- (1.) The challenge to the validity of Section 5(6) of the Administrative Tribunals Act, 1985 (the 'Act') has unmasked greater issues, to examine which, we have come to the conclusion that the judgment of this Court in S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 which is by a Constitution Bench of five learned Judges, needs to be reconsidered by a larger Bench. Our reasons follow.
(2.) The Constitution (Forty-second Amendment) Act, 1976 inserted Part XIV-A in the Constitution which contains Articles 323-A and 323-B. These Articles conceive of setting up of various Tribunals as adjudicatory bodies. They inter alia, contain provision which enable, not only the Parliament but even State Legislatures, to exclude the jurisdiction of all Courts except that of this Court Article 136 with respect to matters falling within the jurisdiction of the concerned Tribunals. The Act came to be enacted by the Parliament in exercise of the powers conferred on it by Article 323-A of the Constitution. The vires of the Act was challenged before this Court which was upheld in Sampath Kumar's case (supra). While upholding the validity of Section 28 of the Act in Sampath Kumar's case (supra) this Court took the view that the power of judicial review need not always be exercised by regular Courts and the same can be exercised by an equally efficacious alternative mechanism. Apart from making suggestions relating to the eligibility etc. of the persons who could be appointed as Chairman, Vice-Chairman or Members of the Tribunal this Court stated that every Bench of the Tribunal should consist of one judicial Member and one Administrative Member.
(3.) The primary reason, according to us, for having a fresh-look at the issues, involved in Sampath Kumar's case (supra) is the observations of the Bench therein by which the Tribunals have been equated with the High Courts. A two-Judge Bench of this Court in J.B. Chopra v. Union of India, AIR 1987 SC 357, relying upon Sampath Kumar has held that the Tribunals have the jurisdiction, power and authority even to adjudicate upon question pertaining to the constitutional validity or otherwise of a rule framed by the President of India under the proviso to Article 309 of the Constitution. They can even adjudicate on the vires of the Acts of Parliament and State Legislatures. Section 5(6) of the Act gives this power, if the Chairman of the Tribunal so desires, even to a single Administrative Member. It is different matter that no Chairman would like to do so; but that has no relevance while examining the validity of the sub-section which reads as below:- "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 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 of two Members the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit." ;