UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

BBA LL.B (HONS.) CORPORATE LAWS

SEMESTER-V

ACADEMIC YEAR: 2018-2019

SESSION: AUGUST- DECEMBER

PROJECT OF ADMINISTRATIVE LAW

PROOF OF PUBLIC DOCUMENTS
Under the Supervision of: Mr. ANIL KUMAR VISHWAKARMA
NAME: RUPENDRA SINGH RATHORE
SAP ID: 500053966
ROLL NO: R760216094
 Chapter I

Legislative Intent & Legislative History behind the enactment of Part XIV-
A of the Constitution of India 1950

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. In 1969 Administrative
Reform Commission also recommended for the establishment of civil service tribunals both
for the Central and State civil servants. Central Government appointed a committee under the
Chairmanship of Justice J.C. Shah of the SC of India in 1969 which also made similar
recommendation.

In 1975, Swarn Singh Committee again recommended for the setting up of service tribunals.
The idea of setting up service tribunals also found favour with the SC of India which in K.K.
Dutta v. Union of India16 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 States17
had established their own service tribunals. Service Tribunal was also established in Andhra
Pradesh in 1973 by the Thirty-second Constitution Amendment. It was against this backdrop
that Parliament passed Constitution (Forty- second Amendment) Act, 1976 which added Part
XIV-A in the Constitution. Articles 323-A and 323-B enabled Parliament to constitute
administrative tribunals for dealing with certain matters specified therein. Article 323-A
provided that Parliament may by law, provide for adjudication or trial by administrative
tribunals of disputes and complaints with respect to recruitment and and conditions of service
of persons appointed to public services and posts in connection with the affairs of the Union
or of any State or of any local or other authority within the territory of India or under the
control of Government of India or of any corporation owned or controlled by the government.
Parliament was further empowered 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
SC under Article 13618. Empowered by these enabling provisions of the Constitution
Parliament enacted Administrative Tribunals Act, 1985 for the establishment of
administrative service tribunals for deciding service disputes of civil servants of the Centre as
well as of the States which was amended in 1986. Article 323-B
(1) empowers the appropriate legislature to 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). The Constitution (Forty- second Amendment) Act, 1976 was the most debatable and
controversial amendment in the constitutional history of India. It effected drastic and
draconian changes in several provisions of the Constitution not only affecting rights of
citizens but also restricting, limiting, curtailing and even totally excluding power of judicial
review of High Courts and of the Supreme Court which was held to be a part of ‘basic
structure’ of the Constitution. So far as administrative tribunals are concerned, mainly, the
Amendment (the Constitution Forty- second Amendment Act, 1976) made two changes:

1. It took away power of superintendence of High Courts over administrative tribunals which
they possessed under Article 227 of the Constitution; and

2. After Part XIV, it inserted Part XIV-A (Articles 323-A and 323-B) by enabling Parliament
to constitute administrative tribunals for the purposes specified therein. Part XIV- A, as
inserted by the 42nd Amendment Act opened a new Chapter in the Indian Constitutional and
Administrative Law.

The 42nd Amendment substantially excluded and curtailed power of High Courts and of the
Supreme Court of judicial review of administrative action. It was a “retrograde innovation”
and its object was to take away the supervisory jurisdiction of the High Court over tribunals
under Article 227. However, Articles 323-A and 323-B were not self- executor in as much as
they themselves did not take away the jurisdiction of High Courts under Article 226 or
Article 227 of the Constitution, but they only enabled Parliament or the appropriate
legislature to make laws to set up such tribunals and to exclude the jurisdiction of the High
Court under Article 226 or Article 227.

By the Constitution (Forty- fourth Amendment) Act, 1978, Article 227 was amended and
jurisdiction of High Courts over administrative tribunals had been restored. No amendment,
however, was made in Part XIV-A, as inserted by the Constitution (Forty- second
Amendment) Act, 1976 and exclusion of jurisdiction of all courts and tribunals constituted in
exercise of powers under Articles 323-A and 323-B. For revival of that power and restoration
of majesty of High Courts, the legal fraternity had to wait for almost two decades (i.e. for the
position of law so to be clarified by L. Chandra Kumar v. UOI).
A. Scope of Articles 323-A and 323-B of the Constitution of India :

These two Articles, inserted by the Constitution (42nd Amendment) Act, 1976, open a new
Chapter in the Indian Constitutional and Administrative Law, by substantially excluding
judicial review of administrative decisions. A. The features which are common to these two
Articles are:

a. They empower the Legislature to set up Administrative Tribunals for the adjudication of
disputes between the State and the individual, relating to certain specified matters, and to lay
down the jurisdiction and powers of such Tribunals.

b. Such powers (as vested with the Administrative Tribunals, established under Part XIV-A
of the Constitution of India) may include the power to punish for their contempt.

c. Such law may lay down the procedure to be followed by such tribunals, including rules as
to limitation and evidence.

d. Such law may provide for the transfer to such Tribunals cases which are pending before a
court or other authority at the time of establishment of each Tribunal.

e. Incidental provisions for their effective functioning may be included in such laws.

f. Such law may exclude the jurisdiction of all Courts, other than the jurisdiction of the
Supreme Court under Article 32 or 136, in respect of such matters.

g. The provisions of both the Articles shall override the provisions in the Constitution or any
other law, to the contrary.

