ADMINISTRATIVE LAW

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Central Administrative Tribunals and Their Power to Issue Directions, Orders or Writs Under Articles 226 and 227 of the Constitution†
by Anupa V. Thapliyal*

Cite as : (1992) 4 SCC (Jour) 18

I. The Tribunal as Envisaged by the Constitution

Establishment of the Central Administrative Tribunal under the Administrative Tribunals Act, 1985 (hereinafter also referred as the Act) is one of the important steps taken in the direction of development of Administrative Law in India. The Act has been passed by the Parliament in pursuance of Article 323-A of the Constitution. This article, empowers the Parliament to establish Administrative Tribunals for dealing exclusively with service matters of government servants,1 and also provides for exclusion of jurisdiction of all the courts excepting the Supreme Court.2 Even before Article 323-A was enacted tribunals existed in various areas and their existence was recognised by the Constitution,3 but they were not intended to be an exclusive forum, and therefore, they were subject to judicial review by the High Courts under Articles 226 and 227. Distinct from this existing tribunal system, a new experiment has been introduced by Article 323-A which provides for exclusion of the jurisdiction of the High Courts under Articles 226 and 227, notwithstanding any other provisions in the Constitution.4 The object of this experiment is to lessen the backlog of cases pending before the High Courts and to provide an expert and expeditious forum for disposal of disputes of Government servants relating to service matters.5 As this experiment was to affect the existing constitutional arrangement relating to tribunal system, it was introduced as a constitutional provision through the Forty-second Amendment of the Constitution.6 Whatever might have been the motive and peculiarities of the circumstances in which the Forty-second Amendment was passed7, it cannot be denied that Article 323-A was one of the plus points8 of this Amendment. That is why even one of the critics of the Forty-second Amendment, Dr Rajeev Dhavan, said something positive about the new tribunal system, envisaged under Article 323-A. He observed:

"The Forty-second Amendment envisaged a tribunal structure and limited review powers by the High Courts. In the long run, this could mean a streamlined system of tribunal justice under the superintendence of the Supreme Court. Properly worked out such a system is not a bad one. It would be both an Indian and a Common law adaptation of the French system of droit administratif.9"

(emphasis supplied)

The tribunal system as envisaged by Article 323-A has been established under the Administrative Tribunals Act, 1985 and the Central Administrative Tribunal10 (hereinafter also referred as the Tribunal) have started working since 1st November, 1985. The statutory provisions about the power11jurisdiction and authority of the Tribunal are as follows:

Section 14(1) which vests in the Tribunal the jurisdiction of all the courts in respect of service matters, says:

Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to .... service matters.12

(emphasis supplied)

Section 28(1) which excluded jurisdiction of the courts says:

"On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to service matters concerning members of any service or post, no Court except (a) the Supreme Court, or (b) any Industrial Tribunal .... shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such .... service matters.13"

(emphasis supplied)

Section 29(1) which provides for transfer of the pending cases says:

"Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it has arisen after such establishment, within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal.14"

(emphasis supplied)

Constitutional validity of Section 28 of the Act was challenged before the Supreme Court in S.P. Sampath Kumar v. Union of India15 It was argued mainly16 that judicial review is a fundamental aspect of the Constitution and as the impugned provision takes away judicial review by the High Courts under Articles 226 and 227, it affects the basic structure of the Constitution. This argument was rejected by the Court. Speaking on this point (for himself, V. Khalid, G.S. Oza and M.M. Dutt, JJ.) Ranganath Misra, J. (as he then was) held that the "judicial review" envisaged as the basic structure of the Constitution does not suggest that effective alternative institutional arrangements cannot be made. Therefore, once the judicial review by the Supreme Court is left wholly unaffected, the exclusion of the jurisdiction of the High Courts under Articles 226 and 227 does not render the impugned provision of the Act as unconstitutional because it does not affect the basic structure.17 Similar view has been expressed by P.N. Bhagwati, C.J. in his concurring judgment.18 Also, referring to the various provisions of the Act, Ranganath Misra, J. pointed out that the Act has been enacted to implement the object of Article 323-A of the Constitution which itself provides for exclusion of the High Court's power of judicial review, and therefore Section 28 of the Act is not violative of the Constitution. Referring to Article 323-A, constitutional validity of which was not questioned, P.N. Bhagwati, C.J. and Ranganath Misra, J. further clarified that this article impliedly requires that the alternative institutional arrangement must be equally effective and efficacious as the High Courts. Consequently the Court struck down Section 6(1)(c) of the Act, and also directed certain amendments in it, before a specified date.19 Through this holding the Court mainly ensured that (i) the Tribunal shall have as its Chairman a legally trained person who is equal to the Chief Justice of a High Court with respect to qualifications; (ii) the Tribunal has benches at the seat of all the High Courts; (iii) a bench of the Tribunal should consist of at least one judicial member and one administrative member; (iv) the appointments to the Tribunal should be fair and objective so that the impartiality of its Chairman, Vice-Chairman, and members is assured. Speaking about the status of the Tribunal, thus created, Ranganath Misra, J. rightly observed:

