ADMINISTRAT

IVE
TRIBUNALS
• Article 323A: Administrative tribunals.- (1) Parliament may, by law, 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 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.
THE ADMINISTRATIVE
TRIBUNALS ACT, 1985
S. 28: On and from the date from which any jurisdiction, powers and authority
becomes exercisable under this Act by a Tribunal in relation to recruitment and
matters concerning recruitment to any Service or post or service matters
concerning members of any Service or persons appointed to any Service or
post, [ no court except –
(a) the Supreme Court ;
(b) any industrial Tribunal, Labor Court or other authority constituted under the
Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for
the time being in force,
shall have], or be entitled to exercise any jurisdiction, powers or authority in
relation to such recruitment or matters concerning such recruitment or such
service matters.
 S. P. SAMPATH KUMAR V.
UNION OF INDIA AIR 1987
SC 386
• Bhagwati, J:
• If by a Constitutional amendment, the power of judicial review is taken away and it is
provided that the validity of any law made by the legislature shall not be liable to be called
in question on any ground, even if it is outside the legislative competence of the legislature
or is violative of any fundamental rights, it would be nothing short of subversion of the
Constitution, for it would make a mockery of the distribution of legislative powers
between the Union and the States and render the fundamental rights
meaningless and futile.
• judicial review cannot be altogether abrogated by Parliament by amending the Constitution
in exercise of its constituent power, Parliament can certainly, without in any way violating
the basic structure doctrine, set up effective alternative institutional mechanisms or
arrangements for judicial review. The basic and essential feature of judicial review cannot
be dispensed with but it would be within the competence of Parliament to amend the
Constitution so as to substitute in place of the High Court, another alternative
institutional mechanism or arrangement for judicial review, provided it is no less
CONTD.
• Therefore, if any constitutional amendment made by Parliament takes away
from the High Court the power of judicial review in any particular area and
vests it in any other institutional mechanism or authority, it would not be
violative of the basic structure doctrine, so long as the essential condition is
fulfilled, namely that the alternative institutional mechanism or authority set
up by the parliamentary amendment is no less effective than the High Court.
Here, in the present case, the impugned Act has been enacted by Parliament
in exercise of the power conferred by clause (1) of Article 323A which was
introduced in the Constitution by Constitution (42nd Amendment) Act, 1976.
Clause (2) (d) of this Article provides that a law made by Parliament
under clause (1) may exclude the jurisdiction of courts, except the
jurisdiction of the Supreme Court under Article 136, with respect to
the disputes or complaints referred to in clause (1). The exclusion of
the jurisdiction of the High Court under Articles 226 and 227 by any law made
by Parliament under clause (1 ) of Article 323A is, there- fore, specifically
authorized by the constitutional amendment enacted in clause (2)
 CONTD.
• Consequently, the impugned Act excluding the jurisdiction of the High Court
under Articles 226 and 227 in respect of service matters and vesting such
jurisdiction in the Administrative Tribunal can pass the test of
constitutionality as being within the ambit and coverage of clause (2)
(d) of Article 323A, only if it can be shown that the Administrative
Tribunal set up under the impugned Act is equally efficacious as the
High Court, so far as the power of judicial review over service matter is
concerned. We must, therefore, address ourselves to the question whether the
Administrative Tribunal established under the impugned Act can be regarded as
equally effective and efficacious in exercising the power or judicial review as
the High Court acting under Articles 226 and 227 of the Constitution.
CONTD.
• It is necessary to bear in mind that service matters which are removed from the
jurisdiction of the High Court under Articles 226 and 227 of the Constitution and
entrusted to the Administrative Tribunal set up under the impugned Act for
adjudication involve questions of interpretation and applicability of Articles 14, 15,
16 and 311 in quite a large number of cases. These questions require for their
determination not only judicial approach but also knowledge and expertise
in this particular branch of constitutional law. It is necessary that those
who adjudicate upon these questions should have same modicum of legal
training and judicial experience because we find that some of these questions
are so difficult and complex that they baffle the minds of even trained Judges in the
High Courts and the Supreme Court. That is the reason why at the time of the
preliminary hearing of these writ petitions we insisted that every bench of the
Administrative Tribunal should consist of one judicial member and one
administrative member and there should be no preponderance of
administrative members on any bench.
CONTD.

• That the Chairman of the Administrative Tribunal should be or should have

been a Judge of a High Court or he should have for at least two years held
office as Vice-Chairman. If he has held office as Vice-Chairman for a period of at
least two years he would have gathered sufficient experience and also within such
period of two years, acquired reasonable familiarity with the constitutional and legal
questions involved in service matters, But substituting the Chief Justice of a
High Court by a Chairman of the Administrative Tribunal who has merely
held the post of a Secretary to the Government and who has no legal or
judicial experience would not only fail to inspire confidence in the public
mind but would also render the Administrative Tribunal a much less
effective and efficacious mechanism than the High Court.
