JURISDICTION OF CAT & HIGHCOURTS

CAT , High Court and Supreme Court in respect of Service Matter cases.

By M. L. Kanaujia, IRSSE, CCE/NE Railway (Rtd.)

There is lot of speculation going on in respect of appeal against CAT Judgment as to

whether it would lieto High Court or Supreme Court. The facts are as stated below :

1. Article 323 A and 232 B of Constitution of India, provides for formation of

CAT and Other Tribunals, respectively, state as extracted here under :

1.1 323A. (1) Parliament may, by law, provide for the adjudication or trial by

administrative tribunals of disputes and complaints with respect to recruitment and

conditions of service of persons appointed to public services and posts in connection

with the affairs of the Union or of any State or of any local or other authority within

the territory of India or under the control of the Government of India or of any

corporation owned or controlled by the Government.

(2) A law made under clause (1) may—

(a) provide for the establishment of an administrative tribunal for the Union and a

separate administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, powers (including the power to punish for contempt)

and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of

evidence) to be followed by the said tribunals;

(d) 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);

…………………….

1,2 323 B. (1) The appropriate Legislature may, by law, provide for the

adjudication or trial by tribunals of any disputes, complaints, or offences with

respect to all or any of the matters specified in clause (2) with respect to which such

Legislature has power to make laws.

……………..

323 B (3) A law made under clause (1) may—

(a) provide for the establishment of a hierarchy of tribunals;

(b) specify the jurisdiction, powers (including the power to punish for contempt)

and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of

evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme

Court under article 136, with respect to all or any of the matters falling within the

jurisdiction of the said tribunals;

2. In compliance of Article 323 A, The CAT Act was passed by the Parliament.

Para 28 of CAT Act, which excludes the jurisdiction of High Court, states as under

:

28. Exclusion of jurisdiction of courts except the Supreme Court –

On and from the date from which any jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation to recruitment and matters

concerning recruitment to any Service or post or service matters concerning

members of any Service or persons appointed to any Service or post, [ no court

except – the Supreme Court ;

3. Atticle 226 (1) of Constitution, which empowers the High Court to exercise

jurisdiction, states as under :

2[226. (1) Notwithstanding anything in article 32 every High Court shall have

power, throughout the territories in relation to which it exercises jurisdiction, to

issue to any person or authority, including in 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 any of the rights conferred by Part III and for any

other purpose.]

4. Article 227 (1) of Constitution, which empowers the High Court to exercise

superintendence all Courts and Tribunals in its jurisdiction, states as under :

3[(1) Every High Court shall have superintendence over all courts and tribunals

throughout the territories in relation to which it exercises jurisdiction.]

5. Seven Judge Constitutional Bench of Hon.ble Supreme Court, in case of L.

Chandra Kumar vs Union Of India And Others, Equivalent citations: AIR 1997 SC

1125, 1997 (1) BLJR 735, (1997) 1 CALLT 55 SC : Bench A Ahmadi, M Punchhi, K

Ramaswamy, S Bharucha, S S Ahmad, K Venkataswami, K Thomas, ORDER : on

18 March, 1997, A.M. Ahmadi, C.J., in Para 100 of its Judgment, has held as under

:

100. In view of the reasoning adopted by us, we hold 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. All decisions of these

Tribunals will, however, be subject to scrutiny before a Division Bench of the High

Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will,

nevertheless, continue to act like Courts of first instance in respect of the areas of

law for which they have been constituted. It will not, therefore, be open for litigants

to directly approach the High Courts even in cases where they question the vires of

statutory legislations (except where the legislation which creates the particular

Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.

Section 5(6) of the Act is valid and constitutional and is to be interpreted in the

manner we have indicated.

CONCLUSION :

Against the Judgment of the CAT, Govt., if it so decides, can go to High

Court with Writ Petition (Civil) praying for Mandamus (Command to a lower level

Court i.e. Stay) and Certiorari (Allowing or Disallowing appeal against Judgment

of a lower level Court).

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