Table of Contents

Table of Contents

1. Introduction

2. Evolution of Tribunal system in India

3. Administrative Tribunals Act, 19854. Types of administrative tribunals

5. Role of central administrative tribunal

6. Features of Tribunals in India

7. Judicial interpretation

8. Advantages and disadvantages of administrative tribunals

9. Tribunals and Natural Justice

10. Conclusion

INTRODUCTION

Welfare nature of government is the evolutionary goal of probably every kind of government these days in this contemporary world. There has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority. The development of welfarism led to an increase in governmental functions and the executive saw in this a need to perform a number of quasi- legislative and quasi- judicial functions, thus blurring the traditional positions of the various wings of the government under the doctrine of separation of powers, under which the powers of the government were divided between the legislature, executive and the judiciary which were to be entrusted with the power of making law, executing it and interpreting the law respectively.

But now these welfare states changed radically and involve itself in the hosting of wide socio-economic activities; for example: providing health services, education , industrial regulation and other allied welfare measures. Now where there is these kind of activities; disputes are certain and obvious. The issues which arose from disputes on such matters raised not only legal matters but also matters which affect the society at large. The constitution and function of our court system is very traditional as well as inefficient. The inherent procedural limitations made it difficult for the courts to dispose these cases promptly thus leading to a huge backlog of cases in all levels of the judiciary. Courts therefore became deluged with litigations arising directly and incidentally from such increased governmental interventions. It was also felt in many quarters that the members of the judiciary were neither adequately trained nor equipped to deal with the complex socio-economic and technical matters at hand.

Thus it was felt specialised adjudicatory bodies such as tribunals needed to be created to resolve such disputes fairly and effectively.

Tribunals are a Judgment seat; a court of justice; board or committee appointed to adjudicate on claims of a particular kind. A Tribunal, in the general sense of the word, is any person or institution with the authority to judge, adjudicate or determine claims. In the earlier times, the words Tribunal and Courts were inter-changeable. For the purpose of adjudication, a Tribunal could determine matters like a Court. Subsequently, usage of the word Tribunal was given a different connotation. The Courts had been constituted by virtue of promulgation of Civil Law and They were subjected to procedural laws and other statutes, with the aid of which, the Courts could come to conclusions for rendering Justice between the parties.

The word Tribunal found its connectivity to the word Tribune which found its roots in the word TRIHB Yoon name of a person, who was an official in ancient Rome. In the first instance, the Tribunal was understood as under;

Tribunal is a special Court convened by the government to enquire into specific matter and that it is not required to follow the principles of Law of Evidence but was required to follow only principles of Natural Justice instead. The Tribunals were formed as fact finding authority rendering suggestive conclusions based upon natural justice. With passage of time, the Government created Tribunals with jurisdiction and authority almost parallel to Courts, wherever it suited them.The essence of the meaning of the word tribunal which can be culled out from the various Supreme Court authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by the State and invested with judicial and quasijudicial functions as distinguished from administrative or executive functions.

Administrative tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process.

According to Servai, the development of administrative law in a welfare state has made administrative tribunals a necessity'. Administrative tribunals are authorities outside the ordinary court system, which interpret and apply the laws when acts of public administration are questioned in formal suits by the courts or by other established methods. They are not a court nor are they an executive body. Rather they are a mixture of both. They are judicial in the sense that the tribunals have to decide facts and apply them impartially, without considering executive policy. They are administrative because the reasons for preferring them to the ordinary courts of law are administrative reasons. The Supreme Court in Jaswant Sugar Mills v. Lakshmi Chand laid down the following characteristics or tests to determine whether an authority is a tribunal or not:

1. Power of adjudication must be derived from a statute or statutory rule.

2. It must possess the trappings of a court and thereby be vested with the power to summon witnesses, administer oath, compel production of evidence, etc.

3. Tribunals are not bound by strict rules of evidence.

4. They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy.

5. Tribunals are supposed to be independent and immune from any administrative interference in the discharge of their judicial functions.

