S.H.A.Raza, J. - (1.) The petitioner Is one of the seniormost officers of the Indian Administrative Service. He was suspended from service. Thereafter he filed an original application before the Central Administrative Tribunal sitting at Lucknow. The Central Administrative Tribunal refused to entertain the application mainly on two grounds ; Firstly, that the petitioner had not availed the alternative remedy as provided under Rule 16 of the Indian Administrative Service Rules by filing an appeal before the Union Government, and secondly, that it has not been vested with the power to entertain an original application in view of the provisions contained in Section 20 of the Administrative Tribunals Act, 1985, which is reproduced as under : "20. Application not to be admitted unless other remedies exhausted.--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of subsection (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-( a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievances ; or (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) For the purposes of subsections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial,"
(2.) The vires of aforesaid provision has been assailed on the ground that the power of the High Court to entertain such petitions has been conferred on the Central Administrative Tribunals. It was urged that if the order is non est or the same has been passed without jurisdiction or it is of such a nature where relegating a person to alternative remedy will amount to miscarriage of justice, the High Court can entertain the writ petition under Article 226 of the Constitution of India. Hence the Central Administrative Tribunal can also entertain such original applications but as Section 20 of the Administrative Tribunals Act comes in the way before it. hence the said provision is ultra vires as the same is not just, proper and reasonable.
(3.) Before dealing with the subject we have to examine the jurisdiction of the Central Administrative Tribunal as to whether in appropriate cases, it can entertain the original applications without relegating a person to avail of the alternative remedy before knocking the door of the Tribunal in Abhinesh Chandra Dutta v. Union of India, (1987) 2 ATC 889 (CAT) (Cult), it has been held by the Tribunal itself non-exhaustion of other remedies does not deprive the Central Administrative Tribunal to give directions to the department to make payment of an amount if the Central Administrative Tribunal is satisfied that the same is due. In Charan Singh v. Union of India, (1986) 1 ATC 307 (CAT) (ND), it has been held by the Central Administrative Tribunal that where service rules do not empower the authorities to stay the impugned order despite a very just case and a very erroneous order, an application can be entertained by the Central Administrative Tribunal without insisting on exhaustion of other remedies. Similar view was taken by the Central Administrative Tribunal in A. N, Ramakrishnan Nair v. Divisional Engineer, Telegraphs, (1987) 3 ATC 974 (CAT) (Mad) ; R.P. Suri v. Union of India, (1986) 1 ATC 323 (CAT) (ND) as well as Umesh Rai v. Union of India, (1986) 1 ATC 774 (CAT) (Pat), in those cases, it has been observed by the Tribunal that where an order is impugned for want of jurisdiction and the application is already admitted by the Central Administrative Tribunal, an objection as to non-exhaustion of remedies cannot be taken by the respondents. In Jnananda Sarma Pathak v. Union of India. (1987) 2 ATC 657 (CAT) (Cau), it was indicated that the expression "expiry of six months" contemplated by Section 20 (2) (b) for disposal of the appeal, is not a condition precedent for admitting an application against an order of suspension passed in contemplation of disciplinary proceedings.;