Sweeping Sympathy or Justice Based on Law ?

(By S. Parameswaran, Advocate, High Court of Kerala)

Justice Frankfurter a liberal lawyer - was a conservative judge, who became the pre-eminent advocate of the doctrine of judicial restraint believing profoundly that personal preferences can have no place in judging, because to let them in produces a rule of men, not laws. To emulate Frankfurter will not be construed as a reactionary metamorphosis or masochistic in ruling contrary to one's powerful libertarian beliefs. These prefatory observations are made in connection with a decision of a Division Bench of the Kerala High Court comprising Justices P.A. Mohammed and D. Sreedevi in Oriental Insurance Co. Ltd. v. T.P. Balakrishnan (Judgment dated 24-9-1999 in M.F.A. Nos.642 & 643 of 1996 (reported in 1998 (2) KLT 954). Giving a very narrow interpretation to S.147(2) of the Motor Vehicles Act, 1987, their Lordships dismissed the appeal of the Insurance Company holding that the breach of conditions of the policy did not immunise the insurer from liability to pay compensation to the victim of a motor accident. The reliance placed by the Bench on the Supreme Court decision in B.V. Nagaraju v. Oriental Insurance Co. Ltd. (AIR 1996 SC 2054) and its understanding of the dictum do not appear to be correct. It is not discernible as to what their Lordships mean by saying after extracting the observations of the Supreme Court, "As a matter of fact, no such contributory factor is involved in the present case. What is involved here in the present case is without the knowledge of the owner of the vehicle, the driver has carried passengers in excess of the permitted number of passengers. This is an irregularity committed by the driver and that cannot be attributed to the owner of the vehicle, was used for not allowed by the permit."

These observations and holding, with respect, fly against the concept and content of vicarious liability. It is perhaps redundant to remind their Lordships that the liability for payment of compensation is fastened on the owner of the vehicle on the doctrine of vicarious liability, which is accepted and not anathema to the Law of Torts which is the sheet-anchor of the relevant chapter of the Motor Vehicles Act. The anxiety of the court to make available compensation to the helpless and hapless victim of a motor accident is understandable and appreciable. But it is a trite truism that justice has to be rendered by the court according to law, however distasteful some of the statutory provisions or principles may be to the court. One may profitably refer to the following words of the illustrious American Supreme Court Judge Frankfurter in the opinion delivered in Barnette revising Gorbitis by rendering the solitary voice of minority as a lone and embattled dissentuer. Perhaps, this is one of the most personal paragraphs ever written by a Supreme Court Justice is an attempt to justify his position to a perplexed Bar and Bench. Said Frankfurter "As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge, who must decide, which of two claims before the Court shall prevail, that of a State to enact and enforce law within its general competence or that of an individual to refuse obedience because of the demands of his conscience is not that of the ordinary person."

To follow Frankfurter in matters like this will not make the concerned judge a fallen liberal or a born-again conservative. Perhaps, that the judge was merely an intellectual attempting to do his duty as he abstractly saw it was too subtle an idea for popular consumption. It is true that our High Court like other High Courts of this country, during the last three decades has set in motion the fright-train of liberal decision making that rumbles through thirty years of Kerala life with certain awful exceptions. But, pragmatism need not look like anti-intellectual good-old-boyism, it could be result oriented and determined to do justice regardless of technical or legal constraints. The court's feel for the average person or common man may translate into sympathy for oppressed individuals and victims of accidents. But, that need not, and, indeed, should not be the motivating or deciding factor in every decision. The established precedents and principles, which should dominate judging are not to be discarded as verbal technicalities to be manipulated in the service of common sense, where justice truly lay. Or, in other words a judge should not permit his powerful personal belief to overcome his stern professional code or to lay down lines of doctrinal demarcation.

