Chandra Kumar Vs. Union of India & Ors  INSC 633 (2 December 1994)
Singh (J) Kuldip Singh (J) Hansaria B.L. (J) Majmudar S.B. (J)
1995 AIR 1151 1995 SCC (1) 400 JT 1995 (1) 454 1994 SCALE (5)72
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.
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.
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
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
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:
(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:
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
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
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.
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.
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.
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.
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.
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
of this aspect would be necessary to instill confidence in the minds of people
(and litigants) which is the greatest prop of the judiciary.
the records be placed before Hon'ble the Chief Justice of India for
constitution of an appropriate Bench.