Tribunalisation of justice in India’s competition regime

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This article is written by Dinesh Singh Chauhan, Advocate J&K High Court of Judicature, Jammu.

Historical background of establishment of Central Administrative Tribunal 

The Tribunals in India have a very engaging history, dating back to the year 1941, when the first Tribunal in the form of the Income Tax Appellate Tribunal, was established. After independence 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. As early as 1958, 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.3 In 1969, Administrative Reforms Commission also recommended for the establishment of civil service tribunals, both for the Central and State civil servants. The Central Government appointed a Committee under the Chairmanship of J. C. Shah, of the Supreme Court of India in 1969, which also made similar recommendations. In 1975, Swaran Singh Committee again recommended the setting up of Service Tribunals.

The idea of setting up Service Tribunals also found favour with the Supreme Court, which in [Kamala Kanti Dutta Vs Union of India;]  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. It was against this backdrop that Parliament passed the 42nd Amendment, which added Part XIV-A in the Constitution of India. Articles 323-A and 323-B of Constitution of India enabled Parliament to constitute Administrative Tribunals for dealing with certain matters specified therein. The Enactment of Administrative Tribunals Act in 1985 opened a new chapter in administering Justice to the aggrieved Government servants in Service Matters.

Article 323-A of Constitution of India 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 services 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 authorities within the territory of India or under the control of the Government of India, or of any Corporation owned or controlled by the Government. Parliament passed a law to establish Administrative Tribunals in India. Parliament was further empowered to prescribe by law the jurisdiction, power, authority and procedure of such tribunals and also to exclude the jurisdiction of all Courts except that of the Supreme Court under Article 136 of Constitution of India.

Empowered by these enabling provisions of the Constitution of India, 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. Thus the enactment of Administrative Tribunals Act, 1985 opened a new chapter in administering justice to the aggrieved Government servants. It owes its origin to Article 323-A of the Constitution of India which empowers the Central Government to set up by an Act of Parliament, the Administrative Tribunals for adjudication of disputes and complaints with respective recruitment and conditions of services of persons appointed to the Public Services and Posts in connection with the Union and the States. The Act visualizes a Central Administrative Tribunal [CAT] for the Centre and State Administrative Tribunal for a particular State.

Meaning and definition 

Tribunals can be called as ― Judgment Seat or Court of Justice or Board or Committee appointed to adjudicate on claims of a particular kind. Meaning of the Tribunal can be gathered from the various Supreme Court authorities. Therefore, they are adjudicatory bodies (except ordinary Courts of Law) constituted by the State and entrusted with Judicial and Quasi-Judicial functions as distinguished from administrative or executive functions.

The Central Administrative Tribunal had been established under Article 323-A of the Constitution of India for adjudication 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 other authorities under the control of the Government. In the statement of object and reasons on the introduction of the Administrative Tribunals Act, 1985 it was mentioned: 

“It is 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.”

Initially the decision of the Tribunal could be challenged before the Hon’ble Supreme Court by filing a Special Leave Petition. However, after the Supreme Court’s decision in L. In Chandra Kumar’s case, the orders of the Central Administrative Tribunal are now being challenged by way of Writ Petition under Article 226/227 of the Constitution before respective High Court in whose territorial jurisdiction the Bench of the Tribunal is situated.

Characteristics of administrative tribunals

The following are the few attributes of the Administrative Tribunals which make them quite disparate from the ordinary Courts:

  1. Administrative Tribunals must have statutory origin i.e. they must be created by statute.
  2. They must have some features of the ordinary Courts but not all.
  3. An Administrative Tribunal performs the Quasi-Judicial and Judicial functions and is bound to act Judicially in every circumstance.
  4. They are not adhered by strict rules of evidence and procedure.
  5. Administrative Tribunals are independent and not subject to any administrative interference in the discharge of Judicial or Quasi-Judicial functions.
  6. In the procedural matters, an Administrative Tribunal possesses the powers of a Court to summon witnesses, to administer oaths and to compel the production of documents, etc.
  7. These Tribunals are bound to abide by the principle of natural justice.
  8. A fair, open and impartial act is the indispensable requisite of the Administrative Tribunals.
  9. The prerogative Writs of Certiorari and Prohibition are available against the decisions of Administrative Tribunals.
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Categories of administrative tribunals

Administrative Tribunals for service matter [Article 323-A] Article 323-A of Constitution of India provides the establishment of Administrative Tribunals by law made by Parliament for the adjudication of disputes and complaints related to the recruitment and conditions of service of Government servants under the Central Government and the State Government. It includes the employees of any local or other authority within the territory of India or under the control of the Government of India or of a Corporation owned or controlled by the Government.

