CONSTITUTIONAL VALIDITY OF

ADMINISTRATIVE TRIBUNALS

BY : Sameeksha Kashyap

III- Year, Semester- VI

Self-Financed

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 Acknowlegement

I would like to express my gratitude and respect to Prof. Vinod Chauhan for
providing me with the topic of my paper and for guiding me through it, without his
guidance and support this project would not have existed in its present form or
completed in due time.

I am also grateful to the library staff for guiding me through the relevant sections
on the subject of administrative law and letting me issue the books.

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 CONSTITUTIONAL VALIDITY OF ADMINISTRATIVE TRIBUNALS

Post- independence India adopted the welfare ideology which meant that the State and
consequently its public servants and officers. This resulted in the eruption of cases in the
Supreme Court and the High Courts relating to service matters. For a long time, search was
going on for a mechanism to relieve the courts from the burden of service litigation which
formed a substantial portion of pending litigation. As early as in 1958, this problem engaged the
attention of the Law Commission which recommended for the establishment of tribunals
consisting of judicial and administrative members to decide service matters. In 1969
Administrative Reform Commission also recommended for the establishment of civil service
tribunals both for the Central and State civil servants. In 1975, Swarn Singh Committee again
recommended for setting up of service tribunals. It was against this backdrop that Parliament
passed Constitution (Forty- Second Amendment) Act, 1976, which added Part- XIV- A in the
Constitution. This Part is entitled as ‘Tribunals’ and consists of only two Articles- Article 323-
A, dealing with administrative tribunals and Article 323-B, dealing with tribunals for other
matters. Article 323-A of the constitution provides for the establishment of administrative
tribunals by a parliament law for the adjudication or trial of disputes and complaints relating to
the recruitment and conditions of service of government servants under the central government
and the state government including the employee of any local or other authority within the
territory of India or under the control of the government of India or of a corporation owned or
controlled by the government. Article 323-B makes provision for creation of tribunals for
adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange,
industrial and labour disputes, land reforms, ceiling on urban property, elections to Parliament
and State Legislatures, etc.

While Article 323-A contemplates establishment of tribunals for public service matters only,
Article 323-B contemplates establishment of tribunals for certain other matters (taxation, foreign
exchange, industrial and labour disputes, land reforms, elections to Parliament and State
Legislatures etc.). While tribunals under Article 323-A can be established only by the
Parliament, tribunals under Article 323-B can be established both by Parliament and State
Legislatures with respect to matters falling within their legislative competence. Under Article
323-A, only one tribunal for the Centre and one for each State or two or more States may be
established, there is no question of hierarchy of tribunals; whereas under Article 323-B a
hierarchy of tribunals may be created.

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In pursuance of Article 323-A, Parliament enacted the Administrative Tribunals Act, 1985 and
the Central Administrative Tribunal Act was established on 1 November 1985 with five
Benches. Section 28 of the Act excluded the jurisdiction of all courts except the Supreme Court
under Article 136 in accordance with sub-clause (d) of clause (2) of Article 323-A of the
Constitution.

The constitutional validity of the Act was challenged before the Supreme Court in the leading
case of S.P. Sampath Kumar v. UOI1. Undoubtedly, the question raised was of far reaching
effect and of great public importance.

The Constitution Bench upheld the validity of the Administrative Tribunals Act, 1985. Speaking
for the majority, Ranganath Misra, J. (as he then was) observed:

“We have already seen that judicial review by this Court is left wholly unaffected and thus
there is a forum where matters of importance and grave injustice can be brought for
determination or rectification. Thus, exclusion of the jurisdiction of the High Courts does not
totally bar judicial review… It is possible to set up an alternative institution in place of the
High Court for providing judicial review… The Tribunal has been contemplated as a
substitute and not as supplemental to the High Court in the scheme of administration of
justice… What, however, has to be kept in view is that the Tribunal should be a real
substitute for the High- Court not only in form and de jure but in content and de facto…
Under Sections 14 and 15 of the Act2 all powers of the 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.”

In concurring judgement, Bhagwati, C.J. observed:

“If this constitutional amendment were to permit a law made under clause (1) of Article 323-
A to exclude the jurisdiction of the High-Courts under Articles 226 and 227 without setting
up an effective alternative mechanism or arrangement for judicial review, it would be
violative of the basic structure doctrine and hence outside the constituent power of
Parliament. It must, therefore, be read as implicit in this constitutional amendment that the
law excluding the jurisdiction of the High- Court under Articles 226 and 227 permissible

1
1987 SCR (3) 233.
2
The Administrative Tribunals Act, 1985- Section 14: Jurisdiction, powers and authority of the Central
Administrative Tribunals; Section 15: Jurisdiction, powers and authority of State Administrative Tribunals.

