Report No. 215
L. Chandra Kumar be revisited by Larger Bench of Supreme Court
1.1 With a view to easing the congestion of pending cases in various High Courts and other courts in the country, Parliament had enacted the Administrative Tribunals Act 1985 which, insofar as its provisions relate to the Central Administrative Tribunal, came into force on 1st July 1985. The Central Administrative Tribunal was established with effect from 2nd October 1985. Benches of the Central Administrative Tribunal are located at 17 places throughout the country. State Administrative Tribunals have also been established in certain States.
1.2 The Administrative Tribunals were established for adjudication of disputes with respect to recruitment, matters concerning recruitment and conditions of service of persons appointed to civil services and posts in connection with the affairs of the Union or of any State or of any local or other authority under the control of the Government or of any corporation or society owned or controlled by the Government. This was done in pursuance of the provisions of article 323A inserted in the Constitution by section 46 of the Constitution (Forty-second Amendment) Act 1976.
In the Statement of Objects and Reasons for introducing the Bill for the Administrative Tribunals Act 1985, it was mentioned 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 11but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievance.
The provisions of the Administrative Tribunals Act 1985 do not apply to members of the military or any paramilitary force, officers or employees of the Supreme Court or any High Court or courts subordinate thereto, persons appointed to the secretarial staff of either House of Parliament or any State Legislature. A person who is, or has been, a Judge of a High Court heads an Administrative Tribunal as its Chairman.
1.3 After the constitution of the Central Administrative Tribunal in 1985, in the beginning, under section 29 of the Administrative Tribunals Act 1985, the Tribunal received on transfer from the High Courts and subordinate courts 13,350 cases, which were pending there. Thereafter, till November 2001, 3,71,448 cases were instituted in the Tribunal. Out of these, 3,33,598 cases have already been disposed of.
The total number of cases received on transfer as well as those instituted directly at various Benches of the Tribunal till 30.06.2006 is 4,76,336 of which the Tribunal has disposed of 4,51,751 cases leaving a balance of 24,585 cases, which constitutes disposal of 94%. The institution of cases in the Tribunal has increased tremendously but the rate of disposal of the cases has also quantitatively increased and in the Principal Bench of the Tribunal at New Delhi, the disposal is 94%. During the year 2000, over 91% of cases of the Principal Bench of the Tribunal have been upheld in writ petition by the Delhi High Court and so qualitatively also the Tribunal has performed well.1
1. http://cgat.gov.in/intro.htm, visited 08.12.2008
1.4 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 setting up of the Administrative Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialized 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.1
1. Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Seventeenth REport on the Administrative Tribunals (Amendment) Bill, 2006, December 2006, paragraph 6.
1.5 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 [Rule 7 of the Central Administrative Tribunal (Procedure) Rules 1987]. Thus, the objective of the Tribunal is to provide speedy and inexpensive justice to the litigants.1
1. Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Seventeenth REport on the Administrative Tribunals (Amendment) Bill, 2006, December 2006, paragraph 6.1.
1.6 Administrative adjudication, which is quasi-judicial in nature, is the main function of the Administrative Tribunals. The basic objective of enacting the Administrative Tribunals Act 1985 was:
(i) to relieve congestion in the ordinary courts; and
(ii) to provide for speedy disposal of disputes relating to service matters.1
1. Department-related Parliamentary Standing Committe on Personnel, Public Grievances, Law and Justice, Seventeenth Report on Demands for Grants (2004-2005) of the Ministry of Personal, Public Grievances and Pensions, August 2004, paragraph 28.1.
1.7 The establishment of the 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.1
1. Department-related Parliamentary Standing Committee on Personnel Public Grievances, Law and Justice, Seventeenth Report on the Administrative Tribunals (Amendment) Bill, 2006, December 2006, paragraph 6.2.
1.8 The Supreme Court has on many occasions examined the constitutional validity of the various provisions of the Administrative Tribunals Act 1985. In S.P. Sampath Kumar v. Union of India, (1985) 4 SCC 458, the Supreme Court directed the carrying out of certain measures with a view to ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes were brought about in the Administrative Tribunals Act 1985 by an amending Act (Act 19 of 1986).
Jurisdiction of the Supreme Court under article 32 of the Constitution was restored. Constitutional validity of the Act was finally upheld in the said case1, subject, of course, to certain amendments relating to the form and content of the Administrative Tribunals. The suggested amendments were carried out by another amending Act (Act 51 of 1987). Thus became the Administrative Tribunals an effective and real substitute for the High Courts.