EVOLUTION OF TRIBUNAL SYSTEM IN INDIA

In India, administrative adjudication increased after independence and several welfare laws were promulgated which vested the power on deciding various issues in the hands of the administration. The modern Indian Republic was born a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense. These quasi-judicial powers acquired by the administration led to a huge number of cases with respect to the manner in which these administrative bodies arrived at their decisions. The Courts held that these bodies must maintain procedural safeguards while arriving at their decisions and observe principles of natural justice-their opinions were substantiated by the 14th Law Commission Report. In order to avoid clogging the judicial machinery with cases which would have arisen by the operation of these new socio-economic legislations, a number of tribunals were established by the government. The tribunals were established with the object of providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare legislations. Another important reason for the new development is that law courts, on account of their elaborate procedures, legalistic fronts and attitudes can hardly render justice to the parties concerned, in technical cases. Ordinary judges, brought up in the traditions of law and jurisprudence, are not capable enough to understand technical problems, which crop up in the wake of modem complex economic and social processes. In India such tribunals were set up immediately after independence. In fact, the most important adjudicatory function is carried out by statutory tribunals created by the legislature to adjudicate upon certain disputes arising from administrative decisions or to determine issues judicially.The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the Companies Tribunal, various Compensation Tribunals, Revenue Courts of various States, etc., can be cited as examples of such tribunals.

Regarding the problem of backlog and delayed disposal of case the Government set up the Administrative Reforms Commission in 1967. It was to examine the problem, suggests solutions and also to recommend the suitable areas in which tribunals could be set up, according to this commission The reasons for the growth of administrative tribunals are as follows:

1) Inadequacy of the traditional judiciary to effectively decide administration-related matters especially when it came to technicalities.

2) The traditional judiciary was seen to be slow, costly and excessively procedural. The Commission also recommended the establishment of independent tribunals in the following areas:

a) Service matters and dispute of employees under the state

b) Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders under the Motor vehicles Act.

Period of emergency played a crucial role in the evolution of tribunals in India. There were clear signals that the executive did not want the judiciary to interfere with their developmental plans and other such decisions. Such as removing disputes regarding elections to the office of President, Prime Minister and Speaker of the Lok Sabha beyond judicial scrutiny. Hence in 1976 the issue was discussed at the Conference of Chief Secretaries and from amongst all these discussions and the reports of the various bodies stated above, Parliament enacted the 42ndConstitution (Amendment) Act, 1976 inserting Articles 323A and 323B which provided for the establishment of administrative and other tribunals to deal with the matters specifically provided for.The Statement of Objects and Reasons accompanying the Constitutional Amendment bill by which Article 323-A was sought to be inserted in the Constitution states the following words:

"To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters .... it is considered expedient to provide for administrative tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters mder Ai-ticle I36 of the Constitution. "The main distinction that can be made out between article 323A and 323B is that while 323A allows for the Parliament to by law provide for administrative tribunals to adjudicate disputes, 323B allows for the any appropriate legislature, to by law create an administrative tribunal for the adjudication of disputes.Distinction between Court and TribunalAn administrative tribunal is similar to a court in certain aspects. Both of them are constituted by the state, are invested with the judicial powers and have a permanent existence. Thus, they are adjudicating bodies. They deal with and finally decide disputes between parties that affect rights of subjects. As observed by the Supreme Court inAssociated Cement Companies Limited v. P.N. Sharma,the basic and the fundamental feature which is common to both the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign state.But at the same time, it must not be forgotten that an administrative tribunal is not court. The line of distinction between court and the tribunal in some cases is indeed fine though real. All courts are tribunals but the converse need not necessarily be true.

Tribunal possesses some of the trappings of a court, but not all, and therefore, both must be distinguished:A court of law is the part of the traditional judicial system. Where judicial powers are derived from the state and the body deals with Kings justice it is called a court. On the other hand, an administrative tribunal is an agency created by the statute and invested with judicial powers. Primarily and essentially, it is the part and parcel of the executive branch of the state, exercising executive as well as judicial functions. As Lord Greene said, administrative tribunals perform hybrid functions.

Where ordinary civil courts have judicial power try all suits of a civil nature, excepting those whose cognizance is either expressly on impliedly barred, tribunals have power try cases in special matters statutorily conferred.

The mere lack of general jurisdiction to try all cases of civil nature does not necessarily lead to an inference that the forum is a tribunal and not a court. A court can also be constituted with limited jurisdiction.

Judges of ordinary courts of law are independent of the executive in respect of the tenure, terms and conditions of service, etc. On the other hand, members of administrative tribunals entirely in the hands of the government in respect of those matters.

A court of law is generally presided over by an officer trained in law, but the president or a member of a tribunal may not be trained as well in law.

In a court of law, a judge must be an impartial arbiter and he cannot decide a matter in which he is interested. On the other hand, an administrative tribunal may be party to the dispute to be decided by it.

Court of law is bound by all the rules of evidence and procedure but an administrative tribunal is not bound by those rules unless the relevant statute imposes such an obligation.

A court must decide all the questions objectively on the basis of the evidence and materials produced before it, but an administrative Tribunal may decide the questions taking into account the departmental policy on expediency and in that sense the decision may be subjective rather than objective. The real distinction is that the courts have an air of detachment.