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 under it must not leave a void but it must set up another effective institutional mechanism or
authority and vest the power of judicial review in it. 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 323-A3,
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
matters is concerned.”

Chief Justice Bhagwati reiterated the earlier view expressed by him in Minerva Mills v.UOI4
about the power of Parliament to set up effective alternative institutional mechanism or
arrangements for judicial review by amending the Constitution. If, by such constitutional
amendment, the power of judicial review of the high-court is taken away and vested ‘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, i.e., the alternative institutional
mechanism or authority set up by Parliamentary amendment is no less effective than the high-
court’. The learned Chief Justice said that as question involving interpretation of Articles 14, 15,
16 and 31 arise for decision, it is necessary that ‘those who adjudicate upon these questions
should have some medium of legal training and judicial experience’. In that view, he agreed
with Justice Ranganath Misra about the invalidity of Clause (c) of Section 6 (1) of the impugned
Act, which prescribed qualifications for the office of Chairman of the tribunal— at least two
years experience as Secretary to the Government of India or any other post under the Central
Government or state governments carrying the scale of pay which is not less than that of the
Secretary to Government of India. The appointment of the Chairman, the Vice Chairman and
Administrative Members should be made, in the opinion of the learned Chief Justice, only after
in consultation with and the recommendations of the Chief Justice of India, unless there are
cogent reasons for not accepting the same.

Another suggestion was that district judge or an advocate who is qualified to be a judge of the
high-court should be regarded as eligible for being the Vice- Chairman of the administrative
tribunal and if, to such an effect amendment was not carried out, the impugned Act would have
to be declared to be invalid, since it cannot be severed from the other provisions.

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Clause (2)(d) of Article 323-A: “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)”.
4
AIR 1986 SC 2030.

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Hence, in S.P. Sampath Kumar v. U.O.I, in the final decision the Court held that Section 28
which excludes jurisdiction of the High-Courts under Articles 226/227 is not unconstitutional.
The Court ruled that this section does not totally bar judicial review. It also said that
Administrative Tribunals under the 1985 Act are substitute of high- courts and will deal with all
service matters even involving Articles 14, 15 and 16. It also advised for changing the
qualifications of Chairman of the tribunal. As a result, the Act was further amended in 1987. In
UOI v. Parmanand5, a two-judges Bench upheld the authority of the Administrative Tribunals to
decide the constitutionality of service rules.

The Sampath Kumar ruling examined the constitutionality of the Administrative Tribunals Act,
1985 and did not consider the Constitutional validity of Article 323-A (2) (d).Subsequently, a
Full Bench of the Andhra Pradesh High- Court in Sakinala Harinath v. State of A.P6. , declared
sub-clause (d) of clause (2) of Article 323-A unconstitutional. It was held that this provision is
repugnant to the ruling of the Supreme Court in Kesavanand Bharati v. State of Kerala7 .

In J.B. Chopra and Ors v. UOI8 , a Division Bench of the Supreme Court had an occasion to
consider the question that, whether the CAT constituted under the Administrative Tribunal Act,
1985 has the authority and the jurisdiction to strike down a rule framed by the President of India
under the proviso to Article 309 of the Constitution9, as being violative of Articles 14 and
16(1)10 of the Constitution. When the matter came up before the Division Bench, it deferred its
judgement till the final pronouncement of the decision in Sampath Kumar. Thereafter, the
Division Bench analysed the Constitution Bench’s decision to arrive at the conclusion that:

“The Administrative Tribunal being a substitute power of the High Court had the necessary
jurisdiction, power and authority to adjudicate upon all disputes relating to service matters
including the power to deal with all questions pertaining to the Constitutional validity or
otherwise of such laws as offending Articles 14 and 16(1) of the Constitution.”

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In M.B. Majumdar v. UOI , a Division Bench of the Supreme Court had to confront the
contention, based on the premise that in Sampath Kumar the Supreme Court had equated the

5
AIR 1989 SC 1185.
6
(1994) 1 APLJ (HC) 1.
7
AIR 1973 SC 1461.
8
AIR 1987 SC 357
9
The Constitution of India, 1950- Article 309: Recruitment and conditions of service of persons serving the
Union or a State
10
The Constitution of India, 1950- Article 16 (1): There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
11
AIR 1990 SC 2263.

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tribunals established under the Administrative Tribunals Act, 1985 with high-courts, and that the
members of CAT must be paid the same salaries as were payable to judges of the high court.
The court, after analysing the text of Article 323-A of the Constitution, the provisions of the
impugned Act, and the decision in Sampath Kumar, rejected the contention that the tribunals
were the equals of the high-courts in respect of their service conditions. The Court clarified that
in Sampath Kumar the tribunals under the Act had been equated with High Courts only to the
extent that the former were to act as substitutes for the latter in adjudicating service matters, the
tribunals could not, therefore, seek parity for all other purposes.

