TMI Blog2004 (9) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner No. 1 is an Association of Advocates practising at the High Court of Madhya Pradesh, Madhya Pradesh State Administrative Tribunal at Jabalpur as also Central Administrative Tribunal (Jabalpur Bench). The Association was constituted to look after and protect the interests of its members. One of the prime duties of the Association, asserted the petitioners, is to ensure that legal system in the State is not attacked by an outside agency. Its aim is also to advance the cause of justice by speedy trial. It has, therefore, locus standi to file a petition. Petitioner No.2 is the President of the Madhya Pradesh Bar Association. He is a practising lawyer at the High Court as well as at two Tribunals. He is a citizen of India. The petitioners have stated that Parliament amended the Constitution by the Constitution (42nd Amendment) Act, 1976 by which several changes had been made. As a consequence thereof, Article 323A came to be inserted in the Constitution with effect from January 3, 1977. The said Article provided for constitution and establishment of Administrative Tribunals. Those Tribunals were empowered to adjudicate and decide disputes and complaints relating to recru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of a request from the State Government to establish by a notification an Administrative Tribunal for the State to exercise the jurisdiction, powers and authority conferred on the Administrative Tribunal for the State. According to the petitioners, a request was made by the State of Madhya Pradesh for the establishment of an Administrative Tribunal for the State. The Central Government, in exercise of power under sub-section (2) of Section 4 of the Act, therefore, issued a notification on June 29, 1988 for establishment of a Tribunal known as the Madhya Pradesh Administrative Tribunal with effect from August 2, 1988. The petitioner stated that in pursuance of the notification, the State Administrative Tribunal had been established. It was having a Principal seat at Jabalpur and four Benches at Gwalior, Indore, Bhopal and Raipur. The petitioners further stated that Parliament enacted an Act called the Madhya Pradesh Re-organisation Act, 2000, (Act 28 of 2000) (hereinafter referred to as the Act of 2000 ). The said Act has been enacted with a view to provide for the re-organisation of the existing State of Madhya Pradesh and for matters connected therewith . Part II deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation for the unexpired period of his tenure. (4) Notwithstanding anything contained in this section or any law for the time being in force, the Central Government shall, in accordance with any mutual agreement between the successor States or if there is no such agreement, after consultation with the Government of the successor States, issue directions for the resolution of any matter relating to any body referred to in sub- section (1) and falling within the jurisdiction of any of the successor State within any period referred to in sub- section (1). Section 85 declares that the provisions of the Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law. Bare reading of sub-section (1) of Section 74 makes it clear that it declares that all Commissions, Authorities, Tribunals, Universities, Boards or other bodies constituted under an Act of Parliament will continue to function in the State of Madhya Pradesh as also in the State of Chhattisgarh. It, however, states that they will continue to function for a maximum period of two years or till such period as is decided by mutual agreement between the successor States . Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute the Tribunal. It was, therefore, open to the State Government to create, continue or abolish such Tribunal. Since the power exclusively vested in the State Government to create, continue or abolish the Tribunal, the Central Government had no voice in the matter. It was also stated that the Council of Ministers of the State of Madhya Pradesh took a decision on November 21, 1985 for the establishment of State Administrative Tribunal in the State of Madhya Pradesh. A request was, therefore, made to the Central Government to constitute State Administrative Tribunal and, accordingly, a notification was issued on June 29, 1988 and the Tribunal was constituted on August 2, 1988. Initially there was only a Principal seat at Jabalpur. Later on, three Benches were established at Gwalior, Indore and Bhopal. In 1997, even the fourth Bench was established at Raipur. The deponent stated that over and above State of Madhya Pradesh, seven other States had established State Administrative Tribunals. In the affidavit in reply, it was the case of the respondent-State that despite very laudable object behind the establishment of Administrative Tribunals, the performance of the Tribunals always rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuation or abolition of State Administrative Tribunal. Such action, therefore, cannot be said to be illegal or contrary to law. The Act of 2000 has been enacted by Parliament in exercise of powers under Articles 2 to 4 of the Constitution of India. The Act, therefore, cannot be said to be unconstitutional or ultra vires. Respondent No.1 Government of India also filed a counter- affidavit confirming that the State of Madhya Pradesh was free to recommend abolition of the Madhya Pradesh Administrative Tribunal . It was stated that the Central Government would examine the proposal of the State Government to abolish State Administrative Tribunal keeping in view several factors, such as, alternative forum proposed by the State Government for disposal of pending cases, compensation/rehabilitation of various functionaries of the Tribunal, etc. On interpretation of Section 74 of the Act of 2000, the Central Government stated that the State of Madhya Pradesh cannot of its own abolish State Administrative Tribunal which was set up by the Central Government under Section 4(2) of the Administrative Tribunals Act, 1985. According to the deponent, Section 74(1) of the Act of 2000 was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In the light of the said decision, notification, circular and order dated 25th July, 2001 