November 30, 2020

TRIBUNALS IN INDIA

DEFINITION

The concept of Tribunal can be understood as adjudicatory bodies. The judiciary power is basically given to the courts, but the courts suffer from certain disadvantages therefore to reduce the complexities the concept of the tribunal was born.

The word ‘ tribunal’ is used in a meaningful sense in administrative law and applies only to administrative bodies that fall outside the scopes of the ordinary judicial system. The courts, which are aimed at protecting individual rights and upholding justice, are legally given legal powers in India. Therefore, in order to create an efficient judicial system with less complexity, authority is transferred to the administrative authorities, which is responsible for creating administrative tribunals or administrative adjudicators with quasi-judicial characteristics.

HISTORY OF TRIBUNAL

With the creation of the Income Tax Appellate Tribunal before the independence of the country, the definition of tribunals was developed in India. There was a need for versatility and pace after independence to settle administrative disputes. The primary purpose of the court was to provide citizens with comprehensive and timely justice.

Many rights to the protection of individuals were guaranteed by the constitution after the drafting of the Indian Constitution. People have the right to speedy trials and specialist consistency that cannot be provided by the existing judiciary due to the overburden of cases and appeals, the technicalities of prosecutions, etc. Thus, the need for administrative tribunals to be set up could not be ignored.

CONSTITUTIONALITY OF THE ADMINISTRATIVE TRIBUNAL

The growth of the administrative tribunal can be traced back to the 42nd Amendment of the Indian Constitution which added Part XIV A and added Article 323A and Article 323 B to the Indian Constitution.

These articles have excluded the jurisdiction of the High Court which are available in Article 226 and 227 of the Indian Constitution. The effect of the same does not have an effect on the Jurisdiction of the Supreme Court present under Article 136 of the Constitution of India.

The main purpose of the same is to reduce pressure and burden on the high court and the lower judiciary. The nature of the administrative tribunals is neither judicial bodies nor administrative bodies they have features of both of these.

Article 227 of the Indian Constitution deals with the following tribunals:

(1)Election Tribunal

(2)Revenue Tribunal

(3)Rent Control Authority

(4)Income Tax Tribunal

(5)Railway Rates Tribunal

THE ADMINISTRATIVE TRIBUNALS ACT, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A.

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre and a State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes. The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the whole of India and in relation to the Administrative tribunals for states, it is applicable to the whole of India except the State of Jammu and Kashmir (Section 1).

OBJECTIVE FOR THE ESTABLISHMENT OF ADMINISTRATIVE TRIBUNALS

The main purpose of the introduction of this act was:

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

APPLICABILITY OF THE ACT

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central Government employees except –

· The members of the naval, military or air force or any other armed forces of the Union

· Any officer or servant of the Supreme Court or any High Courts

· Any person appointed to the secretarial staff of either House of the Parliament.

Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each Tribunal shall consist of a Chairman, Vice-Chairman, Judicial and Administrative members. Every bench must include at least one judicial and one administrative member. The benches of the Central Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such other place as the Central Government specifies. The Chairman may transfer the Vice-Chairman or other members from one bench to another bench.

QUALIFICATION AND APPOINTMENT OF MEMBERS

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the qualifications and appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

· He is or has been a judge of a High Court or

· He has held the office of Vice Chairman for two years or

· He has held the post of secretary to the Government of India or

· He has held any other post carrying the scale pay of secretary.

Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

· Is or has been a judge of the High Court or

· Has for 2 years held the post of Secretary to the Government or holding any other post carrying the same pay scale under the Central or State Governments or

· Has held for 5 years the post of an Additional Secretary to the Government of India or any other post carrying the scales of pay of Additional Secretary.

Judicial Member: A person to be appointed as a judicial member must-

· Be or have been a judge of the High Court or

· Have been a member of Indian Legal Service and has held a post in Grade I of the service for at least 3 years.

