B K SHADAKSHARAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) (On the questions referred by the Division Bench)The two questions which have been referred to the Full Bench are asfollows:

(2.) The learned counsel for the petitioners submitted that in Sampath Kumar's case, the precise question which arises in this case, viz. whetherthe Administrative Tribunal constituted under Article 323-A of the Constitutioncould decide the Constitutional validity of service laws, was not decided. Theobservation in Chopra's case to the effect that such a question has been decidedin the affirmative in Sampath Kumar's case is not warranted. Therefore, it isurged before us that the decision of the learned single Judge in S.M. Pattanaik'scase must be held to be good law. As a matter of fact, that is thecorrect approach; otherwise, the consequences would be startling. Further, if really thejurisdiction to decide the Constitutional validity as well, was intended to beconferred on the Administrative Tribunal, it would have specifically slated so.In so far as that not having been done, it cannot be assumed. Article 323-Amerely states 'disputes and complaints'. Only concerning this, the jurisdictionof the High Court would stand excluded, but not with regard to the adjudicationof Constitutional validity of Service Laws.

(3.) The learned Attorney-General of India, on notice from this court, submits that this is an extremely important question and the power of judicialreview being one of the basic structures of the Constitution is vested in theSupreme Court and the High Courts. In this regard, he draws our attention tothe proviso to Section 113, CPC, as well as Section 395, Cr. P.C. Under boththese provisions, the function of declaring the unconstitutionality is only withthe High Court. He then draws our attention to Article 32 of the Constitution,particularly to Clause (4), where without prejudice to the powers of theSupreme Court the Parliament may empower any other court to exercise suchpower. In this context, Article 226(4) will have to be seen because that clearlystates that the power conferred on the High Court to issue certain writs is not tobe in derogation of the power conferred on the Supreme Court by Clause (2) ofArticle 32. The power of superintendence by the High Court under Article 227is not available over a tribunal constituted under law. Then again, under Article228 the High Court could withdraw to its file any case pending in a courtsubordinate to it if a substantial question of law as to the interpretation of theConstitution is necessary to be determined for the disposal of the case. Article 371-D, Clause (7) makes it clear and states that the High Court shall have no powerof superintendence over the Administrative Tribunal and no other court thanthe Supreme Court could exercise the jurisdiction with regard to any matterconferred on the Administrative Tribunal. When Article 323-Astatesadjudication or trial, whether it will take within its ambit the Constitutional validity ofany law is the question; Clause (2), sub-clause (d) again refers to disputes andcomplaints referred to in Clause (1); further, Clause (3) is a non-obstanteclause.While constituting the Administrative Tribunal under the Act, thepreamble itself refers to Article 323-A. In Section 3(q) while defining 'servicematters' it says that such a jurisdiction is conferred exclusively on the tribunal.No doubt in S.M. Pattanaik 's case, the learned single Judge took the view thatthe exclusion must be express and it cannot be by way of implication. Theexclusive jurisdiction talked of in that case must be understood in the backgroundset up in paragraph-14 of the judgment.It is true that in Sampath Kumar's case, the specific question whether theHigh Court's jurisdiction under Article 226 stands excluded did not come up forconsideration. The observations in that case must be understood as having beenmade when the court wanted to repel an argument that such exclusion would beopposed to the basic structure. It did hold that the Administrative Tribunal is asubstitute for the High Court. Based on this, in Chopra's case, when a specificquestion which has now arisen before us was sought to be decided, it was heldthat such jurisdiciion of the High Court would stand excluded. In other words,the Administrative Tribunal was competent to decide all questions pertainingto the Constitutional validity as well, as violalive of Articles 14 and 16 of theConstitution. In Union of India v Parma Nanda, AIR 1989 SC 1185, it was heldin paragraph 18 that the tribunal could exercise such powers which the civilcourt or High Court could have exercised by way of judicial review; it is neitherless nor more. As a matter of fact, in Union of India v A.I.S. Pensioners' Asociation,AIR 1988 SC 501, it has been held that where there is an order dismissinga special leave petition giving reasons therefor such a decision would be bindingas a precedent under Article 141. Therefore, this court is bound by the same andit is not open to this court to hold that this is not a declaration of law underArticle 141 of the Constitution. In Chopra's case, the Supreme Court has chosento interpret Sampath Kumar's case in a particular manner. Whether thatinterpretation was warranted or not, this court cannot decide. Till, of course, theSupreme Court interprets in future and lays down a contrary ruling, it isChopra's case, which will govern the field.