were quashed by the Court. In the operative part of the judgment, the High Court issued following directions:- (i) The State Government of Madhya Pradesh is empowered under Section 74(1) of the M.P. Re-organisation Act to abolish the State Administrative Tribunal. (ii) No directions from the Central Government as envisaged under sub-section 4 of Section 74 of the Act of 2000 are necessary to take the above decision to abolish the Tribunal. (iii) After taking decision to abolish the State Administrative Tribunal, the State Government will have to make request to the Central Government to issue notification for abolish of the State Administrative Tribunal. (iv) The Central Government has no option but to accept the request received from the state Government to abolish the State Administrative Tribunal and accordingly issue a notification rescinding the earlier Notification establishing the same. (v) The sub-sections (2) and (3) of Section 74 of the M.P. Reorganisation Act are declared ultra vires. (vi) Since the notification (Annexure P-1) abolishing the State Administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further submitted that Section 74 of the Act of 2000 by which Parliament authorized the State Government to discontinue or abolish State Administrative Tribunal is ultra vires the Constitution as no such power could have been delegated to the State. It was also urged that the delegation of power to abolish State Administrative Tribunal conferred on the State Government by Parliament under the Act of 2000 is in the nature of excessive delegation and would be inconsistent with the provisions of the Constitution as also contrary to several decisions rendered by this Court wherein it has been observed that a competent legislature cannot delegate essential legislative function or legislative policy. The High Court, in the circumstances, ought to have declared sub-section (1) of Section 74 ultra vires. Alternatively, it was submitted that even if this Court holds that Parliament was competent to delegate its power to the State Government to discontinue the State Administrative Tribunal, the impugned action of the State of Madhya Pradesh is illegal, unlawful and mala fide. It was contended that the Tribunal has been abolished as, according to the Government, in many matters it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions cannot be compared. The learned counsel submitted that all these points have not been appreciated in their proper perspective by the High Court and the decision of the High Court suffers from non- application of mind and non-consideration of relevant aspects and needs interference. Other counsel appearing in the remaining matters supported Mr. Prashant Bhushan and adopted the arguments put forward by him. They also submitted that an attempt has been made by the State of Madhya Pradesh to interfere with judicial functioning of the Tribunal which is violative of the basic feature of the Constitution which protects and safeguards the independence of judiciary and such action deserves to be quashed and set aside by this Court. Mr. B. Datta, learned Additional Solicitor General for the Union of India has voiced grievance against some of the conclusions reached by the High Court, particularly, that the State of Madhya Pradesh has the authority to abolish the State Administrative Tribunal and if a request is made by the State Government to the Central Government to abolish the Tribunal, the latter has no option but to accept such request. The learned counsel appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal may not be taken to High Court, it cannot prevent the Council of Ministers to take an appropriate decision as to continuance or otherwise of the State Administrative Tribunal. It was a policy decision. The question is not of advisability or propriety of such decision, but legality and constitutionality thereof. If the decision is otherwise legal, valid and in accordance with law, it cannot be set aside. A court of law can interfere with such decision only if it is unconstitutional or without authority of law. It was submitted that even Parliament considered the fact that the Tribunal was established for adjudication of service disputes in the State of Madhya Pradesh and at the request of the State, such Tribunal was constituted. Hence, a provision was made in Section 74 of the Act enabling the State Governments to continue or not to continue such Tribunal. Such a provision cannot be termed arbitrary or unreasonable. There is no delegation of legislative power by Parliament on the State. Since, the State Government had requested the Central Government to constitute a Tribunal and a Tribunal had been constituted, Parliament thought it appropriate to authorize the State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Administrative Tribunals Act, 1985. It was also observed that sub-section (1) of Section 74 of the Act of 2000 opens with non obstante clause ( Notwithstanding anything contained in any other law for the time being in force ) and allows the States of Madhya Pradesh and Chhattisgarh to continue or to abolish Tribunals in the respective States. In this connection, it is also profitable to refer to Section 85 which declares that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law . Conjoint reading of Article 323A of the Constitution, Section 4 of the Administrative Tribunals Act 1985 and Sections 74(1) and 85 of the Act of 2000, in our considered opinion, leaves no room of doubt that Parliament authorized the State of Madhya Pradesh as well as the new State of Chhattisgarh to take an appropriate decision with regard to State Administrative Tribunals having jurisdiction over those States. Parliament empowered both the successor States to take an appropriate decision to continue such Tribunals, to abolish them or to constitute separate Tribunals. It cannot be said that by enacting such a provision, Parliament h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue such Tribunal and a provision by Parliament authorizing the State Government to abolish such Tribunal, by no stretch of imagination, can be held ultra vires the Constitution or inconsistent with the law laid down by this Court in L. Chandra Kumar. Under the Constitution of