T.
Sudhakar Prasad Vs. Govt. of A.P. & Ors [2000] INSC 654 (13 December 2000)
Appeal (civil) 5090 1998
K.G.Balakrishnaa,
R.C.Lahoti
L.I.T.J
R.C.
Lahoti, J.
Administrative
Tribunals set up under the provisions of Administrative Tribunals Act, 1985, do
they or do they not have power to punish for their contempt? Whether after of
India & Ors., (1997) 3 SCC 261, Section 17 of the Administrative Tribunals
Act, 1985 (hereinafter, the Act for short) does not survive and has been
rendered unconstitutional or otiose? These questions of far-reaching
implications to the administration of justice through tribunals arise for
consideration in these appeals.
A
cursory view of factual backdrop. An application (Contempt Application
No.562/1996 in O.A. No.35574/1991) invoking the contempt jurisdiction of Andhra
Pradesh Administrative Tribunal under Section 17 of the Act and seeking
initiation of proceedings against the Principal Secretary, Irrigation and CAD
Department was filed complaining of willful disobedience by the latter of an
order passed by the Tribunal in favour of the applicant.
The
Tribunal initiated the proceedings. The State of A.P.
and
the Principal Secretary filed a writ petition (CWP No.34841/1997) in the High
Court of Andhra Pradesh laying challenge to the jurisdiction of the Tribunal to
take cognizance of the contempt case. In another matter an application
(Contempt Case No. 1054/1998) invoking contempt jurisdiction of the High Court,
without approaching the Tribunal under section 17 of the Act, and complaining
of willful disobedience of an order passed by the Andhra Pradesh Administrative
Tribunal was filed before the High Court. In both the matters, question arose
whether such proceedings were appropriately maintainable before the High Court
or the Administrative Tribunal. The issue has been disposed of by a Division
Bench of Andhra Pradesh High Court holding as under:- (1) that in view of the
decision rendered by the Supreme Court in L. CHANDRA KUMAR V. UNION OF INDIA & ORS. (supra),
Section 17 of the Administrative Tribunals Act, 1985, no more survives;
(2)
that consequently, the Administrative Tribunals set-up under the Administrative
Tribunals Act, 1985 cannot exercise the contempt jurisdiction under Section 17
of the said Act, as the same had become non est under law;
(3)
the contempt proceedings in Contempt Application No. 562 of 1996 on the file of
the Andhra Pradesh Administrative Tribunal are set aside as being devoid of
jurisdiction. But, this will not prelude the respondents 1 to 6 in Writ
Petition No. 34841 of 1997 from approaching this Court for punishing the
contempt of A.P.
Administrative
Tribunal relating to the decision rendered in O.A. No.35574 of 1991 by
following the procedure as applicable to the contempt of subordinate courts
provided under the provisions of the Contempt of Courts Act, 1971 and the rules
made thereunder by the Andhra Pradesh High Court;
and
(4) that similarly, the petitioner in CC No.1054 of 1998 has to approach this
court only by following the procedure as applicable to the contempt of
subordinate courts provided under the provisions of Contempt of Courts Act,
1971 and the rules made thereunder by the Andhra Pradesh High Court and not
directly.
Accordingly,
the High Court has directed the contempt application pending before it to be
dealt with by following the procedure applicable to contempt of subordinate
courts and the contempt application filed in the Tribunal has been directed to
be dismissed as one before forum without jurisdiction with liberty to the
applicant to initiate the proceedings afresh by following the procedure as
stated by the High Court. These appeals have been filed feeling aggrieved by
the judgment of the High Court taking the view as aforesaid.
