The Union Government in the exercise of the powers conferred to it by Section 18(1) of the Administrative Tribunals Act, 1985 (13 of 1985), has made an amendment in the erstwhile Ministry of Training, Administrative reforms and Public Grievances and Pensions vide number GSR 610 (E) of July 26, 1985, according to a notification issued by the Ministry of Personal, Public Grievances and Pensions, Department of Personal and Training. Through this, the Government of India has shifted all service matters pertaining to the employees of Union Territories of Jammu and Kashmir and Ladakh to the Chandigarh Bench of the Central Administrative Tribunal (CAT).
The Parliament of India and State Legislatures have the power to create Tribunals of any kind including tribunal for service matters, army matters and other matters under Article 323(A) and 323(B) of the constitution respectively. However, due to the special status granted to Jammu and Kashmir under Article 370(1), these articles were not applicable to the erstwhile state of Jammu and Kashmir. Thus, neither the central tribunal had the powers to decide service matters of Jammu and Kashmir employees and officials, nor the erstwhile State tried to create tribunals. This left Jammu and Kashmir High Court with the sole jurisdiction to deal with all the service matters pertaining to the employees of Union Territories of Jammu and Kashmir and Ladakh, whereas service matters pertaining to central employees fell under the jurisdiction of the CAT Bench.
However, with the abrogation of the Special Status granted to Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272, issued by the President of India on August 5, 2019, all provisions of the Constitution are applicable on Jammu and Kashmir and Ladakh. This has allowed the central government to issue the notification shifting all service matters pertaining to the employees of Union Territories of Jammu and Kashmir and Ladakh to the Chandigarh CAT Bench.
In accordance with the provisions of the Special Tribunal Act, 40,000 service matters cases, except corporate matters, company matters or army matters will now be transferred to the CAT bench. These include 26,000 cases from the Jammu wing and more than 15,000 cases from the Srinagar Wing of the High Court.
Section 18(1) of the Administrative Tribunals Act, 1985 18. Distribution of business amongst the Benches. — 2 (1) Where any Benches of a Tribunal are constituted, the appropriate Government may, from time to time, by notification, make provisions as to the distribution of the business of the Tribunal amongst the Benches and specify the matters which may be dealt with by each Bench.
Article 323A of The Constitution of India, 1949
(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 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.
Article 323B in The Constitution of India, 1949
(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) offences against laws with respect to any of the matters specified in sub clause (a) to (g) and fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub clause (a) to (h)
The decision of the Union Government was opposed by several lawyers, the J&K Apni Party (JKAP) and the National Conference (NC). It will not only adversely impact the advocates of the Union Territory, but also the service employees. Shifting of the 40,000 cases will result in many people opting for advocates from Chandigarh for arguing the case, thus causing a loss of employment opportunities for the advocates of Jammu and Kashmir and Ladakh.
Furthermore, it makes the delivery of justice tedious and costly. According to JKAP president, Syed Mohammad Altaf Bukhari, the decision deprived the employees of speedier and cost effective justice delivery and denied these rights to the job aspirants who would approach the judicial system to ensure fairness and remove anomalies in recruitment processes. Additionally, a NC spokesman said in a statement, “The new mechanism will serve as a deterrent to the 4 aggrieved employees seeking redress in service matters in future as well. The cumbersome process and hearing far away in Chandigarh will prove a demoralising factor for the employees.” The party has urged the government to roll back the order.
While the decision relieves the burden on the Jammu and Kashmir High Court, it acts as an obstacle on the path of delivery of justice for those whom the system has to protect. These are the people of Jammu and Kashmir who can neither bear the travel costs, nor take out time for long, tedious hearings in a faraway court. The answer rather lies in the establishment of two separate tribunals, one in Jammu and the other in Srinagar, for the aggrieved employees of J&K. This shifting of service matters to CAT, Chandigarh, is nothing short of a travesty of justice.
This post is written by Soumya Nayyar.
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