While precedents, principles of this res judicata and estoppel, bind a court of law an administrative tribunal is not strictly bound by them.

A court of law can decide the vires of legislation, while an administrative tribunal cannot do so.

Administrative Tribunals Act, 1985

In pursuance of Art 323-A Parliament has passed the Administrative Tribunals Act, 1985 covering all matters falling within the clause (1) of Article 323- A. This Act authorises central government to establish administrative tribunals for central services and on the application of States even for States services as well as for local bodies and other authorities including public corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art 136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals.

A tribunal shall consist of Chairman and such number of Vice-Chairmen and other members as appropriate Government may deem fit. They are appointed by the President in the case of Central tribunals and by the President in consultation with the Governors or Governors in case of State or joint Tribunals. The qualifications regarding that are laid down in the Act.The enactment of the Administrative Tribunals Act 1985 opened a new chapter in the sphere of administering justice to the aggrieved Government servants in service matters.

It was expected that a judicious mix of judicial members and those with grass-root experience would best serve this purpose. The Administrative Tribunals are distinguishable from the ordinary courts with regard to their jurisdiction and procedure. The exercise jurisdiction only in relation to the service matters of the litigants covered by the Act. They are also free from the shackles of many of the technicalities of the ordinary courts. The procedural simplicity of the Act can be appreciated from the fact that the aggrieved person can also appear before it personally. The Government can also present its case through its Departmental officers or legal practitioners. Thus became the Administrative Tribunals an effective and real substitute for the High Courts.Central Administrative Tribunal (CAT)

The enactment of Administrative Tribunals Act in 1985 opened a new chapter in administering justice to the aggrieved government servants. It owes its origin to Article 323 A of the Constitution which empowers the Central Government to set up by an Act of Parliament, the Administrative Tribunals for adjudication of disputes and complains with respective recruitment and conditions of service of persons appointed to the public services and posts in connection with the Union and the States.

The Tribunals enjoy the powers of the High Court in respect of service matters of the employees covered by the Act. They are not bound by the technicalities of the Code of Civil Procedure, but have to abide by the Principles of Natural Justice. They are distinguished from the ordinary courts with regard to their jurisdiction and procedures. This makes them free from the shackles of the ordinary courts and enables them to provide speedy and inexpensive justice.The provisions of the Administrative Tribunals Act, 1985 do not, however, apply to members of paramilitary forces, armed forces of the Union, officers or employees of the Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff of' State union Territory Legislatures.

The Act provides for the establishment of Central Administrative Tribunal and State Administrative Tribunals. The CAT was established in 1985. The Tribunal consists of a Chairman, Vice-Chairman and Members. These Members are drawn from the judicial as well as the administrative streams. The appeal against the decisions of the CAT lies with the Supreme Court of India.Establishment of Central Administrative TribunalThe Central Administrative Tribunal has been established for adjudication of disputes 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 other local authorities within the territory of India or under the control of Government of India and for matters connected therewith or incidental thereto.This Act authorizes central government to establish administrative tribunals for central services and on the application of States even for States services as well as for local bodies and other authorities including public corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art 136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals.

The Tribunal follows the principles of natural justice in deciding cases and the procedure, prescribed by Evidence Act or CPC does not apply. The Tribunal is also a specialized organization, which deals with only service matters in respect of the Central Government employees and other employees who have been notified. The original Applications in the Principal Bench are generally disposed of in four to six months, thus justifying the aim of the Legislature in setting up the Administrative Tribunals to provide a speedy, relatively inexpensive and efficacious remedy to the employees who feel aggrieved.

The Central Administrative Tribunal is empowered to prescribe its own rules of practice for discharging its functions subject to the Administrative Tribunals Act, 1985 and Rules made there under. For this purpose, the Central Administrative Tribunal Rules of Practice, 1993 have been notified. Similarly, for the purpose of laying down a common procedure for all Benches of the Tribunal, the Central Administrative Tribunal (Procedure) Rules, 1987 have been notified. Under Section 17 of the Administrative Tribunal Act, 1985, the Tribunal has been conferred the power to exercise the same jurisdiction and authority in respect of contempt of itself as a High Court.

The employees of the Central Administrative Tribunal are required to discharge their duties under the general superintendence of the Chairman. Salaries and allowances and conditions of service of the officers and other employees of the Tribunal are specified by the Central Government. The qualifications for appointment as Judicial Member are laid down in sub-section (3) of Section 6 of the Act. It lays down that a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be, a judge of a High Court; or has been a member of the Indian legal service and has held a post of Grade I of that service for at least three years.