The establishment of such Tribunals must be at the Centre and State level separately for each State or for two or more States. The law must incorporate the provisions for the jurisdiction, power and authority to be exercised by Tribunals; the procedure to be followed by Tribunals; the exclusion of the jurisdiction of all other Courts except the Supreme Court of India. It is a Quasi-Judicial authority set up exclusively by the Parliament to provide inexpensive and speedy relief to the litigants.

Tribunals for other matters [Article 323-B]

Article 323-B of Constitution of India empowers the Parliament and the State Legislature to establish Tribunals for the adjudication of any dispute or complaint with respect to the matters specified under clause (2) of Article 323-B of Constitution of India. Some of the matters given under clause (2) are a levy, assessment, collection and enforcement of any tax; foreign exchange and export; industrial and labour disputes; production, procurement, supply and distribution of foodstuffs; rent and it’s regulation and control and tenancy issues etc. Such a law must define the jurisdiction, powers of such Tribunals and lays down the procedure to be followed.

Set up for adjudication or trial of any disputes, complaints or offences related to levy, assessment, collection and enforcement of any tax, foreign exchange, import and export across custom frontiers, industrial and labour disputes, land reforms by way of acquisition by the State of any estate as defined in Article 31-A 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, ceiling on agricultural land, ceiling on urban property, elections to either House of Parliament or the House or either House of the Legislature of a State, 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, 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.

It provides for the establishment of a hierarchy of tribunals and specifies the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals; 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. It is set up under the joint powers of the Parliament and the State Legislature based on the request put up by the respective States related to Environment, Illegal Migrants, Armed Forces, National Tax etc. governed under Special Acts.

In the landmark Judgment of [“L. Chandra Kumar Vs Union of India”, 1997 (2) SCR 1186], the Supreme Court reached various conclusions as to jurisdictional powers of the Tribunal constituted under Articles 323-A and 323-B of Constitution of  India. The Supreme Court struck down clause 2 (d) of Article 323-A and clause 3 (d) of Article 323-B on the ground that they excluded the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 respectively.

The Supreme Court ruled that the Tribunals created under Article 323-A and 323-B of Constitution of India would continue to be the Courts of the first instance in their respective areas for which they are constituted. The litigants are not allowed to approach the High Courts’ directly by overlooking the jurisdiction of the concerned Tribunal.

No appeal for the decision of the Tribunal would lie directly before the Supreme Court under Article 136 of Constitution of India but instead, the aggrieved party would be entitled to move the High Court under Article 226 and 227 and after the decision of the Division Bench of the High Court, the party may approach the Apex Court under Article 136 of Constitution of India .

Similarities in scope and purport of Articles 323-A & 323-B of Constitution of India 

The scope and purport of the two articles, which are common, are: 

(1) The legislature is empowered to enact a law providing for establishment of Tribunals for the adjudication of disputes between the State and the individual relating to certain specified matters and also to specify the jurisdiction and powers of such Tribunals. 

(2) The legislature can also prescribe the procedure to be followed by such Tribunals including the period of limitation for institution of Tribunals and the rules of evidence. 

(3) The Law also provides for the transfer of cases pending before any Court or other authority except the Supreme Court at the time of establishment of each Tribunal, to such Tribunal. 

(4) Such law could exclude the jurisdiction of all Courts except that of the Supreme Court under Article 136 of the Constitution of India in respect of such specified matters. 

(5) Such law could also confer on the Tribunal the power to punish for their contempt. 

(6) The provisions of both the Articles have an overriding effect on other provisions of the Constitution of India or any other law in force. 

Distinction between Articles 323-A and 323-B of Constitution of India 

Article 323-A of Constitution of India enables only Parliament to enact a law for the establishment of Administrative Tribunals for deciding disputes and complaints of Public Servants in respect of service matters of the Union and of the States. Only one Tribunal for the Union and a separate Tribunal for each State or for two or more States could be constituted by law made in pursuance of Article 323-A of Constitution of India, whereas under Article 323-B of Constitution of India, the Tribunals could be constituted in respect of any of the matters specified in clause (2) thereof. The power to enact the law under this Article is vested in the appropriate State legislature, i.e. either Parliament or State legislature, according to their respective legislative competence over each of the subjects specified in the Article. 

