PETITIONER: L. CHANDRA KUMAR Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT02/12/1994 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J) MAJMUDAR S.B. (J) CITATION: 1995 AIR 1151 1995 SCC (1) 400 JT 1995 (1) 454 1994 SCALE (5)72 ACT: HEADNOTE: JUDGMENT:
ORDER
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 of India1 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
Articles 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
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 tribunals concerned. The Act came to be
enacted by Parliament in exercise of the powers 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 case1.
3. While upholding the validity of Section 28 of the Act
in Sampath Kumar 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-Chairman 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 case1 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 India2 relying upon
Sampath Kumar1 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:
1 (1987) 1 SCC 124
2 (1987) 1 SCC 422 : AIR 1987 SC 357
402
“Notwithstanding 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 by general or special order
specify:
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 for transfer to, such Bench as the
Chairman may deem fit.”
5. In Amulya Chandra Kalita v. Union of India3 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 case1 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
Kalita case3, 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 Mahabal Ram v. ICAR4. (The
judgment was, however, rendered on 3-5-1991.) 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.
Pursuant to these observations an order was passed by the
Chairman of the Central Administrative Tribunal on 18-12-
1991 which is in consonance with the same. It deserves
notice that in Mahabal Ram case4 there was no challenge to
the validity of sub-section (6), but the same has been
assailed here.
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 case1 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 Kesavananda Bharati v. State
of Kerala5. 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 A.p6 For the sake of
completeness it
3 (1991) 1 SCC 181 1991 SCC (L&S) 145: (1990) 14 ATC 911
4 (1994) 2 SCC 401
5 (1973) 4 SCC 225 AIR 1973 SC 1461
6 (1994) 1 APLJ 1
403
may be mentioned that the decision in Sakinala6 has been
assailed before this Court in CA No. 169 of 1994 which has
been referred to a Constitution Bench.
8.Another facet of the case focussed by Shri Rama Jois
relates to the equality of status between the Tribunals and
the High Courts. A note discordant to that of Sampath
Kumar1 was struck in this regard by a three Judge Bench of
this Court in M.B. Majumdar v. Union of India7 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. Bhagaban Sarangi8
that a tribunal established under the Act is nonetheless a
tribunal and it cannot side-track a decision of the High
Court concerned.
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 India9
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 Courts’ power of
judicial review. Ramaswamy, J., however, opined that such
tribunals being creature of statutes can in no case claim
the status of the High Court or parity or as substitutes.
10.The aforesaid post-Sampath Kumar1 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 case1
including the question 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 case2.
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.
7 (1990) 4 SCC 501 : 1991 SCC (L&S) 233 : AIR 1990 SC 2263
8 (1995) 1 SCC 399
9 (1993) 4 SCC 119: 1993 SCC (L&S) 1128 :(1993) 25 ATC 464
404