Report No. 162
7.1. On the basis of the discussions contained in the preceding Chapters, the Commission is of the considered opinion that the following radical changes need to be taken immediately to achieve the reforms in the working of the Central Administrative Tribunal, Central Excise and Gold (Control) Appellate Tribunal and Income-tax Appellate Tribunal to attain a sound justice delivery system which is a sine qua non for the efficient governance of a country wedded to the rule of law.
Thus the substance of the recommendations made in the preceding Chapters is culled out below.
7.2. The Law Commission makes the following recommendations insofar as the administrative tribunals constituted under the Administrative Tribunal Act, 1985 enacted with reference to Article 323 of the Constitution of India:
(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 of them, inclination - to learn this branch of the 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 the 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 has also not proved happy. Since the age of retirement for these posts is 65, the persons so appointed hardly get a three-year term or sometimes even less - in 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.
[Para. 4.5(b), supra]
(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 be 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.
[Para. 4.5(c), supra]
(d) As an alternative to the recommendation contained in (c) above, it is recommended that the Government may constitute a National Appellate Administrative Tribunal to entertain appeals against the orders passed by the Administrative Tribunals. Such a National Appellate Tribunal shall have Benches in all important centres in the country, if not in the capital of every State, generally consistent with the pattern of the High Court. Such an appellate forum should be headed by a former Chief Justice of a High Court or a former Judge of the Supreme Court and whose other members shall be either retired Judges of the Supreme Court or retired Chief Justices of the High Courts as the case may be.
An appeal should be provided directly to the Supreme Court and to the Supreme Court alone against the orders of such an Appellate Tribunal. Such a court on the lines of the National Consumer Dispute Redressal Commission created by the Consumers Protection Act, 1986 would ensure that the power under Articles 226 and 227 of the Constitution is not invoked against the orders of the appellate forum. Once an appeal is provided by the statute to the Supreme Court against the orders of the appellate forum, it can be stated with certainty that the High Courts would not interfere with the orders of the appellate forum.
Such a course would also be consistent with the provisions of the Customs Act and the Central Excise Act which provided direct appeal to the Supreme Court against the orders of CEGAT in matters relating to classification and valuation. If such an Appellate Tribunal is constituted, the writ petitions pending in the several High Courts against the orders of the Administrative Tribunals shall stand transferred to the appropriate Bench of the Appellate Tribunal and be dealt with in accordance with law. It is obvious that subject to the appeal to the Supreme Court the orders of the National Appellate Tribunal shall be final.
[Para. 4.8, supra]
(e) The need for imparting training to personnel manning the tribunal is essential as discussed in Chapter IV.
[Para. 4.6, supra]
(f) In order to combat and check deterioration in moral values, corruption and nepotism which are on the increase in the selection process, the Commission is of the considered view that Judicial Members (other than the Chairman and Vice-Chairman) to man the tribunal should be selected through undergoing the process of a high standard written examination followed by personal interview. It is only if he qualifies the written examination that he should be considered for personal interview. The percentage of marks allocated for written examination and personal interview can be 85% and 15% respectively. Furthermore, the evidentiary record of personal interview and written test should be maintained at least for a period of two years.
According to section 6(3)(b) of the Act, a Judicial Member has to be selected from two categories viz. (a) a person who has been or is qualified to be a judge of the High Court and (b) a person who has been a member of the Indian Legal Service and has held a post in Grade-I of that service for at least three years. In view of the fact that the Commission is recommending the selection of Judicial Members through a process of a high standard written examination followed by personal interview, it is necessary that there should be a wider choice for selecting meritorious persons as Judicial Members.
Accordingly, all law officers (irrespective of their designation) holding, for at least three years, a post equivalent to the post of Joint Secretary to the Government of India or any other post under the Central or State Government or in the public undertakings owned or controlled by the Central/State Government or carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, should be made eligible for competing in the examination and selection for the post of a Judicial Member Accordingly, it is recommended that section 6(3)(b) of the Act should be substituted by the following words:-
"Law officers (irrespective of their designation) holding for at least three years, a post equivalent to the post of Joint Secretary to the Government of India; or holding for at least three years any other post under the Central or State Government or in the public undertakings owned or controlled by the Central/State Government, carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India."
[Para. 4.7, supra]
(g) It is essential that for the 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. In this spirit, the Central Administrative Tribunal/State Administrative Tribunal and the proposed appellate forum should appoint research officers to assist the respective tribunals in this regard, in finding out the common cases and the judgments already pronounced by the courts which are binding on the cases pending.
These officers will definitely assist the tribunal in increasing the expertise and efficiency of the tribunal and thus realise these objectives. CAT/SAT and the proposed forum may from time-to-time invite applications from the litigants/opposite parties through advertisement on the notice boards/papers. The Research Officer may then scrutinise the claim of the applicant and put up the research note to the Bench for passing the appropriate orders. The Forum may then issue notice to the parties before disposing of the cases as per the judgment already pronounced by the higher court and binding upon it. Similarly, an exercise may be done by the research officer for grouping the pending cases which can be heard together.
[Paras. 4.9 and 4.10, supra]
(h) Disposal of cases can be done by the tribunal on the basis of arguments filed by the parties even through post in the manner discussed earlier.
It has been observed that litigants and their advocates many a time raise disputes before the superior courts that though a decision of the higher court was cited before the lower court, yet it failed to discuss the same in its judgment. In order to advance the cause of the administration of justice so that the rule of law can be further strengthened, it is felt that it may be provided in the procedure followed by the tribunal that before the beginning of the arguments, both the parties may be required to file their written arguments and counter arguments, if they desire to do so, and at the conclusion of the arguments both the parties be required to file a list of the cases cited by them before the tribunal during the course of the hearing.
Such a course will avoid the raising of any dispute on those issues as well as compel the presiding officer to adhere to the rule of law laid down by the superior court and avoid harassment to the litigants and confusion in the administration of law.
[Para. 4.11, supra]
(i) Constitution of Benches of retired members of the tribunals can be utilised for disposal of old matters pending before the tribunals without involving any additional cost on building, libraries etc. in the manner discussed earlier.
[Para. 4.12, supra]
(j) A proper litigation policy and machinery should be evolved by the Government or Public Sector Undertakings to curb litigation.
[Para. 4.13, supra]
(k) Cost for raising frivolous defences should be quantified by the tribunal and awarded to the opposite party as this will curb the tendency of filing frivolous cases.
[Para. 4.14, supra]
(l) There is an essential need to evolve a mechanism for nipping in the bud the conflicting interpretations by the CAT/High Court in the manner discussed above.
[Para. 4.15, supra]
(m) The Commission has made recommendations regarding the locus standi of an aggrieved party to apply for review of the order with the leave of the Tribunal and the grounds on which review can be sought by a person not a party to the decision but affected by it.
[Para. 4.16, supra]
(n) There should be a reform of the administrative justice system in order to ensure better standards of independence, accessibility/openness, expertise, representativeness, efficiency and accountability.
[Para. 4.17, supra]