In R.K. Jain v. UOI12 , a three judge Bench of Supreme Court had occasion to deal with
complaints concerning the functioning of the Customs, Excise and Gold Control Appellate
Tribunal, which was set-up by exercising the power conferred by Article 323-B. In his leading
judgement, Justice Ramaswamy analysed the relevant constitutional provisions; the decision in
Sampath Kumar, J.B. Chopra and M.B. Majumdar, and held that the tribunals created under
Articles 323-A and 323-B 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 for these alternative institutional mechanisms,
anguish was expressed over their ineffectiveness in exercising the power of judicial review. It
was regretted that their performance had left much to be desired. Thereafter, it was noted that
the sole remedy provided, that of an appeal to the Supreme 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 such tribunals etc. It was
hoped that the 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.

In L. Chandra Kumar v. UOI13 , a Division Bench of the Supreme Court expressed the view that
the decision rendered by the Constitutional Bench of five Judges in Sampath Kumar needed to
be comprehensively reconsidered, and a fresh look by a larger Bench over all the issues
adjudicated in Sampath Kumar was necessary. In the light of the opinion of the Division Bench,

12
(1993) 4 SCC 119.
13
(1995) 1 SCC 400.

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the matter was placed before a larger Bench of seven Judges. After considering various
decisions on the point, the larger Bench observed that:

1. The power of judicial review is a basic and essential feature of the Constitution and the
jurisdiction conferred on High Courts under Articles 226 and 227 and on Supreme Court
under Article 32 of the Constitution is a part of basic structure of the Constitution.

2. For securing independence of judiciary, the judges of superior courts have been entrusted
with the power of judicial review. Though the Parliament is empowered to amend the
Constitution, that power cannot be exercised so as to damage the essential feature of the
Constitution or to destroy its basic structure.

3. The High Courts and the Supreme Court have been entrusted with the task of upholding
the Constitution (i.e. furthering the ends of the Constitution) and with a view to
achieving that end, they have to interpret the Constitution.

The Supreme Court in this case held as follows:

1. Not only Section 28 of the Administrative Tribunals Act, 1985 was ultra-vires, but Clause
2 (d) of Article 323-A and Clause 3 (d) of Article 323-B as amended by the Constitution
(42nd Amendment) Act, 1976 were also ultra-vires and unconstitutional as they destroyed
the basic structure of the Constitution.

2. The Court held that there was no Constitutional prohibition against administrative
tribunals in performing a supplemental as opposed to a substitutional role. In exercising
powers such tribunals cannot act as substitutes for High Courts and the Supreme Court.
Their decisions will be subject to scrutiny by a Division Bench of the respective High
Courts.

3. Administrative Tribunals under Article 323-A could examine the constitutional validity of
various statutes or rules. There would be one exception to this rule: the administrative
tribunals would not be competent to examine the validity of the statute under which they
are created. In such cases, the appropriate High Court would have to be approached
directly. Barring cases where the constitutionality of the parent Act is challenged, all
questions regarding services must be raised only before an administrative tribunal, and

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 writ would lie against an administrative tribunal’s decision to a High Court having
jurisdiction over it. An appeal would also lie to the High Court from a tribunal’s decision.
From a decision of a High Court’s Division Bench, an appeal could be preferred under
Article 136 of the Constitution to the Supreme Court.

4. Administrative tribunals need not consist only of members from the judicial stream but
could also include members from the administrative stream, because a tribunal consisting
of such mixed composition would be able to bring varied experience to bear on the
service matters that come to it for adjudication.

5. An administrative tribunal may not be subject to the power of superintendence of a High

Court under Article 227, but the tribunals could work under the supervision of a nodal
government department, which would preferably be the Ministry of Law. The Court
expressed a hope that the ministry would set up an independent nodal agency for
overseeing the work of tribunals.

In concluding remarks, the Court speaking through Ahmadi, C.J. declared:

“In view of the reasoning adopted by us, we hold 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 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.”

While this decision recognises the need for tribunals as distinct from Courts, it insists that such
tribunals must be subject to the writ jurisdiction of High Courts. The Supreme Court has, in the
light of last decade’s experience, come to the conclusion that, factually, no tribunal could really
be a substitute for a High Court.

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 BIBLIOGRAPHY

Websites used:
 www.jsotr.com
 www.indiankanoon.in
 www.scconline.com

Books Referred:

 S.P. Sathe, Administrative Law, Seventh Edition, LexisNexis Butterworths, 2010

 M.P. Jain and S. N. Jain, Principles of Administrative Law, Seventh Edition
LexisNexis Butterworths,2017

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