1. (1987) 1 SCC 124.
1.9 But, in 1997, a seven-Judge Constitution Bench in L. Chandra Kumar v. UOI, JT 1997 (3) SC 589., held as under:
'In view of the reasoning adopted by us, we hold that clause 2 (d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. 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. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted.
It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.'
1.10 The Constitution Bench also addressed the issue of the competence of those who man the Tribunals and the question as to who is to exercise administrative supervision over them etc. and made suggestions to improve the function of the Administrative Tribunals.
1.11 As a result, orders of the Administrative Tribunals are being routinely appealed against in High Courts, whereas this was not the position prior to the L. Chandra Kumar's case.
1.12 On 18th March 2006, the Administrative Tribunals (Amendment) Bill, 2006 (Bill No. XXVIII of 2006) was introduced in Rajya Sabha to amend the Act by incorporating therein, inter alia, provisions contained in the proposed new Chapters IVA and IVB, empowering the Central Government to abolish Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra Kumar.
The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its Seventeenth Report on the said Bill did not subscribe to the same and as for the provision for appeal to High Court expressed the view that the original conception of the Administrative Tribunals be restored and appeal to High Court is unnecessary, and that if a statutory appeal is to be provided it should lie to the Supreme Court only.
In regard to the provision proposing omission of section 17 of the Administrative Tribunals Act 1985 conferring power on the Administrative Tribunals to punish for contempt, the Committee was of the view that in order to ensure implementation of the orders of the Tribunals, their "civil contempt" powers should be retained.
1.13 It may be noted that the Administrative Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service matters.
1.14 The Law Commission of India in its 58th Report on 'Structure and Jurisdiction of the Higher Judiciary' (1974) observed:
"8.29. The creation of Special Service Courts in India may provide to the honest and efficient government servant greater and more effective protection against discrimination or victimization, than at present. Furthermore, the creation of service Courts may reduce the growing volume of arrears in the High Courts and the Supreme Court, provided they are not made subject to the jurisdiction of the High Court under Article 226 and of the Supreme Court under Articles 133 and 136 of the Constitution.
"8.31. But, if the supervisory jurisdiction of the High Court and the Supreme Court remains intact, and the decision of the service Court is subject to review by these higher Courts, we do not see how the creation of Service Courts will reduce the growing volume of arrears in these Courts.
"8.32. In our opinion, the existing legal and constitutional position affords sufficient protection. We do not, therefore, recommend the creation of a separate Service Tribunal."
1.15 The Law Commission of India in its 124th Report on 'The High Court Arrears - A Fresh Look' (1988) took note of the recommendation of "The High Courts Arrears Committee", constituted in 1969 under the chairmanship of the then Chief Justice of India, Hon'ble Mr. Justice J. C. Shah, favouring setting up of Service Tribunals (vide paragraph 1.14 of the Report). The Law Commission, after taking note of its 58th Report, also observed:
"1.15. It is here a germ for the first time of creating specialist Tribunals as alternatives to the High Court with a view to curtailing the jurisdiction of the High Court to control the inflow of work which may indirectly help in tackling the problem of arrears and backlog of cases.
"1.21. The Law Commission is of the firm view that, wherever possible, proliferating appellate and wide original jurisdiction should be controlled or curtailed without impairing the quality of justice.
"1.27. To sum up, the approach of the commission is to reduce number of appeals, to set up specialist courts/tribunals, simultaneously eliminating the jurisdiction of the High Court which, when translated into action by implementing the reports submitted by the present Law Commission, would, on a very superficial assessment, reduce the inflow of work into the High Court by nearly 45% of its present inflow."
1.16 In its 162nd Report on 'Review of Functioning of Central Administrative Tribunal; Customs, Excise and Gold (Control) Appellate Tribunal and Income-tax Appellate Tribunal' (1998), the Law Commission of India recommended that an appeal should be provided to the High Court, to be necessarily heard by a Division Bench against the orders of the Administrative Tribunals, keeping in view the criticism against L. Chandra Kumar that there cannot be a judicial review of an order passed by an authority in exercise of its power of judicial review (vide paragraph 4.5).
1.17 Nevertheless, the fact remains that the very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court.
1.18 In the light of the above, the Law Commission of India suo motu took up the study of the subject to find out if there is any option to end the impasse.