A
perusal of the judgment of the High Court shows that the Division Bench has
traced the history of the establishment of Administrative Tribunal by referring
to the relevant provisions of Constitution (Forty-second Amendment) Act, 1976,
the Administrative Tribunals Act, and exploring the nature of contempt
jurisdiction exercised by the superior courts for punishing the contempt of the
courts and Tribunals subordinate to the High Courts. The High Court has
extracted and reproduced extensively from the Constitution Bench judgment of
this court in Supreme Court also analysed in its own way the decision of this
court in L. Chandra Kumar (supra) and therefrom drawn the following deductions
(vide para 14 of the impugned judgment), which will be useful to reproduce so
as to appreciate the reasoning of the High Court :- 14. As such, it is clear
that in the State, the High Court is the only superior court and the superior
Court of Record. The High Court is the custodian of the dignity and majesty of
law in the State, concerning not only itself but also all courts subordinate to
it. Subordinate courts/Tribunals have not been empowered to punish contempt of
themselves. They have to report to the High Court in the prescribed form and
then the High Court will exercise the said power. It is well settled that when
a statute specifically provides for the exercise of a power by named authority,
the ambit and location of that power is to be sought only as prescribed by the
said statute and not otherwise. The submission of the learned Amicus Curiae
that without contempt power, the Administrative Tribunals would become
ineffective, cannot be considered, as the power of court/Tribunal over a cause
has no relevance to and does not determine its power to deal with a contempt of
itself. A reading of Section 30 would make the things very clear that what is
independently conferred upon the Tribunal is to deal with exfacie curiae
contempt under Section 228 of Indian Penal Code, which power also is vested in
the other subordinate courts/tribunals, to the exclusion of High Court in view
of provision to Section 10 of Contempt of Courts Act, 1971. As such, the
legislative intent is clear that only against offences committed against the
public servants in discharge of their judicial functions, the Administrative
Tribunals Act makes an independent provision analogous to that of the other
subordinate courts/tribunals. That, Administrative Tribunals are subordinate to
High Court, admits of no doubt, as such Tribunals exercise the judicial power
of the State and are amenable to the Jurisdiction of judicial review and
judicial superintendence of the High Courts under Articles 226 and 227 of the
Constitution. The tribunal cannot be said to have the contempt power sui
generis. The status of the Administrative Tribunal is on par with any other
subordinate court like district Courts and other Tribunals amenable to the
jurisdiction of the High Courts, with only exception that the Administrative
Tribunals are conferred with power of judicial review of legislative action
also, because of the verdict in CHANDRA KUMARs case (supra). But, such
conferment of power by the Supreme Court in CHANDRA KUMARs case enabling the
Administrative Tribunal to exercise the power of judicial review of legislative
action cannot elevate the status of the Administrative Tribunal to that of High
Court. Further, if the contempt power is exercised by the Administrative
Tribunal, them under Section 19 of the Contempt of Courts Act, 1971, the matter
is directly appealable to the Supreme Court as of right and the decision on
thereon by the apex court becomes final. It is incomprehensible that when the
Supreme Court has ruled in CHANDRA KUMARs case that no judgment rendered by the
Administrative Tribunals in service matter can be directly appealable the
Supreme Court under Article 136 of the Constitution, that the contempt
jurisdiction still vests in the Administrative Tribunals, as in that event, the
dicta laid down by the Supreme Court will be violated, as against the exercise
of contempt power by the Administrative Tribunal, the matters have to go
directly to the Supreme Court by way of appeal and that too, as of right. The
contempt power cannot be exercised by the Administrative Tribunal concurrently
with the High Court, as there is no such scheme either constitutional under
Article 215 or statutory under Contempt of Court Act, 1971. We cannot also
accede to the contention that the contempt power can be exercised by the
Administrative Tribunal subject to judicial review of the said exercise by the
Court under Article 226 of the Constitution, for the same reason that if the
contempt power is exercised by the Administrative Tribunal, this courts
jurisdiction is barred, as there is a right of appeal to the Supreme Court
under Section 19 of the Contempt of Courts Act, 1971 and the power which is
intended for exercise, as of right, by the Supreme Court of India can never be
usurped by the High Court under the guise of exercising the jurisdiction under
the Article 226/227 of the Constitution of India.
[emphasis
supplied] We will shortly revert back to testing the correctness of the
reasoning adopted and the conclusions drawn by the High Court. We proceed to
deal with the relevant constitutional and statutory provisions. Constitution
(Forty-second Amendment) Act, 1976 introduced Part XIV-A - Tribunals engrafting
Articles 323A and 323B into the body of the Constitution. We are not concerned
with Article 323B dealing with tribunals for other matters. We are concerned
with administrative tribunals dealt in Article 323A which is reproduced as
under :- 323A. Administrative Tribunals. - (1) Parliament may, by law, provide
for the adjudication or trial by administrative tribunals of disputes and
complaints with respect of recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the
Union or of any State or of any local or other authority within the territory
of India or under the control of the Government of India or of any corporation
owned or controlled by the Government.
