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Judgment
ORDER
In the instant OA, the applicant seeks the following reliefs:-
"8.1.to allow the present Application;
8.2.to permanently restrain the Respondent from taking any decision regarding the Period from 16.11.2015 to 28.08.2016 on the ground of Undue Delay and Malice;
8.3.and as a consequence thereto, direct the Respondent to treat the Period from 16.11.2015 to 28.08.2016 as Duty for all purposes;
8.4.and further to grant all consequential benefits thereof, including Salary for the Period 28.09.2015 to 16.11.2016, annual increment due on 01.07.2016 and arrears of Salary, with Penal Interest @ 18% Compound Interest;
8.5.to issue any such and further orders/directions this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and
8.6.to allow exemplary costs of the application."
On advance notice, Mr. Pradeep Kumar Sharma, learned counsel appears on behalf of respondents and raised a preliminary objection to the effect that this Bench does not have territorial jurisdiction to adjudicate this matter as the applicant is posted and still working at Gurugram and if the person is working in Gurugram, jurisdiction lies before the Chandigarh Bench of this Tribunal.
Learned counsel for the respondents contends that Rule 6 of The Central Administrative Tribunal (Procedure) Rules 1987, is explicitly clear inasmuch as the jurisdiction where the applicant is working is concerned. It is only in the case when a retired person is aggrieved of any action, he may pursue the proceedings, where he is residing.
On the other hand, Mr. Tushar Ranjan Mohanty, learned counsel for the applicant states that the Registry had already raised a query which was explained and, therefore, the OA has been numbered and accordingly this Tribunal has the jurisdiction. He further submits that in the earlier round of litigation in OA No. 3097/2023, also one of the respondents was from Ambala. He further states that the applicant is a resident of Delhi and with the permission of the competent authority, he is working at Gurugram. He further contends that the respondent is only Union of India through Chief Secretary, Department of Posts, who is the competent authority to take decision and against whom the relief is claimed.
Learned counsel for the applicant further states that the cause of action arose in Delhi as the impugned service book was handed over to the applicant in court at Delhi only as reflected in order dated 24.05.2024 passed by this Tribunal in CP No.406/2024 in OA No.3097/2023, which reads as under:-
"2.Mr. R.K. Jain, learned counsel appearing for the respondents submits that directions of the Tribunal as in the captioned OA have since been complied with. He further submits that a copy of the relevant document has not only been sent to the petitioner by post but has also been supplied to his learned counsel during the proceedings." Therefore, the cause of action has arisen in Delhi as per Rule 6 of CAT (Procedure) Rules, 1987.
Learned counsel for the applicant fairly submits that the cause relating to the period of unauthorized absence occurred at Dibrugarh.
During the course of arguments, a suggestion was given to the applicant that he may prefer a Petition for Transfer (PT) for invoking jurisdiction of this Bench of the Tribunal to which the applicant, who is also present in court, declines to accept.
Heard learned counsel for the parties.
9. ANALYSIS
At the time of scrutiny of the OA, at Sl. No. 20 (c), an objection was raised by the Registry. The same reads as under:
“PT is required as the cause of action is of O/O Director (PAF), Guwahati as mentioned in service book”
On 09.07.2024, learned counsel for the applicant had given an undertaking to the Registry, which reads as under:
“1.The impugned Service Record was handedover in Court in Delhi. Thus, Cause of Action, has arosen in Delhi. (See Anexure:A-3, para 2, Page-49)
2.The Competent Authority is the Hon’ble President. Therefore, Rule 22 (i) of CCS (CCA) Rules, 1965 applies. Further judgment in OA No. 2498 of 1990 of Principal Bench be seen. Further, Representation is not mandatory under Section 20 of the AT ACT, 1985. Word used is “normally” not “mandatorily”. Explanation given in Paragraph 6.
Note: Several Representations have bene given in the past for regularization of the period in question, but without any result. They are not on record. This is for permanent injuction. See Paragraph 4.4.”
Rule 6 of the CAT (Procedure) Rules,1987 provides as under:-
“Place of filing applications-
(1)An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction-
(i)the applicant is posted for the time being, or
(ii)the cause of action, wholly or in part, has arisen.
