Case Summary
| Citation | |
| Keywords | |
| Facts | |
| Issues | |
| Contentions | |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
- The special leave petitions, civil appeals and writ petitions which together constitute the
present batch of matters before us owe their origin to separate decisions of different High
Courts and several provisions in different enactments which have been made the subject of
challenge. Between them, they raise several distinct questions of law; they have, however
been grouped together as all of them involve the consideration of the following broad issues:
(1) Whether the power conferred upon Parliament or the State Legislatures, as the case may
be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of
Article 323B of the Constitution, totally exclude the jurisdiction of ‘all courts’, except that of
the Supreme Court under Article 136, in respect of disputes and complaints referred to in
Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2)
of Article 323B, runs counter to the power of judicial review conferred on the High Courts
under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the
Constitution, possess the competence to test the constitutional validity of a statutory
provision/rule?
(3) Whether these Tribunals, as they are functioning at present, can be said to be effective
substitutes for the High Courts in discharging the power of judicial review? If not, what are
the changes required to make them conform to their founding objectives? - Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd
Amendment) Act, 1976 with effect from March 1,1977. It comprises two provisions, Articles
323A and 323B, which have, for the sake of convenience, been fully extracted hereunder:
PART XIVA TRIBUNALS
323A. Administrative 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;
319
(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 causes 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.
323B. Tribunals for other matters.
(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 food-stuffs (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 right, 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–
320
(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. - In pursuance of the powder conferred upon it by Clause (1) of Article 323A of the
Constitution, Parliament enacted the Administrative Tribunals Act, 1985 (Act 13 of 1985)
[hereinafter referred to as “the Act”]. The Statement of Objects and Reasons of the Act
indicates that it was in the express terms of Article 323A of the Constitution and was being
enacted because a large number of cases relating to service matters were pending before
various Courts; it was expected that “the setting up of such Administrative Tribunals to deal
exclusively with service matters would go a long way in not only reducing the burden of the
various courts and thereby giving them more time to deal with other cases expeditiously but
would also provide to the persons covered by the Administrative Tribunals speedy relief in
respect of their grievances.” - Pursuant to the provisions of the Act, the Central Administrative Tribunal, with five
Benches, was established on November 1, 1985. However, even before the Tribunal had been
established, several writ petitions had been filed in various High Courts as well as this Court
challenging the constitutional validity of Article 323A of the Constitution as also the
provisions of the Act; the principal violation complained of being the exclusion of the
jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts
under Article 226 of the Constitution. Through an interim order dated October 31, 1985,
reported as S.P. Sampath Kumar v. Union of India (1985)4SCC458 , this Court directed the
carrying out of certain measures with a view to ensuring the functioning of the Tribunal along
constitutionally-sound principles. Pursuant to an undertaking given to this Court at the interim
321
stage by the erstwhile Attorney General, An amending Act (Act 19 of 1986) was enacted to
bring about the changes prescribed in the aforesaid interim order. - We may now analyse the scheme and the salient features of the Act as it stands at the
present time, inclusive as it is of the changes suggested in Sampath Kumar’s case. The Act
contains 37 Sections which are housed in five Chapters. Chapter I (“Preliminary”) contains
three Sections; Section 3 is the definition clause. - Chapter II (“Establishment of Tribunals and Benches thereof) contains Sections 4 – 13.
Section 4 empowers the Central Government to establish : (1) a Central Administrative
Tribunal with Benches at separate places; (2) an Administrative Tribunal for a State which
makes a request in this behalf; and (3) a Joint Administrative Tribunal for two or more States
which enter into an agreement for the purpose. Section 5 states that each Tribunal shall
consist of a chairman and such number of Vice-Chairmen and Judicial and Administrative
Members as may be deemed necessary by the appropriate Government. Sub-section (2) of
Section 5 requires every Bench to ordinarily consist of one Judicial Member and one
Administrative Member. Sub-section (6) of Section 5, which enables the Tribunal to function
through Single Member Benches is the focus of some controversy, as will subsequently
emerge, and is fully extracted as under:
Section 5(6) – Notwithstanding anything contained in the foregoing provisions of this section,
it shall be competent for the Chairman or any other Member authorised by the Chairman in
this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction
powers and authority of the Tribunal in respect of such classes of cases or such matters
pertaining to such classes of cases as the Chairman may by general or special order specify:
Provided that if at any stage of the hearing of any such case or matter it appears to the
Chairman or such Member that the case or matter is of such a nature that it ought to be heard
by a Bench consisting of two Members the case or matter may be transferred by the chairman
or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem
fit. - Section 6 deals with the qualifications of the personnel of the Tribunal. Since the first few
sub-sections of Section 6 are required to be considered subsequently, they may be reproduced
hereunder: - Qualifications for appointment of Chairman, Vice- Chairman or other Members. –
(1) A person shall not be qualified for appointment as the Chairman unless he-
(a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of Vice-Chairman;
(c) ………
(2) A person shall not be qualified for appointment as the Vice-Chairman unless he–
(a) is, or has been, or is qualified to be a Judge of a High Court; or
322
(b) has, for at least two years, held the post of a Secretary to the Government of India or any
other post under the Central or a State Government carrying a scale of pay which is not less
than that of a Secretary to the Government of India; or
(bb) has for at least five years, held the post of an Additional Secretary to the Government of
India or any other post under the Central or a State Government carrying a scale of pay which
is not less than that of an Additional Secretary to the Government of India; or
(c) has, for a period of not less than three years, held office as a Judicial Member or an
Administrative Member.