(2) A
law made under clause (1) may, - (a) provide for the establishment of an
administrative tribunal for the Union
and a separate administrative tribunal for each State or for two or more
States;
(b)
specify the jurisdiction, powers (including the power to punish for contempt)
and authority which may be exercised by each of the said tribunals;
(c)
provide for the procedure (including provisions as to limitation and rules of
evidence) to be followed by the said tribunals;
(d)
exclude the jurisdiction of all courts, except the jurisdiction of the Supreme
Court under article 136, with respect to the disputes or complaints referred to
in clause (1);
(e)
provide for the transfer to each such administrative tribunal of any cases
pending before any court or other authority immediately before the
establishment of such tribunal as would have been within the jurisdiction of
such tribunal if the causes of action on which such suits or proceedings are
based had arisen after such establishment.
(f)
repeal or amend any order made by the President under clause (3) of article
371D;
(g)
contain such supplemental, incidental and consequential provisions (including
provisions as to fees) as Parliament may deem necessary for the effective
functioning of, and for the speedy disposal of cases by, and the enforcement of
the orders of, such tribunals.
(3)
The provisions of this article shall have effect notwithstanding anything in
any other provision of this Constitution or in any other law for the time being
in force.
[emphasis
supplied] In pursuance of Article 323A of the Constitution the Parliament
enacted the Administrative Tribunals Act, 1985 to provide for the adjudication
or trial by Administrative Tribunals of disputes and complaints with respect to
recruitment and conditions of service of persons appointed to public services
and posts in connection with the affairs of the Union or of any State or of any
local or other authority within the territory of India or under the control of
the Government of India or of any Corporation or society owned or controlled by
the Government. On coming into force of the Act and constitution of the Central
Administrative Tribunal all the jurisdiction, powers and authority exercisable
immediately before that day by all courts, which would include the High Courts
(except the Supreme Court) in relation to the matters specified in Section
14(1) of the Act came to be conferred on the Tribunal. Section 17 gives the
Tribunal power to punish for contempt which reads as under :
17.
Power to punish for contempt. - A Tribunal shall have, and exercise, the same
jurisdiction, powers and authority in respect of contempt of itself as a High
Court has and may exercise and, for this purpose, the provisions of the
Contempt of Courts Act, 1971 (70 of 1971), shall have effect subject to the
modifications that :
(a)
the references therein to a High Court shall be construed as including a
reference to such Tribunal;
(b)
the references to the Advocate- General in Section 15 of the said Act shall be
construed.
(i) in
relation to the Central Administrative Tribunal, as a reference to the
Attorney- General or the Solicitor-General or the Additional Solicitor-
General; and (ii) in relation to an Administrative Tribunal for a State or a
Joint Administrative Tribunal for two or more States, as a reference to the
Advocate-General of the State or any of the States for which such Tribunal has
been established.
[emphasis
supplied] Section 22 provides that a Tribunal shall not be bound by the
procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by
the principles of natural justice and subject to the other provisions of the
Act and of any rules made by the Central Government, the Tribunal shall have
power to regulate its own procedure including the fixiing of places and times
of its enquiry and deciding whether to sit in public or in private. Sub-section
(2) empowers the Tribunal to decide the application before it on a perusal of
documents and written representations and after hearing such oral arguments as
may be advanced. Sub-section (3) confers on the Tribunal specified powers of a Civil Court under the Code of Civil Procedure
in respect of specified matters. Section 27 provides that the order of a
Tribunal finally disposing of an application or an appeal shall not be called
in question in any court including a High Court. On a Tribunal being
functional, Section 28 excludes the jurisdiction of all courts, including High
Court, but not the Supreme Court, Industrial Tribunal, Labour Court or other Authority constituted
under the Industrial Disputes Act, 1947 or any other corresponding law from
exercising any jurisdiction, power or authority in relation to matters falling
within the jurisdiction of the Tribunal.
