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Report No. 126

5.14. Tribunalisation of justice, even though frowned upon, has been approved by the Supreme Court of India.1 There is a feeling among some vocal sections that tribunalisation of justice to the exclusion of the High Court diminishes the value of justice compared to one rendered by courts. However, the belief that specialist tribunal has the advantage of rendering speedy and effective justice compared to the generalist court is gaining ground.

There are as many as 2,000 tribunals operating in various fields in U.K. alone subject, of course, to the supervision of the Council on Tribunals which was set up under the Tribunals and Inquiries Act, 1958, but which was comprehensively repealed and replaced by Tribunals and Inquiries Act, 1971.

The Constitution was amended to incorporate Part XIVA enabling the Parliament by law to provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to matters referred to in clause (2) of Article 323B as also with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local authority within the territory of India or under the control of the Government of India or any Corporation owned of controlled by the Government. It is interesting to note that this amendment was the outcome of a strong recommendation made by the Supreme Court which may be extracted:

"There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their time and energy in court room battles. Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no institution can function effectively.

The constitution of service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in service matters. The proceedings 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 and displease only a few."2

This view was reiterated by the Supreme Court in which it observed:

"In these appeals we have once again to consider career conscious competing claims to seniority which appear so much to dominate the lives and careers of our civil servants that a large bulk of the cases in this court relate to the resolution of problems arising out of such claims. So much of our time is taken up in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact finding administrative tribunal who should invariably be approached in the first instance will not better serve the cause of successful administration."3

However, the cases relatable to the service conditions of civil servants continued to flood the court. Ordinarily, the dispute was with regard to claim to inter se seniority when recruitment to a cadre was from more than one source and these cases consumed considerable time of the Court. The Court by its decisions also compounded the confusion. The Court had, therefore, to point out that in order to put service jurisprudence on fair and rational basis, it would be necessary to reconsider some of the decisions of the Court.4

The Court reiterated this view.5 And yet the cases came in quick succession. Chief Justice Chandrachud (as he then was) was constrained to open his judgment observing: "Once again, we are back to the irksome question of inter se seniority between promotees and direct recruits".6 And the irony of situation was that the contestants before the Court were judicial officers of Delhi.

Reversing the view taken by the Delhi High Court taken on its administrative side, the Chief Justice, after referring to the decision in the case of A. Janardhan, concluded that even though no two cases are alike, yet the observations from A. Janardhan extracted by the Chief Justice were not without relevance to the decision of the case before him. Shorn of legal or judicial jargon, it meant that even though the law was settled, the disputes rolled in unhindered.

To conclude on this point, even though a view of law was repeatedly reiterated by the Supreme Court, yet the matter was again put in the lap of the Court almost raising identical contention.7 What is the lesson? Indubitably, the absence of courier between court and administrative Departments multiplies litigation.

The Courier by itself may not solve the problem but if the attention is focussed on the latest pronouncements and a grievance resolution machinery is set up, the Government can successfully avoid litigation. And yet, if some recalcitrant party persists in doing it, the court can throw him out at the threshold without allowing him to impinge upon the valuable time of the court.

1. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.

2. Kamal Kanti Dutta v. Union of India, AIR 1980 SC 2056.

3. Harjeet Singh v. Union of India, (1980) 3 SCC 205.

4. A. Janardhana v. Union of India, (1983) 2 SCR 936.

5. P.S. Mahal v. Union of India, (1984) 4 SCC 545.

6. O.P. Singla v. Union of India, (1984) 4 SCC 450.

7. G.S. Lamba v. Union of India, (1985) 2 SCC 604.

5.15. Ultimately, this led to the enactment of the Administrative Tribunals Act, 1985. Sub-section (2) of section 14 confers power on the Central Government to apply, with effect from the dates to be specified in the notification, the provisions of sub-section (3) of section 14 to local or other authorities within the territory of India or under the control of the Government of India and to corporation or society owned or controlled by Government of India excluding those controlled and owned by State.

It appears that the relevant notification has still not been issued with the result that the employees of the public sector undertakings are not brought within the purview of Central Administrative Tribunal. It thus appears that tribunalisation of justice has come to stay. The Supreme Court rejected the contention that the Administrative Tribunals Act, 1985, contravenes the basic structure of the Constitution. It accepted the administrative tribunal set up under the Act as providing another alternative institutional mechanism or arrangement for judicial review and it was held to be equally efficacious as the High Court whose jurisdiction was excluded by the Act.

5.16. Following this line of thinking, the terms of reference relevant to judicial reforms on which the Law Commission was invited to work, inter alia, provided to ascertain the matters for which Tribunals (excluding services Tribunals) as envisaged by Part XIVA of the Constitution need to be established expeditiously and various aspects related to their establishment and working.

5.17. The Law Commission accordingly proceeded to identify various specialist jurisdictional areas, such as, labour disputes, disputes in the field of education and disputes in the field of taxation of laws and recommended setting up of national court, as well as various different Tribunals.1

1. LCI, 115th Report on Tax Courts; LCI, 122nd Report on Forum for National Uniformity in Labour Adjudication; LCI 123rd Report on Decentralisation of Administration of Justice: Disputes involving Centres of Higher Education.