Administrative Member: A person to be appointed as an Administrative member must-

· Have held the post of an Additional Secretary to the Government of India or another equivalent post for at least 2 years, or

· Have held the post of a Joint Secretary to the Government of India or another equivalent post, or

· Have adequate administrative experience.

The Chairman, Vice-Chairman and other members shall be appointed by the President. The Judicial Members shall be appointed by the President with the consultation of the Chief Justice of India. The Chairman, Vice-Chairman and other members of the State Tribunal shall be appointed by the President after consultation with the Governor of the concerned state.

TERM OF OFFICE

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the tribunal shall hold the office for a term of 5 years or until he attains-

1. Age of 65 years, in the case of the Chairman or Vice-Chairman.

2. Age of 62 years in the case of other members.

RESIGNATION AND REMOVAL

Section 9 of the Act prescribes the procedure of resignation by any member and removal of any member. The Chairman, Vice-Chairman or other members may resign from his post by writing to the President. They shall be removed from their office only by an order made by the President on the ground of proved misbehaviour or incapacity after an enquiry made by a judge of the Supreme Court. They shall have the right to be informed of the charges against them and shall be given a reasonable opportunity of hearing. The Central Government may make rules to regulate the procedure for the investigation of the charges against them.

JURISDICTION OF CENTRAL TRIBUNAL

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all the jurisdiction, powers and authority in relation to the following matters which were within the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the Union or civilian employees of defence services;

2. All service matters of the above-mentioned employees, and also of employees of any local or other authority within the territory of India or under the control of the Government of India or any corporation or society owned or controlled by the Government;

3. All service matters of such persons whose services have been placed by the State Government or any local or other authority or any corporation at the disposal of the Central Government.

PROCEDURE AND POWERS OF TRIBUNALS

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of tribunals discussed below-

1. A tribunal is not bound to follow the procedure laid down by the Code of Civil Procedure, 1908. It has the power to regulate its own procedure but must abide by the principle of natural justice.

2. A tribunal shall decide the applications and cases made to it as rapidly as possible and every application shall be decided after scrutinizing the documents and written submissions and perceiving the oral arguments.

3. Tribunals have the same powers as vested by the civil courts under the Code of Civil Procedure, 1908, while trying a suit, with regard to the following subject-matter-

4. Summoning and enforcing the attendance of any person and examining him on oath;

5. Production of documents;

6. Receiving evidence on affidavits;

7. Ask for any public record or document from any office under Section 123 and 124 of the Indian Evidence Act, 1872;

8. Issuing commissions for the examination of witnesses and documents; and

9. Reviewing its decisions

CHARACTERISTICS OF THE 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 any 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.

ADVANTAGE OF THE ADMINISTRATIVE TRIBUNAL

The concept of administrative tribunals was introduced because it has certain advantages over ordinary courts. Few of them are mentioned below-

· Flexibility: The introduction of administrative tribunals engendered flexibility and versatility in the judicial system of India. Unlike the procedures of the ordinary court which are stringent and inflexible, the administrative tribunals have a quite informal and easy-going procedure.

· Speedy Justice: The core objective of the administrative tribunal is to deliver quick and quality justice. Since the procedure here is not so complex, so, it is easy to decide the matters quickly and efficiently.

· Less Expensive: The Administrative Tribunals take less time to solve the cases as compared to the ordinary courts. As a result, the expenses are reduced. On the other hand, the ordinary courts have cumbrous and slow-going, thus, making the litigation costs. Therefore, the administrative tribunals are cheaper than ordinary courts.

· Quality Justice: If we consider the present scenario, the administrative tribunals are the best and the most effective method of providing adequate and quality justice in less time.

· Relief to Courts: The system of administrative adjudication has lowered down the burden of the cases on the ordinary courts.