"Thus the Tribunal is a substitute of the High Court and is entitled to exercise the powers thereof.20

(emphasis supplied)

It is clear from the above observation of the Supreme Court that the Tribunal is a substitute of the High Court and has inherited the power to issue "any direction, order or writ ...." under Articles 226 and 227 of the Constitution with respect to the service matters.21 However, in the absence of any specific argument about the constitutional validity of Article 323-A, the decision in Sampath Kumar did not set at rest the doubts about the power of the Tribunal under Articles 226 and 227. And even after Sampath Kumar, views have been expressed in some of the academic writings22 that (i) the Tribunal does not have power to issue directions, orders or writs under Articles 226 and 227, (ii) the Tribunal cannot decide upon constitutionality of a law, rule, notification etc., even with respect to service matters. Therefore, the High Courts continue to have/should continue to have jurisdiction over service matters, (iii) the High Courts continue to have the power of superintendence of the Tribunal under Article 227.23 How far these views can be supported on the theoretical basis, is an important question which will be discussed later, but in the first place, it is important to know that : How the Tribunal itself has viewed its own power in practice while deciding various cases before it? What has been the approach of the High Court and of the Supreme Court after Sampath Kumar? The following discussion attempt to deal with these questions.

II. Approach of the Tribunal

The principal bench of the Tribunal consisting of the Chairman, K. Madhava Reddy, J. and member Kaushal Kumar was called upon to decide about the existence of its power under Articles 226 and 227 in Surinder Nath v. Union of India24 even before the decision of the Supreme Court in Sampath Kumar15. In this case it was argued that the extraordinary jurisdiction vested in the High Court under Articles 226 and 227 is not expressly abrogated by any provision of the Administrative Tribunals Act. Therefore this jurisdiction continues to be vested in the High Courts notwithstanding anything in the Act and the Constitution; and as the Tribunal has no powers under Articles 226 and 227 it should transfer back all the cases to the High Court. The basis propounded for this argument was that (i) the word "court/courts" occurring in Sections 14(1), 28(1) and 29(1) does not include the High Courts; (ii) the word "proceedings" occurring in Section 29(1) does not include writ petitions pending under Articles 226 and 227. The Tribunal rejected the above argument and held that the entire jurisdiction, power and authority vesting in the High Courts under Articles 226 and 227 stands transferred to the Tribunal in service matters; and thus the Tribunal has all the powers of the High Courts including the power to issue directions, orders or writs under Articles 226 and 227.25 Elaborating on this point the Chairman, Madhava Reddy, J., observed:

"The word 'court' is a genus of which Munsif's Court, Magistrate's Court, Civil Judge's Court, District Court, Special Courts, High Court, and the Supreme Court are species. It is precisely so because the expression 'court' occurring in these sections includes even the Supreme Court, and the Parliament deemed it imperative to save the jurisdiction of the Supreme Court, expressly added the words 'except the Supreme Court'. If the expression 'court' includes Supreme Court, obviously it includes High Courts as well."26

Further referring to Parliament's intention he pointed out that it is significant to note that the Parliament did not use the word "civil courts" which expression could not have excluded jurisdiction of the High Courts, and deliberately used the word "court". This shows that the Parliament intended to exclude the jurisdiction of the High Courts and vest it in the Tribunal with respect to service matters, for which object the constitutional provision was specifically introduced.27

Referring to word "proceeding" in Section 29(1) of the Act the learned Chairman observed:

"The expression 'proceeding' has not been defined either under the Constitution or the Administrative Tribunals Act or even in General Clauses Act, 1897 .... It is however, a term of wide import and takes within its ambit all matters pending in any court or tribunal. There may be an original proceeding or appellate proceedings or revisional proceedings. They may be interlocutory proceeding or main petition; they may be a proceeding taken on petitions filed invoking the ordinary original jurisdiction or the extraordinary jurisdiction or special jurisdiction conferred on a court or a Tribunal or a High Court. We do not find any justification for restricting the ambit of this wide expression and exclude therefrom proceedings initiated before the High Court under Articles 226 and 227."28

He further pointed out that even in Halsbury's Laws of England writ petitions have been referred to as proceedings.29 Also the Supreme Court in various cases has held that a petition under Article 226 is a proceeding.30 Also, referring to the proviso to Section 29 of the Act, he pointed out that this proviso, which saves from transfer to the Tribunal the appeals pending before the High Courts, shows the intention of the Parliament that writ petitions were intended to be transferred and the power to deal with these under Articles 226 and 227 was vested in the Tribunal.