In B.V. Nagaraju the factual matrix was totally different from that in the case under discussion. In that case, it was not alleged that the driver of the insured vehicle was responsible for the accident. It is in that context that the court observed - and, with respect, perhaps, not correctly - "By merely lifting a person or two or even three by the driver or the cleaner of the vehicle, without his knowledge, cannot be said to be such a fundamental breach that the owner should, and in all event, be denied (sic) indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract unless some factor existed which by themselves had gone to contribute to the causing of the accident."

Mind you, in the case before the Supreme Court the coming vehicle had collided head on with the insured vehicle. How could these observations in the Supreme Court decision form the rationale for the decision of the Kerala Division Bench is anybody's guess.

In Skandia Ins. Co. Ltd. (AIR 1987 SC 1184), what the Supreme Court said was that a mere breach of clause does not absolve the insurer of the liability and he has to establish that the insured himself was guilty of committing breach of promise in the contract of insurance. This also does not lend support, substance or sustenance to the dictum of the Kerala High Court.

Justice E.S. Venkataramiah's observations on behalf of himself and Justice Bhimayya in Madras Motor and General Insurance Co. Ltd. and another v. Nanjamma and others reported in AIR 1977 Karnataka 46, relied on and referred to by Justices Mohammed and Sreedevi also do not support or strengthen the view of their Lordships. What the Karnataka Division Bench said in a case arising from a motor accident resulting in the death of seven persons was that the mere fact that the car was overloaded, that it carried passengers in excess of permissible limit, does not mean that it was used for a different purpose and thereby immunise the insurer from liability. That question and proposition is totally different and distinct from that in the case under comment. This writer emphatically and candidly admits that we should not allow the monopolistic insurance companies to defeat justice by sleezy maneuverings or resort to hyper-technicalities or hair-splitting arguments. But, one should not consider the Law of Torts and the Law of Contract as mere relicts to be encased and embalmed in shroud and frozen in time, no longer laws to be applied to new situations.

'No Limitation without Knowledge - Actual or Deemed'

(By M.R. Rajendran Nair, Advocate)

Decisions given in ignorance or forget fullness of some inconsistent statutory provisions or of some authority binding on the Court concerned are called 'per incuriam'. Where, by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedent. ((1975) 2 SCC 232)

On this premise it is submitted that the apex court's decision in Tota Ram v. State of U.P. - JT 1997 (6) SC 231, to the effect that the limitation of 3 months under S.28A of the Land Acquisition Act 1894 starts from the date of order and not from the date of knowledge is clearly wrong. It is per incuriam. In Raja Harish Chandra Raj Singh v. The Dy. Land Acquisition Officer (AIR 1961 SC 1500), while construing the proviso to S.18 of the Land Acquisition Act the Supreme Court held that "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award was either communicated to the party or is known by him either actually or .constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collectors award' used in the proviso to S.18 in a literal or mechanical way."

There is no reason why the phrase 'date of award of the reference court' should be differently construed. The Supreme Court in Harish Chandra's case observed that the view taken by the High Court proceeds on the literal constructions of the relevant clause, and that the literal and mechanical construction of the words, 'the date of award' occurring in the relevant section would not be appropriate.

In Assistant Transport Commissioner v. Nand Singh (AIR 1980 SC 15), within the meaning of S.15 of Utter Pradesh Motor Vehicles Taxation Act, it was the date of the order which gave the starting point for preferring an appeal within 30 days of that date. The Supreme Court held that in a given case, the date of putting the order in communication under certain circumstances may be taken to the date of communication of the order or the date of the order. Following Harish Chandra's case, appeal filed within 30 days of the date of knowledge was held to be within time. It was .observed that generally speaking the order would be effective against the person affected by it only when it came to his knowledge either clearly or constructively, otherwise not.

In Collector of Central Excise v. M.M. Rubber and Co. AIR 1991 SC 2141 it was held that so far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order.

Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy, the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of the passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him otherwise the party affected by it will have no means of obeying the order or action in conformity with it or of appealing against it or otherwise having it set aside. This is based upon, as observed by Rajamanner, C.J. in Muthia Chettiar v. CIT (AIR 1951 Mad 204) (supra), "a statutory and just principle". The application of this rule so far as the aggrieved party concerned is not dependent on the provisions of the particular statute, but is so under the general law".

'In Dhara Singh v. State AIR 1981 SC 427 following AIR 1961 SC 1500 it was held that when the law lays down that non-compliance with an order could expose the person against whom it is made to criminal liability it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non-compliance with it. The information or knowledge in the course of criminal proceeding instituted for non-compliance could not be a substitute for the knowledge which should ordinarily precede the institution of such proceedings.

Thus, when the Supreme Court has laid down the law in unequivocal terms, and it is settled legal position that no Judge in India except a larger Bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of a binding decision, the decision of Supreme Court in JT 1997 (6) SC 231 has to be viewed as per incuriam and for that reason the decision of the Kerala High Court reported in 1997 (2) KLJ 520 does not reflect the correct legal position.

A distinction has to be drawn between a case where an order is passed in presence of parties, actual or constructive or with notice, and where such order is passed without notice and in their absence. In the latter case, 'date of the order' should necessarily mean date on which the concerned party comes to know about the Order either by communication or otherwise. To act on the basis of an order without actually coming to know about that will be an impossibility. Law never prescribes 'impossibility' and therefore, in order to avoid the 'impossibility' of an action contemplated by law interpretative innovation should lead to a purposive construction, so that the statutory provision does not become illusory.

No Cause of Action, not Maintainable, but Decreedi

(By M.R. Rajendran Nair, Advocate, Ernakulam)

Can the plaintiff in a Civil Suit for specific performance of a contract get over the personal bar to relief under S.16(c) of the Specific Relief Act, depending upon status of defendant. According to the decision of Supreme Court in Jug Raj Singh and Anr. v. Labh Singh & Ors. reported in (1995) 2 SCC 31, defendants, non parties to the contract will not be entitled to contend that the plaintiff was not read} and willing to perform his part of the contract. According to the Supreme Court the plea is specifically available to the Vendor/Defendant and it is personal to him. Subsequent purchasers have got .only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff.

The Supreme Court stated the position as follows:

"Though they are necessary parties to the suit, since the decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the subsequent purchasers".

It is submitted that this statement does not reflect the correct legal position as can be seen from the settings of the provision and the binding precedents. S.16(c) of the Specific Relief Act reads as follows:-

"16. Personal bars to relief:- Specific performance of a contract cannot be enforced in favour of a person.

xxxx          xxx      xxx

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant.

Explanation (ii) to CI. (c) also is relevant.

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction".

Absence of averment as stipulated in S.16(c) of Specific Relief Act, 1963 and proof thereof will be fatal to a plaintiff in suit for specific performance.

In Ouseph Varghese v. Joseph Aley reported in (1969) 2 SCWR 347 the Supreme Court held as follows:

"........... He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. In the absence of such an allegation the suit is not maintainable. In the present case, the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code".                       (Emphasis supplied)

Where a suit is not maintainable for lack of pleadings how can it become maintainable depending on any plea available or not available to any defendant. There is no provision in law which stipulates that a particular class of defendants will be precluded from raising a contention to the effect that the suit is not maintainable or that the plaintiff had the cause of action.

The relevant paras of the Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code are reproduced below:

"3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice." (Form No.47)

"5. The Plaintiff is still ready and willing to pay the purchase money of the said property to the defendant". (Form No.48)

Of course in view of the ruling of the Supreme Court in Pandu Rang Ganpat Janawade v. Ganapat BAAIRU Kadam (1996) 10 SCC 51 and Sukhbiv Singh v. Brijpal Singh (1997) 2 SCC 200, procedure being hand maid to substantiate rights of parties, a strict conformity with the form may not be necessary. But the necessary ingredients constituting readiness and willingness must be pleaded and proved. What requires to be considered in whether the essential facts constituting the ingredients in S. 16(C) of the Act were pleaded.