B. The points on which the two Articles differ are:

(a). Article 323-A is confined to matters relating to the public services. Article 323-B relates
to Tribunals relating to any of the matters specified in clause, e.g., taxation, foreign exchange,
labour dispute, land reforms, elections, essential goods; offences and incidental matters
relating to such matters.

(b). Under Article 323-A, only one such Tribunal may be created for the Union and one for
each State or two or more States together (no hierarchy). So far as Article 323-B is
concerned, the appropriate Legislature is empowered to establish a hierarchy of Tribunals
relating to each subject specified in clause (2).
(C) Under Article 323-A, the power to make such law belongs exclusively to Parliament.
Under Article 323-B, the legislative power is divided between the Union and State
Legislatures according to their respective legislative competence over each of the subjects.

Articles 323-A and 323-B cannot be interpreted to mean that they prohibit the legislature
from establishing tribunals not covered by these articles, as long as there is legislative
competence under an appropriate entry in the VII Schedule. These two articles do not take
away that legislative competence.

Chapter II

Background and Significance of the Administrative Tribunals Act, 1985

The framers of the Constitution of India in their wisdom invested the Supreme Court and the
various High Courts with the power of judicial review by specifically enacting Articles 32,
136, 226 and 227 of the Constitution. With the enactment of Articles 12, 14, 15, 16, 309 and
311 of the Constitution36, a large number of service matters calling for the adjudication of
disputes relating to the recruitment and conditions of service of Government servants and
also of employees in other fields of public employment started coming up before the various
High Courts whose power of judicial review was invoked for the said purpose by the
aggrieved employees. The contribution by the High-Courts coupled with the growth in the
number of employees in the public field and the manifold problems arising in the context of
their recruitment and conditions of service and their implicit faith and confidence in the
HighCourts as the unfailing protector of their rights and honour, led to a gradual increase in
the institution and pendency of service matters in the High Courts. This, in turn, focused the
attention of the Union Government on the problem of finding an effective alternative
institutional mechanism for the disposal of such specialised matters. A Committee set up by
the Union Government in 1969 under the Chairmanship of Justice J.C. Shah recommended
for setting up of an independent Tribunal to handle service matters pending before the High
Courts and the Supreme Court. The Law Commission of India in its 124th Report had
recommended for the establishment at the Centre and the State of an appellate Tribunal or
Tribunals presided over by a legally qualified Chairman and with experienced civil servants
as Members to hear appeals from Government servants in respect of disciplinary and other
action against them. The First Administrative Reforms Commission had also recommended
for the setting up of Civil Services Tribunals to deal with the appeals of Government servants
against disciplinary actions. Some of the State Legislatures thereupon enacted laws setting up
Tribunals to decide such cases. Part XIV-A, comprising Articles 323-A and 323-B was also
inserted in the Constitution of India by the 42nd Constitutional Amendment Bill, 1976 with
effect from 3rd January, 1977.

Article 323-A, inter alia, authorised Parliament to provide by law for setting up of
Administrative Tribunals for the adjudication of disputes and complaints with respect to
recruitment and conditions of service of certain categories of employees in the field of public
employment including Government servants and also to provide for the exclusion of the
jurisdiction of all courts, except that of the Supreme Court under Article 136, with respect to
disputes or complaints of such nature. No immediate step was however taken in the direction
of enacting a law for the setting up of Administrative Tribunals as contemplated by the said
Article. Ultimately, Parliament enacted the Administrative Tribunals Act, 1985 which
received the assent of the President on the 27th February, 1985. In pursuance of the
provisions contained in the Act, the Administrative Tribunals set up under it exercise original
jurisdiction in respect of service matters of employees covered under the Act. Objective: 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

“To reduce the mounting arrears in the 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 under Article 136 of the Constitution.”

The Statement of Objects and Reasons appended to the introduced version of the
Administrative Tribunals Bill, which on being passed and approved became the Act of 1985,
also contained similar recitals:

“…The establishment of Administrative Tribunals under the aforesaid provision of the

Constitution has become necessary since a large number of cases relating to service matters
are pending before the various Courts. 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.”

