You are on page 1of 28

Administrative

Tribunals
Module 12

Introduction
1.

Tribunals have been defined as "Bodies outside the hierarchy of the courts with
administrative or judicial functions" (Curzon, Dictionary of Law, 1994, p387).

2.

Administrative tribunals resolve disputes between, for example, the citizen and
an officer of a government agency or between individuals in an area of law in
which the government has legislated the conduct of their relations.

3.

SC has defined tribunal as a body or authority vested with certain functions of a


court of justice and having some of its trappings.

4.

Three essential requisites of a Tribunal are:

a.

Trappings of a court

b.

Constituted by the state

c.

Invested with the states inherent judicial powers

Reasons
1.

Overburdened: The traditional judicial system proved inadequate to decide and settle all the
disputes requiring resolution. It was slow, costly, inexpert, complex and formalistic.

2.

Avoid Technicalities: The administrative authorities can avoid technicalities. They take a
functional rather than a theoretical and legalistic approach. The traditional judiciary is
conservative, rigid and technical. It is not possible for the courts of law to decide the cases
without formality and technicality. On the other hand, administrative tribunals are not bound by the
rules of evidence and procedure and they can take a practical view of the matter to decide the
complex problems.

3.

the provision of a speedier and cheaper procedure than that afforded by the ordinary courts;
and

4.

the desire to have specific issues dealt with by persons with technical knowledge and
experience of the problems involved (which a court with a wide general jurisdiction might not
acquire).

Advantages
(a) quick with no long waits for the case to be heard and it is dealt
with speedily;
(b) cheap;
(c) staffed by experts who specialise in particular areas;
(d) characterised by an informal atmosphere and procedure;
(e) allowed not to follow its own precedents, although tribunals do
have to follow court precedents.

Disadvantages
a) some are becoming more formal;
(b) they are not always independent of the
Government;
(c) some tribunals act in private;
(d) legal aid is not generally available;
(

(e) Lack of formality leads to confusion


(f) Persons presiding the tribunals may not be
well versed or trained in law

Constitutional Mandate
Article 323 A: 1) 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.

Article 323A (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 State 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 such administrative
any
cases
pending
before any court or other
authority
before the establishment of such tribunal

tribunal
of
immediately

Jurisdiction and power


1.

After the coming into force of Administrative Tribunals Act, 1985, all judicial remedies save those of
the Supreme Court under Art 32 and 136 have been abolished and the
pending proceeding before other courts stand transferred before
the regional Administrative Tribunals under s.29 of the Act.

2.

Administrative Tribunal is competent to exercise all powers which the respective


courts had, including declaration as to constitutionality of relevant laws. In short, the jurisdiction
of the Tribunal is not supplementary but is a complete substitute of the High Courts and Civil
Courts.

3.

Orders of the Central Administrative Tribunals are not open to challenge before the High Court

4.

S.19 deals with jurisdiction of entertaining original application relating to service matters

Functioning of Administrative Tribunals


1. Unconstitutionality of Law

(a) The tribunal can declare the unconstitutional a statute or subordinate legislation
relating to the dispute before it, which contravenes provisions of the constitution.
(b) Whether a body would be an authority within the meaning of Art.12.

(c) In a case where enquiry has been dispensed with under the 2nd proviso to Art 311(2),
the tribunal is competent to examine the legal jurisdiction for such dispensation.
(d) It may decide questions of law, including preliminary pleas in bar,e.g. limitation; nonjoinder
of
party;
territorial
jurisdiction
of
the
tribunal;
res
judicata

Disciplinary matter

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 .

Procedure
(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)

It is competent to execute its own order, though the A.T Act has no specific
provision in this behalf

Appeal to SC
1.

Though the jurisdiction of High Court under Art 226 over service matter has been taken over by
the respective Administrative Tribunals Act 1985, the jurisdiction of the Supreme Court over
these Tribunals under Art.136 has been retained.

2.

Appeals lies to the Supreme Court from orders of an Administrative Tribunal, by special leave
under Art 136, on the following grounds-

(i)

Error of Law

(ii)

Finding of the Tribunal being perverse.

(iii)

The order of the Tribunal being without jurisdiction or ultra vires

(iv)

The order of the Tribunals being arbitrary or mala fide.

(v)

The order of the Tribunal is such as would lead to grave injustice.

Cases

APHL Conference Shillong v Sangma AIR


1977 SC 2155
1.

All Party Hill Leaders' Conference was constituted as a political party in Assam.