Articles
129 and 215 of the Constitution of India declare Supreme Court and every High
Court to be a Court of Record having all the powers of such a court including
the power to punish for contempt of itself. These articles do not confer any
new jurisdiction or status on the Supreme Court and the High Courts. They
merely recognise a pre-existing situation that the Supreme Court and the High
Courts are courts of record and by virtue of being courts of record have
inherent jurisdiction to punish for contempt of themselves. Such inherent power
to punish for contempt is summary. It is not governed or limited by any rules
of procedure excepting the principles of natural justice. The jurisdiction
contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or
whittled down by any legislative enactment subordinate to the Constitution.
The
provisions of the Contempt of Courts Act, 1971 are in addition to and not in
derogation of Articles 129 and 215 of the Constitution. The provisions of
Contempt of Courts Act, 1971 cannot be used for limiting or regulating the
exercise of jurisdiction contemplated by the said two Articles.
Anr.-
(1998) 4 SCC 409, the plenary power and contempt jurisdiction of the Supreme
Court came up for the consideration of this Court and in that context Articles
129, 142, 144 and 215 of the Constitution were noticed.
This
Court held that courts of record enjoy power to punish for contempt as a part
of their inherent jurisdiction; the existence and availability of such power
being essential to enable the courts to administer justice according to law in
a regular, orderly and effective manner and to uphold the majesty of law and
prevent interference in the due administration of justice (para 12). No act of
Parliament can take away that inherent jurisdiction of the Court of Record to
punish for contempt and Parliaments power of legislation on the subject cannot
be so exercised as to stultify the status and dignity of the Supreme Court
and/or the High Courts though such a legislation may serve as a guide for their
determination of the nature of punishment which a Court of Record may impose in
the case of established contempt. Power to investigate and punish for contempt
of itself vesting in Supreme Court flows from Articles 129 and 142 (2) of the
Constitution independent of Section 15 of the Contempt of Courts Act, 1971
(para 21).
Section
12 of the Contempt of Courts Act, 1971 provides for the punishment which shall
ordinarily be imposed by the High Court in the case of an established contempt.
This section does not deal with the powers of the Supreme Court to try or
punish a contemnor in committing contempt of the Supreme Court or the courts
subordinate to it (paras 28, 29,37).
Though
the inherent power of the High Court under Article 215 has not been impinged
upon by the provisions of the Contempt of Courts Act, the Act does provide for
the nature and types of punishments which the High Court may award.
The
High Court cannot create or assume power to inflict a new type of punishment
other than the one recognised and accepted by Section 12 of the Contempt of
Courts Act, 1971.
(1997)
3 SCC 261 the matter had come up before the seven-Judges Bench of this Court
consequent upon a reference made by a Division Bench of this Court which
doubted the correctness of a five-Judges Constitution Bench of this SCC 124 and
felt the need of the same being comprehensively reconsidered. This Court framed
three broad issues for its consideration and proceeded to consider the
constitutional validity of Articles 323A, 323B and several provisions of the
Administrative Tribunals Act, 1985. We need not extensively reproduce several
conclusions arrived at by the Constitution Bench (excepting where necessary);
it would suffice to briefly summarise the conclusions of the Constitution Bench
insofar as necessary for our purpose.
The
Constitution Bench held that the jurisdiction conferred upon the High Courts
and the Supreme Court under Articles 226 and 32 of the Constitution
respectively is a part of the inviolable basic structure of our Constitution.
The power of judicial review over legislative action vesting in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the Constitution
are an integral and essential feature of such basic structure and therefore
their power to test the constitutional validity of legislations can never be
ousted or excluded (paras 73, 78). The power vested in the High Courts to
exercise judicial superintendence over the decisions of all courts and tribunals
within their respective jurisdictions is also part of the basic structure of
the Constitution and a situation where the High Courts are divested of all
other judicial functions apart from that of constitutional interpretation is
equally to be avoided (para 79). Though the subordinate judiciary or tribunal
created under ordinary legislations cannot exercise the power of judicial
review of legislative action to the exclusion of the High Courts and the
Supreme Court, there is no constitutional prohibition against their performing
a supplemental - as opposed to a substitutional - role in this respect. Clause
(3) of Article 32 itself contemplates that Parliament may by law empower any
other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under clause (2), without
prejudice to the powers conferred on the Supreme Court by clauses (1) and (2).
