Report No. 215
3. Law Commission's 162nd Report
3.1 The Law Commission in its 162nd Report1 made an alternative recommendation for constitution of National Appellate Administrative Tribunal in the following words:
1. (1980) 4 SCC 38, paragraph 1.16.
"The Supreme Court has laid down in L. Chandra Kumar's case (supra) that an aggrieved party can have recourse to the jurisdiction of the respective High Court under Article 226/227 of the Constitution of India, against the decision of the Central Administrative Tribunal. The repercussions of this development of law have already been felt. The Karnataka Government has sought to abolish the Karnataka State Administrative Tribunal.
In the news items in the recent past, it has appeared that even the Central Government is proposing to abolish CAT. The remedy of judicial review by the High Court provided against the decision of the Administrative Tribunal and a possible further appeal to the Supreme Court under Article 136 is not only time-consuming but also expensive. Besides this, the various High Courts may interpret differently any statutory provision concerning the service conditions governing the employees.
Thus the lack of uniformity in the High Court decisions and consequently in CAT benches will create confusion in the mind of the litigant. It will further make the public loose faith in seeking justice through the judiciary, and thus undermine the democratic norms.
The Commission is of the considered view that a National Appellate Administrative Tribunal be constituted on the lines of the National Consumer Disputes Redressal Commission under section 20 of the Consumer Protection Act, 1986. It shall be manned by a retired Chief Justice of a High Court or a retired Judge of the Supreme Court of India. An appeal, on substantial questions of law and fact may lie to the proposed Appellate forum, against the decision of the Central Administrative Tribunal.
The proposed forum may have branches all over the country to reduce the cost of litigation to the litigant.
The decision of the proposed Appellate court will be binding on all benches of CAT. The proposed forum will be of status higher than a High Court but below the Supreme Court.
An appeal may lie against the decision of the proposed appellate forum to the Supreme Court. Under section 130-E of the Customs Act, 1962, an appeal lies from the decision of the CEGAT to the Supreme Court. Similarly, under section 23 of the Consumer Protection Act, 1986, an appeal lies against the National Commission's decision to the Supreme Court.
It will not be advisable to convert the Supreme Court to a first appellate court, because flooding of appeals against the Tribunals' orders may dilute the importance of the Supreme Court and consequently our democratic polity will suffer (1994 (2) Journal Section SCALE J1 by Justice A.M. Ahmadi). In this manner, an aggrieved party will not have a right of recourse to the writ jurisdiction under Article 226/227 of the High Court against the decision of CAT inasmuch as it is settled law that where adequate remedy of appeal is there, one cannot have recourse to the writ jurisdiction (see AIR 1996 SC 1209; AIR 1997 SC 2189).
Though it is undisputed that where the vires of the statute under which the Tribunal is constituted, is challenged, one can have recourse to the writ jurisdiction under Article 226/227 of the Constitution of India but such cases will be insignificant in number. Similarly when a right to appeal is contemplated to the Supreme Court against the decision of the proposed Appellate Administrative Tribunal, one cannot have recourse to the writ jurisdiction of the High Court under Article 226/227 of the Constitution.
This procedure will take care of the ensuing problems cropping up after the decision in L. Chandra Kumar's case (supra).
The proposed President of the Appellate forum will continue to draw the same salaries and perks as are admissible to a sitting Judge.
All pending writ petitions against the decision of CAT/SAT in pursuance of L. Chandra Kumar's case (except those in which the vires under which the Tribunal is constituted, is challenged), may be transferred to the proposed Appellate Forum.
This proposal can be effective and beneficial, only if Benches of the Appellate Forum are established at all important centres, at least in the capital of every State, on the pattern of the High Court.
It is the need of the hour that for expeditious disposal of cases, all cases which raise one or more common questions of law and on the basis of which, the cases can be disposed of by a common judgment, should be grouped together and heard together. Thus in the 79th Report of the Law Commission of India on delay and arrears in High Courts and other appellate courts, this recommendation has been echoed..."
(vide paragraphs 4.8 and 4.9)
3.2 The Law Commission in the aforesaid Report, as regards the position of the Administrative Tribunal after L. Chandra Kumar, also observed:
"It is no longer an alternative mechanism to the High Court, but a tribunal whose decisions are subject to scrutiny by the High Court, albeit by a Division Bench. (As a matter of fact, Shri Justice Shiva Shankar Bhat, a retired Judge of the Karnataka High Court, who was appointed as Chairman of the Karnataka State Administrative Tribunal, tendered his resignation soon after the decision in L. Chandra Kumar was rendered, complaining that inasmuch as the position and status of the Tribunal has been downgraded by the said decision, he cannot continue as the Chairman of the State Administrative Tribunal).
While striking down certain clauses of Articles 323-A and 323-B of the Constitution, the Supreme Court has at the same time affirmed the soundness of the principle on which these administrative tribunals are created. It did not agree with the contention that these tribunals should be abolished inasmuch as they have not proved effective in discharge of their duties and have failed to achieve the object with which they were created.
The Supreme Court has also held that though these tribunals are subject to the writ jurisdiction of the High Courts, they are yet competent to decide questions relating to the constitutional validity of the statutory provisions and rules except, of course, the provisions of the Administrative Tribunals Act 1985 under which they have been constituted. The Supreme Court has also rejected that there ought to be no technical/administrative members in these tribunals. They said that these non-judicial members provide an input which may not be available with the judicial members.
In the light of the above dicta of the Supreme Court, not much room is left for the Law Commission of India to suggest any substantial measures or recommendations with respect to the functioning of these tribunals."
(vide paragraph 4.5)