The consequence of plaintiff not complying with the mandatory statutory requirement of S.16(c) of Specific Relief Act is also very specific. If there is no averment of 'readiness' and 'willingness' the plaint will not disclose a cause of action and the same will have to be rejected under O.7 R.11(a) or (d), according to which the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statements in the plaint to be barred by any law. That in the absence of the specific averment of 'readiness' and 'willingness' it must be held that the plaintiff has no cause of action is concluded by the decision of Supreme Court reported in AIR 1968 SC 1355.

"It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract."

xxxx          xxx             xxx

"In a suit for specific performance, on the other hand, he treated and was required by the court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness."

xxxx          xxx             xxx

"In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.       (Emphasis supplied)"

A suit which is not maintainable or a suit which does not disclose any cause of action cannot be given life looking at the availability of plea to any defendant. In Jug Raj Singh's case, Supreme Court is clearly wrong in-stating that the plea of maintainability or absence of cause of action in the light of and S.16(c) of the Specific Relief Act is personal to Vendor/Defendant. Even without any plea from any of the defendants the court is bound to reject the plaint, in the absence of required averment and to dismiss the suit in the absence of proof if the averment is traversed.

In Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 it was held that even a transferee of possession under an agreement for sale must have performed or must be willing to perform his part of the contract. It was observed:

"Even otherwise, in a suit for possession filed by the respondent, successor«-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. Under S.16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of S.53 A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He also comes to enquiry must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract."

No court can decree a suit when there is no cause of action disclosed, and when it is not maintainable.

Section 138 of the Negotiable Instruments Act Still a Floating Law

(A comparative version of two rulings reported in 1996 (2) KLT 449 & 1997 (1) KLT 302)

(By Dinesh M. Pillai, Advocate, Kattappana)

To enhance the acceptability of cheques in the common transactions, by making the drawer liable for criminal prosecution, in case of dishounour of cheques for insufficiency of fund in account, the Negotiable Instruments Laws (Amendment) Act 1988 was introduced which came into force from 1.4.1989. The said Act itself provides adequate safeguards to prevent harassment of honest drawers.

After the enactment of the amended Act, there came a lot of criminal complaints filed before various courts in our country for the prosecution of the dishonour of cheques for want of fund in account. The people found and took the amended Act and the proceedings there under as an easiest way to get back their amounts covered under the dishonoured cheques, even though the Act is intended to punish the offenders there under. The Act itself provides for double the amount as fine in addition to one year's imprisonment as punishment. So naturally, monetary interest has a key role behind every complaints under the N.I. Act, distinguished from those under the other Penal Laws. In practical experience, we can see that a lot of complaints filed under the NI Act has been not proceeded by the complainants after they effect a monetary settlement with the accused.

The amended Act which is more technical one, provides many mandatory requirements to be complied before bringing a person for the prosecution of the offence under the Act. The said provisions are constantly subjected to various interpretations by the higher judicial authorities and presently the Act has become a floating one.

Ever since the enactment of the Negotiable Instruments Laws (Amendment) Act, 1988, there came a flood of rulings from the higher judicial authorities touching the various provisions of the Act in many perspectives. Many of the said rulings are mutually contradicting and most of them had put the provisions of the Act in confusion. The said instability and confusion arose by various rulings have made the litigants and lawyers in a hazardous situation.

The relevant sections of the Act being penal, of course, a strict interpretation of the same is warranted. But it cannot be neglected that the punitive acts under the Act are not any thing touching the public tranquility or involves any moral turpitude but only affects between two persons. It can be seen that the Legislature had the above view in its mind and hence, only presumption in favour of the holder of cheque provided under S. 139 of the Act is introduced and various other presumptions in favour of the holder under the unamended NI Act was retained. Whatever may be the mode of interpretation, the most important aspect is that there should be stability to the legal proposition, so as to avoid confusions. The perusal of the various rulings of the higher judicial authorities on the Act for the last 8 years would show that the place of initiation of prosecution, the number of times for which the cheque can be presented, the mode of service of notice of dishonour, the required mode of dishonour of cheques, the requisites of a valid notice are few of the matters connected to the short amendment Act which are disputed among themselves and still not finally decided. The various High Courts among themselves and our own High Court among its own various judgments are having difference of opinion over each aspects of the above said and other provisions of the Act. Of course it would go without saying that the above said instability in judicial decisions make the position of the litigants as well as lawyers very much difficult.