Speaking on the situation which may arise if it is held that Tribunal has no power under Articles 226 and 227, Madhava Reddy, J. made the following important observations:

"If we restrict the meaning of the word 'proceeding' occurring in Section 29(1) so as to exclude therefrom proceedings under Articles 226 and 227 of the Constitution, then a very anomalous situation would arise. While the jurisdiction of the High Courts stands excluded in respect of service matters and, therefore the High Court cannot deal with those matters, at the same time those matters do not stand transferred under Section 29(1), then there would be no other forum to dispose of these proceedings validly pending in the High Court on the appointed day. In the absence of a forum to adjudicate upon them, they would perhaps lapse. Parliament would never have contemplated creating such a situation.31"

(emphasis supplied)

Differing32 from a decision of Allahabad High Court on the above point, Madhava Reddy, J., also rejected the argument that the Explanation to Section 141 of the Civil Procedure Code excludes writ petitions from the definition of the term "proceeding" occurring in that section. Therefore, the term "proceeding" occurring in Section 29 of the Administrative Tribunals Act also excludes writ petitions from its purview. Going into the reasons for addition of the explanation to Section 141 of the C.P.C., he pointed out that the explanation has been added by the Parliament because the word "proceeding" ordinarily includes writ petitions; and a clarification was needed to clarify certain confusion created in the area of procedural law; and as provided in this explanation, it is limited only to Section 141 of the C.P.C. and has no general application.33

While deciding on the above point the Tribunal rightly took judicial notice of the fact that service matters, which are specifically covered by the Act and are required to be dealt with and disposed by the Administrative Tribunals constituted under this Act and over which the Tribunals have been vested with the exclusive jurisdiction, powers and authority, are pending in all the High Courts mostly in the form of writ petitions rather than in any other form. Cases in any other form could be counted on fingers. The appeals pending in the High Court are anyhow excluded under the proviso to Section 29(1) from transfer to the Tribunal. If it is held that these writ petitions are not "proceedings" within the meaning of Section 29(1) of the Act, then there will be no petitions at all, except the few suits, if any, which are covered by the expression "suits" and not "proceedings" occurring in Section 29 which would stand transferred to the Tribunal. In other words, the word "proceeding", if so read, occurring in Section 29 would become only redundant. Further, the very purpose of amending of the Constitution for enabling the Parliament to constitute Administrative Tribunals and transfer the jurisdiction, powers and authority of all courts including the High Court to the Tribunal in this behalf would be frustrated. Parliament would not have undertaken this exercise for transferring a few cases when a large number of writ petitions were clogging the High Courts and delaying disposal of many urgent matters.34

In addition to the above argument it was contended that at least the power of superintendence under Article 227 still continues to be vested in the High Courts and so the Tribunal's judgments would continue to be subject to jurisdiction of the High Court. Rejecting this argument Madhava Reddy, J. observed:

"... it would be incongruous to hold on the one hand that on the constitution of the Tribunal, the jurisdiction, power and authority of the High Courts stood excluded under Section 28 and the matters pending in the High Courts stood transferred to the Tribunal under Section 29(1) and yet on the other hand, the High Court would continue to have power of superintendence in respect of these very matters. The Act itself is made pursuant to the mandate of the Constitution under Article 323-A which contemplates total exclusion of the High Courts jurisdiction as well. The Parliament was well aware that the High Court exercises powers of superintendence under Article 227 in relation to all Tribunals and that power is both judicial and administrative. Yet the very same Parliament which empowered the constitution of the Tribunals under the Administrative Tribunals Act with exclusive jurisdiction in service matters making the decisions and orders of the Tribunal subject only to jurisdiction of the Supreme Court could never have once again made their decision subject to the powers of superintendence vested in the High Court under Article 227."35

Talking in terms of statutory construction, Madhava Reddy, J. pointed out that, if it is held that the High Court still continue to have power of superintendence under Article 227 in service matters, Section 28 of the Act will be rendered wholly otiose. It is well established that no provision of law should be so read.36

The Tribunal also rejected another contention that the Tribunal has no jurisdiction to issue writs for enforcement of fundamental rights and that power having been conferred on the High Court under the Constitution, the High Courts continue to have this jurisdiction in service matters. Speaking on this point, Madhava Reddy, J., observed that as the Tribunal has inherited the power/jurisdiction of the High Courts, it can decide all the disputes relating to service matters involving ordinary legal rights as well as fundamental rights.37

Also talking about the status of the Tribunal as envisaged under the Constitution and the Act, Madhava Reddy, J., rightly pointed out that the above arguments are based on the assumption that the Tribunal is just like the other tribunals which existed before the Administrative Tribunals Act; however, this assumption is basically incorrect because the Constitution itself envisages that the Tribunals created under Article 323-A are different from the existing system of tribunals.38

It may be interesting to note that in Surinder Nath24, the Tribunal also rejected an argument advanced at the very threshold that the petitions be re-transmitted to the Delhi High Court for the decision on the above preliminary question relating to power/jurisdiction of the Tribunal. On this point the Tribunal held that:

"When a question of jurisdiction of the Tribunal to deal with any matter is raised, only upon this Tribunal reaching a conclusion that it has no jurisdiction to deal with the matter, can the case be re-transmitted to the High Court or returned to the party for presentation in proper court"39

The above discussion reveals that from the very beginning the Tribunal has started giving effect to the object of Article 323-A of the Constitution and the Act which envisaged a new experiment in the tribunal system and has rightly rejected varous arguments doubting the power, jurisdiction and authority of the Tribunal under Articles 226 and 227.