For the appointment of an Administrative Member, it is necessary that he has for at least for two years held the post of an Additional Secretary to the Government of India, or any other post under the Central or State Government, carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or 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 State Government, carrying a pay scale which is not less than that of a Joint Secretary to the Government of India. In addition, he must have adequate administrative experience.The appointment of Chairman, Vice-Chairman and every other member of CAT is to be made by the President of India in consultation with the Chief Justice of India and the Governor of the concerned State.

Besides the establishment of Central and State administrative tribunals, the Act makes provision for the establishment of joint administrative tribunal for two or more States on the request of such States." Sub-section (5) of Section 4 inserted by the Administrative Tribunals (Amendment) Act, 1986 provides that the Central Government may designate all or any of the members of Bench or Benches of the State administrative tribunal as member of the Bench or Benches of CAT and vice versa.

Section 15 confers similar jurisdiction on State administrative tribunal. The language of Section 14(1) is wide enough to cover all service matters concerning the persons covered under the Act where the allegation is the violation of Article 311 or any service rule framed under Article 309 of the Constitution, including Articles 14 and 16.Therefore, even in cases of infringement of fundamental rights of the civil servants, the forum will be the tribunal. Thus, the tribunal has authority to decide the constitutionality of any statute, rule, regulation or notification.For this purpose, the tribunal can exercise all jurisdiction, power and authority exercisable by all courts, including the writ jurisdiction of High Courts under Article 226 of the Constitution.Ordinarily, the tribunal shall not admit an application unless the applicant has exhausted the remedy available under the service rules as given under Sec. 20. Sec. 21 provides for a period of limitation of one year is also provided for making an application from the date on which the final order was made by the government against the civil servant. Under Sec. 17 the tribunal has power to punish for its own contempt. As per Sec. 23, an applicant can even send an application through post and can plead the case with or without an advocate.

The Act provides for an informal and non-technical trial procedure. The tribunal is not bound by the technical rules of Civil Procedure Code,1908 (CPC), but is only required to act in conformity with the rules of natural justice. However, the tribunal shall have the powers of a civil court under the CPC in respect of matters specified in the Act, as given under Sec. 22.The decision of the tribunal shall be by majority, but if the members are equally divided the matter may be referred to the Chairman. Because the tribunal exercises the jurisdiction of the High Court, it can issue writs, but generally tribunals do not issue writs. Order passed by the tribunal shall be final and shall not be called in question in any court including High Court, except the Supreme Court by way of special leave petition under Article 136 of the Constitution, because an administrative tribunal set up under the Act is a substitute of and supplemental to the High Court in service matters.As a necessary consequence to this, the tribunals are not under the writ jurisdiction of the High Court and are not bound by their decisions; no matter they may have a persuasive value. The tribunal has inherited the jurisdiction of the High Court in service matter, therefore, in exercise of its power of judicial review, it cannot interfere with the penalty imposed by the disciplinary authority on the ground that it is disproportionate to the proved misconduct, if the findings as to misconduct are supported by legal evidence.

The Act does not provide for any appeal or review of the order of the tribunal except that a person aggrieved may file a special leave petition before the Supreme Court. However, after the decision of the Supreme Court in L. Chandra Kumar v. Union of India, service tribunals have been brought under the jurisdiction of High Courts and their decision now shall be appealable before the High Courts also.Under Section 15, an administrative tribunal has power to interfere with the findings of an inferior tribunal; however, such power is limited to cases where inferior tribunal has allowed inadmissible evidence, or has prevented evidence, or has based its conclusion on an erroneous view of law, or the conclusion reached is such which no reasonable man can draw on the existing material on record.

Customs and Excise Revenue Appellate Tribunal (CERAT)

The Parliament passed the CERAT Act in 1986. The Tribunal adjudicate disputes, Complaints or offences with regard to customs and excise revenue. Appeals from the, orders of the CERAT lies with the Supreme Court.Election Commission (EC)

The Election Commission is a tribunal for adjudication of matters pertaining to the allotment of election symbols to parties and similar other problems. The decision of the commission can be challenged in the Supreme Court.

Foreign Exchange Regulation Appellate Board (FERAB)

The Board has been set up under the Foreign Exchange Regulation Act, 1973. A person who is aggrieved by an order of adjudication for causing breach or committing offences under the Act can file an appeal before the FERAB.