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
(2)Notwithstanding anything contained in sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.”
Section 25 of the Administrative Tribunals Act, 1985 provides as under:-
“25.Power of Chairman to transfer cases from one Bench to another- On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, nor on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal to any other Bench.”
Learned counsel for the applicant urged that part of cause of action, i.e., decision qua treatment of leave period by sole respondent, who is located at Delhi has arisen within the territorial jurisdiction of this Bench.
In fact, it is not in dispute that treatment of leave period and action thereto happened when the applicant was working in Dibrugarh. Even the relief(s) clause is based on an apprehension. There is no impugned order as on date by the Competent Authority which is supposed to be passed and by whom. Even stage of challenging any decision has not come yet. From the pleadings, it would emerge that this is a third OA filed by the same applicant. In all the OA(s), the applicant has chosen to implead different parties/respondents. We may say that the fact that on earlier occasions the OA(s) filed by the applicant were entertained by this Tribunal does not by itself give a right to the applicant to sue or a valuable right has accrued to him at later stage dehors the Rule 6 as pointed above.
The issue of jurisdiction has to be thrashed out at the initial stage itself. This Bench’s jurisdiction is hit by concept of “forum shopping”. When litigants or lawyers attempt to deliberately move their case to a particular judge or Court where they think the judgment could be more favourable, they are said to be “forum shopping”. Websters’s dictionary defines “forum shopping” as under:
“practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favourable outcome.”
The Hon'ble Supreme Court ruling in M/S. Chetak construction Ltd vs Om Prakash & Ors, AIR 1998 Supreme Court 1855 decided on 20/04/1998 held as under:
“Indeed, no lawyer or litigant can be permitted to brow beat the court or malign the presiding officers with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities of justice would become a casualty and Rule of Law would receive a set back. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot, be allowed to "terrorize" or "intimidate" judges with a view to "secure" orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go "forum shopping". A litigant cannot be permitted `choice' of the `forum' and every attempt at "forum shopping" must be crushed with a heavy hand. At the same time, it is of utmost importance to remember that Judges must act as impartial referees and decide cases objectively, uninfluenced by any personal bias or prejudice. A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and public confidence in it. The credibility of this institution rests on the fairness and impartiality of the Judges at all levels. It is the principle of highest importance, for the proper administration of justice, that judicial powers must be exercised impartially and within the bounds of law. Public confidence in the judiciary rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. Judges must always ensure that they do not allow the credibility of the institution to be eroded. We must always remember that justice must not only be done but it must also be seen to be done.”
In Union of India & Ors. vs. Cipla Ltd., CA No. 329/2005 decided on 21.10.2016 the Supreme Court laid down a “functional test” to be adopted for forum shopping. Illustratively, quoting the decision in Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of Uttar Pradesh and others (2008) 1 SCC 560 it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centered around the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for others with a view to confer jurisdiction on a particular Court would also amount to forum shopping by that group of petitioners. The Hpn’ble Apex observed as under:
“157.The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there any functional similarity in the proceedings between one Court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.”
In the case of Vijay Kumar Ghai vs. State of W.B. decided on 22.03.2022 in Criminal Appeal No. 463 OF 2022 (arising out of S.L.P (Crl.) No. 10951 OF 2019), the Hon’ble Supreme Court termed forum shopping as a “disreputable practice by the courts” that “has no sanction and paramountcy in law”.
10. CONCLUSION
In view of the analysis and facts narrated above, we reject the original application for want of jurisdiction of this Bench at this stage. As already observed, a suggestion was made at the admission stage itself, to take steps for filing the petition for transfer under relevant Rules. However, the same was out-rightly declined by the applicant himself, who happened to be present at the time of hearing. We are compelled to impose a cost of Rs. 10,000/- upon the applicant to be deposited in “Prime Minister’s Relief fund”, within twenty one days from today. On failure to deposit the same, the respondent is directed to issue appropriate orders to appropriate authority at Gurugram, Haryana for recovery of the said amount from the salary of the applicant. All pending MAs, if any, shall stand disposed of.