L. CHANDRA KUMAR Vs. THE UNION OF INDIA & ORS.
KULDIP SINGH (J)
Administrative Tribunals Act
Constitution of India-Articles 324-A and 324-B Administrative Tribunals Act 1985-Section 5(6) Constitutional validity of-Matters arising out of judgement of Constitution Bench in S. P. Sampath Kumar v. Union of India, and subsequent decisions referred to larger Bench.
In a matter involving an examination of Section 5(6) of the Administrative Tribunals Act 1985, this Court was confronted with wider issues relating to the composition, jurisdiction, power and authority of Tribunals constituted under Articles 324-A and 324-B.
1995 AIR 1151, 1994( 6 )Suppl.SCR 261, 1995( 1 )SCC 400, 1994( 5 )SCALE72 , 1995( 1 )JT 454
Referring the matter to a larger Bench, this Court
HELD : In view of the decision in S. P. Sampath Kumar's case, by which a Constitution Bench of this Court decided the vires of the Administrative Tribunals Act 1985, and observations made therein, the matter be placed before a larger Bench for reconsideration. Subsequent decisions on matters adjudicated upon in Sampath Kumar are also referred to the larger Bench.
The issues referred to larger Bench include.
1. Whether Tribunals can be equated with High Courts. [263 B]
2. The jurisdiction, power and authority of Administrative Tribunals to adjudicate upon questions of constitutional validity of legislations and of rules. [263 C]
3. Whether a Tribunal which has the power to decide on the constitutional validity of a statute or rule made under Article 309 can have an Administrative Member on its Bench. [265 C)
4. Whether the power of judicial review held to be available to Administrative Tribunals as per Sampath Kumar's Case violates the basic structure of the Constitution. [263 H]
5. P. Sampath Kumar v. Union of India,  1 SCC 124, referred to a larger Bench alongwith J. B. Chopra v. Union of India, AIR (1987)
SC 357,Amulya Chandra Kalita v. Union of India,  1 SCC 181, Dr. Mahabal Ram. v. Indian Council of Agricultural Research,  2 SCC 401, Sakinala Harinath v. State of Andhra Pradesh, (1994) 1 APLJ 1 as assailed in C.A. No. 169 of 1994 which has been referred to a Constitution Bench, M. B, Majumdar v. Union of India, AIR (1990) SC 2263 State of Orissa v. Bhagwan Sarangi S.L.P. (C) No. 2129 of 1991 disposed of on October 1,1991 and R.K. Jain v. Union of India,  4 SCC 119.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 481 of 1989 Etc. Etc.
Judgment Made On 12/02/1994
1. The challenge to the validity of Section 5(6) of
the Administrative Tribunals Act, 1985 (the 'Act') has
unmasked greater issues, to examine which we have come to
the conclusion that the judgment of this Court in S.P.
Sampath Kumar v. Union India, 1987 (1) SCC 124, which is by
a Constitution Bench of five learned Judges, needs to be
reconsidered by a larger Bench. Our reasons follow.
2. The Constitution (Forty-second Amendment) Act, 1976
inserted Part XIV-A in the Constitution which contains Ar-
ticles 323-A and 323-B. These Articles conceive of setting
up of various tribunals as adjudicatory bodies. They, inter
alia, contain provisions which enable, not only the
Parliament but even State Legislatures, to exclude the
jurisdiction of all courts except that of this Court under
Article 136 with respect to matters falling within the
jurisdiction of the concerned tribunals. The Act came to be
enacted by the Parliament in exercise of the power conferred
on it by Article 323-A of the Constitution. The vires of
the Act was challenged before this Court which was upheld in
Sampath Kumar's case.
3. While upholding the validity of Section 28 of the Act
in Sampath Kumar's case this Court took the view that the
power of judicial review need not always be exercised by
regular courts and the same can be exercised by an equally
efficacious alternative mechanism. Apart from making
suggestions relating to the eligibility etc. of the persons
who could be appointed as Chairman, Vice-Chairmen. or
Members of the Tribunal this Court stated that every bench
of the Tribunal should consist of one Judicial Member and
one Administrative, Member.
4. The primary reason, according to us, for having a
fresh-look at the issues involved in Sampath Kumar's case is
the observations of the Bench therein by which the tribunals
have been equated with the High Courts. A two-Judge Bench
of this Court in J.B. Chopra v. Union of India, AIR. 1987 SC
357 relying upon Sampath Kumar has held that the Tribunals
have the jurisdiction, power and authority even to
adjudicate upon questions pertaining to the constitutional
validity or otherwise of a rule framed, by the President of
India under the proviso to Article 309 of the Constitution.