5.18. The Law Commission also took note of the attempts by the specialist Tribunals for disputes arising under the Customs Act, 1962, Central Excises and Salt Act, 1944, and Gold (Control) Act, 1968. Under the aforementioned three Acts, Government of India constituted the Customs, Excise and Gold Control (Appellate) Tribunal in the year 1982, having exclusive jurisdiction to deal with decisions of the administrative officers functioning under the various services.

However, it should not be forgotten that the decisions of the aforementioned Tribunals can be questioned before the High Court under Article 226 of the Constitution or by way of reference procedure which merely adds one more stage rather than reducing any.

5.19. It would, therefore, be idle parade of familiar knowledge to advance all those supporting reasons for setting up various Tribunals. However, let it not be forgotten that the approach paper relevant to the present report invited suggestions not for setting up different forum to the exclusion of courts for resolution of disputes involving public sector undertakings/Government.

In fact, the search is for litigation policy and strategy to be followed by public sector undertakings and Government, with a view to, as far as possible, avoiding litigation or resort to courts and to devise a machinery to settle the disputes amongst contending parties. That cannot be ascertained with certainty by recommending tribunals involving litigation by or against public sector undertakings as well as Government.

5.20. The alternative suggestion was that an Ombudsman, by whatever name called, be appointed to whom all disputes involving public sector undertakings inter se, or between public sector undertakings and Government, or such undertakings and citizens at large be referred to whose decision should be final.

The suggestion is not a novel one in the sense that the Law Commission has already dealt with this aspect and suggested constitution of an Ombudsman at the Centre as well as State level for various Ministries empowering him to entertain grievance from any member of public against public sector undertakings/Government and pleading for appropriate relief. This was to be an opening to the public having grievances against the Government/public sector undertakings with no legal sanction behind it.

The suggestion was improved upon by saying that the Ombudsman, either on a complaint or suo motu, may examine administrative lapses which the court may be disinclined to cure. It was believed that the Ombudsman undertaking investigation of the complaint would, in a large number of cases, be able to set right the matter by persuading the Ministry concerned to redress the wrong.1 It must not be overlooked that the institution of Ombudsman has been operating in various countries and the institution is not free from pungent criticism.

"May we not be in danger of establishing more red-tape, more bureaucracy-a Parliamentary Commissioner and staff, special sections within Government Departments to deal with the Parliamentary Commissioner and his staff and perhaps eventually a Parliamentary Commissioner to watch the Parliamentary Commissioner and all for the doubtful advantage of adding to the existing machinery yet another watchdog which can bark but cannot bite?"2

1. M.P. Jain Lokpal and Ombudsman in India.

2. Holland A British Ombudsman, 1962 Soliciter Quarterly 158, also see Control of the Executive Officers of Government by S.M. Huang, Journal of the Indian Law Institute, Vol. 5, p. 182.

5.21. In public responses to the approach paper circulated by the Law Commission, a suggestion recommending setting up of Lok Adalats for resolving disputes between public sector undertakings inter se, and between Government and public sector undertakings as well as local authorities and other authorities was put forth. Institution of Lok Adalats started as a voluntary organisation modulated by the courts for informal resolution of disputes but mostly manned by members of judicial fraternity.

Now it has received a statutory recognition in Chapter VI of the Legal Services Authorities Act, 1987. Lok Adalat can cater to the resolution of simple disputes between individuals such as partition of property, Family disputes, maintenance cases, compensation for victims of motor accidents, et al. These are disputes where an approach of give and take may result in resolution of disputes. The more and more Lok Adalats are being convened, its limitations and infirmities are becoming visible.

'At times, in view of the lack of supervision over its function by any higher authority, it leads to degeneration in the quality of justice because advertently or inadvertently many unfair practices creep in'.1 Therefore, institution of Lok Adalats will have limited utility in resolving disputes between Government and citizen, between public sector undertakings inter se, and between local authorities and other instrumentalities of the State.

1. Prof. I.P. Massey Conciliation through subordinate courts: A Unique Himachal Pradesh Experiment, (A paper presented at the All Indian Workshop sponsored by the Law Commission of India, University Grants Commission and Himachal Pradesh University held at Shimla in June 1987).

5.22. The last suggestion was that a tribunal on the lines of Railway Claims Tribunal being set up under the Railway Claims Tribunal Act, 1987, for inquiring into and determining claims against the Railway Administration for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to be carried by railway or for the refund of fares or freight to it, for compensation for death or injury to passengers occurring as a result of railway accident and for matters connected therewith or incidental thereto, may be set up in respect of public sector undertakings.

That again assumes one more tribunal being set up but does not answer the query of the Law Commission as to what litigation policy should be adopted by Government/public sector undertakings who have maximum litigation in the court to avoid avoidable litigation in the larger interest of the nation and to eschew litigious culture and incidentally to relieve unbearable burden on court system. The search is for policy and strategy of litigation by Government/public sector undertakings.

5.23. The public debate, though well participated, has not been able to throw up any one solution helpful in this behalf. The search must continue.



Government and Public Sector Undertaking - Litigation Policy and Strategies Back




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