The
Constitution Bench further held that if the power of the Supreme Court under
Article 32 of the Constitution described time and again as the heart and soul
of the Constitution, can be additionally conferred upon any other Court, there
is no reason why the same situation would not subsist in respect of the
jurisdiction conferred upon the High Courts under Article 226 of the
Constitution. So long as the jurisdiction of the High Courts under Articles
226/227 and that of the Supreme Court under Article 32 is retained, there is no
reason why the power to test the validity of the legislations against the provisions
of the Constitution cannot be conferred upon Administrative Tribunals or
Tribunals under Articles 323A and 323B (para 89). The basic structure theory of
the Constitution prohibits the jurisdiction of the High Courts under Articles
226 in respect of the power of judicial review being wholly excluded but the
same can certainly be additionally conferred on courts and tribunals. The
Constitution Bench specifically overruled the plea that the Tribunals should
not be allowed to adjudicate upon matters where the vires of legislations is
questioned because that would defeat the very purpose of constituting the
tribunals. To allay the fears sought to be projected before the Constitution
Bench, this Court held that the decisions of the Tribunal will be subject to
the jurisdiction of the High Courts under Articles 226/227 of the Constitution
before a Division bench of the High Court within whose territorial jurisdiction
the Tribunal concerned falls as this would serve dual purpose :
(i)
the power of the High Courts under Articles 226/227 of the Constitution to
judicially review the legislative action would be saved, and (ii) it will be
ensured that frivolous claims were filtered through the process of adjudication
in the Tribunal, and additionally the High Court will have the benefit of a
reasoned decision on merits which will be of use to it in finally deciding the
matter (para 91). The Constitution Bench emphasised the necessity of ensuring
that the High Courts are able to exercise judicial superintendence over the
decisions of the Tribunals under Article 227 of the Constitution and held (vide
para 91) :- Having regard to both the aforestated contentions, we hold that all
decisions of Tribunals, whether created pursuant to Article 323- A or Article
323-B of the Constitution, will be subject to the High Courts writ jurisdiction
under Articles 226/227 of the Constitution, before a Division Bench of the High
Court within whose territorial jurisdiction the particular Tribunal falls.
The
power of Supreme Court under Article 136 of the Constitution to hear appeals by
special leave against the orders of the Tribunals on matters specified in
Section 14(1) of the Act having been specifically saved by Section 28 thereof,
the Constitution Bench consistently with the view taken by it laid down the
methodology to be adopted.
No
appeal from the decision of a Tribunal will directly lie before the Supreme
Court under Article 136 of the Constitution; instead, the aggrieved party will
be entitled to move the High Court under Articles 226/227 of the Constitution
and from the Division Bench decision of the High Court the aggrieved party can
move the Supreme Court under Article 136 of the Constitution. Thus, the
Constitution Bench succeeded in preserving intact the inalienable jurisdiction
of the High Courts under Articles 226/227 of the Constitution and also
effectuating the appellate jurisdiction of the Supreme Court under Article 136
of the Constitution over the decisions of the Tribunal subject to their being
filtered through and in that process being subject to test by the High Courts
in their judicial review jurisdiction.
The
jurisdictional powers of the Tribunal were summarised by the Constitution Bench
as under (vide para 93):-
1. The
Tribunals are competent to hear matters where the vires of statutory provisions
are questioned. However, in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme Court which have, under our
constitutional set-up, been specifically entrusted with such an obligation.
Their function in this respect is only supplementary and all such decisions of
the Tribunals will be subject to scrutiny before a Division Bench of the
respective High Courts. The Tribunals will consequently also have the power to
test the vires of subordinate legislations and rules. However, this power of
the Tribunals will be subject to one important exception. The Tribunals shall
not entertain any question regarding the vires of their parent statutes following
the settled principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases alone, the High
Court concerned may be approached directly.
2. All
other decisions of these Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of their parent statutes,
will also be subject to scrutiny before a Division Bench of their respective
High Courts. The Tribunals will, however, continue to act as the only courts of
first instance in respect of the areas of law for which they have been
constituted; meaning thereby that it will not be open for litigants to directly
approach the High Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the legislation which
creates the particular Tribunal is challenged) by overlooking the jurisdiction
of the Tribunal concerned.