2.

It contested elections and won multiple seats

3.

Later the state of Meghalaya was created in 1972.

4.

APHL contested elections and came to power in Shillong.

5.

It had maintain cordial relations with congress but subsequently Congress wanted it to merge with the
party.

6.

A meeting was called despite request for more time by other members of the party and a resolution
passed that the party be merged with congress.

7.

Further a request was made to the election commission to freeze the party symbol as it merged with
congress

8.

Some members of APHL who were opposed to the merger contested this request on the ground that
the meeting and resolution were not in accordance to the rules.

9.

Election Commission froze the party symbol.

10.

This decision was challenged through a Special Leave but the respondents raised the contention that
election commission is not a tribunal

SC decision
1.

the authority in order to come within the ambit of Art. 136(1) as Tribunal must be constituted by the
State and invested with some function of judicial power of the State.

2.

This test is an unfailing one while some of the other tests may or may not be present at the same
time.

3.

The Election Commission is a creature of the Constitution.

4.

Under Article 324, the superintendence, direction and control and the preparation of the electoral roll
for and the conduct of all elections to Parliament and to the Legislature of every State and all
elections to the offices of the President and the Vice President shall be vested in the Election
Commission.

5.

It is enough to hold, which the Court held, that the Commission is empowered on its own right under
Article 324 of the Constitution to make directions in general in widest terms necessary and also in
specific cases in order to facilitate a free and fair election with promptitude.

6.

orders made by the Election Commission in exercise of powers which flow from Article 324. The
Court, therefore, held that the Election Commission is a Tribunal within the meaning of Article 136.

7. Given that it is Tribunal, its orders can be challenged under ART 136
in the SC.
8. As regards the substantive issues, some members who were not
present in the APHL conference (where decision was to taken to merge
the party with congress) have the right to retain the party name and
symbol. The party still has a few elected members and a certain vote
share in the last elections and as per the Symbol Order it meets the
condition of a political party.

Gujarat Steel Tubes v Mazdoor Sabha


1.

2.

The appellant manufactures steel tubes in the outskirts of Ahmedabad


city.
It started its business in 1960, went into production since 1964

3.

It became a profitable company within a short time.

4.

A total strike ensued whose chain reaction was a whole-sale


termination of all employees followed by fresh recruitment of workmen
defacto breakdown of the strike and dispute over restoration of the
removed workmen.

5.

As per the previous settlement between the management and the


workmen it was not open to the workmen to resort to a strike till the
expiry of a period of five years;

6.

nor could the management declare a lock out till then.

1.

Any dispute arising between the parties, according to the terms arrived at were to
be sorted out through negotiation or, failing that by recourse to arbitration.

2.

The matter was therefore, referred to an arbitrator and the arbitrator by his award
held the action of the management warranted.

3.

The respondent challenged the decision of the arbitrator under Article 226/227 of
the Constitution and the High Court of Gujarat reversed the award and substantially
directed reinstatement.

4.

Hence the appeals both by the Management and the workmen.

SC DECISION
1.

Section 11A of the Industrial Disputes Act, 1947 does take in an arbitrator too.

2.

"Tribunal" simpliciter has a sweeping signification and does not exclude Arbitrator. A tribunal
literally means a seat of justice, may be, a commission, a Court or other adjudicatory organ
created by the State. All these are tribunal.

3.

the Arbitrator had the authority to investigate into the propriety of the discharge and the veracity
of the misconduct.

4.

Arbitrator who derives his jurisdiction from the terms of reference will by necessary implication
be bound to decide according to law and when one says "according to law", it only means
existing law.

5.

The Award, in the instant case, suffers from a fundamental flaw that it equates an illegal and
unjustified strike with brazen misconduct by every workman without so much as identification of
the charge against each.

6.

The High Court, while discharging its functions as envisaged by that Article, does not sit as a
Court of Appeal over the Award of the Arbitrator but exercises limited jurisdiction which extends
only to seeing that the arbitrator has functioned within the scope of his legal authority.

Sampath Kumar v UOI


1.

Art. 323-A, brought in by Constitution (42nd Amendment) Act, 1976, authorised


Parliament to provide by law 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.

2.

Clause (2)(d) of that Article envisaged exclusion of the jurisdiction of all courts, except
the jurisdiction of the Supreme Court under Art. 136 with respect to the disputes or
complaints referred to in cl. (1).