To put in a nutshell, these two Articles provide for conferment of jurisdiction and power of Judicial review of administrative action, vested in the High Courts’ under Article 226 of Constitution of India, on the Tribunals concerned in respect of matters which fall within their respective jurisdiction and to exclude the jurisdiction of the High Courts in respect of those matters so that the parties aggrieved by the decisions of the Tribunal could only approach the Supreme Court under Article 136 of the Constitution of India. The object and purpose of the Articles is speedy disposal of cases falling under those categories.

Objective for the establishment of administrative tribunals

  1. To provide for a forum to deal exclusively with service matters which offloaded the burden of the cases of High Court from their jurisdiction; 
  2. To provide inexpensive and speedy relief to Government servants in service matters; 
  3. To provide special powers to the Tribunals to make their own special powers and procedures and not be guided by the Civil Procedure Code, 1908 or the Law of Evidence but to work according to rules of natural justice. 
  4. As far as creation of Tribunals is concerned, the constitution is silent. No express provision in the Constitution of India, as it stood originally, provides for the establishment of Tribunals. However, Articles 262 (2) and 263 (1) of the Constitution of India are important in this regard. 

* Article 262 (2) of the Constitution of India provides for the creation of a Tribunal to adjudicate the disputes relating to water of interstate rivers or valleys. 

* Article 263 (1) of the Constitution of India provides for creation of Council charged with the duty of inquiry into the disputes between States. Apart from these two Articles, the creation of Tribunals is implied in the Articles 136, 226 and 227 of the Constitution of India as the term ‘Tribunal’ is used in these Articles. However, Forty Second Constitutional Amendment expressed the provision for the creation of Tribunals. This Amendment opened the possibility for the proliferation of the Tribunals system in the country.

* Article 323-A of the Constitution of India empowers the Parliament to establish Service Tribunals, which will deal with the service matters i.e., recruitment, conditions of service of persons appointed to Public Services and posts in connection with the affairs of the Union or any State or any local or other authority in India or under the control or owned by the Government and Article 323-B of the Constitution of India empowers the appropriate legislature to provide the law, for adjudication or trial by Tribunals of any disputes and offences with respect to several matters. 

* Further the Article 323-B of the Constitution of India is wide amplitude and it provides that Tribunals may try certain criminal offences also. In 1985, Parliament passed the Administrative Tribunals Act in pursuant of Article 323-A of the Constitution of India. 

* And under Article 323-B of the Constitution of India, the Parliament and State legislatures are passing laws from time to time which provide for the creation of Tribunals. The work assigned to the Tribunal is very complex in nature. It requires qualified and experienced members to the adjudication of the subject matters.

Conclusion

The development of welfarism has contributed to an increase in governmental functions. The executive saw in this increase, a need to perform a number of quasi-legislative and quasi- judicial functions. This gave rise to a blurring of the traditional positions of the various wings of the government under the doctrine of separation of powers.’ The welfare state radically changed the government’s role and compelled it to involve itself in a host of wide ranging socio-economic activities.

The issues that arose from such disputes raised not only legal matters, but also matters which affect the society at large. Courts therefore became deluged with litigation arising directly and incidentally, from such increased government intervention. Inherent procedural limitations made it difficult for the courts to dispose of these cases promptly, thus leading to a huge backlog of cases at all levels of the judiciary. Thus it was felt that specialised adjudicatory bodies, such as tribunals, needed to be created to resolve such disputes fairly and effectively.

Though the concept and working of Tribunals and Quasi Judicial Bodies is still new to our country, it can be concluded that in the present scenario, the administration has become an important part of the Government as well as the citizen’s life. Due to this increasing role, it is important to establish a competent authority for the redressal of people’s grievances and adjudication of the disputes. Therefore, the concept of Administrative Tribunals emerged and is dynamically flourishing in India holding certain flaws and strengths. The Administrative Tribunal plays a very important role in providing speedy and competent adjudication to the people. It also helps the Court to lower their burden and provide for an alternative framework with the same amount of power and responsibility.


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