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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 ..... Base. He received a show cause notice dated 10.11.2008, proposing to revise the seniority list of Engine Fitters, on the basis of the judgment of the Central Administrative Tribunal, Madras Bench made in O.A.No.371 of 2007 dated 26.6.2008. As per the show cause notice, it was proposed to place the fourth respondent in this writ petition as senior to the writ petitioner. 4. Since the show cause notice was issued on the basis of the judgment of the Central Administrative Tribunal, in an application to which the writ petitioner was not a party, the petitioner filed W.P.No.8391 of 2009 challenging the order of the Tribunal in O.A.No.371 of 2007. But the writ petition was dismissed by order dated 9.6.2009, on the ground that the petitioner will have to approach the Tribunal itself. 5. Therefore, the petitioner filed an application in O.A.No.1203 of 2009, challenging the order of refixation of seniority dated 13.3.2009. The said application was heard by a Division Bench of the Central Administrative Tribunal, comprising of one Judicial Member and one Administrative Member. After hearing arguments, the Division Bench of the Tribunal passed an order dated 20.4.2011 expressing disagreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Several writ petitions came to be filed before different High Courts as well as in the Supreme Court, challenging the Constitutional validity of Article 323-A of the Constitution as well as several provisions of the Administrative Tribunals Act, 1985. The writ petitions that were filed directly before the Supreme Court under Article 32 of the Constitution, were by S.P. Sampath Kumar and others. Along with those writ petitions, several Transfer Petitions were also filed before the Supreme Court so that all the writ petitions pending before various High Courts could be withdrawn and transferred to the file of the Supreme Court itself. 13. On 31.10.1985, the Supreme Court issued Rule Nisi in the writ petitions filed by S.P.Sampath Kumar and others and directed the writ petitions to be posted before a Constitution Bench of 5 Judges. In the meantime, the Supreme Court also granted an interim order, which is reported in S.P.Sampath Kumar vs. Union of India [(1985) 4 SCC 458]. The interim order was to the effect (1) that appointments of Judicial Members to the Tribunal should be made in consultation with the Chief Justice of India (2) that every Bench of the Tribunal should consist of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... east one Judicial Member and one Administrative Member. 16. After the Parliament brought out amendments under Amendment Act 19 of 1986, in compliance with the interim directions issued in S.P.Sampath Kumar, the case filed by S.P.Sampath Kumar and others were finally heard. By a judgment rendered on 9.12.1986 reported in S.P. Sampath Kumar vs. Union of India [1987 (1) SCC 124], the Supreme Court held that the Administrative Tribunal has been contemplated as a substitute and not as supplemental to the High Court and that to provide the Tribunal as an additional forum from where the parties could go to the High Court would have been a retrograde step. However, speaking for the majority, Ranganath Misra, J., indicated in para 17 of the report that the Tribunal should be a real substitute for the High Court, not only in form and de jure, but in content and defacto. In para 18, the Court observed that it is of paramount importance that the substitute institution must be a worthy successor of the High Court in all respects. Though the Supreme Court directed Section 6(1)(c) which enabled even a bureaucrat to be appointed as the Chairman of the Tribunal to be deleted, the Supreme Court nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member was competent to hear the case or not, though the observations appearing therein were generally in respect of the composition of Benches. 20. Subsequently, in a fete of rare nature, a Full Bench of the Andhra Pradesh High Court exploded a nuclear bomb in Sakinala Harinath Vs. State of Andhra Pradesh [1993 (2) An.W.R. 484], by questioning the wisdom of the Constitution Bench of the Supreme Court, which decided S.P. Sampath Kumar. This adventurism was made possible on account of the fact that the State of Andhra Pradesh already got an Administrative Tribunal constituted by the President of India, in terms of Article 371-D(5) of The Constitution, that was inserted by the Constitution (32nd Amendment) Act, 1973. The Government of Andhra Pradesh was empowered by the Proviso to Clause (5) of Article 317-D of The Constitution, even to annul or modify any order of the Administrative Tribunal. Therefore, a Constitution Bench of the Supreme Court declared Clause (5) of Article 371-D unconstitutional, in Sambamurthy Vs. State of Andhra Pradesh [1987 (1) SCC 386]. It is of interest to note that this was a post-S.P.Sampath Kumar decision and the Supreme Court reiterated not only the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out in R.K.Jain that the personnel appointed to man the Tribunals are called upon to discharge judicial or quasi-judicial powers and that therefore they must have a judicial approach, knowledge and expertise in that particular branch of Constitutional, Administrative and Tax Laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficiency and effectiveness of the judicial adjudication. The Supreme Court also held that it is necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training, as on many an occasion, different and complex questions of law, which baffle the minds of even the trained judges would arise for discussion and decision. 23. Some of the observations made by the Supreme Court in para 71 of the report in R.K.Jain are relevant and hence they are extracted as follows:- "71. The daily practice in the courts not only gives training to Advocates to intersect the rules but also adopt the conventions of courts. In built experience would play vital role in the administration of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should go to a Bench of two Members. However, the Supreme Court held that to make a distinction between the Judicial Member and Administrative Member functioning under sub-section (6) of Section 5 may not be appropriate. 