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                 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4350  OF 2009 (Arising out of SLP(C) No. 22165 of 2008)

State of West Bengal & Ors.                                          ……….Appellants

Versus

Samar Kumar Sarkar                                                       ……..Respondent

JUDGMENT  

H.L. Dattu,J.  

    Leave granted.

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  Tribunal  to  the  High  Court  for  its  

consideration and decision.  

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 O.A. No. 912 of 2003 under Section 19 of the  

Administrative  Tribunal  Act,  1985,  before  the  West  Bengal  State

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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  

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 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 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 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

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in the High Court at Calcutta, wherein 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  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  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 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 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 Kumar vs. Union of India – A.I.R. 1997 SC  1125.  But  this  Court  having   superintending  power  cannot  remain  passive  institution  when  learned  Tribunal abdicates its legal, if not constitutional duty.

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When  a  subordinate  Court  or  Tribunal  fails  or  neglects  absolutely  to function,  it  can be concluded  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  “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 person  or forum subordinate to it.  

Hence, we direct the Registry of the learned Tribunal  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  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.

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 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,

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`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 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  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 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.  

8) The learned Counsel for the contesting respondent submitted that the  

petition 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  the  records  pertaining  to  the  case  of  the  

respondent,  since  there  was  inordinate  delay  by  the  Tribunal  in

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deciding  an  application  which  did  not  involve  either  complicated  

questions of fact  or the law.  

9) The relevant Articles of the Constitution of India may be extracted:

“Article 227 : Power of superintendence  over all Courts  by the High Court: (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 – (a) call for returns from such Courts; (b) make and issue general rules and prescribe forms  

for  regulating  the  practice  and  proceedings  of  such Courts; and

(c) prescribe  forms  in  which  books,  entries  and  accounts shall be kept by the officers of any such  Courts.  

(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 or tables settled under clause (2) or clause (3)  shall not 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  

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:  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 –

a. either dispose of the case itself, or

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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  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  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 plentitude of the  

power 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  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,  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 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

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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 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 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 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  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 to an order of the High Court, such

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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  from  that  

covered by Articles 226 and 227 of the Constitution. It lays down the  

procedure regarding transfer of a case pending 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 subordinate to the High  

Court, the case 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 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, 1986 Supp. SCC 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

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disposal by itself if “it involves a substantial question of law as to the  

interpretation of the Constitution”.

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  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 return the case to the Court from which it has  

been so withdrawn so as to enable the said Court to 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 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.  

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

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Division  Bench  of  the  High  Court,  wherein  the  High  Court  has  

withdrawn the application pending 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  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 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  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. 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

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under  Article  227 of  the  Constitution,  the  power  of  interference is  

limited to seeing that the Tribunal functions within the limits of its  

authority.  

21)In the light of the above discussions, in our view, it would 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 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.  No order as to costs.  

                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, July 14, 2009.