TRIBUNAL IS SUBJECT TO THE SUPERVISORY JURISDICTION OF HIGH COURT

[Mr. M. GOVINDARAJAN]

INTRODUCTION:

            The Constitution is the Supreme law of the land. All the process for running a state is derived from the Constitution. The judiciary is one of the arms of a state which is independent in nature. Articles 124 to 147 of the Constitution deal with the Union judiciary and articles 214 to 237 deal with the State Judiciary. The State Judiciary consists of a High Court and courts subordinate to the High Court, dealing with Civil and criminal cases as per the Civil Procedure Code and Criminal Procedure Code respectively. The increase in number of cases pending before the court caused for the alternative solution which paved the way for the formation of tribunals, special courts etc.,

POWER OF HIGH COURT OVER TRIBUNAL:

            Among the various powers of the High Court, Article 227 provides a very wide power to High Court. Under Article 227 every High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The High Court may call returns from them, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.

            In Babhutmal V. Laxmibai (AIR 1975 SC 1297) The Supreme Court held that the power of superintendence conferred on High Court by this article is wider than the power conferred on High Court to control the inferior courts through writs under Article 226. It is not confined only to administrative superintendence but also judicial superintendence over all sub ordinate courts within its jurisdiction.

            Supreme Court in its judgment in Waryan Sing V. Amarnath (AIR 1954 SC 215) held that the power of superintendence conferred on high court being extra ordinary to be exercised sparingly and only in appropriate cases in order to keep subordinate courts, within the bounds of their authority and not for correcting mere error of facts, however erroneous they may be. Further the Supreme Court held that-

   >> the main grounds on which the high court usually interferes are when the inferior courts act arbitrarily or act in excess of jurisdiction vested in them or fail to exercise jurisdiction vested in them or act in violation of the principles of Natural Justice (Santosh V. Mood Singh Air 1958 SC 321);

   >> an arbitrator under Sec. 10-A of the Industrial Disputes Act, 1947 is a tribunal and therefore the high court has jurisdiction to interfere with an award of the arbitrator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would have reached the conclusions to which the Arbitrator has arrived.

POWERS TO TRIBUNALS:

            Part XIV-A was inserted in the Constitution, by the Constitution (42nd) Amendment Act, 1976, dealing with the tribunals. Part XIV-A consists of 2 articles viz., Art. 323A and Art. 323B. Article 323 A provides for the establishment of Administrative Tribunals by a Parliament law for the adjudication of trial of disputes relating to recruitment and conditions of service of Governments under the Union Government and the State Governments. The Constitution also indicated what the provisions to be made in such laws are establishing the tribunals, which are -

   >> the jurisdiction, power and authority to be exercised by the tribunals;

   >> the procedure to be followed;

   >> the exclusion of the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136 which authorizes Supreme Court to grant special leave at its discretion, to appeal from any judgement, decree, determination, sentence or order passed or made by court or tribunal in the territory of India;

   >> the transfer of all cases to the tribunals which were pending before any court or authority before the establishment of such tribunals;

   >> repeal or amend any order made by the President under Article 371D(3) ;

   >> supplementary or identical or consequential provisions for the effective functioning of such tribunals.

            Article 323B empowers Parliament and the State legislature to establish tribunals for the adjudication of any disputes, complaints or offences in respect to the following matters:

   >> levy, assessment, collection and enforcement of any tax;

   >> foreign exchange and report;

   >> industrial and labor disputes;

   >> land reforms laws enacted under Art.31-A of the Constitution;

   >> election disputes;

   >> production, procurement, supply and distribution of foodstuffs and essential goods and control of prices of such goods;

   >> rent, its control and tenancy issues including the rights, title and interests of land lords and tenants;

The law, establishing the tribunal will define the jurisdiction and powers of the tribunals and also lay down the procedures to be followed by the tribunal.