The
Constitution Bench concluded as under :- We hold that clause (2) (a)(d) of
Article 323-A and clause (3)(d) of Article 323-B, to the extent they exclude
the jurisdiction of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act
and the exclusion of jurisdiction clauses in all other legislations enacted
under the aegis of Articles 323- A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the High Courts under
Articles 226/227 and upon the Supreme Court under Article 32 of the
Constituiton is a part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by Articles
226/227 and 32 of the Constitution. The Tribunals created under Article 323-A
and Article 323-B of the Constitution are possessed of the competence to test
the constitutional validity of statutory provisions and rules. All decisions of
these Tribunals will, however, be subject to scrutiny before a Division Bench
of the High Court within whose jurisdiction the Tribunal concerned falls. The
Tribunals will, nevertheless, continue to act like courts of first instance in
respect of the areas of law for which they have been constituted. It will not,
therefore, be open for litigants to directly approach the High Courts even in
cases where they question the vires of statutory legislations (except where the
legislation which creates the particular Tribunal is challenged) by overlooking
the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid
and constitutional and is to be interpreted in the manner we have indicated.
The
Constitution Bench invoked the doctrine of prospective overruling and made its
directions to come into effect prospectively, i.e., from the date of its
judgment.
It is
thus clear that the Constitution Bench has not declared the provisions of
Article 323-A (2)(b) or Article 323-B(3)(d) or Section 17 of the Act ultra
vires the Constitution. The High Court has, in its judgment under appeal, noted
with emphasis the Tribunal having been compared to like courts of first
instance and then proceeded to hold that the status of Administrative Tribunals
having been held to be equivalent to court or tribunals subordinate to High
Court the jurisdiction to hear their own contempt was lost by the
Administrative Tribunals and the only course available to them was either to
make a reference to High Court or to file a complaint under Section 193, 219
and 228 of IPC as provided by Section 30 of the Act. The High Court has
proceeded on the reasoning that the Tribunal having been held to be subordinate
to the High Court for the purpose of Articles 226/227 of the Constitution and
its decisions having been subjected to judicial review jurisdiction of the High
Court under Articles 226/227 of the Constitution the right to file an appeal to
the Supreme Court against an order passed by the Tribunal punishing for
contempt under Section 17 of the Act was defeated and on these twin grounds
Section 17 of the Act became unworkable and unconstitutional. We do not find
any basis for such conclusion or inference being drawn from the judgments of
this Court in the cases of Supreme Court Bar Association (supra) or L. Chandra
Kumar (supra) or any other decision of this Court. The Constitution Bench has
in so many words said that the jurisdiction conferred on the High Courts under
Articles 226/227 could not be taken away by conferring the same on any court or
Tribunal and jurisdiction hitherto exercised by the High Court now
legislatively conferred on Tribunals to the exclusion of High Court on
specified matters, did not amount to assigning tribunals a status of substitute
for the High Court but such jurisdiction was capable of being conferred
additionally or supplementally on any Court or Tribunal which is not a concept
strange to the scheme of the Constitution more so in view of Articles 323-A and
323-B. Clause (2)(b) of Article 323-A specifically empowers the Parliament to
enact a law specifying the jurisdiction and powers, including the power to
punish for contempt, being conferred on administrative tribunals constituted
under Article 323-A. Section 17 of the Act derives its legislative sanctity
therefrom. The power of the High Court to punish for contempt of itself under
Article 215 of the Constitution remains intact but the jurisdiction power and
authority to hear and decide the matters covered by sub-section (1) of Section
14 of the Act having been conferred on the administrative tribunals the
jurisdiction of the High Court to that extent has been taken away and hence the
same jurisdiction which vested in the High Court to punish for contempt of
itself in the matters now falling within the jurisdiction of tribunals if those
matters would have continued to be heard by the High court has now been
conferred on the administrative tribunals under Section 17 of the Act. The
jurisdiction is the same as vesting in the High Courts under Article 215 of the
Constitution read with the provisions of the Contempt of Courts Act, 1971. The
need for enacting Section 17 arose, firstly, to avoid doubts, and secondly,
because the Tribunals are not courts of record. While holding the proceedings
under Section 17 of the Act the tribunal remains a tribunal and so would be
amenable to jurisdiction of High Court under Article 226/227 of the
Constitution subject to the well-established rules of self- restraint governing
the discretion of the High Court to interfere with the pending proceedings and
upset the interim or interlocutory orders of the tribunals. However any order
or decision of tribunal punishing for contempt shall be appealable only to the
Supreme Court within 60 days from the date of the order appealed against in
view of the specific provision contained in Section 19 of the Contempt of Courts
Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985.