3.

Section 28 of the Administrative Tribunals Act, 1985 now saves the jurisdiction of
Supreme Court both under Art. 32 in respect of original proceedings as also under Art.
136 for entertaining appeals.

4.

The petitioners in these writ petitions challenged the vires of the 1985 Act. It was
contended that the exclusion of the jurisdiction of the High Court under Arts. 226 and
227 in service matters specified in s.28 of the Act was unconstitutional and void as it
was part of basic structure and the Parliament cannot alter it.

5. Further, Administrative Tribunal Act 1985 also prescribed the procedure to appoint
Chairman of the Tribunal which was largely vested with the government. Section 6(1)
(c) of the Act allowed a person who held the post of a Secretary to the Government of
India or an equivalent post t become the Chairman.

SC Decision
1.
2.

3.

4.
5.
6.

The 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.
Since these Tribunals were to be substitutes of High Courts it is
impermissible for bureaucrats to hold such a post.
Hence this provision was held to be unconstitutional.

1.

The Chairman should be a retiring or retired Chief Justice of a High


Court.

2.

Other members have to appointed by a committee consisting of a sitting


Judge of the Supreme Court.

3.

It was also suggested that the Chief Justice of India has to be consulted
while making these appointments.

4.

The Parliament accepted these recommendations and now they find a


place in the Act by way of the Administrative Tribunals (Amendment) Act
of 1986.

L. Chandra Kumar v UOI


1. Whether the power conferred upon the Parliament by Article 323-A (2) (d) or upon the

State Legislature by Article 323-B (3) (d) of the Constitution of India, to totally exclude
the jurisdiction of all courts, except that of the Supreme Court under Article 136, in
respect of disputes and complaints referred to in Article 323-A (1) or with regard to
all or any of the matters specified in Article 323-B (2), runs contrary to the
power of judicial review conferred on the High Court under Articles 226/227 and on
the Supreme Court under Article 32 of the Constitution of India?
2. Whether the Tribunals constituted either under Article 323A or under Article 323B of the
Constitution, possess the competence to test the constitutional validity of a
statutory provision or rule?
3. Whether the Tribunals, as they are functioning at present, can be said to be the
effective substitutes for the High Court in discharging the power of judicial review?
If not, what are the changes required to make them conform to their founding objectives?

SC DEECISION ON ISSUE 1
1.

The court after the elaborated discussion held that the power conferred
upon the Parliament by Article 323-A (2) (d) or upon the State Legislature
by Article 323-B (3) (d) of the Constitution of India, to totally exclude the
jurisdiction of all courts, except that of the Supreme Court under Article
136, in respect of disputes and complaints referred to in Article 323-A (1)
or with regard to all or any of the matters specified in Article 323-B (2),
runs contrary to the power of judicial review conferred on the High
Court under Articles 226/227 and on the Supreme Court under Article
32 of the Constitution of India.

2.

It however said that there is no prohibition against their performing a


supplementary role as opposed to a substitutional role.

SC decision on 2nd Issue


1.

it is a must that the jurisdiction of the High Court under Articles 226/227 and of the
Supreme Court under Article 32 is retained and the Tribunals function as a
supplementary body.

In giving the reason of this view the learned Court pointed out the following
points:

In view of the unprecedented increase of litigation it is necessary to provide


Tribunals with supplementary power of judicial review.

It is very necessary for clearing the backlog of pending cases which has
assumed a colossal proportion.

1.

However it held that the jurisdiction of the Tribunals would be subject to the
review of the High Court under Articles 226/227.

2.

This would serve two purposes; one it will ensure that frivolous claims
would be filtered out through the process of adjudication in the Tribunal
and two, the High Court will not lose its power of judicial review.

3.

Thus the Supreme Court held that the Tribunals constituted either under
Article 323A or under Article 323B of the Constitution, possess the
competence to test the constitutional validity of a statutory provision or rule
subject to the review by the High Court.

SC DECISION ON 3RD ISSUE


1.

Tribunals are not substitutes of the High Court but are supplementary.

2.

They will function as a supplementary body and all such decisions of the Tribunals will
be subject to the scrutiny before a Division Bench of the respective High Courts.

3.

To remove the inefficiency of the Tribunals the tribunals should be made subject to the
supervisory jurisdiction of the High Court.

4.

The Ministry may appoint an independent supervisory body to oversee the working of
the tribunals.