Like the Principal Bench at New Delhi, the other Benches40 of the Tribunal at Allahabad, Chandigarh, Cuttack, Hyderabad, Jabalpur, Jodhpur and Madras, have also held that the Tribunal has power under Articles 226 and 227 to issue any order, direction or writ. In a case41 before the Madras Bench an interesting argument was advanced. It was contended that certain petitions should be re-transmitted to the High Court because certain prerogative writs were asked by way of relief and the Tribunal has no power to issue prerogative writs. This argument was rejected by the Tribunal. On this point G. Sreedharan Nair, J., the judicial member of the bench made the following important observation:

"Accepting that the Tribunal cannot issue a writ as contemplated under Article 226 of the Constitution of India for the sake of argument, it will not follow that the Tribunal has no jurisdiction at all to consider the reliefs claimed in these applications. Though not couched in the form of a writ, if the Tribunal can nevertheless grant the reliefs claimed so as to redress the grievance of the applicants, the submission of counsel loses its force."42

(emphasis supplied)

The above view indicates that although the Tribunal has the same powers as the High Courts have under Articles 226 and 227, it may not generally issue prerogative writs in practice; and the parties may be given relief simply by quashing, directing/ordering/commanding and declaring certain things. In order to have a clear idea about the practice of the Tribunal, the cases43 reported since the establishment of the Tribunal till October, 1990 in the "Administrative Tribunals Cases", have been analysed to probe upon the following questions:

(i) What type of reliefs have generally been asked from the Tribunal?

(ii) What type of reliefs have been generally granted by the Tribunal?

(iii) In how many cases, writs have been specifically asked?

(iv) Whether relief in any application has been denied on the ground that the Tribunal has no power to issue writs?

(v) In how many cases the prerogative writs have been issued?

The cases before the Tribunal have come either in the form of Transferred Applications (TAs), or in the form of Original Applications (OAs). Analysis of these TAs and OAs, presented below in TABLE A and TABLE B respectively, reveals that : (i) the general practice of the aggrieved parties is to ask for the relief in other form, i.e., in the form of an order for quashing or setting aside the impugned action; or in the form of a declaration that the impugned action is void or illegal; or in the form of a direction, order or command issued to the administration to do or abstain from doing certain things; (ii) and relief in these other forms have been generally given by the Tribunal; (iii) writs have been prayed for in a very few cases. This may be evident from the fact that during the last five years of Tribunals' working writs were asked only in 89 transferred applications;44 and in 4 original applications45 out of the total 196046 applications (reported); (iv) in none of the applications where the relief was asked in the form of a writ, the Tribunal refused to exercise its power on the ground that it has no power to issue writs; (v) in fact in a transferred writ petition47 the Tribunal issued a writ of prohibition prohibiting the Government from proceeding further in a disciplinary matter against the petitioner. Once the power to issue writ is vested in the Tribunal, it can issue a writ in its discretion even in those cases where it has not been asked. This has happened in a case48 which was a transferred application arising from a civil suit for declaration. This case involved a long history of administrative attitude of indifference and harassment towards a Government servant. Therefore in view of the facts of the case the Jabalpur Bench of the Tribunal issued a writ of mandamus directing the Government to act in accordance and in the light of the Tribunal's findings with respect to certain matters.

The above discussion reveals that in theory as laid down in Surinder Nath24 and in practical working the Tribunal has held that it has power under Articles 226 and 227 to issue any order, directions or writs with respect to service matters and in this respect it has expressed no doubt.49 However, this does not mean that the Tribunal can issue direction to a civil court under Article 227. In a case50 wherein a question relating to extent of the Tribunal's power was involved, Amitav Banerji, J., the Chairman, has held that the Tribunal has no power to direct a civil court to transfer a service matter which the civil court has been deciding/decided despite the statutory provision of Section 29(1). The power of supervision over the civil court is vested only in the High Court. However, while speaking further in this context he made a very broad and general statement, that "the power of the High Courts under Article 227 of the Constitution has not been vested in the Tribunal"51 If read in the light of the question raised and the factual context, this observation means that the power of the Tribunal does not extend to issue directions to civil courts which are not under the Tribunal, but if read out of this factual context, the observation may create confusion in the settled law about the existence of power of the Tribunal under Articles 226 and 227. This, would not have been intended even by Amitav Banerji, J., because while deciding the above case he neither referred to Surinder Nath24 nor to Sampath Kumar15, which related to the question of existence of the power of the Tribunal under Articles 226 and 227. This he did, probably due to the reason that the present case related to the question about the extent of power, and not the existence of power. It is, submitted that any confusion in this respect should be avoided and therefore, the Tribunal should avoid making any general statement of law which is unnecessary in the factual context.

III. Approach of the Supreme Court and the High Courts

Immediately after the establishment of the Tribunal and before Sampath Kumar15 the Allahabad High Court in M.B. Shukla v. Union of India52 held that the Tribunal has no power to issue any order, direction or writ under Articles 226 and 227 and therefore writ petitions do not stand transferred before it. However, this case has been overruled in Udai Bhan Singh v. Union of India53, by the same High Court and it has been laid down that after Sampath Kumar15 it is clear that the Tribunal is a substitute of the High Court and has jurisdiction, power and authority under Articles 226 and 227 with respect to service matters.

