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Report No. 215

4. The Administrative Tribunals (Amendment) Act 2006 (1 Of 2007) And The Administrative Tribunals (Amendment) Bill 2006

4.1 The Administrative Tribunals (Amendment) Act 2006 (1 of 2007) has brought about many changes in the Administrative Tribunals Act 1985. A new section 6 has been substituted pertaining to the qualification for appointment of Chairman, Vice-Chairman and other members. Sub-section (1) of new section 6 provides that a person shall not be qualified for appointment as the chairman unless he is, or has been, a judge of a High Court. Sub-section (2) of the said section lays down the qualifications for appointment of Administrative Members and Judicial Members.

A Secretary to the Government of India with two years of service and Additional Secretary to the Government of India with five years of service are eligible for appointment as an Administrative Member. A person who is or qualified to be a Judge of a High Court and Secretary, Department of Legal Affairs or Legislative Department including Member-Secretary, Law Commission of India, Government of India, with two years of service and Additional Secretary, Department of Legal Affairs or Legislative Department with five years of service are eligible for appointment as a Judicial Member.

Further, sub-section (3) of the said section provides that the Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President.

4.2 The Act 1 of 2007 has abolished the post of "Vice-Chairman" which existed before as an independent class. However, new clause (u) of section 3 defines "Vice-Chairman" as a Member who has been authorized by the appropriate Government to perform administrative functions at each of the places where Benches of the Tribunal have been set up.

4.3 The Parliamentary Standing Committee11 has recommended as follows:

'As a remedial step, the Committee expressed the following view:

"Maybe, a retired judge of the Supreme Court can preside over. And, maybe, the other member could be from the judiciary; not from the district judges, but from the level of High Courts, we can keep one. And, then, the third and fourth members can be from the administration so that the dignity and strength of the tribunal is enhanced to that extent."'

4.4 The background note on the Administrative Tribunals (Amendment) Bill 2006, furnished to the Parliamentary Standing Committee12 by the Ministry of Personnel, Public Grievances and Pensions states as follows:

"Initially it was envisaged that litigation relating to service matters should be adjudicated upon by Administrative Tribunals and should not increase the burden of the High Courts. Thus, the appellate jurisdiction was only with the Supreme Court of India. However, the Supreme Court in L. Chandra Kumar v. UOI (AIR 1997 SC 1125) has held that the writ jurisdiction of the High Court under Article 226/227 of the Constitution cannot be extinguished by any Act since it is a part of the basic structure of the Constitution. Thus, appeals from judgments of the Administrative Tribunals now lie to the Division Bench of the corresponding High Court.

A number of State Governments have proposed for the abolishing of SATs essentially on the ground that since the orders of the SAT have been made appealable before the Division Bench of the High Court, it has merely added one more tier in the judicial hierarchy. The State Governments have also stated that the SATs have become very expensive to administer. At the Central level too, it has been found that some Benches of the CAT have now become unnecessary (or will become unnecessary in the near future) since the cases pending before them have diminished in number.

Currently, the Administrative Tribunals Act, 1985 does not provide for either the abolishing of an Administrative Tribunal or for the transfer of cases to any Court outside the Tribunal.

As a result of the Supreme Court judgment in L. Chandra Kumar, orders of the Central Administrative Tribunal have now routinely been appealed against in High Courts whereas this was not the position earlier. Across the board, the interpretation given by High Courts to the L. Chandra Kumar/T. Sudhakar Prasad judgment is that High Courts function as Courts of Appeal to the Central Administrative Tribunal.

It should be observed that though the Chandra Kumar/Sudhakar Prasad judgments only reaffirmed the existing legal and constitutional provisions, the interpretation has been such as to place the Tribunal in a position subordinate to the High Courts in the matter of appellate jurisdiction."

4.5 A provision was made in the aforesaid Bill for an appeal to the High Court. Section 27D(1), as proposed in the Bill, provides as follows:

"Any person aggrieved by any decision or order of the Tribunal may file an appeal to the High Court."

