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ABSTRACT
This article talks about the Structure, Powers and Procedures of Administrative Tribunals in India that were established under article 323A and 323B. It also talks about the features and reasons for the formation of Central Administrative Tribunals under the Administrative Tribunals Act.
INTRODUCTION
“Administrative law implies that branch of modern law under which the executive department of government, acting in a quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community”[1]
Administrative adjudication has increased because of the growing needs and developments of the government, that require the help and support of Administrative agencies. These agencies are tribunals, quasi-judicial bodies etc. and have become an indispensable part of the government machinery.
Apart from their indispensability, there are also other factors like the shift of the state to a welfare state which aims at distribution of benefits amongst the members of the societies, envisages multifarious regulations or interferences with various interests and human activities, gave a boost to administrative law and specialized administrative adjudication came up.
In common law countries such ‘administrative adjudication’ coordinates with ‘judicial adjudication’ and operates under judicial supervision. In the paper titled ‘Tribunals for users – one system, one service’ by Sir Andrew Leggatt Committee talked about the shortcomings of the current court systems such as delay, formalities, lack of expertise, conservative social and political views. These agencies are tribunals, quasi-judicial bodies etc. and have become indispensable.
Thus, today, administrative law has developed into an effective instrument in the hands of people to keep administration within the bounds of law and Constitution.[2]
The 42nd Amendment Act of Indian Constitution titled as ‘Tribunals’ provided for the establishment of ‘Administrative Tribunals’ under Article 323A and 323B. Article 323A empowered the Parliament to establish administrative tribunals to adjudicate upon 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 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.
Article 323B empowers Parliament or a state legislature, as the case may be, to set up tribunals to adjudicate upon ‘disputes, complaints and offences’ pertaining to tax, foreign exchange, import, export, industrial and labour disputes, land reforms, ceiling on urban property, elections to Parliament or state legislatures (except the matters dealt under articles 329 and 329A), production, procurement, supply and distribution of foodstuffs and offences relating thereto.[3]
The main objective of establishing Tribunals as set out in the Statement of Objects and Reasons of The Constitution (Forty-Second Amendment) Act, 1976 is as under:
‘To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under article 136 of the Constitution.’[4]
Central Administrative Tribunal
The First Administrative Reforms Commission held in 1966 was brought for the reviewing of the public administration system in India and recommendations for the same. The Commission was chaired by Morarji Desai initially. The Commission submitted its report with various recommendations and observations.
The 13th report of this commission stated the Centre-state relations in regards to the administrative tribunals. The commission thus recommended the setting up of Civil service tribunals to function as final appellate authorities for the decisions of major punishments such as dismissal from service, reduction in rank etc.
The Central Administrative Tribunal has been established under Article 323A of the Constitution for the adjudication on disputes relating to the recruitment and conditions of service of members appointed to public services and posts.[5]
In the Central Administrative Tribunal, there are 17 Benches and 21 Circuit benches present all over the country. The Government also has notified 214 organizations under section 14(2) of the Administrative Tribunals Act 1985, for their timely scrutiny by the Central Administrative Tribunal. It also has a Principal Bench that deals with matters of Government of Territory of Delhi.
The Tribunal has been established as a specialist agency that comprises of Administrative members and Judicial members that are experts in their field of knowledge and thus help in quick and effective justice. The conditions of service of Hon’ble Chairman and Members are the same as applicable to a Judge of High Court as per the Administrative Tribunals (Amendment) Act, 2006 (1 of 2007), which came into effect on 19.02.2007.[6]
It consists of One Chairman, sixteen vice chairmen and nine members who come from administrative and judicial fields.
The differences between tribunals exercising adjudicatory powers and ordinary judicial courts are as follows: tribunals do not need formal legal counsel or the representation of a party by a lawyer compulsorily, they have an informal nature, unlike the courts that have strict formal proceedings.
Tribunals are not constricted to formal rules of evidence or the CPC, IPC etc., they have more flexible working. Due to this formal evidence procedure not followed, facts are derived and developed through the questioning and answers received to reach conclusions, thus causing no unnecessary delay. They are also inexpensive and cheaper compared to court as lawyer fees can be saved and also there is no court fee to pay.
STRUCTURE
According to Cane[7], tribunals are not simply pragmatic devices to resolve disputes between individual and state but comprise an important position within a broader constitutional structure.
Composition of Tribunals
The structure of the administrative tribunals has been mentioned in the Act. It is stated that each tribunal shall consist of a Chairman and the such number of Judicial and Administrative Members as the government deems fit.
And a bench will consist of one Judicial Member and one Administrative Member. Tribunals are single-man tribunals and legal qualifications predominate. But not only legal qualifications, but it is also necessary to have other qualifications that are needed for heading a tribunal which is relevant to each of the cases.
For example, if the case is related to economics, commerce, etc. it is essential to be well versed in it. The various statutes provide for the absolute power of the government to appoint members of the tribunals from amongst individuals that fulfil the requirements. (except in the case of Tax Appellate Tribunals where the rules provide for a selection committee consisting of persons specified therein).