Once it is clear that the power under Articles 226 and 227 is vested in the Tribunal with respect to the disputes relating to service matters of the Central Government servants, no jurisdiction in these matters should remain with the High Courts. In Dharam Dev v. Union of India54 the Delhi High Court rightly held that in 'service matter' Tribunal alone has jurisdiction. Different view seems to have been taken by the Gujarat High Court in a case55 where it exercised the jurisdiction in a service matter. However this decision of the Gujarat High Court has been struck down by the Supreme Court.56 In this case, disapproving the approach of the High Court, the Supreme Court held that the provisions contained in the Administrative Tribunals Act, 1985, read with Article 323-A of the Constitution of India bars the jurisdiction of the High Courts, and therefore the order of the Tribunal is not open to challenge before the High Court. The Court also came down heavily both on the Information and Broadcasting Ministry and the Director of Doordarshan and imposed costs of Rs 5,000 on the two authorities for not complying with the statutory provision of the Constitution and the Administrative Tribunals Act. In this case the Government, instead of either obeying the order of the Tribunal or going to the Supreme Court under Article 136, had gone to the High Court against the decision of the Tribunal.57

The Supreme Court has also made it clear in J.B. Chopra v. Union of India58 that as the Tribunal is the substitute of the High Courts it has power, jurisdiction and authority to deal with the questions pertaining to constitutional validity of laws, notifications, rules etc.

IV. Some other Arguments against the Tribunal's Power under Articles 226 and 227

Besides the arguments raised in the cases discussed above it has been argued academically that the powers of the High Courts under Articles 226 and 227 cannot be taken away and vested in the Tribunal, because Article 323-A(2)(d) does not empower divesting of this extraordinary jurisdiction of the High Courts. And if Article 323-A(2)(d) is taken to confer upon the Parliament the power to take away the extraordinary jurisdiction of the High Courts under Articles 226 and 227, then the constitutional validity of this Article itself becomes questionable. For taking away the extraordinary jurisdiction of the High Courts a constitutional amendment is needed. Parliament cannot take away this jurisdiction by an ordinary legislation. If Article 323-A(2)(d) empowers the Parliament to do this, the article suffers from the defect of delegated constitutionalism.59

The above argument is based on the presumption that Article 323 2DA(2)(d) itself did not take away the power of the High Court under Articles 226 and 227 and left this to be done by the Parliament. It is submitted that this presumption is not justified in view of Article 368 of the Constitution. According to Article 368, once a provision has been introduced in the Constitution through a constitutional amendment after duly complying with the requirement of this article the Constitution shall stand amended.60 Therefore, the power of the High Court under Articles 226 and 227 with respect to service matters stood amended from that very moment when Article 323-A(2)(d) was introduced by the Forty-second Amendment after duly complying with the requirements of Article 368; and the power conferred on the Parliament was not to amend the Constitution, but to implement it.

In addition to the above argument it has also been argued that the law (the Administrative Tribunals Act) made by the Parliament suffers from the defect of colourable legislation, because it affects the power of High Courts which it cannot do according to the distribution of powers provided in the Union and State lists.61 It is submitted that this argument, no longer remains tenable, once it is clear that the Parliament while enacting a law under Article 323-A is not amending the Union or State lists, but is only implementing the object of Article 323-A which itself had amended the distribution of power with respect to service matters. It may be important to note here that the provisions of Article 323-A have been given an overriding effect, notwithstanding any other provision in the Constitution.62

About jurisdiction of the High Courts under Article 227 it has been argued that this jurisdiction has not been taken away, because (i) jurisdiction of the Tribunal is not even akin to the supervisory jurisdiction of the High Courts; (ii) the Tribunal cannot even jurisprudentially exercise this jurisdiction because at least a two-tier system is needed to confer this jurisdiction on the highest authority.63 It is submitted, that in view of the object and policy of Article 323-A and the Administrative Tribunals Act, it cannot be said that in "service matters" Tribunal's jurisdiction is not akin to that of the High Courts. While exercising its power under the Act, the Tribunal also64 exercises supervisory jurisdiction over the Departmental quasi-judicial authorities and on other quasi-judicial authorities65 with respect to service matters. However, unlike the High Courts this jurisdiction of the Tribunal is limited only to "service matters" under Article 323-A. Further it cannot be convincingly argued that jurisprudentially no innovation can be carried out in the "tribunal justice system" unless it is substituted by the same heirarchy of review system which it replaces. It is respectfully submitted that while introducing an expeditious and new system it is always open to the policy makers to reduce one ladder in the heirarchy of the review and control system and this, precisely has been done, under Article 323-A.