4.6 The aforesaid Bill also seeks to amend the Administrative Tribunals Act 1985 to provide for an enabling provision for abolition of Tribunals as well as for transfer of pending cases to some other authority after a Tribunal has been abolished since the parent Act does not contain any specific provision for abolition of Tribunals.

4.7 The Parliamentary Standing Committee1 also invited views/suggestions from various organizations on the aforesaid Bill. A number of representations/memoranda were received. One of the major points raised in the memoranda were:

1. Department related Parliamentary Standing Committed on Personnel, Public Grievances, Law and Justice, Seventeenth Report on the Administrative Tribunals (Amendment) Bill, 2006, December 2006, paragraph 3.

"The record of disposal of cases of Administrative Tribunals has been excellent as compared to the subordinate Courts and High Courts. The abolition of the Administrative Tribunals will increase the pending cases in the High Courts whereby speedy justice will be denied to the citizens by putting additional burden on the High Courts."

4.8 Mr. Justice V. S. Malimath deposed before the Parliamentary Standing Committee1 as under:

1. Department related Parliamentary Standing Committed on Personnel, Public Grievances, Law and Justice, Seventeenth Report on the Administrative Tribunals (Amendment) Bill, 2006, December 2006, paragraph 4.3.

"Because Supreme Court can always interfere with any decision of the Tribunal and High Court can also do it, therefore, High Court jurisdiction will continue to be operative. But, if you provide an appeal against an order of the Tribunal, technically, you may say that Article 226 and 227 can still be exercised, but no judge will exercise jurisdiction. If you say that an appeal to the High Court, I mean, you are burdening the High Court with another set of cases and thereby delaying the disposal of the service matters.

He also stated that the aggrieved persons would like to use appeal if it is available and that the High Court will then be flooded with a number of cases. If there are more cases, there will be more delay and it will defeat the entire purpose of the enactment under the Constitutional provisions.

Another pertinent point raised by him was that the way the Act is being implemented now, it is weakening the Tribunal. Firstly, it is making the Tribunal subordinate to the High Court and its stature is lowered. Secondly, earlier, the retired Chief Justice used to be the Chairman of the Tribunal and now, this practice seems to have been given up. Now a retired Judge of the High Court can be appointed as Chairman since the statute does not provide that the Chairman of the Tribunal should be former Chief Justice. Thus the stature of the Tribunal is lowered."

4.9 Speaking before the Parliamentary Standing Committee1 on the issue of abolition of Administrative Tribunals, Mr. Justice Ashok Agarwal deposed that the proposal for abolition was not legal and that what the Government could do by legislation should be done by that method only. He opined that the legislature should not delegate that power to the executive. He deposed as under:

"If a particular Tribunal is not working satisfactorily, steps can be taken against that particular Tribunal. But, on that account we cannot abolish all the Tribunals across the country in one stroke because different States are governed by different conditions of service...."

1. Department-related Parliamentary Standing Committee on Personal, Public Grievances, Law and Justice, Seventeenth REport on the Administrative Tribunlas (Amendment) Bill, 2006, December 2006, paragraph 4.4.

4.10 The amendment of the Administrative Tribunals Act 1985 by Act 1 of 2007 has brought in changes which are seminal in nature. The Administrative Members can be appointed only from among persons who have had a minimum incumbency in the highest post of executive machinery. The status of members appointed, both judicial and administrative, has been equated with that of Judges of the High Court.

The statistics would show that only a small percentage of the decisions is unsettled, ultimately, but the pendency of service cases in the High Courts is a reality. The remedial measures appear to be two-fold. One is to come with a provision for an in-house appeal, the modalities of which could be discussed and finalized, and the Act could be amended accordingly. By constituting such an appellate body, the parameters presently followed naturally would get supplanted, and the period of pendency always limited.



L. Chandra Kumar be revisited by Larger Bench of Supreme Court Back




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