It is in this circumstance that two of the rulings under the NI Act reported in 1996 (2) KLT449 and 1997(1) KLT302, both delivered by Honourable Justice Rajasekharan called my attention and compelled me to write few lines on the same. In both these rulings his Lordship was pleased to weigh the requirements of a notice under S.138 (b) of the NI Act.

The proviso to S.138 of N.I. Act provides three mandatory requirements for the application of the penal provisions of S.138 of the Act. Sub Clause (b) of S.138 reads - the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

As the readers are aware with the facts of the two cases involved in the above referred two rulings, I am not wasting space of this journal by discussing the same. My only attempt is to bring forth the legal aspects involved in the said two rulings and to invite the attention of the readers to the same.

In the ruling reported in 1996 (2) KLT 449, while considering the question whether the mentioning of wrong cheque number in the notice under S.138(b) of the N.I. Act would mislead the drawer and whether there is sufficient compliance of S.138(b) it was held that "It is enough that the notice mentioned the fact of issuance of a cheque, the presentation of the cheque for encashment, dishonour of the cheque and demand for the money covered by the cheque". It was further found that the mention of a wrong number of cheque will not alter the situation where there is only single transaction of issuance of cheque between the parties.

In the ruling reported in 1997 (1) KLT 302 the question considered was whether the notice claiming higher amount or lessor amount than that in the cheque makes the notice insufficient. Relying on a decision of the Calcutta High Court, reported in 1996 (2) KLT 886, it was found that a notice claiming higher or lessor amount than the amount covered by the cheque makes the notice insufficient.

In the case decided by the Calcutta High Court, the amount covered by the cheque was Rs.5,79,000/- and the amount claimed by the notice was Rs.6,50,000/-. In the case where upon the decision reported in 1997 (1) KLT 302 was arrived at, the amount covered by the cheque was Rs.40,000/- but in notice the said amount together with interest not mentioning any rate was also claimed and the said notice was decided to be insufficient.

With due respect, I may express my sincere fear that the above said two rulings of the same court have put the legal proposition of S.138(b) of N.I. Act in a mutually contradicting position and confusious. The first ruling provides that an error even of cheque number mentioned in the notice is immaterial as it does not mislead the drawer of the cheque, where as the second ruling says that the mere claim of the complainant in the notice for the interest in addition to the cheque amount makes the notice illegal.

Even though the provisions of the amended N.I. Act, being penal, needs strict interpretation, the real intention behind S.138(b) is to give the drawer of the cheque ar opportunity to get out of his liability by paying off the amount within the stipulated period of time. I may express my sincere doubt whether the above said aspect was considered while delivering the ruling reported in 1997 (1) KLT 302 after having discursed it otherwise the ruling reported in 1996 (2) KLT 449.

As it is well aware, the dishonour of a cheque invites not only criminal action but also civil action, the simultaneous proceedings of both are permissible. The notice issued by the drawer after the dishonour of a cheque may be to afford an opportunity to avoid both civil and criminal proceedings by payment of the amount. So, the question which needs consideration is whether the mere claim for interest on the cheque amount, or the cost of the legal notice in addition to the specific claim for cheque amount in the notice for which the drawee is otherwise legally entitled would vitiate the entire notice under S.138(b) of N.I. Act.

The solemn attempt of the article is to bring forth the instability in the judicial decisions regarding the various provisions of the N.I. Act and to invite the attention ol the enlightened readers to the difficulty causing to the litigants and the lawyers in this regard.