Income Tax Appellate Tribunal

This tribunal has been constituted under the Income Tax Act, 196 1. The Tribunal has its benches in various cities and appeals can be filed before it by an aggrieved persons against the order passed by the Deputy Commissioner or Commissioner or Chief Commissioner or Director of I n c o m e Ta x . An appeal against the order of the Tribunal lies to the High Court. An appeal also lies to the Supreme Court if the High Court deems fit.Railway Rates Tribunal

This-Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters pertaining to the complaints against the railway administration. These may be related to the discriminatory or unreasonable rates, unfair charges or preferential treatment meted out by the railway 'administration. The appeal against the order of the Tribunal lies with the Supreme Court.Industrial Tribunal

This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted by' both the Central as well as State governments. The Tribunal looks into the dispute between the employers and the workers in matters relating to wages, the period and mode of payment, compensation and other allowances, hours of work, gratuity, retrenchment and closure of the establishment. The appeals against the decision of the Tribunal lie with the Supreme Court. Procedure Involved(i) A Tribunal is not barred by the provisions of the Evidence Act. In order to discover the truth, the Tribunal may resort to the inquisitional procedure, provided no principle of natural justice is violated.

(ii) Tribunals shall be guided solely by the principles of natural justice unfettered by anything in the CPC and shall have the power to regulate its own procedure.

(iii) A plea of violation of statutory provision can be taken before the Tribunal though not taken in the petition.

(iv) It is competent to execute its own order, though the A.T Act has no specific provision in this behalf.3. Disciplinary matters

The Tribunal is competent to go into the facts and set aside the order passed by a disciplinary authority-

Where the conclusion arrived at is arbitrary or perverse.

On the other hand, the Tribunal will not interfere

i. with the finding of facts of the enquiry officers where there was some evidence before him on the basis of which he could reasonably come to the conclusion that the charges against the petitioner were proved .

ii. with an order of rejection, by the Tribunal , of an application for reinstatement on the grounds of inordinate and unexplained delay.

iii. There has been some difference of opinion amongst the tribunals as to how far, if at all, they may interfere with the punishment awarded by a disciplinary authority.

Likewise, Administrative Tribunals can perform other functions of Punishment,

Compulsory retirement, Interlocutory matters etc.Judicial interpretation

As mentioned earlier, the Administrative Tribunals Act was passed in 1985 under article 323A and section 28 of this Act provided for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 136. This fuelled a sudden spurt in the number of cases that challenged the validity of the said legislation as well as that of the 42nd Amendment that introduced Articles 323A and 323B in to the constitution. Some of the prominent case in this regard is discussed below.

S.P.Sampath Kumar v. Union of India

This is the first and perhaps the most important case in this period that attracted judicial scrutiny in this area. The Constitution Bench in Sampath kumar was called upon to decide on the main issue whether Section 28 of the Act was unconstitutional as it excludes judicial review, which was contended as part of the basic structure of the constitution. Thee Supreme Court accepted without doubt that judicial; review is part of the basic structure. However the Court went on to observe that the creation of alternate institutional mechanisms which were as effective as the High Courts would not be violative of the basic structure. The administrative Tribunals under the Act were recognized as effective substitutes of the High Courts. This proved to be a shot in the arm of the proponents of tribunalisation. Sambamurthy v. State of Andhra Pradesh

It was held in this case that Article 371D (5) of the constitution, which was inserted by the Constitution (32nd Amendment) Act,1973, was unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to modify or nullify any order of the Administrative tribunal of that state. It was pointed out that such a provision was violative of the basic structure as it made the tribunal not as effective as the High Court when it comes to judicial review. Here the Court seems to be strictly adhering to the directive in Sampath Kumars case that the administrative tribunals should be effective substitutes to the High Court.

J.N.Chopra v. Union of India

It was held that since the Administrative tribunals are meant to be substitutes of High Courts, their power of judicial review extended to power as to decide on the constitutionality of service rules.

However, soon we see a reversal of trend leading to a lot of confusion. In M.B.Majumdar v. Union of India the Supreme Court refused to extend the service conditions and other benefits enjoyed by ordinary High Court judges to the members of these Tribunals. Three years later, in R.K.Jain v. Union of India, the Supreme Court opined that these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227.

We also find very clear expression of dissatisfaction of the apex court regarding the functioning and effectiveness of Administrative Tribunals especially with regard to their power of judicial review.Sakinala Harinath v. State of Andhra Pradesh

In this case, the Andhra Pradesh High Court dropped a bomb shell by expressing serious doubts about the wisdom of the learned Judges in Sampath Kumars case. The Full Bench ruled that the ruling in the above case equating Administrative Tribunals to the High courts with respect to their jurisdiction under Articles 226 and 227 was inconsistent with the apex courts ruling in cases like Kesavanda Bharati v. State of Kerala and Indira Gandhi v. Raj Narain. It was pointed out that the constitutional courts could only exercise the power of judicial review. Since the logic of alternative institutional mechanism propounded in Sampath Kumars case does not fit in to this scheme, it is constitutionally impermissible. As a result both Articles 323A(d) and section 28 of the Act were struck down as unconstitutional.