            The provisions of part XIV-A of the Constitution shall have the over riding effect of other provisions of the Constitution or any law for the time being in force. Thus Art.323-A and Art.323-B are having over riding effect of Article 226 and Article 227 under which the High Court is having more power to supervise lower courts and tribunals.

TRIBUNALS OUSTING THE JURISDICTION OF HIGH COURT:

            The insertion of Part XIV-A of the Constitution is based on the recommendation of the Swaran Singh Committee on Constitutional amendments with intention to remove the defects in the existing judicial process. The new Articles 323-A and 323-B provide for the exclusion of the matters from the jurisdiction of all courts for the matters mentioned under these two sections, except the jurisdiction of Supreme Court under Art.32 and Article 136.

            Article 32 provides-

   >> the guarantee of the right to the citizen to move the Supreme Court for the enforcement of fundamental rights;

   >> power on the Supreme Court to issue appropriate directions or orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari for the enforcement of fundamental rights.

            Article 136 empowers the Supreme Court to grant in its discretion Special leave to appeal from any judgement, decree, determination, sentence or order in any matter passed or made by any court or tribunal in the territory of India.

            Thus these two articles deprive the jurisdiction of High Courts under Article 226 and 227. Article 226 provides that the High Court shall have the power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases, any Government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them

   >> for the enforcement of fundamental right; and

   >> for any other purpose.

            In S.P. Sampath Kumar V. Union of India AIR 1987 SC 386 the Constitutional validity of the provisions under Article 323-A and the provisions of the Administrative Tribunals Act, 1985 was challenged on the ground that the Act by excluding the jurisdiction of the High Courts under Article 226 and 227 in service matters had destroyed the power of judicial review which was a basic feature of the Constitution. The Supreme Court upheld the validity of the Article 323-A and the Administrative Tribunals Act. It held that the though the Act has excluded the judicial review of the High Court in service matters under Art.226 and 227, but it has not excluded the judicial review of the Supreme Court under Article 32 and 136 of the Constitution. It does not affect the basic structure of the Constitution as it has vested the power of judicial review in an alternative institutional mechanism, after taking it from the High Court, which is not less effective than High Courts.

REGAINING OF HIGH COURT POWERS:

            In the judgement of Supreme Court in State of Orissa V. Bhagaban Sarangi (1995) 1 SCC 399 the Supreme Court held that a tribunal is bound by the decision of the High Court. This case law began to confirm the power of the high court over tribunals. The landmark judgement in L. Chandrakumar V. Union of India AIR 1997 SC 1125 confirmed the power of high courts over tribunals. A seven member constitutional bench of the Supreme Court has unanimously held 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 under Article 226 and 227 of the Constitution are unconstitutional as they damage the power of judicial review which is a basic feature of the Constitution. The judicial review power is an integral feature of the constitution and formed part of its structure. Therefore the power of high courts ordinarily cannot be ousted or excluded. Other courts and tribunals may perform a supplemental role in discharging the powers conferred by Article 226 & 227.    

            The Court further held that all decisions of the tribunals will be subject to the scrutiny before Division bench of the High Courts which have the jurisdiction over the tribunals concerned.

            The Supreme Court further gave guidelines in this regard-

   >> The Tribunal would continue the Courts of first instance in respect of the areas of the law for which they had been constituted;

   >> It is not open to the litigant directly to approach the High Court even in cases where they question the vires of statutory legislation by overlooking the jurisdiction of the concerned tribunal.

            By this judgement the tribunals have lost their status but not jurisdiction. It is not possible for a person to go to Supreme Court directly against the decision of a tribunal without first going to the High Court. To this extent Supreme Court over ruled the Sampath Kumar's case in which the court had upheld the validity of Article 323-A and 323-B and the establishment of the tribunals under the Articles, with certain modifications.