I hope that the higher judicial authorities would soon make appropriate steps in the matter and would put the Negotiable Instrument Act in a stable shore, saving the same from all the fluctuations.

“Purpose of C.A.T. Though Defeated Abolition Out of Question"

(By N. Dharmadan, Senior Advocate, High Court of Kerala)

The very object of the establishment of C.A.T., thro' the 42nd Amendment of the Constitution and the addition of Arts.323-A and 313-B in the Constitution of India, was to takeout the problem of public servants pertaining to their recruitment, conditions of service and other connected matters from the jurisdiction, powers and preview of civil courts including the High Court and place them before a specialised institution, manned by experts in the judicial and administrative fields so that their grievances can be considered and disposed of effectively in an expeditious manner without causing any delay or incurring high expenses. In other words the Tribunal, contemplated for taking decisions on service problems, is a peculiar amalgam of Industrial Tribunal, High Court and other civil courts rolled into one. It has all the powers, jurisdiction and authority of these institutions for granting reliefs and rendering justice.

Due to the vast development, progressive outlook and legal thinking, the public - administration has become so much complicated and confused that the socio-economic problems could be tackled only from the practical point of view by administrative process with some sort of legal background, instead of disposing of them through the normal legislative and judicial process of administration of the law governing the same. This is the reason why a noval device had been designed by the introduction of 42nd Amendment of the Constitution, within the existing legal frame work, by establishing a Tribunal consisting of an experienced administrative expert and a legally equipped judicial member, so that they can dispense justice bearing in mind the well accepted principle that the whole of administrative law is nothing but a branch of constitutional law flowing from constitutional principles of 'rule of law' and sovereignty of Parliament.

In exercise of the powers under Art.323-A, the Administrative Tribunals Act, 1985 was enacted to adjudicate service disputes completely ousting the jurisdiction and powers of civil court and High Court from the appointed date viz. 1.11.85. In fact t Tribunal under the Act has been considered as a "substitute and not supplemental to the High Court in the scheme of administration of justice" and they are required to exercise the powers of the High Court in regard to specified field under the service jurisprudence. In Sampath Kumar's [1] case, decided on 9.12.86, the Constitution Bench of the Supreme Court held that the Act provides for "an effective alternative institutional mechanism or authority for judicial review." The Supreme Court answered the question as to the bar of jurisdiction of the High Court, in respect of service matters under Arts.226 & 227 of the Constitution, as absolute subject only to Arts.32 and 136 of the Constitution as contained in S.28 of the Act. The court adopted the above reasonings in Dutta v. Union of India [2] Minerva Mills case [3] etc. for arriving at this conclusion. The Supreme Court also held that the very object and purpose of the establishment of this new mechanism through the Act is for "taking over part of the existing backlog and a share of the normal load of the High Courts and for arriving a quick settlement of service disputes in the interest of public servants". This was followed in Chopra v. Union of India,[4] Union of India v. Darmanad, [5] Rajendra Singh Yadav v. State of U.P., [6] Krishna Sahai v. State of U.P.[7] and Majumdar Union of India. [8] Not only the effect of all these cases have been practically washed away by the Chandrakumar's case, but recently the Supreme Court also held in Dr. Duryodhan Sahu's case [9] that the C.A.T. cannot entertain public interest litigation the instance of a total stranger.