The Act states that the Chairman must be an individual who is or has been a Judge of. High Court or if he has been a vice-chairman of the tribunal. In respect to the tenure, the statutory provisions vary. And in most cases, the government can decide the tenure, in a few cases the age of retirement or the maximum age up to which a person can be appointed or a fixed period of 5 years with restrictions on reappointment are specified.
The discretion to terminate the services of a member of tribunals is also given to the government (exception is the Monopolies Commission). These statutes thus ensure that enough independence has been given to the tribunals for their functioning.
POWERS
The Jurisdiction, Powers and Authority of Tribunals is mentioned in Chapter III of the Act and states that the Central Administrative Tribunal, from the day of its appointment, all the jurisdiction, powers and authority exercisable before that day by all courts (except supreme court) in relation to –
(a). Recruitment and matters concerning recruitment to any All-India Service or to any civil service or post of the Union, defence post or service being, in either case, a post filled by a civilian;
(b) all service matters concerning a member of any All-India Service; or a person appointed to any civil service of the Union or any civil post under the Union; or a civilian appointed to any defence services or a post connected with defence,
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post that have been placed by a State Government or any local or other authority or any corporation, society or other bodies, at the disposal of the Central Government.
Similarly for the State Administrative tribunals, the State shall exercise power on recruitment and service matters related to civil services or posts, that come under the State or any local or other authority that comes under the state government.
In the Act in regards to powers with the Tribunals it is stated that for the purposes of discharging its functions under the Act, the Tribunals will have the same powers similar to the ones vested with a civil court which is under the Code of Civil Procedure, 1908, while the trial of a suit is ongoing in respect to the matters as follows:
i. the summoning and enforcing of the attendance of individuals and their examination on oath,
ii. The requirement of the discovery and production of documents,
iii. Receiving evidence on affidavits,
iv. The requisition of any public record or document or copy of such record or document from any office with subject to the Sections 123 and 124 of the Indian Evidence Act, 1872,
v. issuing commissions for the examination of witnesses or documents,
vi. Reviewing its decisions,
vii. The dismissal of representation for default or ex-parte decision,
viii. Setting aside of such an order that is dismissed or decided ex-parte,
ix. Any other matters prescribed by the Central Government.
PROCEDURE
Under the Administrative Tribunals Act, 1985 it is stated that
- A tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have the power to regulate its own procedure including the fixing of places and times of its inquiry and decided whether to sit in public or in private.
- A tribunal shall decide every application made to it as expeditiously as possible and ordinarily, every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments as may be advanced.
The Court in the case of Karnataka State Road Transport Corporation vs. Kotturappa had given application of principles of natural justice as they are vague and might be applied only as an empty formality without any substance.
It was said that the question as to what extent principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in a vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with if it will lead to a mere empty formality.”[8]
Therefore it is understood that the procedure followed under the administrative tribunals, in comparison with the ordinary courts of law, is more flexible and non-procedural, which makes it more flexible and less rigid and hence resulting in the decision making being faster, thus inexpensive.
CONCLUSION
Stark critics of Administrative law like Lord Hewart who says administrative adjudication is “organized lawlessness” and Dicey who considers it a grave violation of Rule of Law and its principles like that of Equality before the law, the supremacy of law, following of due procedure. They work against the principles of natural justice. And further, the right to appeal from the decisions of tribunals is limited or non-existent.
K.M Munshi in his paper also states in regards to the criticisms on administrative tribunals that an “undue emphasis on policy and on speedy disposal of cases by experts exposes administrative tribunals to the danger of ignoring legal and constitutional limitations. “[9] He also states that if individuals start preferring methods of administrative adjudication more convenient and direct alternatives to courts of laws, then it is an undermining of the democratic system and judicial system.
Thus the Franks Committee gave a ratio as a recommendation wherein the adjudication involving the administration and the individual citizen has to be carried out, preference should be given to ordinary courts of law, rather than to a tribunal unless there are special or specific reasons that make a tribunal more viable to go to.
[1] Judge Cuthbert W. Pound of the Court of Appeals of New York
[2] Massey, IP., Administrative Law, Introduction by Upendra Baxi, xiii (2005)
[3] ADMINISTRATIVE TRIBUNALS ACT 1985 (2nd ed. 1990). By K.N. Goyal
[4] LAW COMMISSION OF INDIA, Report No.272 “Assessment of Statutory Frameworks of Tribunals in India” October 2017
[5] First Administrative Reforms Commission, INTER-STATE COUNCIL SECRETARIAT, Ministry of Home Affairs, Government of India
[6] (http://www.cgatnew.gov.in/writereaddata/Delhi/docs/Introduction.pdf
[7] Administrative Tribunals and Adjudication. By Peter Cane
[8] (2005) 3 SCC 409.)
[9] ADMINISTRATIVE TRIBUNALS IN MODERN DEMOCRATIC STATE Author(s): K.M. MUNSHI
Nicely composed and edited. Full procedure is explained very well