Report No. 123
4.8. Educational tribunals set up by the States have by and large very limited jurisdiction. More or Less they deal with disciplinary matters relating to the members of the teaching staff or the karamcharis. They have no jurisdiction over disputes involving students, examination malpractices or where the dispute is between the university and the State Government. By and large, these tribunals are manned usually by retired Judges belonging to the cadre of District and Sessions Judge who, one can say with no disrespect, would have no experience of the administration of universities and the problems encountered by them.
4.9. The decisions of these tribunals are subject to judicial review by the High Court. The area of interference by the High Court would certainly be restricted because ordinarily the High Court, in exercise of the power of judicial review under Articles 226-227, would not interfere with findings of fact recorded by the tribunal. These tribunals, to some extent, enjoy the confidence of the teachers of the university and of affiliated colleges. Available information shows that tribunals for Shivaji and Poona University set aside the order of discharge of teachers and directed reinstatement in 32 out of 63 cases brought before them.1
1. S.P. Sathe College Tribunals in Pune and Bombay: A Survey, 1981, Monograph submitted to the ICSSR, Western Regional Centre, Bombay.
4.10. Before we conclude on this point, it would be fair to point out that there is a body of opinion which views with certain amount of trepidation justice rendered by tribunals. Tribunals are indisputably proliferating. The Law Commission, in its pursuit for decentralisation of monolithic administration of justice in this country, has tended to support the tribunalisation of justice. Even outside the periphery of the recommendations of the Law Commission, tribunals have been operating in India since a long time. To illustrate, Income Tax Appellate Tribunals came into vogue on 25th Jan., 1941.
Then there is a Customs, Excise and Gold Control Tribunal. There is a Railway Rates Tribunal. There are Industrial Tribunals. Very recently Administrative Tribunals under Administrative Tribunals Act have been set up to deal with disputes between the Government and its employees. Undoubtedly, these tribunals enjoy the judicial power of the State. Their decisions are subject to judicial review by the High Court under Articles 226-227 and the Supreme Court under Articles 136 and 32 of the Constitution.
4.11. Before the relevant question is posed whether tribunalisation of justice diminishes the value of justice compared to one rendered by courts, it is necessary to point out that in U.K. alone, there are as many as two thousand tribunals operating in various fields subject to the supervision of the Council on Tribunals. The Council on Tribunals was first set up under the Tribunals and Inquiries Act, 1958, which was repealed and replaced by the Tribunals and Inquiries Act, 1971. The principal functions of the Council are: (a) to keep under review the constitution and working of the tribunals; (b) to consider and report on such matters as may be referred to it from time to time; and (c) to consider and report on administrative procedures. Administrative law and administrative justice require strict compliance with not only prescribed procedure but by and large the procedure must inhere principles of natural justice.
A compliance with an established procedure and a speaking order would at least have the tendency to disclose how the decision making mind has worked in reaching the conclusion and at any rate the decision has to be plausible. The Council thus co-ordinates the work of different tribunals and its role is found to be important in impartial dispensation of justice by tribunals. The Council is not without its critics in that it has been said that it is the toothless lion and its opinions are often ignored by the Government. It has no participatory role in drafting legislation for any new statutory tribunal. At some later date, Law Commission will have.to plan a report on a body having supervisory jurisdiction for proliferating tribunals.
4.12. Returning to our country, it must be pointed out that tribunals have never been looked upon with disfavour generally. In fact, functioning of the Income Tax Appellate Tribunal has been admired by many tax experts. Even then there is undoubtedly a tilt in favour of courts and against tribunals.
4.13. Why this element of suspicion creeps in needs not only examination but the criticism must also be properly and effectively met or it must be accepted. Courts of law, in contradistinction to tribunals, are generalist courts. Tribunals can be said to be specialist courts in a limited sense. The apprehension is not to tribunals taking over the function of the courts but the apprehension stems from the fact about the control exercised over the tribunals by the Government, about the manner, method and power of appointment of personnel manning the tribunals, and by and large their independence from governmental pressures. The fasciculus of articles bearing the heading 'TRIBUNALS' comprised in Part XIVA of the Constitution envisages setting up of tribunals for adjudication of disputes, complaints or offences with respect to matters set out in Article 323B(2).
The items set out therein cover a large area. Examining the scope and ambit of Article 323A, which enables the appropriate Government by a suitable legislation to set up service tribunals for dealing with controversies relating to conditions of service, including the vexed question of seniority of the Government employees, the Supreme Court observed that such tribunals may save the courts from the avalanche of writ petitions and appeals in service matters. The proceeding of such tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many.1
Later on, when the Parliament enacted the Administrative Tribunals Act. 1985, its constitutional validity was questioned and upheld with certain observations by the Constitution Bench of the Supreme Court of India.2 The court did not disfavour tribunalisation of justice but only concentrated its attention on areas which permit tribunals to be looked upon with a certain amount of suspicion. After observing that judicial review is a basic and essential feature of the Constitution and, therefore, no law passed by Parliament in exercise of its constituent power can abrogate it or take it away, the court proceeded to observe that Parliament can set up effective alternative institutional mechanisms or arrangements for judicial review without dispensing with judicial review itself.
Approaching the matter from this angle, the court observed that the Act provides for another mechanism instead of the High Court which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the rule of law. It was further observed that if, by law, the jurisdiction of the High Courts under Articles 226 and 227 is excluded and which is permissible, the law must not create a void but set up another effective institutional mechanism or authority and vest the power of judicial review in it. The law did pass the test of constitutionality subject to certain amendments which the court indicated. Thus, tribunalisation of justice, simultaneously excluding the jurisdiction of the High Court, was not looked upon with disfavour.
The real test to be kept in view is that the tribunals would be courts' substitutes and, therefore, it must not be such as to give an appearance that the court justice would no more be available. On the contrary, instead of the generalist courts, such tribunals will have special experts manning it. The tribunals having jurisdiction over specified areas can be manned by specialists in the field and, therefore, it is likely to acquire relative speed and informality of procedure in resolution of disputes. The crux of the matter is not that tribunals are substitutes for courts but it is as to who mans them and what procedure would be followed and whether it would be totally free from Governmental control.
Once care is taken to ensure non-encroachment into these grey areas, tribunal justice may be found to be more acceptable, welcome and effective than the generalist court justice. While recommending, therefore, a tribunal for resolving disputes in the field of education, the Commission would point out what effective steps must be taken on the question of selecting personnel for manning the tribunal, the procedures to be followed by tribunal and its insulation against governmental interference or interference by affected interests.
1.K.K. Datta v. Union of India . AIR 1980 SC 2056.
2. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.