Document Fragment View

Matching Fragments

v) What is the nature of, scope of, and limitations upon the original powers of this Tribunal under Section 17 of the Act, now, even after the Honble Apex Courts Orders in the case T. Sudhakar Prasad vs. Govt. of Andhra Pradesh & Ors. (supra) when read with Baradakanta Mishra vs. Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra)?

29. The powers of judicial review by, & supervisory jurisdiction of High Courts, over the Central Administrative Tribunal, under Articles 226 and 227 of the Constitution of India, came to be examined and laid down in great detail by the 7 Judges Bench order of the Honble Apex Court in L. Chandra Kumar Vs. Union of India and Others (1997) 3 SCC 261: AIR 1997 SC 1125: JT 1997 (3) SC 589. In that judgment, the Honble Apex Court held that since the power of judicial review is a basic and essential feature of the Constitution of India, and Articles 226 and 227 are a part of the basic structure of the Constitution, the jurisdiction of the High Court could not be ousted or excluded by the provisions of Article 323-A (2) (d) and Article 323-B (3) (d), both of which had been reproduced in Para 5 of the Honble Apex Court judgment, and provide as follows:-

31. This landmark seven Judges Bench judgment of the Honble Apex Court was very aptly summarized and clarified four years later by the Honble Apex Court in T. Sudhakar Prasad v. Govt. of Andhra Pradesh & Others, (2001) 1 SCC 516: 2000 Supp (5) SCR 610: (2001) 1 JT 204 in the following words:-

11. In L. Chandra Kumar v. Union of India & Ors. (supra) 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 Court in S.P. Sampath Kumar v. Union of India 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).
12. 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 Court 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 Court are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution and held (vide para 91) :-

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 Constitution 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."