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Report No. 162

Annexure

D.O. No. 6(3)(21)/93-L.C.(LS)

K.N. Singh





Chairman,
Law Commission,
Government of India,
Shastri Bhawan,
New Delhi - 110 001.
April 29, 1994

I have addressed you a letter alongwith questionnaires for eliciting your valued opinion regarding the functioning of Central Administrative Tribunal and Income-tax Appellate Tribunal and Customs, Excise and Gold Control (Appellate) Tribunal. The details are given in the letter and the questionnaires.

I would be grateful if you could kindly circulate the letter and the questionnaires to the Hon'ble Judges of your Court to enable them to express their views in the matter. I am aware this will cause, you some inconvenience but the Commission will not be able to complete the in-depth study of the matter without your valued co-operation.

With regards,

Yours sincerely,
(Sd./-)
(K.N. Singh)

To,

Chief Justices of All High Courts

D.O. No. 6(3)(21)/93-L.C.(LS)

April 29, 1994

Dear

By the 42nd Amendment Act, 1976 the Constitution was amended and Article 323A and 323B were inserted to provide by law empowering the Parliament and the State Legislature to enact laws for the Constitution of Administrative Tribunals for the adjudication and control of disputes and complaints relating to the service matters of public servants belonging to the Union or the States. The Parliament enacted the Administrative Tribunal Act, 1985 for constituting the Central Administrative Tribunal. Some of the States have also constituted State Administrative Tribunals for the adjudication and trial of the service matters.

These tribunals exercise the jurisdiction and power which were earlier, exercised by the courts including the High Court and their orders are not amenable to judicial review by the High Courts and the only remedy available to the aggrieved party against the order of the Tribunal is under Article 136 of the Constitution. The Chairman of these tribunals is a retired Judge or Chief Justice of a High Court and the Vice-Chairman is Secretary to the Government or equivalent post holder with a requisite experience.

The selection of the Chairman, Vice-Chairman and the Members is made by a Committee headed by the Chief Justice or his nominee Judge from the Bench. Ordinarily the Tribunal consists of a Judicial Officer and an Administrative Member and its administrative control is under the executive. Orders of these Tribunals are final subject to a Special Leave Petition under Article 136 of the Constitution.

As regards the Income-tax Appellate Tribunal, its orders are subject to the judicial review of .the High Court and under section 256 of the Income-tax Act references are made to the High Court on questions of law. Since a number of references in tax matters were kept pending for long years before the High Court, the Revenue faced great difficulty in collecting the dues from the assesses.

The Law Commission by its 115th Report made recommendation for the constitution of a Central-Tax Court with all India jurisdiction to introduce an all India perception in the matter of implementing of tax law and eliminating conflicting decisions and delay at the High Court level in referency cases. The Tax Reforms Committee set up by the Government of India has also recommended for the setting up of a Central Tax Court. The orders of the proposed Central Tax Court will not be subject to judicial review by the High Court.

Under section 129 of the Customs Act, Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) has been constituted. Its orders are final subject to an order made on reference by the High Court under section 130. The appointment of the President of CEGAT and its functioning came up for consideration before the Supreme Court in R.K. Jain v. Union of India, AIR 1993 SC 1769. While considering the question of appointment, selection and functioning of the CEGAT, the Court referred to the appointment and functioning of other tribunals also including the CAT and Income-tax Appellate Tribunal. The Supreme Court observed:

"The dispensation of justice by the Tribunals is much to be desired. But judicial adjudication is a special process and would efficiently be administered by advocate Judges. The remedy of appeal by special leave under Article 136 to the Supreme Court also proved to be costly and prohibitive and far-flung distance too is working as constant constraint to litigant public who could ill afford to reach the Supreme Court. An appeal to a Bench of two Judges of the respective High Courts over the orders of the Tribunals within its territorial jurisdiction on questions of law would assuage a growing feeling of Injustice of those who can ill afford to approach the Supreme Court. Equally the need for recruitment of members of the Bar to man the

Tribunals as well as the working system by the Tribunals need fresh look and regular monitoring is necessary. Except body like the Law Commission of India would make an in-depth study in this behalf including the desirability to bring CEGAT under the control of law and justice department in line with Income-tax Appellate Tribunal and to make appropriate urgent recommendations to the Govt. of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious, inexpensive and satisfactory."

Proceeding further the Supreme Court observed that these tribunals are not wholly independent bodies, like courts in view of their constitution, of members and the administrative control over them by the executive. The Supreme Court directed the Law Commission of India to undertake an intensive and extensive study in regard to the constitution of the tribunals under the various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve.

Pursuant to the directions of the Supreme Court the Law Commission of India has undertaken in-depth study of the tribunals with a view to submit its suggestions to the Government to make the functioning of the tribunals effective and efficient and provide speedy and inexpensive justice to the litigant public. Even though a number of tribunals are functioning, the Law Commission has for the present confined its exercise with regard to administrative tribunals dealing with service matters and the Income-tax Appellate Tribunal and the CEGAT.

In this context the Commission has prepared two sets of questionnaires, one relating to the functioning of the service tribunals and the other relating to ITAT and CEGAT, to elicit views of the Hon'ble Judges, lawyers, jurists, academician3 and officers of the department, as their response would provide valuable assistance to the Commission in formulating its recommendations. We are enclosing a copy of the two questionnaires to you for your kind perusal and study.

I would, therefore, request you to kindly spare some of your precious time in giving your valued opinion to the issues raised in the-questionnaire at your earliest convenience, preferably within one month.

Looking forward to your cooperation. With regards,

Yours sincerely,
Sd./-



Review of functioning of Central Administrative Tribunal - Customs, Excise and Gold (Control) Appellate Tribunal and Income-Tax Appellate Tribunal Back




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