CONTD.
• Mishra, J:
• Article 32 was described by Dr. Ambedkar in course of the debate in the Constituent
Assembly as the 'soul' and 'heart' of the Constitution and it is in recognition of this
position that though Article 323A(2)(d) authorized exclusion of jurisdiction under
Article 32 and the original Act had in Section 28 provided for it, by amendment
jurisdiction under Article 32 has been left untouched. The Act thus saves jurisdiction
of this Court both under Article 32 in respect of original proceedings as also under
Article 136 for entertaining appeals against decisions of the Tribunal on grant of
Special Leave. Judicial review by the apex court has thus been left in tact. The
question that arises, however, for consideration is whether bar of jurisdiction under
Articles 226 and 227 affects the provision for judicial review. The right to move the
High Court in its writ jurisdiction--unlike the one under Article 32, is not a
fundamental right. Yet, the High Courts, as the working experience of three and a
half decades shows have in exercise of the power of judicial review played a definite
and positive role in the matter of preservation of fundamental and other rights and
in keeping administrative action under reasonable control
• States. As early as 1969, a Committee was set up by the Central Government under the
chairmanship of Mr. Justice Shah of this Court to make recommendations suggesting ways and
means for effective, expeditious and satisfactory disposal of matters relating to service disputes of
Government servants as it Was found that a sizable portion of pending litigations related to this
category. The Committee recommended the setting up of an independent Tribunal to handle the
pending cases before this Court and the High Courts. While this report was still engaging the
attention of Government, the Administrative Reforms Commission also took note of the situation
and recommended the setting up of Civil Services Tribunals to deal with appeals of Government
servants against disciplinary action.
• But the Central Government looked into the matter further as it transpired that
the major chunk of service litigation related to mat- ters other than disciplinary
action. In May 1976, a Confer- ence of Chief Secretaries of the States discussed
this problem. Then came the Forty-Second Amendment of the Consti- tution
bringing in Article 323A which authorized Parliament to provide by law "for the
adjudication or trial by adminis- trative tribunals of disputes and complaints with
respect to recruitment and conditions of service of persons appointed to public
services and posts in connexion with the affairs of the Union or of any State or of
any local or other au- thority within the territory of India or under the control of
the Government of India or of any Corporation owned or controlled by the
Government." As already stated this Arti- cle envisaged exclusion of 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).
• The Tribunal has been contemplated as a substitute and not as supplemen- tal to the High
Court in the scheme oadministration of justice. To provide the Tribunal as an additional forum
from where parties coul go to the High Court would certainly have been a retrograde step
considering the situation and circumstances to meet which the innovation has been brought
about. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of
attack. What, however, has to be kept in view is that the Tribu- nal should be a real
substitute of the High Court--not only in form and de jure but in content and de facto.
limitations. Article 16 of the Con- stitution guarantees equality of opportunity in matters of
public employment. Article 15 bars discrimination on grounds of religion, race, caste, sex or
place of birth. The touch- stone of equality enshrined in Article 14 is the greatest of
guarantees for the citizen. Centering around these articles in the Constitution a service
jurisprudence has already grown in this country. Under Sections 14 and 15 of the Act all the
powers of the Courts except those of this Court in regard to matters specified therein vest in
the Tribunal--either Central or State. Thus the Tribunal is the substitute of the 'High Court
and is entitled to exercise the powers thereof.
L. CHANDRA KUMAR V.
UNION OF INDIA (1997) 3
SCC 261
• Whether the power conferred upon the Parliament by Article 323-A (2) (d) or
upon the State Legislature by Article 323-B (3) (d) of the Constitution of
India, to totally exclude the jurisdiction of ‘all courts’, except that of the
Supreme Court under Article 136 ?
• 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 or rule?
• Whether the Tribunals, as they are functioning at present, can be said to be
the effective substitutes for the High Court in discharging the power of
judicial review? If not, what are the changes required to make them
conform to their founding objectives?
• An aspect which needs to be emphasised is that the Constitution Bench in Sampath
Kumar's case had not specifically addressed the issue whether the Tribunals under the
Act would have the power to strike down statutory provisions or rules as being
constitutionally invalid. However, the Division Bench in J.B. Chopras' case felt that this
proposition would follow as a direct and logical consequence of the reasoning employed
in Sampath Kumar's case. Amulya Chandra's case, a Division Bench of this Court had to
consider the question whether a dispute before the central Administrative Tribunal
could be decided by a single Administrative Member. The Court took note of Sub-
section (2) of Section 5 of the Act which, as we have seen, stipulates that a Bench of a
Tribunal under the Act should ordinarily consist of a Judicial Member and an
Administrative Member, as also the relevant observations in Sampath Kumar's case, to
conclude that under the scheme of Act, all cases should be heard by a Bench of two
Members. It appears that the attention of the Court was not drawn towards Sub-section
(6) of Section 5 which, as we have noticed, enables a single Member of a Tribunal under
the Act to hear and decide cases.
