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TMI Blog2015 (2) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be one Judicial Member and one Administrative Member. This simply would mean that in a Bench of Three Members, all of them cannot be Judicial Members and all of them cannot also be Administrative Members. The Proviso to Section 5(4)(d) of the Administrative Tribunals Act, 1985 cannot be understood to mean that the Parliament contemplated a single Judicial Member to be a decorative piece in a Bench of more than two - in a Bench of more than two Members constituted by the Chairperson of the Administrative Tribunal, the number of Administrative Members cannot exceed the number of Judicial Members. Matter remitted back to the Tribunal for reconstitution of the Full Bench - petition allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. But the Full Bench so constituted, comprises of one Judicial Member and two Administrative Members. 9. Upon coming to know of the composition of the Full Bench, the counsel for the petitioner circulated a letter dated 14.11.2014 praying for reconstitution of the Full Bench with two Judicial Members and one Administrative Member. But the Chairman of the Tribunal refused to reconstitute and the said decision was communicated by the Section Officer of the Tribunal, to the counsel for the petitioner, by a letter dated 20.11.2014. Challenging the said order, the petitioner has come up with the above writ petition. 10. The only question arising for consideration in this writ petition is as to whether in a Full Bench of the Administrative Tribunal, the number of Administrative Members could be more than the number of Judicial Members. 11. To find an answer to this question, we may need to undertake a journey into the past. The power to establish Administrative Tribunals, was conferred upon the Parliament by Article 323-A and 323-B of the Constitution, which were inserted by the Constitution (42nd Amendment) 1976. In exercise of the power conferred by Clause(1) of Article 323-A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, both before the Amendment Act 19 of 1986 and after the amendment, are presented in a tabular form, for appreciating the scope of the amendment, with reference to the question arising for consideration in this writ petition. Section 5(2) Subject to the other provisions of this Act, a Bench shall be presided over by the Chairman or a Vice Chairman and shall consist of at least two other members. Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member. Section 5(4)(d) Notwithstanding anything contained in sub-Section (1) or sub-Section (3), the Chairman may for the purpose of securing that any case or cases which, having regard to the nature of the questions involved, requires or require, in his opinion or under the Rules made by the Central Government in this behalf, to be decided by a Bench composed of more than three Members, issue such general or sub-rules as he may deem fit. Notwithstanding anything contained in Sub-Section (1) the Chairman, may, for the purpose of securing that any case or cases which, having regard to the nature of the questions involved, requires or require, in his opinion or under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 323-A, the Administrative Tribunals are to be distinct from the High Courts. The Supreme Court also clarified that the equation of the Tribunal with the High Court in S.P.Sampath Kumar, was only for the purpose of adjudication of disputes and not for all practical purposes. Thus, a small wedge was created in M.B.Majumdar from what was opined in S.P.Sampathkumar. 18. In a collateral development, a two Member Bench of the Supreme Court held in J.B.Chopra vs. Union of India [1987 (1) SCC 422] that since the Administrative Tribunal is a substitute for the High Court, it had the necessary jurisdiction, power and authority to adjudicate upon all disputes including the power to deal with all questions pertaining to the Constitutional validity or other wise of such laws. 19. Thereafter another question came up before the Supreme Court in Amulya Chandra Kalita vs. Union of India [1991 (1) SCC 191], as to whether the Administrative Member of the Central Administrative Tribunal could decide a case, sitting singly, in the face of the decision in S.P.Sampath Kumar. By a brief order passed on 16.1.1990, the Supreme Court held that as per Section 5(2) of the Act, a Bench should consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Excise Law Times to the then Chief Justice of India complaining about the malfunctioning of CEGAT. When the Supreme Court issued Rule Nisi, treating the letter as a writ petition, the Government appointed a person as the President of the Tribunal. The appointment was challenged in a writ petition. While dealing with this writ petition, the Supreme Court took note of the decision in S.P.Sampath Kumar, M.B.Majumdar and J.B.Chopra, in paragraph 66 of the report. But it was pointed out by K.Ramaswamy, J that judicial review is a basic and essential feature of the Constitution and that though the basic and essential feature of judicial review cannot be dispensed with, it would be within the competence of Parliament to amend the Constitution and to provide alternative institutional mechanism, provided it is not less efficacious than the High Court. The Supreme Court clarified in paragraph 66 of the report in R.K.Jain that what was meant by the Supreme Court in Sampath Kumar was that the Administrative Tribunals Act created an institutional alternative mechanism and that it must be effective and efficacious to exercise the power of judicial review. The last line of para 66 of the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge of trends is essential. A premature approach would hinder the effective performance of judicial functions. Law is a serious matter to be left exclusively to the judges, because judges necessarily have an important role to play in making and applying the law There is every reason for ensuring that their selection, training and working practice facilitate them to render their ability to decide the cases wisely on behalf of the community. If judges acts in injudicious manner, it would often lead to miscarriage of justice and a brooding sense of injustice rankles in an aggrieved person." 24. Therefore, the view taken in Sampath Kumar was actually clarified in R.K.Jain. Thereafter, the view taken in Amulya Chandra Kalita that a single Administrative Member cannot constitute a Bench, was tested by a three Member Bench in Dr.Mahabal Ram vs. Indian Council of Agricultural Research [1994 (2) SCC 401]. After taking note of the Non-Obstante Clause in sub-section (6) of Section 5 and the power conferred in sub-section (6) upon the Chairman to authorise a single Member to decide the cases, the Supreme Court held in Mahabal Ram that the decision in Amulya Chandra Kalita was not cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said contention the Supreme Court held in para 95 as follows:- "It was expected that a judicious mix of judicial members and those with gross root experience would best serve the purpose. The court also indicated that the Selection Committee should take care to ensure that Administrative Members are chosen mere amongst those who have some background to deal with such cases." 