Section
17 of Administrative Tribunals Act is a piece of legislation by reference. The
provisions of Contempt of Courts Act are not as if lifted and incorporated in
the text of Administrative Tribunals Act (as is in the case of legislation by
incorporation); they remain there where they are yet while reading the
provisions of Contempt of Courts Act in the context of Tribunals, the same will
be so read as to read the word Tribunal in place of the word High Court
wherever it occurs, subject to the modifications set out in Section 17 of the
Administrative Tribunals Act.
Section
19 of the Contempt of Courts Act, 1971 provides for appeals. In its text also
by virtue of Section 17 of the Administrative Tribunals Act, 1985 the word High
Court shall be read as Tribunal. Here, by way of abundant caution, we make it
clear that the concept of intra-tribunal appeals i.e. appeal from an order or
decision of a member of a Tribunal sitting singly to a bench of not less than
two members of the Tribunal is alien to the Administrative Tribunals Act, 1985.
The question of any order made under the provisions of the Contempt of Courts
Act, 1971 by a member of the Tribunal sitting singly, if the rules of business
framed by the Tribunal or the appropriate government permit such hearing, being
subjected to an appeal before a Bench of two or more members of Tribunal
therefore does not arise. Any order or decision of the Tribunal punishing for
contempt is appealable under Section 19 of the Act to the Supreme Court only.
The Supreme Court in the case of L. Chandra Kumar has nowhere said that orders
of tribunal holding the contemnor guilty and punishing for contempt shall also
be subject to judicial scrutiny of High Court under Article 226/227 of the
Constitution in spite of remedy of statutory appeal provided by Section 19 of
the Contempt of Courts Act being available. The distinction between orders
passed by Administrative Tribunal on matters covered by Section 14 (1) of
Administrative Tribunals Act and orders punishing for contempt under section 19
of the Contempt of Courts Act read with Section 17 of Administrative Tribunals
Act, is this : as against the former there is no remedy of appeal statutorily
provided, but as against the later statutory remedy of appeal is provided by
Section 19 of Contempt of Courts Act itself.
Subordination
of Tribunals and courts functioning within the territorial jurisdiction of a
High Court can be either judicial or administrative or both. The power of
superintendence exercised by the High Court under Article 227 of the
Constitution is judicial superintendence and not administrative
superintendence, such as one which vests in the High Court under Article 235 of
the Constitution over subordinate courts. Vide para 96 of L. Chandra Kumars
case, the Constitution Bench did not agree with the suggestion that the
tribunals be made subject to the supervisory jurisdiction of the High Courts
within whose territorial jurisdiction they fall, as our constitutional scheme
does not require that all adjudicatory bodies which fall within the territorial
jurisdiction of any High Court should be subject to its supervisory
jurisdiction.
Obviously,
the supervisory jurisdiction referred to by the Constitution Bench in para 96
of the judgment is the supervision of the administrative functioning of the
tribunals as is spelt out by discussion made in paras 96 and 97 of the
judgment.
Jurisdiction
should not be confused with status and subordination. The Parliament was
motivated to create new adjudicatory fora to provide new, cheap and fast-track
adjudicatory systems and permitting them to function by tearing of the
conventional shackles of strict rule of pleadings, strict rule of evidence,
tardy trials, three/four-tier appeals, endless revisions and reviews __
creating hurdles in fast flow of stream of justice. The administrative
tribunals as established under Article 323-A and the Administrative Tribunal
Act 1985 are an alternative institutional mechanism or authority, designed to
be not less effective than the High Court, consistently with the amended
constitutional scheme but at the same time not to negate judicial review
jurisdiction of constitutional courts. Transfer of jurisdiction in specified
matters from the High Court to the administrative tribunal equates the tribunal
with the High Court in so far as the exercise of judicial authority over the
specified matters is concerned.
That,
however, does not assign the administrative tribunals a status equivalent to
that of the High Court nor does that mean that for the purpose of judicial
review or judicial superintendence they cannot be subordinate to High Court.
It has
to be remembered that what has been conferred on the administrative tribunal is
not only jurisdiction of the High Court but also of the subordinate courts as
to specified matters. High Courts are creatures of Constitution and their
judges hold constitutional office having been appointed under the Constitution.