DISADVANTAGE OF THE ADMINISTRATIVE TRIBUNAL

Although, administrative tribunals play a very crucial role in the welfare of modern society, yet it has some defects in it. Some of the criticisms of the administrative tribunal are discussed below-

· Against the Rule of Law: It can be observed that the establishment of the administrative tribunals has repudiated the concept of rule of law. Rule of law was propounded to promote equality before the law and supremacy of ordinary law over the arbitrary functioning of the government. The administrative tribunals somewhere restrict the ambit of the rule of law by providing separate laws and procedures for certain matters.

· Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid set of rules and procedures. Thus, there is a chance of violation of the principle of natural justice.

· No prediction of future decisions: Since the administrative tribunals do not follow precedents, it is not possible to predict future decisions.

· Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure as prescribed under C.P.C and Cr.P.C respectively. But the administrative tribunals have no such stringent procedure. They are allowed to make their own procedure which may lead to arbitrariness in the functioning of these tribunals.

· Absence of legal expertise: It is not necessary that the members of the administrative tribunals must belong to a legal background. They may be the experts of different fields but not essentially trained in judicial work. Therefore, they may lack the required legal expertise which is an indispensable part of resolving disputes.

CASE LAWS

S.P SAMPATH KUMAR VS UNION OF INDIA

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was predominantly challenged on the ground that this Act excludes the jurisdiction of High Courts under Articles 226 and 227 with regard to service matters and hence, destroyed the concept of judicial review which was an essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section 6(1)(c). The court held that although this Act has excluded the jurisdiction of judicial review exercised by the High Courts in the service matters it has not entirely excluded the concept of judicial review. The jurisdiction of the Supreme Court under Article 32 and 136 has not been excluded by this Act and kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial review. The judicial review which is the part of the basic structure of the Indian Constitution can be taken away from a particular area only if an alternative effectual institutional mechanism or authority is provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted power to the Government to appoint the Chairman, Vice-Chairman and other members of the tribunals. These appointments must be made by the Government in a meaningful and effective manner only after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman, Vice-Chairman and other members of the tribunal is not rational because it would act as dissuasion for the good and generous people to accept the job in the tribunal and should, therefore, be reasonably extended.

The directions given by the Supreme Court came into effect through the Administrative Tribunals (Amendment) Act, 1987.

UNION OF INDIA VS GANDHI PRESIDENT, MADRAS BAR ASSOCIATION

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) on the following grounds-

1. Parliament does not have authority to vest the judicial functions in any tribunal that have been traditionally performed by the High Courts since so long.

2. Transferring the entire company jurisdiction of the High Court to the tribunal are violative of the doctrine of Rule of Law, Separation of Powers and Independence of the Judiciary.

3. The various provisions of Part 1B and 1C of the Companies Act are defective and unconstitutional, being in breach of constitutional principles of Rule of Law, Separation of Powers and Independence of the Judiciary.

Judgment: The court upheld the constitutionality of NCLT and NCLAT in exercising the powers and jurisdiction of the High Court subject to necessary changes to be made in the Companies Act, 1956 as amended in 2002, through suitable amendments

The court acknowledged and upheld the constitutional power of the Parliament to constitute tribunals for adjudication of disputes. The legislative competence of Parliament to provide for the creation of courts and tribunals can be traced to Article 245, 246 and 247 of the Constitution read with various entries in the Union List and the Concurrent List which is in no way affected or controlled by Article 323A or 323B of the Constitution.

The court further added that it cannot be assumed that constitution of tribunals and transferring judicial powers per se infringe the rule of law, separation of powers and independence of the judiciary because the Constitution enables both courts and tribunals to exercise judicial powers.

What matters the most is whether the constituted tribunals respect and maintain the principles of separation of powers, rule of law and independence of the judiciary. The constitution of NCLT and NCLAT must be subject to judicial review so that the court in the exercise of judicial review look into the matter to check if these principles are compromised by such tribunalisation and may interfere in between to preserve the same.

CONCLUSION

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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Author Details: Shubhang Gomasta (LLM student, MATS University, Raipur, Chattisgarh).

Editor Details: Aayush Akar ( BA.LLB Student, NLU Odisha)

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