They can even adjudicate on the vires of the Acts of
Parliament and State Legislatures. Section 5(6) of the Act
gives this power, if the Chairman of the tribunal so
desires, even to a single Administrative Member. It is a
different matter that no Chairman would like to do so; but
that has no relevance while examining the validity of the
sub-section which reads as below:-
"Notwitstanding anything contained in the
foregoing provisions of this section, it shall
be competent for the Chairman or any other
Member authorised by the Chairman in this
behalf to function as a Bench consisting of a
single Member and exercise the jurisdiction,
powers and authority of the Tribunal in
respect of such classes of cases or such
matters pertaining to such classes of cases as
the Chairman may be general or special order
Provided that if at any stage of the hearing
of any such case or matter it appears to the
Chairman or such Member that the case or
matter is of such a nature that it ought to be
heard by a Bench consisting of two Members the
case or matter may be transferred by the
Chairman or, as the case may be, referred to
him far transfer to, such Bench as the
Chairman may deem fit."
5. In Amulya Chandra Kalita v. Union of India, 1991 (1)
SCC 18 1, a two-Judge Bench of this Court held that the
Administrative Member of Tribunal alone is not competent to
hear and decide a case. This view was taken after referring
to what has been pointed out in Sampath Kumar's case
requiring bench of the Tribunal to consist of one Judicial
Member and one Administrative Member following which
observation, the Act was amended to say so, vide its Section
5(2) as substituted by Act 19 of 1986. The attention of the
Bench deciding Amulya Chandra Kalitas case, however, was not
invited to Section 5(6).
6. The aforesaid point came to be examined again; and this
time by a three Judge Bench in Dr. Mahabal Ram v. Indian
Council of Agricultural Research, 1994 (2) SCC 410. (The
judgment was, however, rendered on May 3, 1991). When the
attention of this Bench was drawn to Section 5(6) of the
Act, it opined that any matter involving questions of law or
interpretation of constitutional provision should be
assigned to a two-Member Bench and parties can request the
single Member to refer the matter to a larger bench of two
Members and such request should ordinarily be accepted. In
pursuant to these observations an order was passed by the
Chairman of the Central Administrative Tribunal on December
18, 1991 which is in consonance with the same. It deserves
notice that in Mahabal Ram's case there was no challenge to
the validity of subsection (6), but the same has been
7. Shri Rama Jois, in assailing the validity of sub-
section (6), has raised larger issues before us one of which
relate to the view taken in Sampath Kumar's case that
judicial power need not always be exercised by regular
courts. According to the learned counsel, this is contrary
to the dicta laid down even in Kesvananda Bharati v. State
of Kerala, AIR 1973 SC 1461. Indeed, this is the view which
has been taken recently by a Full Bench of Andhra Pradesh
High Court in Sakinala Harinath v. State of Andhra Pradesh,
1994 (1) APLJ 1. For the sake of completeness it may be
mentioned that the decision in Sakinala has been assailed
before this Court in C.A. No. 169/94 which has been referred
to a Constitution Bench.
8. Another facet of the case focused by Shri Rama Jois
relates to the equality of status between the Tribunals and
the High Courts. A note discordant to that of Sampath Kumar
was struck in this regard by a three-Judge Bench of this
Court in M.B. Majumdar v. Union of India, AIR 1990 SC 2263,
holding that Administrative Tribunals cannot be equated with
the High Courts in all respect and they are not deemed High
Courts, because of which Members of Tribunals cannot claim
equality with High Court Judges as regards pay and age of
superannuation. Mention may also be made about the view
taken by this Court in State of Orissa v. Bhagwan Sarangi,
(SLP(C) No. 2129/91 disposed of on 1.10.91) that a Tribunal
established under the Act is nonetheless a tribunal and it
cannot side-track a decision of the concerned High Court.
9. It would not be out of place to refer to a three-Judge
Bench decision of this Court in R.K. Jain v. Union of India,
1993 (4) SCC 119, in which need for the Members of the
Tribunal (which was CEGAT in that case set up with the aid
of Article 323-B but what was stated therein would apply
proprio vigore to the Tribunal at hand) having adequate
legal expertise, judicial experience and legal training was
emphasised to enable the Tribunal to become effective
alternative. institutional mechanism and to dispense with
High Court's power of judicial review. Ramaswamy, J.,
however, opined that such tribunals being creature of
statues can in no case claim the status of the High Court
or parity or as substitutes.
10. The aforesaid post-Sampath Kumar cases do require in
our considered view, a fresh look by a larger-Bench over
all the issues adjudicated by this Court in Sampath Kumar's
case including the quest ion whether the Tribunal can at all
have an Administrative Member on its Bench, if it were to
have the power of even deciding constitutional validity of a
statute or 309 Rule, as conceded in Chopra's case (supra).
Examination of this aspect would be necessary to instill
confidence in the minds of people (and litigants) which is
the greatest prop of the judiciary.
11. Let the records be placed before Hon'ble the Chief
Justice of India for constitution of an appropriate Bench.