FUCTIONING OF ADMINISTRATIVE TRIBUNALS

CONSTITUTION AND FUCTIONING OF ADMINISTRATIVE TRIBUNALS    - AN OVER VEIW

By Dr. T Padma., LLM., Ph D

kethepadma@gmail.com

     

Background

For a long time a search was going on for a mechanism to relieve the courts, including High Courts and the Supreme Court, from the burden of service litigation which formed a substantial portion of pending litigation. This problem engaged the attention of the Law Commission which recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters.

The idea of setting up service tribunals also found favour with the Supreme Court of India which in K.K. Dutta v. Union of India[1] advocated for setting up of service tribunals to save the courts from avalanche of writ petitions and appeals in service matters. In the meantime various States had established their own service tribunals.

The Parliament passed constitution (Forty-second Amendment) Act, 1976 which added part XIV-A in the Constitution. Articles 323-A and 323-B enabled Parliament to constitute administrative tribunals for dealing with certain matters specified therein. Article 323-A provided that 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 Government of India or of any corporation owned or controlled by the government. Parliament was further empowered of such tribunals and also to exclude the jurisdiction of all courts except that of the Supreme Court under Article 136. Empowered by these enabling provisions of the Constitution Parliament enacted Administrative Tribunals Act, 1985 for the establishment of administrative service tribunals for deciding service disputes of civil servants of the Centre as well as of the States which was amended in 1986.

Section 4(1) of the Act provides for the establishment of Central Administration Tribunals. It also empowers the Central Government to establish an administrative tribunal for any State on receipt of such a request to establish an administrative tribunal for any State by the State Government. Section 5 provides for the composition of tribunals and benches thereof. According to sub-section (i) of section 5 each tribunal shall consist of a Chairman and such number of Vice-Chairman and other members as the appropriate government may deem fit. Section 5(2) further provides that bench shall consist of one judicial member and an administrative member.

Section 14 of the Act confers jurisdiction, powers and authority on the Central Administrative Tribunal in relation to recruitment, matters concerning recruitment and all service matters of Central civil servants.

Working of the Administrative Service Tribunals

Service Tribunals started functioning in November 1985, and since then 25 years have passed which is a sufficient period for any meaningful evaluation of system.

At present there are two categories of service tribunals, one constituted by the States under their own legislation and the other constituted under the Central legislation, Administrative Tribunals Act, 1985. There was a third category also in which a service tribunal had been established in Andhra Pradesh through the amendment of the Constitution in 1976 which was abolished in 1989, while the States of Uttar Pradesh, Rajasthan, Gujarat and Assam have established service tribunals under their own laws. The State of Orissa, Himachal Pradesh, Karnataka, Madhya Pradesh, Tamil Nadu and Maharashtra have established tribunals for their employees under the Central legislation. A central Administrative Tribunal (CAT) has also been established for Central Government employees. This Tribunal works in eighteen places through its benches. Besides these, Circuit benches are also held at other places particularly where the seat of High Court is located.  

Constitutional validity

Constitutional validity of the Administrative Tribunals Act, 1985 was challenged before the Supreme Court in S.P. Sampath v. union of India[2] on the ground that the exclusion of judicial review of the High Court violated the basic structure of the Constitution. Negativating the contention the court held that no matter the judicial review which is the basic feature of Parliament to amend the Constitution so as to substitute in place of High Court another alternative mechanism of judicial review provided it is not less efficacious than the High Court.

The whole question of constitutionality of the Administrative Service Tribunals Act, 1985 once again came under the scrutiny of the Apex Court in the pace-setting case of    L. Chandra Kumar v. Union of India[3]. The court in this case held that Sampat Kumar was decided against the background that the litigation before the high courts had exploded in an unprecedented manner and therefore, alternative inquisitional mechanism was necessary to remedy the situation. But it is self-evident and widely acknowledged truth that tribunals have not performed well, hence drastic measures were necessary in order to elevate their standard by ensuring that they stand up to constitutional scrutiny. Court further held that because the constitutional safeguards which ensure the independence of the judge of the Supreme Court and the High Courts are not available to the members of the tribunals, hence, they cannot be considered full and effective substitute for the superior judiciary in discharging the function of constitutional interpretation. Against this backdrop the court came to the conclusion that Administrative Tribunals cannot perform a substitutional role to the High Court, it can only be supplemental. Therefore, clause 2(d) of Article 323-A and clause 3(d) of Article 323 –B of the constitution, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226, 227 and 32 of the Constitution were held unconstitutional and for the same reason Section 28 of the Administrative Tribunals Act, 1985 which contains “exclusion of jurisdiction” clause was also held unconstitutional.

It was further observed by the court that the power of judicial review of the constitutional Courts is a part of the inviolable basic structure of the Constitution which cannot be ousted. However, service continue to be the courts of first instance in service matters and no writ can be directly filed in the writ courts on matters within the jurisdiction of tribunals. Though the two judge bench, one of whom must be a judicial member, of the tribunal can determine the constitutionality of any statutory provision yet it cannot determine the constitutionality of Administrative Tribunal Act, 1985. But the exercise of this power shall be subject to the scrutiny by the Division Bench of the High Court within whose jurisdiction the Tribunal is situated. By bringing back the Tribunal within the jurisdiction of the High Courts the courts served two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication by 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. In view of this decision the existing provision of direct appeals to the Supreme Court under Article 136 of the Constitution also stands modified. Now the aggrieved party will be entitled to move the High Court and from the decision of the Division Bench of the High Court he can move the Supreme Court under Article 136 of the Constitution. The court saved the constitutionality of Section 5(b) by providing that whenever a question involving the constitutionality of any provision arises it shall be referred to a two-member Bench, one of whom must be a judicial member.

Conclusion

The Law Commission of India while forwarding its 215th Report stated that “The Administrative Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service matters. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136”.

The Law Commission is also of the view and recommended that L. Chandra Kumar’s case needs to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected in the Act in accordance with law.  In light of the above, the policy makers have to take the stock of the situation in this respect and take appropriate steps regarding the review of the cases by the High Courts originated from the tribunals like National Company Law Tribunal (NCLT), National Tax Tribunal (NTT), National Green Tribunal (NGT) etc., leave alone Central Administrative Tribunal (CAT), to address the Gigantic problem of pendency of cases across the country, in the larger interest of the public.

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         [Published in Supreme Court Journal  / Weekly

July, 2011; Part – 28

&

         Published in Andhra Law Times / Fortnightly

August, 2011; PART-15]

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[1]  K.K. Dutta v. Union of India (1980)4 SCC 38: AIR 1980 SC 2056.

[2]  S.P. Sampath v. union of India., (1987)1 SCC 124.

[3]  L. Chandra Kumar v. Union of India(1977)3 SCC 261.