P SAMBAMURTHY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) These Writ Petitions challenge the constitutional validity of Cl. (5) of Art. 371-D, of the Constitution. Though originally when the writ petitions were filed, the constitutional validity of Cl. (3) of Art. 371-D was also assailed, this challenge was not pressed on behalf of the petitioners and the arguments were confined only to the challenge against the constitutional validity of Cl. (5) of that Article. But in order to understand the true scope and ambit of the controversy raised before us in regard to the constitutional validity of Cl. (5), it is necessary for us to refer also to the provision enacted in Cl. (3) of Art. 371-D. Cls. (3) and (5) of Art. 371-D read as follows :-

(2.) No constitutional objection to the validity of Cl. (3) of Art. 371-D could possibly he taken since we have already held in S. P. Sampath Kumar v. Union of India, decided on 9th December, 1986 (reported in AIR 1987 SC 386) that judicial review is a basic and essential feature of the Constitution and it cannot be-abrogated without affecting the basic structure of the Constitution, but Parliament can certainly without in any way violating the basic structure doctrine amend the Constitution so as to set up an effective alternative institutional mechanism or arrangement for judicial review. One of us (Bhagwati, C. J.) pointed out in the judgment delivered in that case that : "the basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court." We summarised the constitutional position in regard to the power of Parliament to amend the Constitution with a view to taking up the jurisdiction of the High Court in the following words :

(3.) But the real controversy between the parties centered round the constitutional validity of Cl. (5) of Art. 371-D. This clause provides that the order of the Administrative Tribunal finally disposing of the case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier. Standing by itself, this clause could not be regarded as in any way rendering the Administrative Tribunal less efficacious than the High Court because it would not be an extraordinary or unusual provision to lay down a period of time during which an order made by a tribunal may not be given effect to presumably in order to enable the State Government either to make arrangements for implementing the order of the tribunal or to prefer an appeal against it. But what really introduces an infirmity in Cl. (5) of Art. 371-D is the provision enacted in the proviso which says that the State Government may by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be. The state Government is given the power to modify or annul any order of the Administrative Tribunal before it becomes effective either by confirmation by the State Government or on the expiration of the period of three months from the date of the order. The State Government can at any time before the expiry of three months from the date of the order modify or annul the order unless it has by it prior signification of its will confirmed the order. It will thus be seen that the period of three months from the date of the order is provided in Cl. (5) in order to enable the State Government to decide whether it would confirm the order or modify or annul it. Now almost invariably the State Government would be a party in every service dispute brought before the Administrative Tribunal and the effect of the Proviso to Cl. (5) is that the State Government which is a party to the proceeding before the Administrative Tribunal and which contests the claim of the public servant who comes before the Administrative Tribunal seeking redress of his grievance against the State Government would have the ultimate authority to uphold or reject the determination of the Administrative Tribunal. It would be open to the State Government, after it has lost before the Administrative Tribunal, to set at naught the decision given by the Administrative Tribunal against it. Such a provision is, to say the least, shocking and is clearly subversive of the principles of justice. How can a party to the litigation be given the power to override the decision given by the Tribunal in the litigation, without violating the basic concept of justice It would make a mockery of the entire adjudicative process. Not only is the power conferred on the State Government to modify or annul the decision of the Administrative Tribunal startling and wholly repugnant to our notion of justice but it is also a power which can be abused or misused. It is significant to note that in the last about three years this power has been exercised by the State Government in an inordinately large number of cases and even interim orders made by the Administrative Tribunal have been set at naught by the State Government though no such power is conferred on the State Government under the Proviso to Cl. (5). It is clear on a proper construction of the proviso read with Cl. (5) that it is only an order of the Administrative Tribunal finally disposing of the case which can be modified or annulled by the State Government and not an interim order made by the Administrative Tribunal. But we find from the record that this limitation has been completely brushed aside by the State Government and it would be no exaggeration to say that the State Government has behaved in a most extravagant manner in modifying or annulling orders made by the Administrative Tribunal which were found inconvenient. We may point out that even at the time when Art. 371-D was introduced in the Constitution, Parliament debates show that the Home Minister who piloted the bill did not envisage exercise of this power save in the most exceptional cases. Here, however, we find that this power has been indiscriminately used by the State Government. But that apart, we do think that this power conferred on the State Government is clearly violative of the basic concept of Justice.