Supreme Court of IndiaL. Chandra Kumar vs The Union Of India & Ors on 2 December, 1994Equivalent citations: 1995 AIR 1151, 1995 SCC (1) 400, AIR 1995 SUPREME COURT 1151, 1995 (1) SCC 400, 1995 AIR SCW 1200, 1995 SCC (L&S) 321, (1995) 2 SERVLJ 27, (1995) 71 FACLR 27, (1995) 2 LABLJ 640, (1995) 2 SCT 674, (1997) 1 SCJ 552, (1995) 1 SERVLR 10, 1995 ALL CJ 1 434, (1995) 29 ATC 120, 1997 BLJR 1 735, (1995) 1 JT 454 (SC)Author:Kuldip SinghBench:Kuldip Singh,B.L Hansaria,S.B MajmudarPETITIONER:
L. CHANDRA KUMAR

	Vs.

RESPONDENT:
THE UNION OF INDIA & ORS.

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:ORDER1.   The challenge to the validity ofSection	  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  inS.P.
Sampath Kumar v. Union India, 1987 (1) SCC 124, 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 Ar-456ticles 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	 the
Parliament  but	 even  State Legislatures,  to	exclude	 the
jurisdiction  of all courts except that of this Court  underArticle	 136with  respect to matters	falling	 within	 the
jurisdiction of the concerned tribunals.The Actcame to be
enacted by the Parliament in exercise of the power conferred
on  it byArticle 323-Aof the Constitution.  The  vires  of
the Act was challenged before this Court which was upheld inSampath Kumar's case.3.   While  upholding the validity ofSection 28of the	 Act
inSampath Kumar's 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-Chairmen.  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 inSampath Kumar's case 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 inJ.B. Chopra v. Union of India, AIR. 1987 SC
357  relying upon Sampath Kumar 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 toArticle 309of 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:-"Notwitstanding  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 be 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  far	transfer  to,  such  Bench  as	 the
	      Chairman may deem fit."5.InAmulya Chandra Kalita v. Union of India,  1991	 (1)
SCC  18	 1, 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's	case
requiring  bench of the Tribunal to consist of one  Judicial
Member and one Administrative Member following which457observation, the Act was amended to say so, vide itsSection
5(2)as substituted by Act 19 of 1986.The attention of the
Bench decidingAmulya Chandra Kalitascase, however, was not
invited toSection 5(6).6.   The aforesaid point came to be examined again; and this
time  by  a three Judge Bench in Dr. Mahabal Ram  v.  Indian
Council	 of  Agricultural Research, 1994 (2) SCC  410.	(The
judgment  was, however, rendered on May 3, 1991).  When	 the
attention  of  this Bench was drawn toSection 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.	  In
pursuant  to these observations an order was passed  by	 the
Chairman of the Central Administrative Tribunal on  December
18, 1991 which is in consonance with the same.	It  deserves
notice that in Mahabal Ram's case there was no challenge  to
the  validity  of  subsection (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 inSampath	 Kumar's  case	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 inKesvananda Bharati v.  State
of Kerala, AIR 1973 SC 1461.Indeed, this is the view which
has  been taken recently by a Full Bench of  Andhra  Pradesh
High Court inSakinala Harinath v. State of Andhra  Pradesh,
1994  (1)  APLJ 1. For the sake of completeness	 it  may  be
mentioned  that the decision in Sakinala has  been  assailed
before this Court in C.A. No. 169/94 which has been referred
to a Constitution Bench.8.   Another  facet  of the case focused by Shri  Rama	Jois
relates to the equality of status between the Tribunals	 and
the High Courts.  A note discordant to that of Sampath Kumar
was  struck  in this regard by a three-Judge Bench  of	this
Court inM.B. Majumdar v. Union of India, AIR 1990 SC  2263,
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 inState of Orissa v. Bhagwan  Sarangi,
(SLP(C) No.2129/91 disposed of on 1.10.91) that a  Tribunal
established  under the Act is nonetheless a tribunal and  it
cannot side-track a decision of the concerned High Court.9.   It would not be out of place to refer to a	 three-Judge
Bench decision of this Court inR.K. Jain v. Union of India,
1993  (4)  SCC	119, in which need for the  Members  of	 the
Tribunal  (which was CEGATin that caseset up with the	 aid
ofArticle  323-Bbut 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  Court's  power  of judicial  review.   Ramaswamy,	 J.,
however,  opined  that	such  tribunals	 being	creature  of
statues can in no case claim the status of the High Court458or parity or as substitutes.10.  The aforesaid post-Sampath Kumar 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's
case including the quest ion 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 inChopra's case  (supra).
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.460