The 42nd Amendment Act introduces an innovation in the Constitution in the form of new articles 323A and 323B. It provides that Parliament may establish tribunals for adjudication of disputes concerning recruitment and conditions of service of persons appointment to public service under Central, State or any local or other authority, or a corporation owned or controlled by Government. The law made by Parliament for the purpose may specify the jurisdiction and procedure of these tribunals and exclude the jurisdiction of all courts, except that of the Supreme Court under article 136, with respect to the service matters falling within the purview of these tribunals.
(1) Parliament may, by law, provide for the adjudication or trial by 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 of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may-
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the cause of action on which such suits or proceedings are based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
The jurisdiction for article 323A lay in the fact that massive case-law was being generated in the country in relation to service matter and too much time of the courts, especially of the High Courts, was being consumed on this type of litigation. Article 323A seeks to relieve the High Courts which used to take cognizance of service matters under article 226.
Article 323A is an enabling provision. Its scope is very wide and is synonymous with article 309. The expression "conditions of service" used in article 323A also occurs in article 309 and means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in such matters as pension etc., and includes matters of dismissal or termination of the Service of Government servants. Therefore, the tribunals can be endowed with comprehensive jurisdiction in relation to service matters.
Union of India v. Deep Chand Pandey, MANU/SC/0088/1993 : (1992) 4 SCC 432: AIR 1993 SC 382: 1992 AIR SCW 3429: JT 1992 (5) SC 276: 1993 SCC (LandS) 21: 1992 (3) SCJ 229: (1992) 4 SCR 49: 1992 (2) UJ (SC) 714. The question was whether the Central Administrative Tribunal (CAT) has jurisdiction to decide the claims of respondents who were engaged only on casual basis at the office of Central Railway whose services were wrongly terminated. The court held that the scope of article 323A is very wide and by enacting 1985 Act this power has been exercised in almost full measures.
(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely:-
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;
(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters;
(j) any matter incidental to any of the matters specified in sub-clauses (a) to (i).
(3) A law made under clause (1) may-
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Explanation.-In this article, "appropriate Legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI.
L. Chandra Kumar v. Union of India, MANU/SC/0261/1997 : AIR 1997 SC 1125: 1997 AIR SCW 1345: JT 1997 (3) SC 589: MANU/SC/0261/1997 : (1997) 3 SCC 261: (1997) 3 SCALE 40: 1998 (2) Serv LJ 124 SC: 1997 (3) Supreme 147. The Supreme Court held that judicial review is the part of basic structure of the Constitution, the court declared clause 2(d) of article 323A and clause 3(d) of article 323B to the extent they exclude the jurisdiction of the High Courts under articles 226, 227 and of the Supreme Court under article 32, unconstitutional. Therefore, the judicial remedies under articles 32, 226 and 227 are now available against the decisions of all tribunals constituted under articles 323A and 323B. The remaining provisions of articles 323A and 323B are valid and operative.
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