L. Chandra Kumar v Union of India (1997)

It is the settlement of the tribunalisation question and the case every answer on the head must be built round. Article 323A(2)(d) permits a law to exclude the jurisdiction of all courts except the Supreme Court under Article 136; section 28 of the 1985 Act did so. L. Chandra Kumar holds that every tribunal decision is nevertheless subject to Articles 226 and 227 before a Division Bench of the High Court.

Section 28, as quoted in the judgment, provides that once a Tribunal's jurisdiction becomes exercisable in relation to service matters, "no court except-- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 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."

Its drafting history is the key to the case. As enacted section 28 "was in the express terms of Clause (2) (d) of Article 323A of the Constitution and the only exception made in it was in respect of the jurisdiction of this Court under Article 136". Before the final hearing in S. P. Sampath Kumar it "was further amended to also save the jurisdiction of this Court under Article 32". Because Sampath Kumar "had restricted its focus to the provisions of the Act, it expressed itself to be satisfied with the position that the power of judicial review of the Apex Court had not been tampered with by the provisions of the Act and did not venture to address the larger issue of whether Clause (2)(d) of Article 323A of the Constitution also required a similar amendment."

The Act's design, in the Court's words: a "preliminary appraisal of the framework of the Act would indicate that it was intended to provide a self- contained, almost wholly exclusive (the exceptions being specified in Section 28) forum for adjudication of all service related matters." And the phrase on which everything turns: "The Tribunals created under the Act were intended to perform a substitution role as opposed to - and this distinction is of crucial significance-a supplemental role with regard to the High Courts."

Special leave "is too costly and inaccessible for it to be real and effective." And it distorts the Supreme Court: "the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court." R. K. Jain had suggested an appeal on questions of law to a Division Bench of the High Court, but "It appears that no follow-up action has been taken pursuant to the suggestion."

"we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."

Consequently "no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136".

"The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules."

One exception: "The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly."

But the tribunal is not bypassed. "the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted", and "it will not be open for litigants to directly approach the High Courts even in cases where they question the vires" "of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal." That is the balance of the case: judicial review survives, but only as review, and after the tribunal.

Prospective overruling. The directions "will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter"; the doctrine was invoked "To maintain the sanctity of judicial proceedings".

On administrative members. It was urged that only persons with judicial experience should be appointed, the Malimath Committee having noted "that at times, IPS Officers have been appointed to these Tribunals", and that in short tenures administrative members "are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures." The Court refused: "the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grass-roots experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted."

On administrative supervision. The Court declined to place tribunals under the High Courts' administrative supervision — "If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot, in any manner, be of assistance to them" — and held instead that "until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals", which "should appropriately be the Ministry of Law." Such a supervisory authority "must try to ensure that the independence of the members of all such Tribunals is maintained."

On single-member benches. Section 5(6) was saved by construction: "where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member." So construed, "Section 5(6) will no longer be susceptible to charges of unconstitutionality."

Tribunals under Articles 323A and 323B are supplemental to and not substitutes for the High Courts. All their decisions are subject to the writ jurisdiction of a Division Bench of the High Court under Articles 226 and 227, and no direct appeal lies to the Supreme Court under Article 136. They may test the vires of statutes and of subordinate legislation, but not of their own parent Act.

• On tribunalisation and judicial independence: it is step two of the five-step answer — the transfer of jurisdiction is lawful, but the exclusion of judicial review is not.
• On the limitation position under the Act, note the judgment's own statement that "Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay".