S.C. Verma and anr. Vs. Central Government Industrial Tribunal and anr. - Court Judgment

Excerpt:
- - ma-jumdar (supra) wherein the lordships has very clearly mentioned that the administrative tribunals cannot be equated with the high court, that shows the power and authority of the high court has not been interpreted to have been taken away by the act of 1985. this court in two successive division bench judgments and in a recent judgment in moti marry v.a. k. mathur, j. 1. this reference has been made by the hon'ble chief justice of this court on account of two conflicting decisions delivered by the division bench of this court one in the case of union of india v. presiding officer, cgit (misc. petition no. 1135 of 1988), decided on april 27, 1988 and another in the case of union of india v. competent authority labour court, jabalpur and anr. (m.p.no. 84 of 1988) decided on january 10, 1989.2. the question for consideration of this court is that 'whether this court has jurisdiction to entertain the present petition against the award passed by the central government industrial tribunal in the light of the provisions of central administrative tribunals act or not.'3. the brief facts which are necessary for disposal of this case are that the petitioners were the employees of the respondent no. 2 - manager, telecom factory, jabalpur, which is governed by the provisions of the indian factories act, a dispute arose that whether the petitioners viz. section c. verma who was a fitter and rameshlal khatik who was a mazdoor, were rightly dismissed from service or not. both these petitioners were prosecuted and they were honourably acquitted by the criminal court. inspite of acquittal of the petitioners, a departmental enquiry was instituted and ultimately both the petitioners were found guilty and accordingly dismissed from service. a dispute was raised by the petitioners and ultimately the central government referred the dispute under section 10 of the industrial disputes act to the central government industrial tribunal. the tribunal after recording necessary evidence and hearing both the parties, held that the dismissal of the petitioners is illegal and they are entitled to be reinstated with back wages with effect from april 4, 1985, vide award dated april 28, 1986 and not from the date of termination.4. aggrieved against the aforesaid award, the petitioners preferred this writ petition before this court and a limited challenge was made that since the tribunal has found the dismissal of the petitioners as illegal, then the petitioners should have been awarded back wages right from the date of their dismissal and not with effect from april 4, 1985. in these circumstances, the matter was filed before this court and the question arose that whether such writ petition is maintainable before this court or not on account of the provisions of central administrative tribunals act against the award passed by the tribunal.5. there are two conflicting decisions one which was delivered in misc. petition no. 1135/88 decided on april 27, 1988. in that case, the division bench of this court took the view that in view of decision of the hon'ble supreme court in s. p. sampath kumar v. union of india, (198/-i-llj-128) (sc) no writ petition under articles 226 and 227 of the constitution of india is maintainable before this court. a similar view was taken in misc. petition no. 84 of 1988 decided on january 10, 1989, whereas as against this in misc. petition no. 2289/87, decided on march 9, 1989, a contrary view has been taken. though the decision in misc. petition no. 2289/87, there is no detailed discussion; but the decision given in misc. petition no. 1135/88 a detailed order has been passed by the division bench following the decision of the supreme court in s, p. sampath kumar's case (supra) and a full bench decision of allahabad high court in udai bhan singh v. union of india 1987 (54) flr 504 (alld) now, in this back ground, the matter has been again referred by the division bench to this full bench for its answer.6. articles 323a and 323b was inserted by the constitution (forty-second amendment) act, 1976. now by virtue of this, part xiv-a was inserted in the constitution and the administrative tribunals were created. it confers a power on parliament to make law for adjudication or trial by the 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 any state or of any local or other authority within the territory of india or of any corporation owned or controlled by the government. in purported exercise of this power, the parliament enacted the administrative tribunals act, 1985 and under this act, the central government established certain administrative tribunals. section 14 of the administrative tribunals act 1985, deals with the jurisdiction, powers and authority of the central administrative tribunal. it further lays down that from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the supreme court) in relation to recruitment matter to any all india service or to any civil service of the union or a civil post under the union or to a post connected with the defence or in the defence services being in either case, a post filled by civilian and all such matters shall be decided by these tribunals. section 15 of the act, 1985 deals with the jurisdiction, powers and authority of the state tribunals, that is similarly the state can also appoint administrative tribunal and can provide all such matters to be dealt by such tribunals. section 28 of the act, 1985, excludes jurisdiction of courts except the supreme court under article 136 of the constitution of india. section 28 of the act reads as under:' section 28. exclusion of jurisdiction of courts except the supreme court under article 136 of the constitution - on and from the date from which any jurisdiction, powers and authority becomes exercis-able 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 of persons appointed to any service or post, no court except: (a) the supreme court; or (b) any industrial tribunal, labour court or other authority constituted under the industrial disputes act, 1947 or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such requirement of such service matters.' 7. it may be relevant to mention here that the validity of the act of 1985 came to be challenged before the hon'ble supreme court in the case of s. p. sampath kumar (supra) and the lordships of the hon'ble supreme court upheld the validity of the act and observed: at page 133 'as the judicial review of the decisions of the tribunal by the supreme court is left wholly unaffected and thus, there is a forum where matters of importance and grave injustice can be brought for determination or rectification, exclusion of the jurisdiction of the high court does not totally bar judicial review. it is possible to set up an alternative institution in place of the high court for providing judicial review. in this view, barring of the jurisdiction of the high court by the act cannot be a valid ground of attack.'the division bench of this court in union of india v. presiding officer (in m. p. no. 1135/88) (supra), decided the case basically on the basis of aforesaid judgment. therefore, the jurisdiction of high court under articles 226/227 of the constitution stands excluded in relation to the service matters of central government employees. but sampath kumar's judgment again came up for further comments by the lordships of the hon. supreme court in the case of m b. majumdar v. union of india 1990 air sc 2263 and in that, the hon'ble supreme court has observed:'............... the administrative tribunals constituted under the 1985 act cannot be equated with the high court for all purposes. the tribunals cannot be treated as deemed high courts with all logical consequences.'these observations to greater extent water down the sweeping observation made in the case of s. p. sampath kumar (supra). more so, there is a reservation about this proposition as expressed by various high courts that various tribunals can be given the status of the high court and no useful purpose would be served by pursuing this course of argument any further, as the constitutional bench of hon'ble supreme court is already seized of the matter. however, we cannot restrain ourselves in observing that judicial remedy provided under article 226 of constitution is a basic structure of constitution and it cannot be abridged or circumscribed. constitutional power cannot be taken away by the act of parliament. in the present case, we are concerned with a limited question to answer that whether the high court can exercise the power under article 227 over the industrial tribunal or not. the industrial tribunal has been constituted under the industrial disputes act, 1947. what is intended by article 323a and the act of 1985 is that the original jurisdiction of the high court to entertain any matter relating to recruitment of service of the union or of any corporation wholly or partly controlled by the government of india, is being sought to be taken away.8. a bare reading of sections 14 and 15 of the act will show that what was intended to take away was the original jurisdiction of any court except that of the supreme court to entertain any service matter of the union or the state. it never intended to take away the superintendence jurisdiction of the high court conferred under article 227 of the constitution of india. article 227 of the constitution lays down that every high court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, that means that all the tribunals which exist in the jurisdiction of the high court, are under the superintendence of the high court. therefore, the superintendence power exercised by the court under article 227 has not been denuded, but what is sought to be intended was to take away the original jurisdiction of all the courts to entertain any such service matter of the state or the union, as the case may be. the intention was to take away the jurisdiction of other civil courts to entertain the suits relating to service matters of the state or the central. it is a still big question that whether the powers of the high court under article 226 can be disturbed. as a matter of fact article 226 of the constitution is such a salutary provision in the constitution which safeguard against all state arbitrary action or enforce the fundamental rights of the citizen, but whether to take away the jurisdiction of article 226 by enacting the 1985 act amounts to change in the basic structure of the constitution is concerned, that matter is already before the constitutional bench of the hon'ble supreme court.9. so far as the superintendence power under article 227 over the tribunals existing in jurisdiction of the high court is concerned, in our humble opinion, it has not been taken away. more so, the subsequent judgment of the hon'ble supreme court in the case of m.d. ma-jumdar (supra) wherein the lordships has very clearly mentioned that the administrative tribunals cannot be equated with the high court, that shows the power and authority of the high court has not been interpreted to have been taken away by the act of 1985. this court in two successive division bench judgments and in a recent judgment in moti marry v. superintendent, lady elgin hospital, jabalpur 1994 lab i.c 172 has reiterated the same view and it has been observed:'the tribunal constituted under the administrative tribunals act is within the superintendence of the high court under article 227 of the constitution and the administrative tribunals act, 1985, the provision of the act could not lawfully exclude the constitutional jurisdiction of the high court. this jurisdiction, however, entitles the high court to interfere only in cases of grave dereliction of duty or flagrant violation of law by the tribunal and is neither appellate or revisional jurisdiction.'similar view has been taken by another division bench of this court in the case of rammoo v. union of india and anr. 1990 jlj 19.thus, we are of the opinion that the industrial tribunal constituted under the industrial disputes act, 1947 is amenable to jurisdiction of the high court under article 227 of the constitution of india.