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).
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