(3) A person shall not be qualified for appointment as a Judicial Member unless he–
(a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of that
Service for at least three years.
(3-A) A person shall not be qualified for appointment as an Administrative Member unless
he–
(a) has, for at least two years, held the post of an Additional Secretary to the Government of
India or any other post under the Central or a State Government carrying a scale of pay which
is not less than that of an Additional Secretary to the Government of India; or
(b) has, for at least three years, held the post of a joint Secretary to the Government of India
or any other post under the Central or a State Government carrying a scale of pay which is not
less than that of a Joint Secretary to the Government of India.
and shall, in either case, have adequate administrative experience. - Sub-sections (4), (5) and (6) of Section 6 provide that all the Members of the Central
Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative
Tribunals shall be appointed by the President; in the case of the State Administrative
Tribunals and the Joint Administrative Tribunals, the President is required to consult the
concerned Governor(s). Sub-section (7) stipulates that the Chief Justice of India is also to be
consulted in the appointment of the Chairman, Vice-Chairman and Members of all Tribunals
under the Act. - Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a
duration of five years from the date of entering into office; there is also provision for
reappointment for another term of five years. The maximum age limit permissible for the
Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 years.
Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are
to be determined by the central Government; such terms are, however, not to be varied to the
disadvantage of any Member after his appointment. - Chapter III (“Jurisdiction, powers and authority of Tribunals”) consists of Sections 14 –
- Sections 14, 15 and 16 deal with the jurisdiction, powers and authority of the Central
Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative
Tribunals respectively. These provisions make it clear that except for the jurisdiction of this
Court, the Tribunals under the Act will possess the jurisdiction and powers of every other
Court in the country in respect of all service-related matters. Section 17 provides that the
323
Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by
the High Courts. - Chapter IV (“Procedure”) comprises Section 19 – 27. Section 21 specifies strict limitation
periods and does not vest the Tribunals under the Act with the power to condone delay. - Chapter V (“Miscellaneous”), the final Chapter of the Act, comprising Sections 28 – 37,
vests the Tribunals under the Act with ancillary powers to aid them in the effective
adjudication of disputes. Section 28, the “exclusions of Jurisdiction” clause reads as follows: - Exclusion of Jurisdiction of courts.– On and from the date from which any jurisdiction,
powers and authority becomes exercisable 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 or 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 recruitment or such service matters. - A facet which is of vital relevance to the controversy before us, and consequently needs to
be emphasised, is that Section 28, when originally enacted, was in the express terms of Clause
(2) (d) of Article 323A of the Constitution and the only exception made in it was in respect of
the jurisdiction of this Court under Article 136 of the Constitution. However, before the final
hearing in Sampath Kumar’s case the provision was further amended to also save the
jurisdiction of this Court under Article 32 of the Constitution; this aspect has been noted in
the judgment of Mishra, J. in Sampath Kumar’s case (at para 14). Since the Court in Sampath
Kumar’s case had restricted its focus to the provisions of the Act, it expressed itself to be
satisfied with the position that the power of judicial review of the Apex Court had not been
tampered with by the provisions of the Act and did not venture to address the larger issue of
whether Clause (2)(d) of Article 323A of the Constitution also required a similar amendment. - Section 29 provides for the transfer to the Tribunals under the Act, of all service matters
pending in every existing form before their establishment. The only exception carved out is in
respect of appeals pending before High Courts. Section 35 vests the Central Government with
rule-making powers and Section 36 empowers the appropriate Government to make rules to
implement the provisions of the Act and the matters specified in it. By virtue of Section 37,
the rules made by the Central Government are required to be laid before Parliament and, in
the case of rules made by State Governments, before the concerned State Legislature (s).