Besides the above arguments it has also been said that the Tribunal does not have power to issue orders, directions or writs under Articles 226 and 227, because the power to issue writs has not been vested under the conditions of service of the employees.66 It is an extraordinary power given by the Constitution to the High Courts. This argument, it is submitted, confuses the law which is the source of the Tribunal's power67 with the law which the Tribunal has to apply to the cases before it68 while exercising its power and jurisdiction. There is no doubt that while deciding the cases before it the Tribunal has to apply the law relating to service conditions available in various statutes, rules, notifications, administrative instructions, etc., but this law relating to service conditions is not the source of the Tribunal's power. The source of the Tribunal's power is Article 323-A of the Constitution, read with Sections 14, 28 and 29 of the Administrative Tribunals Act; and under these provisions the Tribunal can issue any order, directions or writs.

Conclusion

The above discussion reveals that the working of the Tribunal since the last five years and the approach of the Supreme Court do not support the arguments that the Tribunal does not/cannot have power to issue any orders, directions or writs under Articles 226 and 227 of the Constitution. Theoretically also, it cannot be convincingly argued that the Tribunal has no power under Articles 226 and 227. It is submitted that the Tribunal has been contemplated by the Constitution as a substitute and not as supplemental to the High Courts; and it would be a retrograde step69 to say that the Tribunal has no power under Articles 226 and 227; and the High Courts still continue to have this power with respect to service matters. In fact the Tribunal has been exercising this power by quashing the impugned administrative action, or by directing, ordering/or commanding the parties to do certain things or abstain from doing certain things, or by declaring certain things. Writs have also been issued by the Tribunal, but in a very few cases. The practice of the Tribunal, to issue writs in a very few cases, does not, however, affect the actual working of the Tribunal, because writs are in essence certain forms of orders, directions etc., which have significance mainly from historical point of view.70 The orders/directions of the Tribunal though not expressed in the form of writs are binding on the parties and disobedience of these may result in a punishment for contempt of the Tribunal.71

There is thus no doubt about the existence of power/jurisdiction of the Tribunal derived from Articles 226 and 227 of the Constitution with respect to service matters.72 However, the questions may be raised now, about the extent73 of these powers. It is submitted that while deciding the questions about the extent of power, the Tribunal should avoid making very broad or general statements about the existence of powers of the Tribunal, which are unnecessary in the factual context74 because, any broad or general statement, if read out of context may give rise to confusion in the settled position of law with respect to the existence of power.

Total number of TAs and OAs = 1063 + 897 = 1960

†      This article is a part of the sub-topic "Jurisdiction, Power and Authority of the Tribunal", which in turn, is a part of the Main Topic: "Study of the Central Administrative Tribunal", undertaken by the author for her Post-doctoral Research. Return to Text

* LL.M., Ph.D. (Law), Research Associate, Department of Law, University of Poona. Return to Text