The Tribunals are creatures of statute and their members are statutorily
Bhagaban Sarangi, (1995) 1 SCC 399, it was held that administrative tribunal is
nonetheless a tribunal and so it is bound by the decision of the High Court of
the state and cannot side-track or bypass it. Certain observations made in the
case of T.N. Seshan, Chief Election Commr. of India referred to. It was held that merely because some of the
service conditions of the Chief Election Commissioner are akin to those of the
Supreme Court judges, that does not confer the status of a Supreme Court judge
on the C.E.C..
This
court observed __ Of late it is found that even personnel belonging to other
fora claim equation as High Court or Supreme Court Judges merely because
certain jurisdictions earlier exercised by those Courts are transferred to them
not realising the distinction between constitutional and statutory
functionaries. We are therefore clearly of the opinion that there is no
anathema in the tribunal exercising jurisdiction of High Court and in that
sense being supplemental or additional to the High Court but at the same time
not enjoying status equivalent to High Court and also being subject to judicial
review and judicial superintendence of the High Court.
Incidentally
we may refer to a 3-judges bench decision - (1997) 4 SCC 241. Section 397 of
Code of Criminal Procedure 1973 confers concurrent revisional jurisdiction on
High Court and Sessions Judge. The two fora are alternative to each other. Once
an order of subordinate Court is subjected to revision before Sessions Judge, a
second revision before High Court does not lie. Still, this Court held, the
exercise of inherent power and power of superintendence vesting in High Court
under Sections 482 and 483 read with 401 of the Code was not excluded. The
power of the High Court of continuous supervisory jurisdiction is of paramount
importance to examine the correctness, legality or propriety of any finding,
sentence or order, recorded or passed as also regularity of proceedings of all
inferior criminal courts. Such jurisdiction shall however be exercised in cases
of grave miscarriage of justice, abuse of the process of the courts, the
required statutory procedure not complied with, failure of justice or order
passed or sentence imposed by the Magistrate requiring correction lest grave
miscarriage of justice should ensue.
Section
30 of the Act was also referred to by the High Court to support its
conclusions. Section 30 is merely declaratory of the proceedings before a
tribunal being judicial proceedings within the meaning of Sections 193, 219 and
228 of the Penal Code. By no stretch of reasoning, Section 30 could have been
held as impinging upon the power conferred on the tribunal by Section 17 of the
Act and to hold further that in case of contempt of its lawful authority the
only remedy available to tribunal was to have recourse to Section 30 to the
exclusion of power to punish for contempt conferred by Section 17.
Contempt
jurisdiction is exercised for the purpose of upholding the majesty of law and
dignity of judicial system as also of the courts and tribunals entrusted with
the task of administering delivery of justice. Power of contempt has often been
invoked, as a step in that direction, for enforcing compliance of orders of
courts and punishing for lapses in the matter of compliance. The majesty of
judicial institution is to be ensured so that it may not be lowered and the
functional utility of the constitutional edifice is preserved from being
rendered ineffective. The proceedings for contempt of court cannot be used merely
for executing the decree of the court. However, with a view to preserving the
flow of the stream of justice in its unsullied form and in unstinted purity
willful defiance with the mandate of the court is treated to be contemptuous.
Availability of jurisdiction to punish for contempt provides efficacy to
functioning of the judicial forum and enables the enforcement of the orders on
account of its deterrent affect on avoidance. Viewed from this angle the
validity of Section 17 of the Act is protected not only by sub-clause (b) of
Clause (2) of Article 323-A but also by sub-clause (g) thereof.
For
the foregoing reasons the appeals are allowed.
The
judgment of the High Court is set aside. CWP No.34841 of 1998 filed in the High
Court of Andhra Pradesh laying challenge to the jurisdiction of the Tribunal to
deal with its own contempt is directed to be dismissed. The Tribunal shall now
proceed ahead with the proceedings pending before it as per law. Contempt Case
No.1054/1998 filed before the High Court invoking its contempt jurisdiction is
directed to be transferred to the Tribunal for being dealt with under Section
17 of the Administrative Tribunals Act, 1985.
Complete
record of the proceedings shall be transmitted by the High Court to the
Tribunal. The appeals stand disposed of accordingly. No order as to the costs.
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