27. Ultimately the Supreme Court held Section 5(6) to be Constitutionally valid and that Sections 5(2) and 5(6) are to be read harmoniously in the manner in which they were read in Dr.Mahabal Ram. The court indicated in para 98 of the report that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for consideration, the proviso to Section 5(6) will come into operation. The relevant portion of paragraph 98 of the report reads as follows:- "We wish to make it clear that 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 Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, having regard to the nature of the questions involved, requires or require, in his opinion or under the rules made by the Central Government in his behalf to be decided by a Bench composed of more than two Members issue such general or special orders, as he may deem fit: Provided that every Bench constituted in pursuance of this clause shall include at least one Judicial Member and one Administrative Member." 30. Before proceeding to analyse the import of the proviso to Section 5(4)(d) we should also take note of three more decisions of the Supreme Court, on which reliance is placed by the learned counsel for the petitioner. They are: (1) State of M.P. vs. B.R.Thakare [2002 (10) SCC 338]; (2) V.K.Majotra vs. Union of India [2003 (8) SCC 40]; and (3) Union of India vs. R.Gandhi [2010 (11) SCC 1]. 31. In B.R.Thakare, the Supreme Court was concerned with the orders passed by a Single Member of the Tribunal who was an Administrative Member. An Office Order issued by the Chairman of the Tribunal, authorising the Judicial Member to function as a Bench, was produced before the Supreme Court. After taking note of the decision in L.Chandra Kumar, the Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Administrative Tribunals, they cannot become Technical Members in the Company Law Tribunals. 35. At about the same time, when the challenge to the constitution of the National Company Law Tribunal and National Company Law Appellate Tribunal was taken up for consideration, another batch of cases challenging the Constitutional validity of the National Tax Tribunal Act, 2005 was also referred to the Constitution Bench. Finding that the challenge to Parts I-B and I-C of the Companies Act, 1956 drew support from Article 323-B of The Constitution, in contrast to the challenge to the National Tax Tribunal Act, which was based upon a very challenge to Article 323-B itself, the Supreme Court passed an order reported in Madras Bar Association Vs. Union of India [2010 (11) SCC 67] de-linking the challenge to the National Tax Tribunal Act, 2005 from the challenge to the validity of Parts I-B and I-C of the Companies Act, 1956. 36. After about four years, the challenge to the validity of the National Tax Tribunal Act, 2005 was sustained by another Constitution Bench in Madras Bar Association Vs. Union of India [2014 (10) SCC 1]. In paragraph 126 of the report, the Supreme Court pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly on cases where substantial questions of law are required to be answered by a Tribunal. This is why, in his separate opinion, expressing dissent from the reasonings given by the majority, but concurring with the ultimate outcome, Rohinton Fali Nariman,J made a comparison to the role played by the courts of record and the cases where the courts are called upon to decide substantial questions of law. The minority view made a distinction between one specialised Tribunal replacing another at the original (and not at the appellate) stage and a case where a specialised Tribunal is created to decide substantial questions of law. We think it would be useful to quote the observations made in paragraph 156 of the report in Madras Bar Association, which reads as follows : "It is clear, therefore, that the decision of a substantial question of law is a matter of great moment. It must be a question of law which is of general public importance or is not free from difficulty and/or calls for a discussion of alternative views. It is clear, therefore, that a judicially trained mind with the experience of deciding questions of law is a sine qua non in order that such questions be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal. Under Clause (c) read with the Proviso thereto, the Rules so made by the Central Government may indicate the minimum number of persons, who shall hear the applications and appeals in respect of any class or classes of applications and appeals. However, as per the proviso to section 4(4)(c), the number of Expert Members shall be equal to the number of Judicial Members hearing such application or appeal. 41. But, Section 21 of the National Green Tribunal Act, 2010 contains a Catch-22 situation. It declares that the decision of the Tribunal by majority of members shall be binding. The First Proviso to Section 21 states that if there is a difference of opinion among the Members and the opinion is equally divided, the Chairperson shall hear such application and decide. The Second Proviso to Section 21 states that where the Chairperson himself has heard such application along with other Members and if the opinion among the Members is equally divided, he shall refer the matter to the other Members of the Tribunal. This is despite the fact that the Chairperson of the Tribunal, as per Section 5(1) of the Act, should have been either a Judge of the Supreme Court or the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire an exposition of a substantial question of law, can be decided by two Administrative Members, making the Judicial Member a minority. What John Marshall said in Marbury Vs. Madison [2 L Ed 60 : 5 US(1) Crunch 137 (1803)] could be of assistance in resolving the issue on hand and hence, it is extracted as follows : "It is emphatically the province and duty of the Judicial Department to say what the law is.....If two laws conflict with each other, the Courts must decide on the operation of each....." 44. The Proviso to Section 5(4)(d) of the Administrative Tribunals Act, 1985 cannot be understood to mean that the Parliament contemplated a single Judicial Member to be a decorative piece in a Bench of more than two. Therefore, we are of the considered view that in a Bench of more than two Members constituted by the Chairperson of the Administrative Tribunal, the number of Administrative Members cannot exceed the number of Judicial Members. 45. Hence, the writ petition is allowed, the impugned order is set aside and the matter remitted back to the Tribunal for reconstitution of the Full Bench. The Chairperson of the Tribunal is requested to reconstitute the Bench in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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