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Report No. 272

7.16 It was in this view that in Hotel Balaji v. State of Andhra Pradesh, AIR 1993 SC 1048 the Supreme Court held:

'To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.'

7.17 In Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 P.C. 165 a five-judge bench of the Privy Council held that, 'an appeal is an application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court.' Similarly, a five-judge bench of the Madras High Court in Chappan v. Moidin Kutti, (1899) 22 ILR Mad. 68 held, inter alia, that appeal is 'the removal of a cause or a suit from an inferior to a superior Judge or Court for re-examination or review.' According to Wharton's Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior Court. In consonance with this particular meaning of appeal, 'appellate jurisdiction' means 'the power of a superior Court to review the decision of an inferior Court.'132

132 Commentaries on the Constitution of the United States, section. 1761.

7.18 A Tribunal created under a Statute is not empowered to examine the Constitutional validity of a law under which it is created because this function is entrusted to the High Courts and the Supreme Court. In the event of conflict between the State(s) and the Parliament with regard to the power to enact a law on a subject which otherwise falls within the domain of the State Legislature, the High Courts and the Supreme Court alone can go into the question of validity of such law.

7.19 In State of Tamil Nadu v. State of Karnataka, (1991) Supp 1 SCC 240 the Supreme Court held that it holds the jurisdiction to decide the parameters of the jurisdiction of the Tribunal which depends upon an interpretation of the Constitution or the Statute as the power of the Courts to sit in judgment over the merits of the decisions of the Tribunals is excluded.133 .

7.20 In Waryam Singh v. Amarnath, AIR 1954 SC 215 it was held that the power of superintendence of High Court under Article 227 of the constitution is not only confined to the administrative superintendence but it also includes within its ambit the power of judicial review. The High Court can call for the records from the Tribunal and can quash the complaint to prevent the abuse of the process of law to ensure that the administration of justice remains clean and pure. 135 In Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 136 the Supreme Court explained the scope of jurisdiction of the High Court under Article 227 of the Constitution observing that the High Court can interfere only to keep the Tribunals and Courts sub-ordinate to it, 'within the bounds of their authority'.

In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. The main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.

135 Pepsi Food Ltd. v. Special Judicial Magistrate, AIR 1998 SC 128.

136 See also Girish Kumar Suneja v. Central Bureau of Investigation, 2017(5) Supreme 466.

7.21 A writ of certiorari does not lie against decision of the Tribunal as it involves consideration of merits of the case regarding the existence and non-existence of the jurisdiction of the Tribunal, legality or illegality of decision and manifest error of law or an error on the face of record in exercise of its jurisdictional power.137

137 Supra note 5 at p. 537.

7.22 Where a statutory right to file an appeal has been provided for, the High Court is not to entertain a petition under Article 227 of the Constitution. In cases where an appeal has not been provided, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code of Civil Procedure, 1908 but where filing a revision before the High Court has been expressly barred, a petition under Article 227 of the Constitution would lie.138

138 Nagendra Nath v. Commission of Hills Division, AIR 1958 SC 398.

7.23 To facilitate quick assessment of different nature of statutory provisions dealing with appeals in the matters of Tribunals at different forums have been examined by the Commission and accordingly, Annexure III gives details of Tribunals from where Appeal lies to the High Court and Annexure IV details about the Tribunal from where Appeal lies to the Supreme Court.

7.24 In T K Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032 the Supreme Court dealt with the case of police personnel of the State of Tamil Nadu who had gone on strike and the State of Tamil Nadu, after bringing a subordinate legislation, terminated their services. The State Police personnel approached the High Court challenging the order of their termination and the issue arose as to whether the said petition was maintainable when the remedy before the Administrative Tribunal was available. The Supreme Court concurred with the law laid down by the larger bench in L. Chandrakumar's Case (Supra), but considering the special facts and circumstances, came to the conclusion that remedy before the Tribunal could not have been equally efficacious observing:

'However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier because of very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute.'

7.25 The Supreme Court had also taken note of the Malimath Committee Report (1989) wherein it has been observed:

'Functioning of Tribunals

8.63 Several tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the interior status and the casual method of working. The last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals.

8.64 Even the experiment of setting up of the Administrative Tribunals under the Administrative Tribunals Act. 1985, has not been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals is not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in sonic of the States where they have been established for their abolition.'