25. Since the court found itself bound in Dr.Mahabal Ram, by the express provisions of the statute which placed the Administrative Member and the Judicial Member on par and which also empowered the Chairman to authorise a single Member to hear and decide cases, the Constitutional validity of Section 5(6) of the Act itself came to be challenged by L.Chandra Kumar. Noting that in M.B.Majumdar the Supreme Court struck a note of discordant to that of Sampath Kumar, a two member Bench of the Supreme Court passed an order in the writ petition filed by L.Chandrakumar, on 2.12.1994 in 1995(1) SCC 400, referring the matter to a Larger Bench for reconsideration of the decision in Sampath Kumar. It was particularly noted in the penultimate paragraph of the reference that examination of the questions indicated therein would be necessary to instill confidence in the minds of the people. This is how, L.Chandra Kumar ultimately found its way to a Larger Bench of 7 Judges. 26. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charges of unconstitutionality." 28. Since the Larger Bench upheld the validity of Section 5(6) after reading it harmoniously with sub-section (2) and after taking note of the proviso thereto, it is necessary to extract Section 5(6) together with the proviso thereto. Section 5(1)............. "(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member." .................. "(6) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify: Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner of selection of Vice-Chairman untouched, the Supreme Court referred to the separate but concurrent judgment of P.N.Bhagawati, CJ, to the following effect: "It was held that there should be no preponderance of Administrative Members in the Tribunal and the Tribunal should consist of one Judicial Member and one Administrative Member of any Bench." 33. However, the Supreme Court held in V.K.Majotra that the appointment of Vice-Chairman need not be from amongst persons mentioned in Section 6(2)(a) of the Act. In other words, the Supreme Court did not agree with the contention that those who are or have been Judges of the High Court alone could be appointed as Vice-Chairmen. 34. In Union of India vs. R.Gandhi, the Supreme Court was concerned with a challenge to the Constitutional validity of Parts-I-B and I-C of the Companies Act, 1956, providing for the constitution of the National Company Law Tribunal and National Company Law Appellate Tribunal. While considering the question as to whether judicial functions can be transferred to Tribunals manned by persons who are not competent to discharge such judicial powers, the Constitution Bench of the Supreme Court held in R.Gandhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertise, the provision for appointment of Non Judicial Members would constitute a clear case of delusion and encroachment upon the 'independence of Judiciary' and the 'rule of law'. Despite the fact that taxation is a highly specialised branch and despite the common perception that accountants can easily understand the nuances of taxation, the Supreme Court held in paragraph 126 that Accountant Members and Technical Members cannot handle complicated question of law relating to taxation matters. In no uncertain terms, the Supreme Court pointed out that persons not qualified in the profession and practice of law would not be able to deal with substantial questions of law. In paragraph 128 of the report, the Supreme Court emphasized that in a Constitutional set up that followed the Westminster model, the power of the legislature to transfer judicial power from a traditional court to an analogous court or tribunal is circumscribed by the condition that such a transferee tribunal is possessed of the same salient characteristics, standards and parameters. Therefore, the Court rejected the argument that Accountant Members and Technical Members have the same stature and qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956 focussed on the role of Technical Members. The law was taken to the next level in the National Tax Tribunal's case where the competence of Technical Members, however qualified they are in other fields, to decide substantial questions of law was questioned. Therefore, the question that arises for consideration in this writ petition has to be understood in the context of the journey that the law had taken from S.P.Sampath Kumar to L.Chandra Kumar to Union of India to Madras Bar Association. If L.Chandra Kumar made it clear that the Tribunals are to be manned by a judicious mix of Judicial Members and those with grass-root experience, the decisions relating to the National Company Law Tribunal and the National Tax Tribunals Act made it clear that substantial questions of law cannot be decided by Administrative Members. 39. But, no provision in any other similar enactment has been brought to our notice, where the question of composition of a Full Bench of the Tribunal has been dealt with. The Administrative Tribunal itself contains a provision, which gives a very vague indication. While empowering the Chairperson of the Tribunal under Section 5(4)(d) to constitute a Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conferred by Section 4(4) read with Section 35 of the National Green Tribunal Act, 2010, the Central Government has issued a set of rules known as National Green Tribunal (Practices and Procedure) Rules, 2011. Rule 3(1) of these Rules empowers the Chairperson of the Tribunal to constitute a Bench of two or more Members consisting of at least one Judicial Member and one Expert Member. Under Rule 5(1), an application or appeal should be heard by the Tribunal consisting of at least one Judicial and one Expert Member. Sub-Rule (2) of Rule 5 makes it incumbent upon the Chairperson to constitute a Bench comprising of more than two Members, if a particular case is to be heard and decided by a Larger Bench. But, interestingly, Rule 5(2) is conspicuously silent about the ratio between Judicial and Expert Members. Therefore, one has to fall back upon the Proviso to Rule 4(4)(c) that mandates a Bench of more than two Members to be loaded with equal number of Judicial and Expert Members. 43. If we carefully analyse the scheme of Section 5(4)(d) of the Administrative Tribunals Act, 1985 and the Proviso thereunder, in the context of Section 4(4)(c) and the Proviso thereunder of the National G ..... 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