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Report No. 272

6.16 In the event, the Tribunals assume wrong jurisdiction or proceed on erroneous assumptions of law or facts or, where an action can be assailed on malice in law and/or fact, it would not be appropriate to read an ouster of judicial review by the High Court or the Supreme Court. Such an interpretation would not only amount to encroaching upon the power of superintendence by the higher judiciary conferred by the Constitution, but also tempering with the basic structure of the Constitution of India. The higher Courts have been conferred the power of judicial review of legislative action, judicial decision and administrative action.

6.17 In L. Chandra Kumar Case (Supra) the constitutional validity of Articles 323- A(2)(d), 323-B(3)(d) and the Administrative Tribunals Act, 1985 was challenged. One of the most important aspect which fell for consideration was whether the Tribunals constituted under Part XIV- A of the Constitution of India can be effective substitutes of the High Courts vis-a-vis the power of judicial review. The issues before the Court were:

(1) Whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?

(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?

(3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?

It was held:

'the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

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. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.'

It is important to note that the court held the power of judicial review of the High Courts and the Supreme Court cannot be ousted or excluded ordinarily. The use of the word 'ordinarily' gives an impression that in exceptional cases or special circumstances, ousting or excluding the jurisdiction of these courts may be justified. Reading the judgment holistically, it becomes clear that the independence of the alternative courts/tribunals to which such jurisdiction is transferred is protected in the same manner and to the same extent to which the independence of the superior courts is protected under the constitution.

6.18 The Court further held that Clause 2(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 Administrative Tribunals Act, 1985 excluded the power of judicial review exercised by the High Courts in service matters under Articles 226 and 227; but it did not exclude the judicial review entirely in as much as the jurisdiction of the Supreme Court under Article 136 of the Constitution was kept intact.

The Court held that section 28 of the Administrative Tribunals Act, 1985 and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the extent they exclude the jurisdiction of the High-Courts (under Articles 226 and 227) and the Supreme Court (under Article 32) would be ultra vires of the Constitution.

6.19 It was also held that there was no Constitutional prohibition against Administrative Tribunals in performing a supplemental as opposed to a substitutional role; i.e., in exercising their powers, such Tribunals cannot act as substitutes for High Courts and the Supreme Court. The decisions of these Tribunals created under Articles 323-A and 323-B of the Constitution of India will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction, the concerned Tribunal is located.

6.20 Administrative Tribunals under Article 323-A could examine all the disputes pertaining to service conditions, including the constitutional validity of any Statute or rules except that of the Act under which that Tribunal is established. For challenging the constitutional validity of such an Act, one will have to approach the concerned High Court. Against an Administrative Tribunal's decision, a writ would lie to a High Court having jurisdiction over it and against such decision an appeal would lie to the Supreme Court under Article 136.

6.21 In The State of Maharashtra v. Labour Law Practitioners, AIR 1998 SC 1233 the Court applied the tests laid down in Bharat Bank's Case (Supra) wherein it had been held that the Industrial Tribunal is a Civil Court exercising civil jurisdiction. The test laid down in the matter was based on an English case of Cooper v. Wilson, [1937] 2 K.B. 309 which prescribed the following parameters:

i. the presentation of their case by the parties;

ii. ascertainment of facts by means of evidence adduced by the parties often with the assistance of argument;

iii. if the dispute relates to a question of law, submission of legal arguments by the parties; and

iv. by decision which disposes of the whole matter by findings on fact and application of law to facts so found.

6.22 The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides for setting up of a Tribunal and an appellate Tribunal. The Constitutional validity of this Act was challenged in Union of India v. Delhi Bar Association, AIR 2002 SC 1479 wherein the Supreme Court held:

'It has to be borne in mind that the decision of the Appellate Tribunal is not final, in the sense that the same can be subjected to judicial review by the High Court under Articles 226 and 227 of the Constitution.'

6.23 In Union of India v. R Gandhi, (2010) 11 SCC 1 the Constitutional validity of Chapters 1B and 1C of the Companies Act, 1956 under which National Company Law Tribunal ('NCLT') and National Company Law Appellate Tribunal ('NCLAT') are constituted. The Court upheld the Constitutional validity observing:

'A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.'

6.24 In Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184 a Constitutional bench of five judges considered the question of judicial review in relation to the exercise of Parliamentary provisions. The Court summarised the principles relating to the same and laid down amongst other things:

'An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.'

6.25 In the case of Mohammed Ansari v. Union of India, (2017) 3 SCC 740 the order of the High Court holding that the Tribunal has no jurisdiction in case of non-grant of nonfunctional financial upgradation to the appellant was under scrutiny. The Tribunal had held that it had the jurisdiction. The Supreme Court considered whether after coming into force of Armed Forces Tribunal Act, 2007, the Armed Forces Tribunals (AFT) could deal with the controversy or the High Court would still have jurisdiction under Article 226 of the Constitution. It was held that the AFT shall have the jurisdiction to hear appeals only against courts martial verdicts, qua GREF personnel. But, if the punishment is imposed on GREF personnel in departmental proceedings held under the CCS (CCA) Rules, 1965, the same cannot be agitated before the AFT.

6.26 Under Article 136(2) r/w Article 227(4) of the Constitution, the AFT is kept outside the purview of judicial review by the higher judiciary by virtue of sections 30 and 31 of Armed Forces Tribunal Act, 2007. In Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773 the Court while interpreting sections 30 and 31 held that the High Courts have no power to intervene in proceedings arising under the AFT Act, 2007. However, in the case of Union of India, v. Thomas Vaidyan M, Civil Appeal No. 5327/2015, order dated 16.11.2015 the Supreme Court doubted the correctness of the aforesaid judgment and observed:

'The observations of this Court are being read as debarring the High Courts from exercising jurisdiction under Article 226 of the Constitution of India, contrary to law laid down by this Court in the case of L Chandra Kumar v. Union of India (1997) 3 SCC 261. Prima facie, we are of the view that the decision of this Court in Union of India & Ors. v. Major General Shri Kant Sharma & Anr. (Supra) may call for a revisit. It would be appropriate that this aspect considered by a Three-Judge Bench. Since this question arises in a number of cases, the matter involves some urgency.'

6.27 In view of the provisions of section 3(o) of the Act, 2007, the AFT has jurisdiction to entertain service matters in respect of persons subject to the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957. However, it does not have jurisdiction in respect of the following matters:

(i) Orders issued under section 18 of the Army Act, 1950 (46 of 1950) sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950) , the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);

(iii) leave of any kind;

(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months.

6.28 Thus, it is clear that the judicial review among many other important aspect of the basic structure of the Constitution is indispensable and while creating any other mode of adjudication of disputes, the judicial review cannot be compromised with.



Assessment of Statutory Frameworks of Tribunals in India Back




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