1. See Constitution of India, Article 323-A(1). Along with this, Article 323-B was also introduced by the Forty-second Amendment of the Constitution, empowering the Legislature to establish tribunals in certain other areas. However, the present study is limited to the Central Administrative Tribunal under Article 323-A. Return to Text
2. Ibid., Article 323-A(2)(d). Return to Text
3. Ibid., Articles 136 and 227. For details about the tribunal system, existing at the time of the 42nd Amendment, see S.N. Jain, Administrative Tribunals in India, (N.M. Tripathi Pvt. Ltd., Bombay, 1977). Return to Text
4. See Constitution of India, Article 323-A(3). Return to Text
5. See the Statement of Objects and Reasons, accompanying the Forty-fourth Amendment Bill (later renumbered as the Forty-second Amendment Act of the Constitution.) Return to Text
6. See Lok Sabha Debates, 5th Series, Vol. LXV, No. 7, Nov. 1st, 1976, Col. 117. Return to Text
7. For a discussion on the peculiar circumstances and the motive behind the provisions of the Forty-second Amendment, see Rajeev Dhavan, The Amendment : Conspiracy or Revolution? (Wheeler Publishing Company Pvt. Ltd., Allahabad, 1st edn., 1978). Return to Text
8. See H.C. Dholakia, 'Forty-second Minus Forty-fourth some Plus Points', (1979) 13 JCPS 393-409. Return to Text
9. Rajeev Dhavan, 'Amending the Amendment : The Constitution (Forty-fifth Amendment) Bill, 1978', 20 J.I.L.I. (1978) 249-272 at p. 267. Return to Text
10. Section 4(1) of the Act directs the Central Government to establish immediately the Central Administrative Tribunal by a notification. However, the State Administrative Tribunals and the joint Administrative Tribunals are to be established only on the request of the States concerned, see Sections 4(2) and 4(3). Return to Text
11. These provisions relate to overall powers of the Tribunal. Besides this, powers are also conferred on the Tribunal under other provisions of the Act, see for example, Section 17 which confers power to punish for contempt. Also see Section 22 of the Act which confers certain powers of the civil court under C.P.C. on the Tribunal. Return to Text
12. For details, see Administrative Tribunals Act, 1985, Section 14. Return to Text
13. Ibid., Section 28. Return to Text
14. Ibid., Section 29. Return to Text
15. (1987) 1 SCC 124: (1987) 2 ATC 82. Return to Text
16. Some other arguments were also advanced in this case, however, they were not pursued in view of the undertaking by the Attorney General and certain interim directions by the Supreme Court, see ibid., at pp. 93-4. Return to Text
17. Ibid., at p. 96. Return to Text
18. Ibid., at p. 88. Return to Text
19. Ibid., at pp. 89-92; 97-100. Return to Text
20. Ibid., at p. 97. Return to Text
21. For details about the 'service matters' and the persons covered within the jurisdiction of the Tribunal see Sections 2, 3(q) and 14 of the Act. Return to Text
22. See, Dr M.L. Upadhyay, 'Administrative Tribunals : No Alternative Mechanism for Judicial Review', Central India Law Quarterly, Vol. 2 (1989) 433-444; K.I. Vibhute, 'Administrative Tribunals and the High Courts : A Plea for Judicial Review', 29 J.I.L.I. (1987) 524-546. For a similar views expressed before Sampath Kumar, see Balram K. Gupta, 'Administrative Tribunals and Judicial Review : A Comment on Forty-second Amendment', pp. 401-425, in Indian Constitution : Trends and Issues, (ed.) Rajeev Dhavan and Alice Jacob (N.M. Tripathi, Pvt. Ltd., Bombay 1978). Return to Text
23. See Dr M.L. Upadhyay, Ibid. Return to Text
24. (1986) 1 ATC 656 (ND). Return to Text
25. Ibid., at p. 688. Return to Text
26. Ibid., at p. 675. Return to Text
27. Ibid., at pp. 675-76. Return to Text
28. Ibid., at p. 679. Return to Text
29. Id. Return to Text
30. Ibid., at p. 680. Return to Text
31. Ibid., at p. 685. See K.I. Vibhute, supra n. 22 pp. 539-540, wherein a similar argument has been advanced to suggest that the High Court should continue to have jurisdiction in service matters. This argument is based on the view that the Tribunal has no power under Articles 226 and 227. However, this view cannot be justified on theoretical basis, see, infra, n. 66. Return to Text
32. Ibid., at pp. 680-83. Return to Text
33. Ibid., at pp. 681 and 682. Return to Text
34. Ibid., at p. 683. Return to Text
35. Ibid., at pp. 686-87. Return to Text
36. Ibid., at p. 687. Return to Text
37. Ibid at pp. 687-88. Return to Text
38. Ibid., at p. 688. Return to Text
39. Ibid., at p. 689. Return to Text
40. See S.K. Sisodia v. Union of India, (1988) 7 ATC 852 (All); Union of India v. Sarup Chand Singla, (1989) 9 ATC 167 (Chand); Kishore Chandra Pattanayak v. State of Orissa, (1987) 4 ATC 812 (Cutt); A.V.S. Reddy v. State of A.P., (1988) 7 ATC 119 (Hyd); Union of India v. Siyaram, (1988) 7 ATC 28 (Jab); Sr. Executive Engineer, N. Rly. v. Ram Lal, (1990) 13 ATC 524 (Jodh); M.S.R. Prabhakar Rao v. Union of India, (1987) 3 ATC 871 (Mad). However see, Gopal Chandra Nanda v. Union of India, (1991) 18 ATC 65 (Cutt) at p. 84. In this case without a reference to any of the previous cases on the point, the Cuttuck bench of the Tribunal observed that "we are aware that the Administrative Tribunal does not have the writ jurisdiction of the High Court under Article 226 of the Constitution." It is submitted that on the important points of law, such observations which are made without a reference to the cases on the point should be avoided. Return to Text
41. P. Subramani v. Union of India, (1987) 2 ATC 974 (Mad). Return to Text
42. Ibid., at p. 975. Return to Text
43. Miscellaneous petitions for condonation of delay, for review, for amendment of pleadings etc. and the contempt petitions have been excluded from this analysis because they do not relate to the questions posed. Return to Text
44. For details see TABLE A. Return to Text
45. For details see TABLE B. Return to Text
46. See TABLE B. Return to Text