            In S.P. Sampath Kumar V. Union of India (1987) 1 SCC 124, the Supreme Court held that Sec. 6(1)© of the Administrative Tribunal Act unconstitutional as it gave unfettered powers to the Government to appoint the Chairman, Vice-Chairman and Administrative member of the Tribunal. The Government must make these appointments only after consultation with the Chief Justice of India and which must be meaningful and effective.

            Vide Companies (Second) Amendment Act, 2002, Sec. 10FB and Sec. 10FQ were inserted in the Companies Act, 1956. Sec. 10FB provides for the establishment of National Company Law Tribunal (NCLT) and Sec. 10FQ provides for the establishment of National Company Law Appellate Tribunal (NCALT) to exercise most of the judicial powers of the High Courts and the judicial powers of the Company Law Board under the Companies Act. The newly inserted Part 1B and Part 1C of the Companies Act provide for the appointment of members for such tribunals, prescribing their qualification etc., The Central Government by virtue of power conferred on it established NCLT and NCLAT and appointed members as per the provisions of the concerned section. The appointment of such members irked the judicial field. In R. Gandhi, President of Madras Bar Association V. Union of India (WP 2198/2003) the constitution of NCLT and NCLAT was challenged. The Madras High Court held that the constitution of NCLT and NCLAT in the manner now provided, when considered along with the provisions concerning the competition commission under the Competition Act, 2002, seems to indicate that an aggressive executive seeking to take over gradually the judicial power traditionally exercised by the courts under safeguards which ensure the competence, independence and impartiality of the judges, replacing them by persons who have neither a judicial background nor specialized knowledge of the subject for which the tribunal is created and by persons now serving the executive who will continue to retain their lien and loyalty to the executive branch and be amenable to the influence of executive superiors and their political masters. The High Court further held that until the defective provisions in Part 1B and Part 1C of the Companies Act, 1956 introduced by the Companies (Amendment) Act, 2002, are duly amended by removing the defects as pointed out by the Court, it would be unconstitutional to constitute a tribunal and appellate tribunal to exercise jurisdiction now exercised by the High Court or the Company Law Board.

            The judgement of the High Court in the above case established the judicial review power of the High Court under Article 226 of the Constitution and the power over the tribunals.

            In the early December 2004, the National Tax Tribunal Bill, 2004 was presented in the Lok Sabha. The bill is intended to take over the jurisdiction of High Courts in both direct tax and indirect tax matters. Objections have been raised over both qualifications for the appointment of Chairperson and members of the tribunal and the appearance before National Tax Tribunal. The bill has been referred to Parliamentary Standing Committee on personnel, public grievances, law and justice for a fresh look. Let us hope that the National Tax Tribunal will come out without any infirmity, since there is the possibility of intervention of the High Court.

            In 'Jai Prakash Strips Ltd., V. Union of India' - [2009 -TMI - 34973 - BOMBAY HIGH COURT] the High Court held that the appeal was dismissed when the matter was pending before this Court by the Tribunal even when its attention was brought to the fact in spite of that appeal was dismissed. The High Court further held that they are aware that it is open to the Tribunal to dismiss an appeal for non compliance. They are also aware of the fact that it is open to the Tribunal in the absence of pre-deposit by the stipulated date to dismiss the appeal. However, when a party brings to the notice of the Tribunal that an appeal is preferred and is pending judicial exercise to avoid multiplicity proceedings, would be to grant reasonable time to enable the petitioner to produce an order from the court, and on failure to do so proceed with the matter. The High Court further held that the Tribunal is subject to the supervisory jurisdiction of this Court.

CONCLUSION:

            Even though the laws enacted for the formation of the tribunals for whatsoever purposes, ousting or taking away the jurisdiction of the High Courts and provides appeal directly to Supreme Court against the order of such tribunals, such decisions or orders of such tribunals will be subject to the scrutiny before Divisional Bench of the High Courts which have the jurisdiction over such tribunals as per the Supreme Court judgement in L. Chandrakumar V. UOI case.