The C.A.T. has come to stay with very wide powers. It has three fold jurisdiction. The original jurisdiction under S. 19 of the Act is much wider than that of Art.226 of Constitution of India because the Tribunal can at the same time exercise all the powers of a civil courts and the High Court in specified matters. The powers of all courts are vested in the Tribunal under S.14(1) of the Act. This Tribunal has all the trappings of a Court. It has also the ancillary and incidental powers to do justice as held by the Supreme Court in Union of India v. Paraslaminates (P) Ltd. [10] The Supreme Court held the Tribunal functions as a court within the limits of its jurisdiction. Furthermore, though the powers of the Tribunal are limited and its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, being a judicial body, it has all the incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers". It is not barred by any procedural constraints as contained in the C.P.C. or Evidence Act. It is guided solely by the principles of natural justice and fair play. It has adopted its own procedure as envisaged in S.22(1) of the Act to do justice to the litigants. It can even resort to visitorial or inquisitional procedure to discover truth and do justice in the disposal of cases provided principles of natural justice are not violated in any manner. Under S.29 of the Act the Tribunal can exercise original jurisdiction of the High Court and Civil Courts relating to service matters from the appointed day. It has also the appellate jurisdiction over any decree or order, which has been passed by any court other than the High Court, in any suit or other proceedings in respect of service matters before the establishment of the Tribunal under S.29-A of the Act. The jurisdiction of the Tribunal is not confined to public servants who are holding posts, but it extends to all service matters coming under S.3(q) read with S.14 of the Act. So far as the service matters are concerned the Tribunal has the same power and jurisdiction analogous to that of High Court under Arts.226 and 227 of the Constitution of India from 1.11.85. This position has been considered in detail in Railway Manager v. Bhaskar.[11]

But after Chandrakumar's case this position has been changed considerably. It was held that the "Tribunal was intended to provide a self contained, almost wholly exclusive (the exceptions being specified in S.28) forum for adjudication of all service-related matters. The Tribunals created under the Act were intendedly to perform a substantial role as opposed to and this distinction is of crucial significance of supplemental role with regard to the High Courts." The jurisdiction of C.A.T. is subject to the judicial review to the Division Bench of the High Court under the judicial dictum in Chandra Kumar's case. The Court held that in respect of the power of judicial review, the jurisdiction of the High Courts under Art.226/227 cannot be excluded". The Supreme Court observed "we hold that all decisions of Tribunals whether created pursuant to Art.323-A or 323-B of the Constitution, will be subject to the High Court writ jurisdiction under Art.226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."........... The Tribunals are competent to hear matters where the vires of statutory provisions are questioned". But the Supreme Court curtailed this power by stating that "however in discharging this duty, they cannot act as substitutes for the High Court and Supreme Court and Supreme Court, which have under our constitutional set up, been specifically entrusted with such an obligation. The function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before Division Bench of the respective High Courts". The Tribunals jurisdiction is further restricted by saying that "the Tribunal shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly".

Sampath Kumar's case was explained away by stating that "in five decades that have ensured since independence, the quantity of litigation before the High Courts has exploded in an unprecedented manner. The decision in Sampath Kumar's [12] case was rendered against such a backdrop. We are conscious of the fact that when a constitution Bench of this Court in Sampath Kumar's case adopted the theory of alternative institutional mechanism it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time. Nearly a decade later, we are now in a position to review the theoretical and practical results that have arisen as a consequence of the adoption of such an approach”. But nobody has made a comprehensive survey of the working of the Tribunals. An overall assessment of the functioning of the Tribunals would have given a complete picture about the present position. The Supreme Court relied on the report of the 'Arrears Committee' popularly known as "Malimath Committee" [13] in which it is stated "even the experience of setting up Administrative Tribunal under the Administrative Tribunals Act, 1985 has not been widely welcomed". It is further stated "there is need for a fresh look and review and a serious consideration before experiment is extended to new arrears of the fields". It is known on what basis such an opinion was formed. The High Courts did not feel happy about the establishment of a parallel judicial forum for dealing with the service matters. However it was observed by the Supreme Court that "the reasons for which the Tribunals were considered still persist; indeed those reasons have become even more pronounced in our times". Hence the Court felt the necessity of finding out some devices and said that "drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand upto constitutional scrutiny in the discharge of the power of judicial review conferred upon them."