47. R. Kaliappan v. Govt. of T.N., (1988) 7 ATC 484 (Mad). Return to Text
48. Pritam Lal v. Union of India, (1987) 2 ATC 977 (Jab). Return to Text
49. However, see the unreported judgment of the Bangalore Bench of the Tribunal in B.V. Venkatasubbaiah v. Union of India, (T.A. No. 5/86, decided on 8th Sept. 1986), wherein the Vice-Chairman, Puttaswamy, J., has observed that though the Tribunal has all the powers of High Court to issue any order it cannot issue any prerogative writ. While making this observation he did not explain as to why the Tribunal cannot issue prerogative writs. Also, he did not refer to Sampath Kumar and the judgments of the other benches. Therefore, this view of Puttaswamy, J. does not affect the settled position of the law with respect to the power of the Tribunal under Articles 226 and 227. Return to Text
50. Union of India v. Ganesh Khalashi, (1990) 13 ATC 747 (Pat). Return to Text
51. Ibid., at p. 756. Return to Text
52. (1985) 3 SLR 610 (All). Return to Text
53. AIR 1987 All 269. Return to Text
54. (1988) 4 SLR 7 (Del). Return to Text
55. See Times of India, Bombay edition dt. 8th December, 1990, p. 19. Return to Text
56. H.N. Patro v. Ministry of Information and Broadcasting, 1993 Supp (1) SCC 550 Return to Text
57. See supra, n. 55. From the report in the newspaper it is not clear whether the Government had gone to the High Court on jurisdictional grounds, or on any other grounds. However, from the approach of the Supreme Court it seems that even on jurisdictional questions parties cannot go to High Court against the decision of the Tribunal, and the Tribunal is an exclusive forum in service matters. It is submitted that the Supreme Court has rightly discouraged the attempt by the Government to create hurdles in the way of the new experiment in the tribunal system as envisaged by the Constitution, Article 323-A. Once the Tribunal is envisaged as an exclusive forum under the Constitution, then even on jurisdictional questions the High Courts should not have jurisdiction or power under Articles 226 and 227 with respect to service matters. For discussion on what are the jurisdictional questions, see, Jain and Jain, Principles of Administrative Law, pp. 526-546 (N.M. Tripathi Pvt. Ltd., Bombay, 4th edn., 1986); S.P. Sathe, Administrative Law, pp. 231-253 (N.M. Tripathi Pvt. Ltd., Bombay, 4th edn., 1984). Return to Text
58. (1987) 1 SCC 422: (1987) 2 ATC 344. For decisions of the Tribunal on this point, see, R. Kapur v. Union of India, (1987) 2 ATC 771 (ND); P.N. Kohli v. Union of India, (1987) 3 ATC 336 (ND); M.D. Jose v. Director General of Posts, (1987) 5 ATC 565 (Mad); Mushtaq Ahmad v. Comptroller and Auditor General of India, (1988) 6 ATC 35 (All). Return to Text
59. Dr M.L. Upadhyay, supra, n. 22 at pp. 439-442. Return to Text
60. See Article 368 of the Constitution of India. Return to Text
61. Supra, n. 22, at p. 443. Return to Text
62. See supra, n. 4. Return to Text
63. Supra, n. 22. at p. 438. Return to Text
64. The Tribunal has jurisdiction on all types of functions of Government relating to service matters. Return to Text
65. For example, the Tribunal has supervisory jurisdiction on the authorities under labour laws with respect to service matters and in some cases it has quashed the order/awards given by these authorities. For cases on this point see, G.M., S. Rly. v. Presiding Officer, Central Govt. Labour Court, (1987) 4 ATC 912 (Mad); Sr. Executive Engineer, N. Rly. v. Ram Lal, (1990) 13 ATC 524 (Jodh); S.K. Sisodia v. Union of India, (1988) 7 ATC 852 (All); Union of India v. U.C. Misra, (1987) 5 ATC 840 (All). In some of these cases, it was also held that in addition to the supervisory jurisdiction, the Tribunal can exercise the jurisdiction which is parallel to the Industrial Tribunals and the Labour Courts. However this view has been overruled by a five-member Full bench of the Tribunal in A. Padmavalley v. C.P.W.D., (1990) 14 ATC 914 (Hyd). In this case it has been held that the Tribunal does not have jurisdiction parallel to the Industrial Tribunals and Labour Courts, although it possesses the supervisory jurisdiction of the High Courts under Articles 226 and 227. Return to Text
66. K.I. Vibhute, supra, n. 22 at p. 539, 540. Return to Text
67. The law which provides for power, structure, composition, procedure and working of the Tribunal is a part of Administrative Law. Return to Text
68. The law which the Tribunal applies to cases before it is a part of Service Law. Return to Text
69. See the observation of Ranganath Misra, J., in Sampath Kumar, supra, n. 15 at p. 97. Return to Text
70. For origin and history of prerogative writs see, Theodore F.T. Plucknett, A Concise History of the Common Law, p. 165 (Butterworth & Co. Ltd., London, 1948); W.F. Frank, The General Principles of English Law, pp. 15 & 39 (George G. Harrap & Co. Ltd., London, 3rd edn., 1964); S.A. de Smith, 'The Prerogative Writs', (1951) 11 Camb LJ pp. 40-56; Halsbury's Laws of England, Vol. 37, 4th edn., para 567; H.M. Seervai, Constitutional Law of India, Vol. 2, p. 1180 (N.M. Tripathi Pvt. Ltd., Bombay, 3rd edn., 1984). Return to Text
71. See Section 17 of the Administrative Tribunals Act, 1985. Return to Text
72. Though the Tribunal has inherited the power of the High Courts with respect to service matters, it does not mean that it has to perform exactly the same role which the High Courts were performing. For a discussion on what should be the role of the Tribunal, see, Anupa V. Thapliyal, 'Role of the Central Administrative Tribunal: Whether Confined to Judicial Review'? A Critique of Union of India v. Parma Nanda, (1990) 1 SCC 11 (Jour). Return to Text
73. For example, it may be asked what is the extent of the jurisdiction/power of the Tribunal vis-a-vis Labour Courts, Industrial Tribunals, Civil Courts or the Rent Control Authorities with respect to service matters? Return to Text
74. See, supra n. 50. Return to Text