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M.D. KULKARNI V/S UNION OF INDIA & ANOTHER , decided on Friday, June 14, 2002.
[ In the High Court of Bombay, LETTERS PATENT APPEAL NO.62 OF 2002 IN WRIT PETITION NO.241 OF 2001 . ] 14/06/2002
Judge(s) : CHIEF C.K. THAKKER & RANJANA DESAI
Advocate(s) : Mihir Desai. P.M. Pradhan, No.1.
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  "2002 (5) BCR 446"  







judgment - C.K. THAKKER C.J.Admitted. Mr. P.M. Pradhan learned Counsel appears and waives service of notice of admission on behalf of respondent No.1. In the facts and circumstances the matter is taken up for final hearing today. 2.This appeal is filed against summary dismissal of Writ Petition No.241 of 2001 by the learned Single Judge on February 20 2001. It is an admitted fact that being aggrieved by the action of the respondent authorities of not extending medical benefits to him the appellant/ petitioner approached the Central Administrative Tribunal Mumbai by filing Original Application No.673 of 1999 under the Administrative Tribunals Act 1985 (hereinafter referred to as the Act). The Tribunal by an order dated August 4 2000 dismissed the original application subject to certain observations made in that order. The said order was challenged by the appellant /petitioner by filing the above petition. 3.It appears that when the matter came up for admission hearing before the learned Single Judge of this Court by the order impugned in the present appeal the learned Single Judge dismissed the petition in limine on February 20 2001. 4.When the L.P.A. was placed for hearing we asked the learned Counsel for the respondents as to how the petition could be placed for hearing and could be disposed of by a learned Single Judge of this Court as in our opinion in the light of law laid down in L. Chandra Kumar v. Union of India A.I.R. 1997 S.C. 1125 an order passed by the Central Administrative Tribunal could only be challenged under Article 226/ 227 of the Constitution and can be dealt with and decided by a Division Bench of the High Court. 5.In L. Chandra Kumar in paras 90 to 94 the Apex Court stated:90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review the jurisdiction of the High Courts under Article 226/ 227 cannot be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted it would be open for litigants to raise Constitutional issues many of which may be quite frivolous to directly approach the High Court and thus subvert the jurisdiction of the Tribunals. Moreover even in these special branches of law some areas do involve the consideration of Constitutional questions on a regular basis for instance in service law matters a large majority of cases involve an interpretation of Articles 14 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving Constitutional issues would not serve the purpose for which they were constituted. On the other hand to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/ 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/ 227 of the Constitution it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals the manner in which justice is dispensed by them leaves much to be desired. Moreover the remedy provided in the parent statutes by way of an appeal by special leave under Article 136 of the Constitution is too costly and inaccessible for it to be real and effective. Furthermore the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution. In R.K Jain v. Union of India A.I.R. 1993 S.C.W. 1899 after taking note of these facts it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions we hold that all decisions of Tribunals whether created pursuant to Article 323-A or Article 323-B of the Constitution will be subject to the High Courts writ jurisdiction under Articles 226/ 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. 92. We may add here that under the existing system direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above mentioned observations this situation will also stand modified. In the view that we have taken no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution but instead the aggrieved party will be entitled to move the High Court under Articles 226/ 227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution. 93. Before moving on to other aspects we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However in discharging this duty they cannot act as substitutes for the High Courts and the Supreme Court which have under our Constitutional set up been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However this power of the Tribunals will be subject to one important exception. The Tribunals 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. All other decisions of these Tribunals rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will however continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except as mentioned where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. 94. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will however come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered. (emphasis supplied). 6.The Apex Court thus in no uncertain terms has held that the Central Administrative Tribunal exercises original jurisdiction under section 28 of the Act. Initiation of proceedings are thus within the exclusive jurisdiction of the Tribunal. It was then observed by the Court that an order passed by the Tribunal can be challenged by an aggrieved party by filing an appropriate petition in the High Court by invoking Articles 226/227 of the Constitution which can be dealt with and decided by Division Bench of the High Court. Only thereafter a person aggrieved may approach the Supreme Court under Article 136 of the Constitution. A Single Judge of the High Court therefore has no jurisdiction in the matter.7.It is true that the above contention has not been taken at the time of hearing of the petition before the learned Single Judge. The learned Counsel for the appellant however stated that the appellant/ petitioner appeared as party in person. But even otherwise in our opinion when the point is finally concluded by the Supreme Court and it has been clearly held that an order passed by the Central Administrative Tribunal can be challenged in the High Court in a petition under Articles 226/227 of the Constitution and can be heard by a Division Bench of the Court legality or otherwise of a decision of the learned Single Judge can be challenged contending that the learned Single Judge could not have heard and decided the petition. The order passed by the learned Single Judge therefore cannot be said to be in accordance with the law laid down by the Apex Court. Only on that ground and without expressing any opinion on merits in our judgment the impugned order deserves to be set aside.8.For the foregoing reasons we allow the Letters Patent Appeal set aside the order dated 20th February 2001 passed by the learned Single Judge and restore Writ Petition No.241 of 2001 to file. The registry will now place the matter before a Division Bench taking up such matters.9.Before parting we may state that we have not entered into merits of the case and we may not be understood to have expressed our opinion one way or the other on the contentions raised in the petition. As and when the matter will come for admission hearing the Court will pass an appropriate order in accordance with law. Letters Patent Appeal is accordingly disposed of. No costs.