• Ramaswamy, J. analysed the relevant constitutional provisions, the Decisions in Sampath
Kumar, J.B. Chopra and M.B. Majumdar to hold that the Tribunals created under Articles 323A
and 323B could not be held to be substitutes of High Courts for the purpose of
exercising jurisdiction under Articles 226 and 227 of the Constitution. Having had the
benefit of more than five years' experience of the working of these alternative institutional
mechanisms, anguish was expressed over their ineffectiveness in exercising the high power
of judicial review. It was recorded that their performance had left much to be desired.
Thereafter, it was noted that the sole remedy provided, that of an appeal to this Court under
Article 136 of the Constitution, had proved to be prohibitively costly while also being
inconvenient on account of the distances involved. It was suggested that an expert body like
the Law Commission of India should study the feasibility of providing an appeal to a Bench
of two Judges of the concerned High Court from the orders of such Tribunals and also analyse
the working of the Tribunals since their establishment, the possibility of inducting members of
the Bar to man such Tribunals etc. It was hoped that recommendations of such an expert body
would be immediately adopted by the Government of India and remedial steps would be
initiated to overcome the difficulties faced by the Tribunals, making them capable of dispensing
effective, inexpensive and satisfactory justice.
• The judgment, Sakinala Harinath and Ors. v. State of A.P., rendered by a full Bench of the
Andhra Pradesh High Court, has declared Article 323A (2)(d) of the Constitution to be
unconstitutional to the extent it empowers Parliament to exclude the jurisdiction
of the High Courts under Article 226 of the Constitution; additionally, Section 28
of the Act has also been held to be unconstitutional to the extent it divests the High
Courts of jurisdiction under Article 226 in relation to service matters. Analysing the decision
in Sampath Kumar's case against this back-drop, it is noted that the theory of alternative
institutional mechanisms established in Sampath Kumar's case is in defiance of the
proposition laid down in Kesvananda Bharati's case, Special reference case and Indira
Gandhi's case, that the Constitutional Courts alone are competent to exercise the
power of judicial review to pronounce upon the constitutional validity of statutory
provisions and rules. The High Court, therefore, felt that the decision in Sampath Kumar's
case, being per incuriam, was not binding upon it. The High Court also pointed out that, in
any event, the issue of constitutionality of Article 323A (2) (d) was neither challenged nor
upheld in Sampath Kumar's case and it could not be said to be an authority on that aspect.
• ……matters which involve testing the constitutionality of provisions or rules,
being matters of grave import, could not be left to be decided by statutorily
created adjudicatory bodies, which would be susceptible to executive
influences and pressures. It was emphasised that in respect of constitutional
Courts, the Framers of our Constitution had incorporated special prescriptions
to ensure that they would be immune from precisely such pressures.
The High Court also cited reasons for holding that the sole remedy provided,
that of an appeal under Article 136 to this Court, was not capable of being
a real safeguard. It was also pointed out that even the saving of the
jurisdiction of this Court under Article 32 of the Constitution would not help
improve matters. It was, therefore, concluded that although judicial power can
be vested in a Court or Tribunal, the power of judicial review of the High Court
under Article 226 could not be excluded even by a constitutional Amendment.
• …. conflicting orders issued by the West Bengal Taxation Tribunal and the Calcutta High
Court. Certain petitioners had challenged the constitutional validity of some provisions in
three legislations enacted by the West Bengal Legislature before the west Bengal Taxation
Tribunal. After examining the matter and hearing the arguments advanced in response by
the State of West Bengal, the West Bengal Taxation Tribunal, by this order dated
9.10.1991, upheld the constitutional validity of the impugned provisions.
Thereafter, the constitutional validity of the same provisions was challenged in a Writ
Petition before the Calcutta High Court. During the proceedings, the State of West Bengal
raised the preliminary objection that by virtue of Section 14 of the West Bengal Taxation
Tribunal Act, 1987, which excluded the jurisdiction of the High Court in all matters
within the jurisdiction of the Taxation Tribunal, the Calcutta High Court had no
jurisdiction to entertain the writ petition. However, the High Court proceeded with
the case and, by its judgment dated 25.11.1992, declared the impugned provisions to be
unconstitutional. These developments have resulted in an interesting situation, where the
same provisions have alternately been held to be constitutional and unconstitutional by
two different form, each of which considered itself to be empowered to exercise jurisdiction.