324 - The Act and its provisions will be analysed in the course of this judgment. However, a
preliminary appraisal of the framework of the Act would indicate that it was intended to
provide a self- contained, almost wholly exclusive (the exceptions being specified in Section
28) forum for adjudication of all service related matters. The Tribunals created under the Act
were intended to perform a substitution role as opposed to – and this distinction is of crucial
significance-a supplemental role with regard to the High Courts. - In the years that have passed since the Report of the Malimath Committee was delivered,
the pendency in the High Courts has substantially increased and we are of the view that its
recommendation is not suited to our present context. That the various Tribunals have not
performed upto expectations is a self-evident and widely acknowledged truth. However, to
draw an inference that their unsatisfactory performance points to their being founded on a
fundamentally unsound principle would not be correct. The reasons for which the Tribunals
were constituted still persist; indeed, those reasons have become even more pronounced in
our times. We have already indicated that our constitutional scheme permits the setting up of
such Tribunals. However, drastic measures may have to be resorted to in order to elevate their
standards to ensure that they stand up to constitutional scrutiny in the discharge of the power
of judicial review conferred upon them. - 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 wholly 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 Courts 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. - 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
325
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’s case, 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 afore-stated contentions, we hold that all decisions of
Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will
be subject to the High Court’s 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. - 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. - Before moving on to other aspects, we may summarise our conclusions on 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 setup, 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 Courts. 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
326
of statutory legislations (except, as mentioned, where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. - 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 over-ruling so as not to
disturb the procedure in relation to decisions already rendered. - We are also required to address the issue of the competence of those who man the
Tribunals and the question of who is to exercise administrative supervision over them. It has
been urged that only those who have had judicial experience should be appointed to such
Tribunals. In the case of Administrative Tribunals, it has been pointed out that the
administrative members who have been appointed have little or no experience in adjudicating
such disputes; the Malimath Committee has noted that at times, IPS Officers have been
appointed to these Tribunals. It is stated that in the short tenures that these Administrative
Members are on the Tribunal, they are unable to attain enough experience in adjudication and
in cases where they do acquire the ability, it is invariably on the eve of the expiry of their
tenures. For these reasons, it has been urged that the appointment of Administrative Members
to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It
must be remembered that the setting-up of these Tribunals is founded on the premise that
specialist bodies comprising both trained administrators and those with judicial experience
would, by virtue of their specialised knowledge, be better equipped to dispense speedy and
efficient justice. It was expected that a judicious mix of judicial members and those with
grass-roots experience would best serve this purpose. To hold that the Tribunal should consist
only of judicial members would attack the primary basis of the theory pursuant to which they
have been constituted. Since the Selection Committee is now headed by a Judge of the
Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the
Committee would take care to ensure that administrative members are chosen from amongst
those who have some background to deal with such cases. - It has been brought to our notice that one reason why these Tribunals have been
functioning inefficiently is because there is no authority charged with supervising and
fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be
made subject to the supervisory jurisdiction of the High Courts within whose territorial
jurisdiction they fall. We are, however, of the view that this may not be the best way of
solving the problem. We do not think that our constitutional scheme requires that all
adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be
subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their
onerous burdens, then adding to their supervisory functions cannot, in any manner, be of
assistance to them. The situation at present is that different Tribunals constituted under
different enactments are administered by different administrative departments of the Central
and the State Governments. The problem is compounded by the fact that some Tribunals have
been created pursuant to Central Legislations and some others have been created by State
327
Legislations. However, even in the case of Tribunals created by Parliamentary legislations,
there is no uniformity in administration. We are of the view that, until a wholly independent
agency for the administration of all such Tribunals can be set-up, it is desirable that all such
Tribunals should be, as far as possible, under a single nodal Ministry which will be in a
position to oversee the working of these Tribunals. For a number of reasons that Ministry
should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to
appoint an independent supervisory body to oversee the working of the Tribunals. This will
ensure that if the President or Chairperson of the Tribunal is for some reason unable to take
sufficient interest in the working of the Tribunal, the entire system will not languish and the
ultimate consumer of justice will not suffer. The creation of a single umbrella organisation
will, in our view, remove many of the ills of the present system. If the need arises, there can
be separate umbrella organisations at the Central and the State levels. Such a supervisory
authority must try to ensure that the independence of the members of all such Tribunals is
maintained. To that extent, the procedure for the selection of the members of the Tribunals,
the manner in which funds are allocated for the functioning of the Tribunals and all other
consequential details will have to be clearly spelt out. - The suggestions that we have made in respect of appointments to Tribunals and the
supervision of their administrative function need to be considered in detail by those entrusted
with the duty of formulating the policy in this respect. That body will also have to take into
consideration the comments of experts bodies like the LCI and the Malimath Committee in
this regard. We, therefore, recommend that the Union of India initiate action in this behalf and
after consulting all concerned, place all these Tribunals under one single nodal department,
preferably the Legal Department. - Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act
at length, we may no pronounce our opinion on this aspect. Though the vires of the provision
was not in question in Dr. Mahabal Ram’s case, we a believe that the approach adopted in that
case, the relevant portion of which has been extracted in the first part of this judgment, is
correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate
together. We wish to make it clear that where a question involving the interpretation of a
statutory provision or rule in relation to the Constitution arises for the consideration of a
single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will
automatically apply and the Chairman or the Member concerned shall refer the matter to a
Bench consisting of at least two Members, one of whom must be a Judicial Member. This will
ensure that questions involving the vires of a statutory provision or rule will never arise for
adjudication before a single Member Bench or a Bench which does not consist of a Judicial
Member. So construed, Section 5(6) will no longer be susceptible to charges of
unconstitutionality.
