Report No. 272
8.13 The Commission in its 79th Report titled as Delay and Arrears in High Courts and Other Appellate Courts expressed its concern over the situation with regard to arrears in relation to various proceedings filed and pending in the High Courts. It was observed that the growing needs of the society demands speedy justice and it is in the interest of State and its citizens, that the disputes should be decided as early as possible. The Commission did consider the recommendations of various committees on the question of delay, and also took note of its 58th Report on 'Structure and Jurisdiction of the Higher Judiciary' wherein it was observed that there is an imperative need to reduce arrears in the higher courts.
8.14 The Law Commission of India, in its 162nd Report recommended for providing an appeal to the High Court, necessarily to be heard by a Division Bench. In the alternative the Commission recommended for the constitution of National Appellate Administrative Tribunal headed by a former Chief Justice of High Court or a former Judge of the Supreme Court. The Commission also recommended that the other members shall be either retired judges of the Supreme Court or retired Chief Justices of the High Courts. It was further observed that the remedy provided against the decision of administrative Tribunal by way of judicial review by the High Court and under Article 136 by way of an appeal to the Supreme Court is time consuming as well as expensive.
8.15 Similarly, in its 215th Report, the Commission recommended for the reconsideration of L Chandrakumar Case (Supra) by a larger bench of the Supreme Court and suggested for the suitable amendments to provide for the appellate tribunal. It was observed that the High Court being the highest Court of the State there is a need for proliferating appellate and wide original jurisdiction which should be controlled or curtailed without impairing the quality of justice. On analysis of the provisions of the Constitution of India and the observations made in the case of L Chandra Kumar (Supra) the Commission opined that "the appellate tribunal would in practical terms have a status higher than that of the High Court but lower than the Supreme Court."
8.16 In Kendriya Vidyalaya Sangathan v. Subash Sharma, (2002) 4 SCC 145 it was held that in order to challenge the decision of tribunal, complainants cannot directly go to the Supreme Court nor they can bypass the High Court. The High Court has supervisory powers over the administrative tribunals. But the situation leads to increasing the burden of High Court on one hand and helps reducing apex court's dockets in service matters and facilitates a remedy at close quarters without huge expenses.
8.17 The legislative intent to exclude the jurisdiction of High Courts along with all the Civil Courts from adjudicating disputes or entertaining any complaints' in service matters is explicit from relevant provisions of the Administrative Tribunals Act, 1985 including Section 28.166 As a rule of prudence, a right of appeal is a creation of Statute and it cannot be claimed as a matter of right. The right to appeal has to exist within the Constitutional framework. It cannot be created by acquiescence of the parties or by the order of the Court.
It is neither a natural nor an inherent right attached to the litigant being a substantive, statutory right.167 Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature as conferring jurisdiction upon a Court or Authority, is a legislative function.168 The right of appeal can be circumscribed by conditions.169
166 Supra note 5 at p. 532.
167 United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Kondiba Dagdu Kodam v. Savitribai Sopan Gujar, AIR 1999 SC 2213; and U P Power Corporation Ltd. v. Virenddra Lal, (2013) 10 SCC 39.
168 Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96.
169 Vijay Prakash D. Mehta & Jawahar D Mehta v. Collector of Customs (Preventive) Bombay, AIR 1988 SC 2010.
8.18 Bypassing the High Court or debarring it from entertaining a dispute involving the question of constitutional validity of any law would be directly hitting the basic structure. It would amount to denying a Constitutional remedy to the aggrieved party. The power of judicial review vested in the High Courts assumes greater significance when the matters involving State as one of the litigant are large in number.
8.19 The High Courts have unquestionable power of superintendence and control over the Tribunals under the Constitution. However, the overriding effect in Articles 323-A and 323-B under Part IXV-A cannot in any case denude the High Court of its power of superintendence under Article 227 of the Constitution. 'The exclusion of jurisdiction of all the Courts except the Supreme Court' cannot be construed to mean that, the power of judicial review vested in the High Court is also excluded.
8.20 In L. Chandra Kumar (Supra), the Supreme Court declared clause 2(d) of Article 323A and clause 3(d) of Article 323B, which excluded the jurisdiction of the High Courts under Articles 226, 227 and of the Supreme Court under Article 32 of the Constitution as unconstitutional. The Court explicitly observed:
"99 Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.".
8.21 The Commission is of the view that in order to achieve the goal for which the Tribunals have been established i.e., to reduce the burden of Courts, it is desirable that only in those cases where the Statute establishing the Tribunal does not have a provision for the establishment of an Appellate Tribunal for hearing an appeal from the decision of said Tribunal, the High Court may be allowed to be approached by way of an Appeal against the decision of a Tribunal. Every order emanating from the Tribunal or its Appellate Forum, wherever it exists, attains finality. Any such order may be challenged by the aggrieved party before the Division Bench of the High Court having territorial jurisdiction over the Tribunal or its Appellate Forum.
8.22 For the effective working of this idea, it will be necessary that the Appellate Tribunals established must act judiciously and that such Appellate Tribunals should be constituted at par with the High Courts and the members appointed in these Tribunals should possess the qualifications equivalent to that of the High Court Judges.
8.23 If appeals against the decision of Appellate Tribunals are brought before the concerned High Courts in a routine manner, then the entire purpose of establishing Tribunals will get frustrated. Therefore, the Commission is of the view that the aggrieved party against the decision of such Appellate Tribunal should be able to approach the Supreme Court on the grounds of Public or National importance and not before any other authority. The Appellate Tribunals established under various Acts where an appeal lies against an order of the Tribunal constituted under the concerned Act are set out in Annexure-V.