearing for Bandyopadhyay, Advocate Karthikey Bhatt had argued that the CAT Chairman did not give him any time before transferring the matter to Delhi.He said that the matter concerned an inquiry with respect to the incident that happened in West Bengal, the officer is an IAS officer of the West Bengal cadre and all the papers pertaining to the case are also in that territory.The only witness that the Union of India seeks to examine is the officer of West Bengal, and therefore, the balance of convenience also lies in Bandyopadhyay’s favour, Bhatt had said.Solicitor General Tushar Mehta, appearing for the Centre, however, submitted that the CAT Chairman passed the order under Section 25 of The Administrative Tribunals Act, which is an administrative order and the only conditions prescribed in the Section is that the Chairman should give reasons for the order and that it should not be capricious or arbitrary."Section 25 refers to the power of the Chairman to transfer cases from one bench to another. The powers are very wide. The Chairman has the power to transfer cases from one bench to any other bench. This is a master of roster power and held to be administrative by the Supreme Court,” he had said..The Calcutta High Court had passed a scathing order on October 29, 2021 berating the Principal Bench of CAT for what it perceived as favouring the Central government in its attempt to transfer a case filed by Bandyopadhyay from Kolkata to New Delhi.The High Court Bench of Justices Sabyasachi Bhattacharyya and Rabindranath Samanta said that the modus operandi of the Central government to get the case transferred to the principal bench of CAT at New Delhi reeked of mala fides.It was unfortunate that the Principal Bench nurtured such efforts by allowing Centre's transfer petition, the High Court had said.The Supreme Court set aside the Calcutta High Court on ground of lack of jurisdiction. While doing so, it underscored that once a Constitution Bench of Supreme Court has declared the law that “all decisions of tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned tribunal falls”, "then it is impermissible to make any further construction on the said issue.".Senior Advocate Abhishek Manu Singhvi and Advocate Kunal Vajani appeared for Bandyopadhyay. They were instructed by the team of Fox & Mandal led by Debanjan Mandal along with Kunal Mimani - AOR, Mahima Cholera, Kartikey Bhatt and Gokula Krishnan.Additional Solicitor General (ASG) of India, Vikramjit Banerjee appeared on behalf of the Union of India.