Significance: 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. The Act provides for establishment of Central Administrative Tribunal and the State
Administrative Tribunals. The setting-up of these Tribunals is founded on the premise that
specialist bodies comprising both trained administrators and those with judicial experience
would, by virtue of their specialised knowledge, be better equipped to dispense speedy and
efficient justice. 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. They 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. Further, only
a nominal fee of Rs. 50 is to be paid by the litigant for filing an application before the
Tribunal.37 Thus, the objective of the Tribunal is to provide speedy and inexpensive justice
to the litigants. The establishment of Administrative Tribunals was a right step in the
direction of providing an effective alternative authority to Government employees who feel
aggrieved by the decisions of the Government, in spite of the elaborate system of rules and
regulations which govern personnel management, for judicial review over service matters to
the exclusion of all courts including High Courts other than the Supreme Court, with the end
in view of reducing the burden of such Courts and of securing expeditious disposal of such
matters.
 Chapter III

Constitutional Validity of the Administrative Tribunals Act, 1985 In

exercise of the power conferred by Article 323-A of the Constitution,
Parliament enacted the Administrative Tribunals Act, 1985.

Section 28 of the Act39 excluded the power of judicial review exercised by the High Courts
in service matters under Articles 226 and 227. However, it has not excluded the judicial
review entirely in as much as the jurisdiction of the Supreme Court under Article 136 of the
Constitution was kept intact. The constitutional validity of the Act was challenged before the
Supreme Court in the leading case of S.P. Sampath Kumar v. UOI . Undoubtedly, the
question raised was of far reaching effect and of great public importance. The Constitution
Bench upheld the validity of the Administrative Tribunals Act, 1985. Speaking for the
majority, Ranganath Misra, J. (as he then was) observed:

“We have already seen that judicial review by this Court is left wholly unaffected and thus
there is a forum where matters of importance and grave injustice can be brought for
determination or rectification. Thus, exclusion of the jurisdiction of the High Courts does not
totally bar judicial review… It is possible to set up an alternative institution in place of the
High Court for providing judicial review… The Tribunal has been contemplated as a
substitute and not as supplemental to the High Court in the scheme of administration of
justice… What, however, has to be kept in view is that the Tribunal should be a real
substitute for the High- Court not only in form and de jure but in content and de facto…
Under Sections 14 and 15 of the Act all powers of the Court in regard to matters specified
therein vest in the Tribunal—either Central or State. Thus, the Tribunal is the substitute of the
High Court and is entitled to exercise the powers thereof.”

In concurring judgement, Bhagwati, C.J. observed:

“If this constitutional amendment were to permit a law made under clause (1) of Article 323-
A to exclude the jurisdiction of the High-Courts under Articles 226 and 227 without setting
up an effective alternative mechanism or arrangement for judicial review, it would be
violative of the basic structure doctrine and hence outside the constituent power of
Parliament. It must, therefore, be read as implicit in this constitutional amendment that the
law excluding the jurisdiction of the High- Court under Articles 226 and 227 permissible
under it must not leave a void but it must set up another effective institutional mechanism or
authority and vest the power of judicial review in it. Consequently, the impugned Act
excluding the jurisdiction of the High Court under Articles 226 and 227 in respect of service
matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of
constitutionality as being within the ambit and coverage of Clause (2)(d) of Article 323-A42,
only if it can be shown that the Administrative Tribunal set up under the impugned Act is
equally efficacious as the High- Court, so far as the power of judicial review over service
matters is concerned”

The whole question of constitutionality of the Administrative Tribunals Act, 1985 once again
came under the scrutiny of the Apex Court in the case of L. Chandra Kumar v. UOI . The
Court in this case held that Sampath Kumar was decided against the background that the
litigation before the High Courts had exploded in an unprecedented manner and therefore,
alternative inquisitional mechanism was necessary to remedy the situation. But it is self-
evident and widely acknowledged truth that tribunals have not performed well, hence drastic
measures were necessary in order to elevate their standard by ensuring that they stand up to
constitutional scrutiny. Court further held that because the constitutional safeguards which
ensure the independence of the judges of the Supreme Court and the High-Courts are not
available to the members of the tribunals, hence, they cannot be considered full and effective
substitute for the superior judiciary in discharging the function of constitutional
interpretation. Against this backdrop the court came to the conclusion that Administrative
Tribunals cannot perform a substitution role to the High Court, it can only be supplemental.
Therefore, clause (2) (d) of Article 323-A and Clause (3) (d) of Article 323-B45 of the
Constitution, to the extent they exclude the jurisdiction of the High Courts and the Supreme
Court under Articles 226, 227 and 32 of the Constitution were held unconstitutional and for
the same reason Section 28 of the Administrative Tribunals Act, 1985 which contains
“exclusion of jurisdiction” clause was also held unconstitutional. 46 Through this classical
case (L. Chandra Kumar v. UOI) the Court has, in one sense, tried to save the jurisdiction of
Constitutional Courts from encroachment by the Legislature by invoking the doctrine of
“Basic Features of the Constitution