India, the power to legislate is with the Legislature. The said power of making laws, therefore, cannot be delegated by the Legislature to the Executive. In other words, a Legislature can neither create a parallel legislature nor destroy its legislative power. The essential legislative function must be retained by the Legislature itself. Such function consists of the determination of legislative policy and its formulation as a binding rule of conduct. But it is also equally well-settled that once the essential legislative function is performed by the Legislature and the policy has been laid down, it is always open to the Legislature to delegate to the Executive authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the legislation complete, effective and useful. Mr. Bhushan, learned counsel for the appellants invited our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia at any stage. In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but even in those case the suggestion that there was delegation of legislative functions has been repudiated. Similarly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legislation is equally upheld under all the Constitutions. In my opinion, therefore, the contention urged by the learned Attorney General that legislative power carries with it a general power to delegate legislative functions, so that the legislature may not define its policy at all and may lay down no rule of conduct but that whole thing may be left either to the executive authority or administrative or other body, is unsound and not supported by the authorities on which he relies. I do not think that apart from the sovereign character of the British Parliament which is established as a matter of convention and whose powers are also therefore absolute and unlimited in any legislature of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates its functions and sets up a parallel legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its power. In other words, there will be delegation in the strict sense if legislative power with all its attributes is transferred to another authority. But the Privy Council have repeatedly pointed out that when the legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legislature by which the subordinate authority was entrusted with the power to do the act. In some of the cases to which reference has been made, the Privy Council have referred to the nature and principles of legislation and pointed out the conditional legislation simply amounts to entrusting a limited discretionary authority to others, and that to seek the aid of subordinate agencies in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers from legal infirmity and deserves to be interfered with by holding sub-section (1) of Section 74 of the Act of 2000 ultra vires. The High Court, however, was not impressed by the argument. In the opinion of the High Court, sub-section (1) of Section 74 of the Act of 2000 was not in the nature of delegated legislation but was conditional legislation . Taking note of distinction between delegated legislation and conditional legislation, the High Court held that the power conferred by Parliament on the State Government to abolish Tribunal on fulfillment of conditions specified in sub-section (1) of Section 74 of the Act of 2000 could not be objected. We find no infirmity in the approach of the High Court. In Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671, speaking for the Constitution Bench, Kapur, J., said; The distinction between conditional legislation and delegated legislation is that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton Co. v. U.S., 276 US 394 : 72 L Ed 624 (1928) and the latter involves delegation of rule-making power which constitutionally may be exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of affairs then should require it. When such extension is decided by the Rajpramukh and notified, the law that will operate is the law which was enacted by the legislative authority in respect of place, person, laws, powers , and it is clearly conditional and not delegated legislation as laid down in The Queen v. Burah [(1878)) 5 I.A. 178], and must, in consequence, be held to be valid. Referring to Sardar Inder Singh and reiterating the principle laid down therein, this Court in State of T.N. represented by Secretary, Housing Department, Madras v. K. Sabanayagam Anr., (1998) 1 SCC 318, speaking through S.B. Majmudar, J., stated; It is thus obvious that in the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfillment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally therefore, it was on the request made by the State of Madhya Pradesh to the Central Government that the power to create and establish Administrative Tribunal in the State of Madhya Pradesh was exercised by the Central Government and the Tribunal was established. We, therefore, see no objection in conferring the power on the State Government to continue or to abolish such Tribunal. In our considered opinion, there is no excessive delegation by Parliament to the State Government which would be hit either by the provisions of the Constitution or the law laid down in In re: The Delhi Laws Act, 1912 or other decisions of this Court. The learned counsel for the appellants contended that for abolishing State Administrative Tribunal, the State of Madhya Pradesh took into account the report of the Arrears Committee (Malimath Committee). Even in the affidavit in reply, reliance was placed on the report of the said Committee. It was urged that this Court in L. Chandra Kumar did not fully endorse the views expressed by the Malimath Committee. Quoting certain recommendations on functioning of Tribunals , the Malimath Committee specifically recommended that the theory of alternative ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in L. Chandra Kumar v. Union of India (1995) 1 SCC 400 referred the matter to a Bench of seven Judges concluding that the decision rendered by five-Judge Constitution Bench in S.P. Sampath Kumar needs to be comprehensively reconsidered . It is also pertinent to note that seven-Judge Bench overruled S.P. Sampath Kumar and unanimously held that power, authority and jurisdiction of High Courts under Articles 226 and 227 cannot be