• Rama Jois-
• (ii) The impugned provisions of the Constitution, insofar as they exclude the jurisdiction of the
Supreme Court and the High Courts under Articles 32 and of the Constitution, are
unconstitutional. This is for the reason that: (a) Parliament cannot, in exercise of its constituent
power, confer power on Parliament and the State Legislatures to exclude the constitutional
jurisdiction conferred on the High Courts as the power to amend the Constitution cannot
be conferred on the Legislatures; and (b) These provisions violate the basic structure of the
Constitution insofar as they take away the power of judicial review vested in the Supreme Court
under Article 32 of the Constitution and the High Courts under Articles 226 and 227 the
Constitution. While the Tribunals constituted under Articles 323A and 323 B can be vested with
the power of judicial review over administrative action, the power of judicial review of
legislative action cannot be conferred upon them. This proposition flows from Kesavananda
Bharati's case where it was held that under our constitutional scheme, only the constitutional
courts have been vested with the power of judicial review of legislative action; (iii)
While the provisions of the Act do not purport to affect the sacrosanct jurisdiction of the Supreme
Court under Article 32 of the Constitution, Articles 323A and 323B allow Parliament to pursue
such a course in future and are therefore liable to be struck down;
• (iv) The decision in Sampath Kumar's case was founded on the hope that the Tribunals would be
effective substitutes for the High Courts. This position is neither factually nor legally
correct on account of the following differences between High Courts and these
Tribunals: (a) High Courts enjoy vast powers as a consequence of their being Courts of record
under Article 215 of the Constitution and also process the power to issue Certificates of Appeal
under Articles 132 and 133 of the Constitution in cases where they feel that a decision of this
Court is required. This is not so for Tribunals; (b) the qualifications for appointment of a High
Court Judge and the constitutional safeguards provided ensure the independence of and
efficiency of the Judges who man the High Courts. The conditions prescribed for Members of
Tribunals are not comparable; (c) While the jurisdiction of the High Courts is constitutionally
protected, a Tribunal can be abolished by simply repealing its parent statute; (d) While the
expenditure of the High Courts is charged to the Consolidated Fund of the States, the Tribunals
are dependent upon the appropriate Government for the grant of funds for meeting their
expenses. These and other differences give rise to a situation whereby the Tribunals,
being deprived of constitutional safeguards for ensuring their independence, are
incapable of being effective substitutes for the High Courts; (v) Under our constitutional
scheme, every High Court has, by virtue of Articles 226 and 227 of the Constitution, the power
to issue prerogative writs
• Shanti Bhushan-
• (i) The 42nd Amendment to the Constitution, which introduced the impugned constitutional
provisions, must be viewed in its historical context. The 42nd Amendment, being
motivated by a feeling of distrust towards the established judicial institutions,
sought, in letter and spirit, to divest constitutional courts of their jurisdiction . The
aim was to vest such constitutional jurisdiction in creatures whose establishment and
functioning could be controlled by the executive. (ii) The validity of the impugned provisions
has to be determined irrespective of the manner in which the power conferred by them has
been exercised. In Sampath Kumar's case, this Court restricted its enquiry to the Act, which did
not oust the jurisdiction under Article 32, and did not explore the larger issue of the
constitutionality of Article 323A (2)(d), which in express terms permits Parliament to oust the
jurisdiction of the Supreme Court. This was not correct approach as the constitutionality
of a provision ought not to be judged only against the manner in which power is
sought to be exercised under it. The correct test is to square the provision against
the constitutional scheme and then pronounce upon its compatibility. The vice in
Article 323A (2)(d) is that it permits Parliament to enact, at a future date, a law to
• (iii) The power of judicial review vested in this Court under Article 32 and the High
Court under Article 226 is part of the basic structure of the Constitution. The
relevant portions of the decisions in Kesavananda Bharati's case, Fertiliser Corporation
Kamgar Union v. Union of India : (1981)ILLJ193SC and Delhi Judicial Service
Association v. State of Gujarat : AIR1991SC2150 highlight the importance accorded to
Article 32 of the Constitution; (iv) The theory of alternative institutional mechanisms
advocated in Sampath Kumar's case ignores the fact that judicial review vested in the
High Courts consists not only of the power conferred upon the High Courts but also of
the High Courts themselves as institutions endowed with glorious judicial
traditions. The High Courts had been in existence since the 19th century and were
possessed of a hoary past enabling them to win the confidence of the people. It is this
which prompted the Framers of our Constitution to vest such constitutional jurisdiction
in them. A Tribunal, being a new creation of the executive, would not be able
to recreate a similar tradition and environment overnight
• Ahmadi, J:‘
• In view of the reasoning adopted by us, we hold that clause 2 (d) of Article
323A and clause 3(d) of Article 323B, 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 323A and 323B
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 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.
• Tribunals created under Article 323A and Article 323B 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 concerned
Tribunal 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 concerned Tribunal.