The confusion created by these conflicting decisions ushered in the need for taking a second look at S.P. Sampath Kumars case. This opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v. Union of India decided to refer the matter to a larger bench. This eventually led to the famous ruling of the Seven Judge Bench of the Supreme Court which is now the law of the land.L. Chandrakumars Case

The important issues considered by the apex court were as follows:

1. Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the power to the Union and State Legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under Art.136, is in accordance with the power of judicial review embodied in Art.32 and 226. 2. Whether the power of High Courts to exercise the powers of superintendence over the subordinate judiciary under Articles 226 and 227 form part of Basic Structure.

3. The competence of the aforesaid tribunals to determine the constitutionality of any law.

4. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in terms of efficiency.It was held that the power of judicial review over legislative and administrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciary is not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as effective substitutes to the higher judiciary in matters of constitutional interpretation and judicial review. Hence the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and administrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same.ADVANTAGES OF ADMINISTRATIVE TRIBUNAL

Administrative adjudication is a dynamic system of administration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the administrative tribunals are:

1) Flexibility

2) Adequate Justice

3) Less Expensive

4) Relief to Courts

DISADVANTAGES OF ADMINISTRATIVE TRIBUNALS

Even though administrative adjudication is essential and useful in modem day administration, we should not be blind to the defects from which it suffers or the dangers it poses to a democratic polity. Some of the main drawbacks are mentioned below.

(i) Administrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. But administrative tribunals, with their separate laws and procedures often made by themselves, puts a serious limitation upon the celebrated principles of Rule of Law.

(ii) Administrative tribunals have in most cases, no set procedures and sometimes they violate even the principles of natural justice.

(iii) Administrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions.

(iv) The civil and criminal courts have a uniform pattern of administering justice and centuries of experience in the administration of civil and criminal laws have borne testimony to the advantages of uniform procedure. A uniform code of procedure in administrative adjudication is not there.

(v) Administrative tribunals are manned by administrators and technical heads who may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge.

STATUS AND WORKING OF TRIBUNALS IN INDIA

Tribunals are essentially those bodies of the Executive branch of the government who by virtue of some statutory provision have the power and duty to act judicially in determining disputes which come before it. Tribunals as stated earlier are distinct from the ordinary courts of the land and as per Chandrakumars case they are not on par with the High Courts but serve a supplemental function to the High Courts. They are therefore subject to the writ jurisdiction of the superior judiciary and to the power of judicial review exercisable by the superior judiciary. In most of the tribunals appeals from their decisions lie in the High Court on substantial questions of law.

There are different types of tribunals in India, ranging from single member tribunals to multimember tribunals. While accepting the fact that such tribunals must work towards furthering social justice, it has been held in J&K Iron and Steel Co. v. Mazdoor Unionthat tribunal cannot act beyond the scope of the law. It can decide the dispute on the basis of the pleadings and has no power to reach a conclusion without any evidence on record. The tribunal is expected to hold the proceedings in public, follow fair procedure and decide disputes impartially and independently.TRIBUNALS AND NATURAL JUSTICE

Administrative tribunals must act openly, fairly and impartially. They must afford a reasonable opportunity to the parties to represent their case and adduce evidence. Thus, in State of U.P. v. Md. Nooh where the prosecutor was also an adjudcating officer and also in Dhakeshwari Millswhere the tribunal did not disclose some evidence to the assessee which was relied upon, the decisions were set aside.

In Union of India v. T.R. Verma the Supreme Court held the following to be part of natural justice:

a) Party must be able to adduce all evidence being relied upon.

b) Evidence must be taken in the presence of both parties.

c) Must be given opportunity to cross- examine.

d) And no material must be relied upon without giving the party opportunity to explain the evidence.