Characteristics of Administrative Tribunals:

The following are the characteristics of an administrative tribunal:

1. An administrative tribunal is the creation of a statute and thus, it has a statutory origin.

2. It has some of the trappings of a court but not all.

3. An administrative tribunal is entrusted with the judicial powers of the State and thus,
performs judicial and quasi-judicial functions, as distinguished from pure administrative or
executive functions and is bound to act judicially.

4. Even with regard to procedural matters, an administrative tribunal possesses powers of a

court; for example, to summon witnesses, to administer oath, to compel production of
documents, etc.

5. An administrative tribunal is not bound by strict rules of evidence and procedure.

6. The decisions of most of the tribunals are in fact judicial rather than administrative in as
much as they have to record findings of facts objectively and then to apply the law to them
without regard to executive policy. Though the discretion is conferred on them, it is to be
exercised objectively and judicially.

7. Most of the administrative tribunals are not concerned exclusively with the cases in which
Government is a party; they also decide disputes between two private parties, e.g. Election
Tribunal, Rent Tribunal, Industrial Tribunal, etc. On the other hand, the Income Tax Tribunal
always decides disputes between the Government and the Assesses.

8. Administrative Tribunals are independent and they are not subject to any administrative
interference in the discharge of their judicial or quasi-judicial functions.

9The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals.

Thus, taking into account the functions being performed and the powers being exercised by
administrative tribunals it can be said that, they are neither exclusively judicial nor
exclusively administrative bodies, but are partly administrative and partly judicial authorities.

Chapter V: Administrative Tribunals, Courts and Executive Authority Administrative

Tribunal and Court- Distinction:

An administrative tribunal is similar to a court in certain aspects. Both of them are

constituted by the State, invested with judicial powers and have a permanent existence. Thus,
they are adjudicating bodies. They deal with and finally decide disputes between parties
which affect the rights of subjects. As observed by the Supreme Court in Associated Cement
Co. Ltd. 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 a court.

The line of distinction between a ‘court’ and a ‘tribunal’ in some cases is indeed fine though
real. All courts are tribunals but the converse need not necessarily be true. A tribunal
possesses some of the trappings of a court, but not all, and therefore, both must be
distinguished:

a. A court of law is a part of the traditional judicial system. Where judicial powers are
derived from the State and the body deals with King’s justice it is called a ‘court’. On the
other hand, an administrative tribunal is an agency created by a statute and invested with
judicial powers. Primarily and essentially, it is a part and parcel of the Executive Branch of
the State, exercising executive as well as judicial functions. As Lord Greene states,
administrative tribunals perform ‘hybrid functions’.

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

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

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

e. 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. f. In a court of law, a Judge must be
an impartial arbiter and he cannot deicide 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. g. A 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.

h. 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 or 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”.

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

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

Conclusion

“Nothing is more remarkable in our present social and administrative arrangements than the
proliferation of tribunals of many different kinds. There is scarcely a new statute of social or
economic complexion which does not add to the number.” - Sir C.K. Allen

A sound justice delivery system is a sine qua non for the efficient governance of a country
wedded to the Rule of Law. An independent and impartial judiciary in which the litigating
public has faith and confidence alone can deliver the goods.

In a democracy governed by rule of law, the only acceptable repository of justice is a court
of law. Judicial review is an integral part of our legal system and basic and essential feature
of the Constitution and it cannot be dispensed with by creating tribunals under Articles 323-A
and 323-B of the Constitution. Any institutional mechanism or authority in negation of
judicial review is destructive of basic structure. So long as the alternative institutional
mechanism set up by any Act is not less effective than the High Court, it is consistent with
the Constitutional scheme.

The faith of the people is the bedrock on which the edifice of judicial review and efficacy of
adjudication are founded. The alternative arrangement must, therefore, be effective and
efficient. For inspiring confidence and faith in the litigating public, they must have an
assurance that the persons deciding their disputes are totally and completely free from
influence or pressure from executive. To maintain independence and impartiality, it is
necessary that the persons appointed in tribunals have judicial and objective approach as also
sufficient knowledge and legal training.