Report No. 162
4.5. Administrative Tribunals constituted under the Administrative Tribunals Act, 1985 (Article 323A of the Constitution of India).-
The Administrative Tribunals Act, 1985 excluded the jurisdiction of the High Court in the matters within the seisin of the Tribunals created thereunder, as contemplated under clause 2(d) of Article 323A of the Constitution. Until the decision in Chandra Kumar's case, the decision of the Administrative Tribunals could not be questioned before the High Court. Parties aggrieved with the decisions of the Administrative Tribunals had to approach and were approaching the Supreme Court directly under Article 136 of the Constitution, irrespective of the fact whether the decision of the tribunal was rendered by a single member or a Bench.
This was the position affirmed by the Supreme Court earlier in S.P. Sampat Kumar v. Union of India, (1987) 1 SCC 124. But the later decision in L. Chandra Kumar, rendered by a larger Constitution Bench has made a substantial and qualitative difference to the above position, as has been detailed hereinabove. With this later decision, the status of these tribunals has also undergone a radical change. They have now become tribunals subordinate to the High Court which is evidenced from the fact that the decisions of these tribunals are now amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
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 323A and 323B of the Constitution of the Administrative Tribunals Act 1985, 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. Even so, there are certain areas which can be and are dealt with hereunder:-
(a) With a view to improve the efficiency of the administrative tribunals, the present practice of appointing retired or about to retire District Judges as judicial members is not entirely satisfactory. These District Judges do not deal with service matters during their judicial service and since they are appointed towards the end of their career, there is not much time and in some cases inclination to learn this branch of law viz., service jurisprudence.
They get hardly two to three years on the job. (It may be remembered that in the light of the judgment of the Supreme Court in All-India Judicial Officers Association case, the age of retirement of subordinate judiciary is now 60, in effect. It is obvious that those who are not allowed to continue beyond 58 years in view of their unsatisfactory record, would not be considered or appointed as members of the Administrative Tribunal). In this view of the matter, an attempt should be made to recruit members of the Bar between the ages of 45 and 50 who will have a longer period available to them to prove their mettle.
At the same time, it is necessary, with a view to provide an incentive to these judicial members that they should be considered by the High Court (of the State from which they hail) for appointment as judges of the High Court in the quota normally reserved for members of the subordinate judiciary and if for any reason this course is not found feasible or practicable, they may be considered under sub-clause (b) of clause (2) of Article 217 read with Explanation (aa) and/or (b) appended to the said clause.
If this assurance is held out, many members of the Bar may be attracted to this office. It would also mean that persons of competence, who have (acquired) expertise in service matters would be available to the High Court. Section 8 of the A.T. Act, 1985 may accordingly be amended. In the case of members, the initial term should be made ten years, renewable for a further period of five years.
(b) The practice of appointing retired or about to retire High Court Judges as Chairman of State Administrative Tribunals and as Vice-Chairmen of Central Administrative Tribunals has also not proved happy. Since the age of retirement for these posts is 65, the persons so appointed hardly get a three-year or sometimes, even less term in the office.
It would be more appropriate if the sitting Judges of the High Courts who have got at least not less than one year to go before retirement from the High Court, should be considered for appointment to these posts. In this manner, they will have at least a four-year term which would give them sufficient time to settle down in the office and do some productive work. Ordinarily, an Administrative Member should not be appointed as the Vice-Chairman of CAT or as the Chairman of SAT.
(c) An appeal should be provided to the High Court, to be necessarily heard by a Division Bench against the orders of the Administrative Tribunal. The appeal shall lie to that High Court within whose territorial jurisdiction the Tribunal rendering the judgment to be appealed against is located. This measure removes one of the serious and principal criticisms against the judgment of the Supreme Court in L. Chandra Kumar viz., that there cannot be a judicial review of an order passed by an authority in exercise of its power of Judicial Review.
The Tribunal's order, according to the said decision, is in exercise of a power of judicial review; if so, this order cannot be the subject-matter of a judicial review once again. Judicial review, by its very nature, content and concept, is only against administrative or quasi-judicial action of administrative and other authorities say the critics. The remedy of appeal should be provided not only against the final orders but also against the interlocutory orders of the Tribunal.
The Commission is of the opinion that if the aforesaid three measures are implemented along with several other measures and directions issued by the Supreme court in L. Chandra Kumar, these Tribunals should become more effective instruments of law and would give satisfaction to the parties coming before them. It may go a long way in making these Tribunals more effective instruments in the system of dispensation of justice.