Leading Cases For Supreme Court AOR Exams 2021 [Part 1 - Tribunals]

Ashok Kini

15 Aug 2021 11:17 AM GMT

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Leading Cases For Supreme Court AOR Exams 2021 [Part 1 - Tribunals]

The Supreme Court announced that the Advocates On Record [AOR] Examination of this year will be conducted in December 2021. One paper of this examination is about 'leading cases' and the Court has itself issued a list of such cases. This article series intends to serve as a quick guide for wannabe AORs to crack the examination. It is noticed that the list provided by the Supreme Court contains cases in chronological order. In this article series, these cases have been sorted subjects wise. The first article deals with cases on the topic Tribunals [L. Chandra Kumar (9) - Rojer Mathew (55) - Madras Bar Association (64)]

L. Chandra Kumar v. Union of India

Case Details: Appeal (Civil) 481 of 1980 ; 18 March 1997 ; CJI A.M. Ahmadi, Justices M.M. Punchhi, K. Ramaswamy, S.P. Bharucha, S. Saghir Ahmad, K. Venkataswami, K.T. Thomas

Citations: [ AIR 1997 SC 1125 ; (1997) 3 SCC 261; (1997) 3 SCALE 40]

Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It comprised of two provisions, Articles 323A and 323B, to deal with Administrative tribunals and tribunals for other matters. Article 323A(2)(d) provided that a law made under clause (1) may exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1). Following this, the Centre enacted Administrative Tribunals Act. Section 28 of this Act originally provided for exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution. This provision was challenged before the Supreme Court in S.P Sampath Kumar v. Union of India.

The five judge bench upheld the validity of Section 28 of the Act in Sampath Kumar case' by taking a 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. Later, in J.B. Chopra v. Union of India. relying upon Sampath Kumar, the Court held that the Tribunals have the jurisdiction, power and authority even to adjudicate upon questions 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, it was held.

In L. Chandra Kumar, a three judge bench, while considering the challenge to the validity of Section 5(6) of the Administrative Tribunals Act, took note of post-Sampath Kumar cases and said that they require a fresh look by a larger Bench over all the issues adjudicated in Sampath Kumar case including the question whether the Tribunal can at all have an Administrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or Rule? Thus the issues before the seven judge bench, which considered the reference were (1) whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution? (2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?

The court held that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. "Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules.", it was held.

Rojer Mathew v. South Indian Bank Limited

Case Details: CA 8588 OF 2019; 13 November 2019; CJI Ranjan Gogoi, Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna

Citation: [2019] 16 S.C.R. 1 ; (2020) 6 SCC 1 ; 2019 (15) SCALE 615

The Section 184 of the Finance Act of 2017 empowered the Central Government to frame rules relating to appointment and service conditions of members of various tribunals. This was challenged in Rojer Mathew case.

The Constitution Bench, though upheld the Section 184 of the Finance Act, 2017, struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. It was held that the Rules were contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by the Supreme Court. The court also directed framing of new Rules by ensuring 'non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes'.

The Ministry of Law and Justice was directed to carry out a 'Judicial Impact Assessment' ' of all the Tribunals referable to the Finance Act, 2017 so as to analyse the ramifications of the changes in the framework of Tribunals as provided under the Finance Act, 2017. The court also directed the Central Government to (a) re-visit the provisions of the statutes referable to the Finance Act, 2017 or other Acts as listed in para 174 of this order and place appropriate proposals before the Parliament for consideration of the need to remove direct appeals to the Supreme Court from orders of Tribunals (b) carry out an appropriate exercise for amalgamation of existing Tribunals adopting the test of homogeneity of the subject matters to be dealt with and thereafter constitute adequate number of Benches commensurate with the existing and anticipated volume of work

Madras Bar Association v. Union of India

Case Details: WP(C) 804 of 2020 ; 27th November 2020 ; Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat

Citations: [2020] 2 S.C.R. 246 ; 2020 (13) SCALE 443

After Rojer Mathew judgment, the Central Government, framed "Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 . A batch of writ petitions including the one by Madras Bar Association challenged the constitutionality of these Rules before the Supreme Court.

Allowing these petitions, three three judge bench directed the Centre to constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals. It also issued the following directions to the Central Government to amend the Tribunal Rules to ensure independence and efficiency of Tribunals:

(i) The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals.
(ii) Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members: (a) The Chief Justice of India or his nominee-Chairperson (with a casting vote).(b) The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment-member; (c)Secretary to the Ministry of Law and Justice, Government of India-member; (d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary-member; (e) Secretary to the sponsoring or parent Ministry or Department-Member Secretary/Convener (without a vote). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated.
(iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list.
(iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years.
(v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount of Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021.
(vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.
(vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law.
(viii) Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government.
(ix) The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.
(x) The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.
(xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court in Rojer Mathew (supra), appointments made during the pendency of Rojer Mathew (supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment.
(xii) Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved.
(xiii) In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment.
(xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in, and directed by this judgment.
(xv) The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after 12.02.2020. While reserving the matter for judgment on 09.10.2020, we extended the term of the Chairpersons, Vice-Chairpersons and members of the Tribunals till 31.12.2020. In view of the final judgment on the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as mentioned above.

Later, on Center's request, the Court modified direction ii(c) to read as: "Two Secretaries to the Government of India nominated by the Cabinet Secretary from a Department other than the parent or sponsoring department — Members." Regarding direction (vi), the Court accepted the suggestion of the Attorney General that instead of the word "entitled", the word "eligible" may be substituted as it would provide more clarity for the Search-cum-Selection Committee. The Central Government thereafter notified the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, to dissolve certain existing appellate bodies and transfer their functions to other existing judicial bodies. The Government also amended the Tribunal Rules enabling appointment of Advocates with ten years experience as Judicial Members of various Tribunals. The Madras Bar Association then filed the writ petition in the Supreme Court challenging the Tribunals Reforms Ordinance 2021, to the extent it amends Sections 184 and 186 of the Finance Act 2017. The Supreme Court (by 2:1 majority ) set aside some of the provisions in the Tribunals Reforms Ordinance 2021. It held as follows (from summary of Justice S. Ravindra Bhat's Judgment):

(i) The first proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative. Similarly, the second proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is held to be void and inoperative.
(ii) Section 184(7) of the Finance Act, 2017, introduced by of the Finance Act, 2017 introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative.
(iii) Section 184(11)(i) and (ii) introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance, 2021 are hereby declared as void and unconstitutional.
(iv) Consequently, the declaration of this Court in para 53(iv) of MBA-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.
(v) The retrospectivity given to the proviso to Section 184(11) — introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance, 2021 is hereby upheld; however, without in any manner affecting the appointments made to the post of Chairperson or members of various Tribunals, upto 04.04.2021. In other words, the retrospectivity of the provision shall not in any manner affect the tenures of the incumbents appointed as a consequence of this Court's various orders during the interregnum period

After this judgment, the Parliament passed the Tribunals Reforms Bill 2021, that contains the same provisions which were struck down by the Supreme Court.

Some other judgments which are not in the list, but important in this regard are given below: In R.K. Jain v. Union of India AIR 1993 SC 1769, the court asserted the need for independent system of appointment and administration of Tribunals to maintain public trust in the judiciary while expressing its agony over inefficacy of the working of Tribunals in the country. In Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1, the creation of the NCLT and NCLAT was upheld. In Madras Bar Association v. Union of India (2014) 10 SCC 1, it was held that the National Tax Tribunal Act, 2005 is unconstitutional.

Leading Cases For Supreme Court AOR Exams 2021 [Part 1 - Tribunals]

Ashok Kini

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