taken away even by an amendment in the Constitution. Clause (d) of Article 323A (2) and Clause (d) of Article 323B (3) of the Constitution, therefore, were held ultra vires. The resultant effect of L. Chandra Kumar was that after an order is passed by State Administrative Tribunal, an aggrieved party could approach the High Court by invoking writ/supervisory jurisdiction under Article 226/227 of the Constitution of India. So much so that after the decision by the Administrative Tribunal, the aggrieved party was required to approach the High Court before approaching this Court under Article 136 of the Constitution. In this connection, it may be necessary to bear in mind the following observations in L. Chandra Kumar:-- We may add here that under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or unreasonable. From the correspondence between the State of Madhya Pradesh and Central Government as well as from the affidavit in reply, it is clear that the decision of this Court in L. Chandra Kumar had been considered by the State of Madhya Pradesh in arriving at a decision to abolish State Administrative Tribunal. Such a consideration, in our opinion, was relevant, germane and valid. It, therefore cannot be said that the decision was illegal, invalid or improper. It was also contended that there is interference with judicial functioning of the Tribunal by the Executive and such interference would be violative of basic structure of the Constitution and would result in death knell of Rule of Law. The counsel in this connection, placed reliance on a decision of this Court in P. Sambamurthy Others v. State of Andhra Pradesh and Another (1987) 1 SCC 362. In that case, vires of Clause (5) of Article 371D of the Constitution was challenged before this Court. Article 371D was inserted in the Constitution by the Constitution (32nd Amendment) Act, 1983. The said clause read as under:- 371D. Special provisions with respect to the State of Andhra Pradesh (5) The order of Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death-knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet to get away with it. The proviso to clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine . (emphasis supplied) In our considered opinion, P. Sambamurthy has no application to the facts of the case. In that case, the Executive (Government), a party to the proceeding was authorized to interfere with a decision rendered by a quasi-judicial authority (Tribunal). S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s envisaged in above sub-section (4) of Section 74. This sub-section does not contain any provision about the issuance of notification by the Central Government for the abolition of the Tribunal. An issuance of notification is a mandatory requirement as the Tribunal was established by a notification issued by the Central Government. The sub-section (4) of Section 74 of the Act of 2000 begins with a non-obstante clause which indicates that the provisions of this sub-section are independent. The provisions of sub-section (1) of Section 74 of the Act of 2000 are not subservient to the provisions of sub-section (4) of Section 74 of the Act of 2000. If it had been so, the words subject to the provisions of sub-section (4) would have been used in sub-section (1) of Section 74 of the Act of 2000. Moreover, above sub-section (4) provides that the Central Government shall issue directions for the resolution of any matter relating to any body referred to in sub-section (1) within any period referred to in sub- section (1) in accordance with any mutual agreement between the successor States or if there is no such agreement (emphasis supplied) after consultation with the Governments of succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cabinet Meeting of the State Government to abolish State Administrative Tribunal as the Chief Minister and all the Ministers were of the view that State Administrative Tribunal had granted stay in many transfer matters. The attempt on the part of the learned counsel for the appellants was that the action has been taken by the State of Madhya Pradesh because of adverse verdicts by the State Administrative Tribunal. In other words, according to the appellants, action of abolishing State Administrative Tribunal was taken because of judicial orders passed by the Tribunal which was not liked by the State Government. Such an action, submitted the learned counsel, cannot be sustained in law. Now, it may be stated that there is no concrete material on record to show that the decision to abolish State Administrative Tribunal was taken because of orders passed by the State Administrative Tribunal. Except bald assertions by the appellants and Press cuttings, there is nothing to substantiate such allegations. On the contrary, sufficient material is available on record to show what weighed with the respondent-State in taking a decision to abolish the Tribunal. So far as allegations by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat even on merits, the action of abolition of State Administrative Tribunal was unwarranted and uncalled for. For that, the counsel invited our attention to facts and figures and stated that it is not that all the cases decided by the State Administrative Tribunal reached the High Court of Madhya Pradesh. In most of the cases dealt with by the State Administrative Tribunal, the parties accepted the orders of the Tribunal. It is only in few cases that the aggrieved party public servant or government approached the High Court. It was also stated that no survey has been made by the State. No reasons have been recorded why continuance of Tribunal was not necessary. There was non-application of mind to this very important aspect and on that ground also, the action deserves to be set aside at least with a limited direction to the State to reconsider the matter and take an appropriate decision afresh keeping in mind all relevant factors. We are unable to uphold even this argument. In our judgment, if a decision is illegal, unconstitutional or ultra vires, it has to be set aside irrespective of laudable object behind it. But once we hold that it was within the power of the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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