7.26 The word 'Tribunal' used in Article 136 assumes greater significance, in view of the fact that the Supreme Court may grant special leave to appeal from the decisions of Court or Tribunal in the territory of India. However, the word 'Tribunal' is used in contradistinction to 'Courts'.140 By virtue of Article 136, the Supreme Court, being the final Court of appeal can control adjudicatory bodies by hearing appeals from their decisions and pronouncements. The essence of vesting this jurisdiction with the Supreme Court over matters decided by the Tribunals lies in the possibility of Tribunals being debased into arbitrary bodies.141

140 Supra note 103 at 256.

141 Id. at 257.

7.27 A Tribunal would be outside the ambit of Article 136 if it is not vested with any part of the judicial functions of the State but discharges purely administrative or executive duties.142 In Dev Singh v. Registrar, Punjab & Haryana High Court, AIR 1987 SC 1629 it was held that the expression 'Tribunal' used in Article 136 did not mean same thing as 'Court', but included in its ambit all adjudicating bodies provided they were constituted by the State and were invested with the 'judicial' as distinguished from purely administrative or executive functions. Article 136 is a residuary provision which enables the Supreme Court to interfere with the judgment or order of any Court or Tribunal in India in its discretion.144

142 Jaswant Sugar Mills Ltd. v. Lakshmichand, AIR 1963 SC 677.

144 N. Suriyakala v. A. Mohan Doss, (2007) 9 SCC 196.

7.28 Article 136 of the Constitution of India provides that the Supreme Court may in its discretion, grant the special leave to an appeal, from any judgment, decree, sentence or order in any cause or matter passed or made by any court in the territory of India. It is equitable in nature. Article 136 does not confer the right of appeal on any party, but it confers a discretionary power on the Supreme Court to interfere in suitable cases. Article 136 was legislatively intended to be exercised with adherence to the settled judicial principle well established by precedents in our jurisprudence, thus it was intended to be corrective jurisdiction that vests discretion in the Supreme Court to settle the law clearly. Article 136 begins with a non-obstante clause and thus has overriding effect.

It confers residuary powers unfettered by any statute or other provisions of Chapter IV of Part V of the constitution.145 The discretionary power under Article 136 should be exercised sparingly, the Court does not normally appreciate the evidence by itself and go into questions of credibility of witnesses;146 however the power can be exercised to interfere in cases of manifest injustice or where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence147 to avoid grave injustice148 and conclusions that are perverse.149

In U. Sree v. U. Srinivas, (2013) 2 SCC 1585 150 the Court observed "If the findings were not based on perverse reasoning or not recorded in ignorance of material evidence or in exclusion of pertaining materials, interference with the same under Article 136 of the Constitution of India would not be permissible". The discretionary power under Article 136 is not normally exercised unless the demand of justice requires interference151 or when the High Court has taken a view that is reasonably possible152 or when the exercise is likely to be a futile exercise.153

A concurrent finding of fact does not call for interference in an appeal under Article 136 in the absence of any valid ground for interference.154 Further in criminal cases the Supreme Court would be justified to interfere when the High Court completely misdirected itself in reversing the order of conviction passed by the Sessions Court.155 Interference is permissible in a case where question involved of interpretation of the Constitution or constitutional validity of the State or Central legislation or where there is an error outrageous as no reasonable person would countenance156 or where the conclusion arrived by the court below is such as to shake the conscience.157

145 State of Punjab v. Rafiq Masih, AIR 2015 SC 696; and N.A.L. Layout Residents Association v. Bangalore Development Authority and Ors, 2017 (6) Supreme 331.

146 Alamelu v. State, AIR 2011 SC 715.

147 The General Manager, Telephones, Ahmedabad v. V.G. Desai, AIR 1996 SC 2062; and Mohd. Khalil Chisti v. State of Rajasthan, (2013) 2 SCC 541.

148 Sham Sunder v. Puran, AIR 1991 SC 8.

149 Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, AIR 2006 SC 951.

150 See also, Ajay Arjun Singh v. Sharadendu Tiwari, AIR 2016 SC 1417; and BCCI v. Cricket Association of Bihar, AIR 2015 SC 3194.

151 Siemens Ltd. v. Siemens Employees Union, AIR 2010 SC 175.

152 Manoj H. Mishra v. Union of India, (2013) 6 SCC 313.

153 Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461; and Bharat Petroleum Corporation Ltd. v R.C. Vaidya, (2014) 2 SCC 657.

154 Janak Dulari Devi v. Kapildeo Rai, AIR 2011 SC 2521.

155 Gauri Shankar Sharma v. State of Uttar Pradesh, AIR 1990 SC 709.

156 V. Vasanthakumar v. H.C. Bhatia, (2016) 7 SCC 687.

157 Mahesh Chander v. State of Delhi, AIR 1991 SC 1108.

7.29 The Supreme Court explained the scope of Article 136 of the Constitution in Dhakeswari Cotton Mills v. Commissioner of Income-tax, West Bengal, AIR 1955 SC 65 observing:

'It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations.

It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive.'

7.30 While interpreting the provisions of the Inter-State Water Disputes Act, 1956 - an Act enacted under Article 262 of the Constitution, the Supreme Court in State of Karnataka v. State of Tamil Nadu,(2017) 3 SCC 362 159 held that neither section 11 which excludes the jurisdiction of the Supreme Court in respect of water disputes referred to the Tribunal, nor section 6 of Act, 1956 which provides that the award of the Tribunal shall be treated and executed as a decree of the Supreme Court, do not take away the jurisdiction of Supreme Court, to deal with the issues relating to the water disputes. What the Act precludes is the hearing of complaint/grievance at the initial/original stage.

159 See also Nabam Rabia and Bamag Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.

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