Tribunals are free to evolve their own method of procedure as long as they conform to the principles of natural justice as outlined above.Tribunals are also expected to give reasoned decisions so as to introduce clarity, reduce arbitrariness and reduce the scope of frivolous appeals. It also provides the supervisory authority the opportunity to keep tribunals within bounds.Madras bar association v. UOI (2014)

Madras Bar Association v. Union of India and Another

Details :

In the petitions before the Supreme Court, the constitutional validity of the National Tax Tribunal Act, 2005 (the Act for short) was challenged. In T.C. No. 150 of 2006, additionally there was challenge to S. 46 of the Constitution (Forty-second Amendment) Act, 1976 and Article 323B of the Constitution of India. It was contended that S. 46 of the Constitution (Forty-second Amendment) Act, isultra viresthe basic structure of the Constitution as it enables proliferation of Tribunal system and makes serious inroads into the independence of the judiciary by providing a parallel system of administration of justice, in which the executive has retained extensive control over matters such as appointment, jurisdiction, procedure, etc. It is contended that Article 323B violates the basic structure of the Constitution as it completely takes away the jurisdiction of the High Courts and vests it in the National Tax Tribunal, including trial of offences and adjudication of pure questions of law, which have always been in the exclusive domain of the judiciary.On January 21, 2009, when arguments in C.A. No. 3067 of 2004 and C.A. No. 3717 of 2005, which related to the challenge to Parts IB and IC of the Companies Act, 1956 were in progress before the Constitution Bench, it was submitted that these matters involved a similar issue and they could be tagged and disposed of in terms of the decision in those appeals. Therefore the Constitution Bench directed these cases to be listed with those appeals, even though there was no order of reference in these matters.

C.A. No. 3067 of 2004 and C.A. No. 3717 of 2005 were subsequently heard at length and were reserved for judgment. The matters which were tagged were also reserved for judgment.

While disposing of C.A. No. 3067 of 2004 and C.A. No. 3717 of 2005, the Supreme Court observed that insofar as the cases relating to the National Tax Tribunal were concerned, the T.C. (Civil) No. 150 of 2006 involved the challenge to Article 323B of the Constitution. The said Article enables appropriate Legislatures to provide by law, for adjudication of trial by Tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in clause (2) thereof. Sub-clause (i) of the clause (2) of Article 323B enables such Tribunals to try offences against laws with respect to any of the matters specified in clauses (a) to (h) of clause (2) of the said Article.

One of the contentions urged in support of the challenge to Article 323B related to the fact that the Tribunals do not follow the normal rules of evidence contained in the Evidence Act. In criminal trials, an accused is presumed to be innocent till proved guilty beyond reasonable doubt, and the Evidence Act plays an important role, as appreciation of evidence and consequential finds of facts are crucial. The trial would require experience and expertise in criminal law, which means that the judge or the adjudicator to be legally trained. The Tribunals which follow their own summary procedure, are not bound by the strict rules of evidence and the members will not be legally trained. Therefore it may lead to convictions of persons on evidence which is not sufficient in probative value or on the basis of inadmissible evidence. It was submitted that it would thus be a retrograde step for separation of executive from the judiciary.

The Supreme Court observed that the appeals on issues on law are traditionally heard by the Courts. Article 323B enables the Constitution of Tribunals which will be hearing appeals on pure questions of law which is the function of the Courts. In L. Chandra Kumar v. Union of India (1997) 3 SCC 261 it had considered the validity of only clause (3)(d) of Article 323B, but did not consider the validity of other provisions of Article 323B.

The Supreme Court noted that the appeals relating to constitutional validity of the National Company Law Tribunal under the Companies Act, 1956 did not involve the consideration of Article 323B. The constitutional issues raised in T.C. (Civil) No. 150 of 2006 were not touched as the power to establish company Tribunals was not traceable to Article 323B but to several entries of Lists I and III of the Seventh Schedule and consequently there was a challenge to this article.

The Supreme Court observed that the basis of attack in regard to Parts IB and IC of the Companies Act and the provisions of the NTT Act were completely different. The challenge to Parts IB and IC of the Companies Act, 1956 sought to derive support from Article 323B by contending that Article 323B was a bar for constitution of any Tribunal in respect of matters not enumerated therein. On the other hand the challenge to the NTT Act was based on the challenge to Article 323B itself.

The Supreme Court therefore was of the view that these petitions relating to the validity of the NTT Act and the challenge to Article 323B raised issues which did not arise in the two civil appeals. Therefore these cases could not be disposed of in terms of the decision in the civil appeals, but were required to be heard separately. The Supreme Court accordingly directed that these matters be delinked and listed separately for hearing.