The judicial review is the power and authority of the court to keep the public authorities within their limits and bounds. In otherwords it is concerned with thedecision making process and it is a review of the manner in which the decision to be made in a given situation. The Supreme Court in Dr. N.B. Khare v. State of Delhi [14] defined the scope of judicial review under clause (5) of Art.19 of the Constitution and held that our Constitution invests the power of judicial review on the Judges of High Court and Supreme Court. Chief Justice Patanjali Sastri followed the same in State of Madras v. V.G. Rao [15]. But the concept of judicial review developed beyond comprehension and in Kesavananda Bharathi v. State of Kerala [16] the Supreme Court held that the judicial review is in integral part of the our constitutional system and a basic feature of the Indian Constitution. Over the years the Supreme Court in many cases expressed the view on the powers of judicial review of legislative action. In a five Judge Constitution bench decision in Bidi Supply Co. v. Union of India [17] the Supreme Court said "The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and training to judicial ways of working and training." But in Minerva Mills Ltd. v. Union of lndia [18] the Supreme Court indicated that apart from the Supreme Court and High Courts other equally efficacious alternate mechanism can also be invested with the power of judicial review to do justice. The Tribunal introduced under the Administrative Tribunal Act is one of equally efficacious alternative mechanism provided for doing the work of judicial review in respect of service grievances. The Supreme Court in Sampath Kumar's case observed that the judicial review can be exercised by such equally effective alternate mechanism to the exclusion of High Court. But in Amulya Chandrakalita v. Union of India [19] the Supreme Court held that Administrative Member of the Tribunal alone without the assistance of a judicial member is not competent to hear and decide a cases in exercise of the power of judicial review. This lacuna was plugged by providing sufficient safeguards.

The overall effect of the dictum in Chandrakumar's case is that the Tribunals will continue to act as the "only court of first instance in respect of the arrears of law for which they have been constituted" and the Division Bench of the High Court will be the next higher authority having the power to examine all the decisions of the Tribunal as if it is an appellate forum. This position would definitely affect adversely the very object and purpose for which the Tribunal was constituted more than a decade ago. In fact, the Chandrakumar's case has only contributed to the problems "which has been a cause for concern for several decades" and made it more worse rather than remedying the same. On the other hand, if the Supreme Court had accepted one of the suggestions made by Additional Solicitor General of Indian the course of his arguments, in Chandrakumar's case "allowing the Union of India to further amend the Act so as to ensure that the Tribunals become effective alternative forum", a solution within the frame work of the present Act could have been found out by providing a “three member Bench” of the Central Administrative Tribunal for the judicial scrutiny of the decisions of the Tribunals before the matter is taken in appeal to the Apex Court instead of making all the decisions of the C.A.T. subject to the judicial review of the Division Bench of the High Court, which in effect has defeated the very object and purpose for which the C.A.T. was introduced for deciding service cases by a specialised body thereby reducing the work load of the High Courts. Now after Chandrakumar's case C.A.T. may be a “crest fallen” judicial forum, but neither superfluous “dispendium” for service litigants nor is it a "white elephant' to be wound up or abolished as suggested by one of our friends in his article “Abolish C.A.T. - Sooner the better” [20].

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Foot Note

1. AIR 1987 SC 386

2. AIR 1980 SC 2056

3. AIR1980 SC 1789

4.AIR 1987 SC 357

5. AIR 1989 SC 1185

6. (1990) 2 SCC 763

7. (1990) 2 SCC 673

8. AIR 1990 SC 2263

9. JT1998 (5) SC 645

10. 1990 (4) SCC 453

11. 1990 (2) KLT C.A.T. 1.

12. AIR 1987 SC 386

13. The Arrears Committee (89-90) Report Vol.III Chapter IX para. 8.66 P. 111.

14. AIR 1950 SC 211

15. AIR 1952 SC 196

16. AIR 1973 SC 1461

17. AIR 1956 SC 479 at 487

18. (1980) 3 SCC 625

19. (1991) 1 SCC 181

20. 1998 (1) KLT 67 Journal