In the NTT case, a five-judge Constitution Bench of the Supreme Court held that though constitutional conventions didn't debar Parliament from vesting judicial powers in tribunals, it should have the trappings of a court. Otherwise, the court said, it would be in violation of the basic structure of the Constitution. The court struck down the constitutionality of the NTT Act, on the grounds that the tribunal didn't have the salient characteristics of courts, which it sought to replace. The apex court said tribunals couldn't decide "questions of law", adding these could only be decided by constitutional courts. The petitioner in the NTT case and the NCLT case are same - the Madras Bar Association. And, the sections struck down by the apex court in the NTT case were similar to those in the case of the NCLT and the NCLAT, under the Companies Act, 2013, said Lalit Kumar, partner in law firm J Sagar Associates. "Since sections five, six, seven, eight and 13 were challenged and found unconstitutional in the NTT case, this could have a strong bearing on the pending petition against NCLT and NCLAT," he added Corporate lawyers say the Supreme Court (in the Union of India vs the Madras Bar Association) held the constitutional validity of the NCLT and the NCLAT, in an order in May 2010. It had suggested modifications in the constitution of these tribunals. Also, it didn't strike down the important sections or provisions applicable to setting up and functioning of the NCLT and the NCLAT.

Many important tribunals were, at some point, a matter of dispute before the Supreme Court.These include, the Debt Recovery Tribunal, the Administrative Tribunal, consumer courts, the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) The bone of contention in all these disputes was whether Parliament was constitutionally empowered to abrogate or divest the core judicial appellate functions traditionally vested with the courts (high courts and the Supreme Court) In all these cases, the issue was whether such judicial functions given to a tribunal did away with the basic structure enshrined in the Constitution. The cases were on the issues of separation of powers, the rule of law and judicial review

KEY CASES

Union of India vs Delhi High Court Bar Association (2002)

(The case questioned the constitutional validity of the Debt Recovery Tribunal)

State of Karnataka vs Vishwabharathi House Building Cooperative Society & Ors (2003) (The primary question was the constitutional validity of the Consumer Protection Act, 1986)

S P Sampath Vs Union of India (1987) (Challenged the constitutional validity of the Administrative Tribunals Act, 1985)

Union of India Vs Madras Bar Association (2010) (Questioned the constitutional validity of the NCLT and the NCLAT (national company law appellate tribunal)) final 2014

CONCLUSION

In view of the increasing role of administration in citizens' life, the administrative tribunals are expected to play an important role in the redressal of citizens' grievances.

They provide greater flexibility in administering justice and provide relief to the courts. But at the same time they suffer from some limitations

However, with certain safeguards it is possible to rectify some of these limitations. The administrative tribunals should have people with legal training and experience. A code of judicial procedures should be devised and enforced for their functioning.In practice there are a number of tribunals functioning in the country. Very few of them, however, have been able to inspire confidence in the public. The tribunals have shown a singular lack of competence and objectivity in determining disputes. Another reason for their failure is the constitution of the tribunals and the method of appointment of the personnel.

Tribunals are supposed to provide specialised adjudicatory services but the type of people appointed lack the requisite expertise and are on the tribunals merely because of political pressure and executive interference.

Another important measure which needs to be taken are steps to maintain the independence of the members of these tribunals from political or executive interference. Thus the overall picture regarding tribunalisation of justice in the country is far from satisfactory. A fresh look at the system of tribunals in India is required so as to ensure speedy justice and quick disposal of disputes arising out of administrative disputes which are essential for the development of the nation. Thakker, C.K., Administrative Law, Eastern Book Company : Lucknow, 1996, p.226.

AIR 1963 SC 677 at 687

Supra n.1 at p.66

323A. Administrative tribunals 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 Stat 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 other 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.

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 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.

Takwani,supranote 6, at 241.

J.B. Chopra V. Union of India, (1987) 1 SCC422 : AIR 1987 SC 357.

Massey,supranote 28, at 604.

Union of India v. Parma Nanda, (1989) 2 SCC177 : AIR 1989 SC 1185.

Supranote 26.

KendriyaVidyalayaSangthan v. Subhash Sharma, (2001) 10 SCC 517.

G Mohanti v. UOI ATR (1987) 1 CAT 229

Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998

AIR 1987 SC 386

During the pendency of the case, the Government gave an assurance to the Court that the Act would be amended so that the jurisdiction of the Supreme Court under Article 32 was not excluded. The Act was consequently amended after the decision.

(1987) I SCC 386

(1987) I SCC 422.

(1990) 4 SCC 501

(1993) 4 SCC 119

1993 (2) An. W.R.484 (FB)

(1973) 4 SCC 225

AIR 1975 SC 2291

AIR 1995 SC 1151

In terms of qualifications, mode of appointment, tenure, mode of removal, etc.

AIR 1956 SC 231

AIR 1958 SC 86

AIR 1955 SC154

AIR 1957 SC 882 at 885

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