istrative Adjudication System In India 36y
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
Dr. Shakuntala Misra National Rehabilitation University, Lucknow
ISTRATIVE LAW PROJECT ON “ISTRATIVE ADJUDICATION SYSTEM IN INDIA” (UNDER THE SUPERVISION OF Dr. Gulab Rai)
SUBMITED TO:
SUBMITTED BY:
Dr.Gulab Rai
Shubham Tripathi
Asst. Professor
B.Com.LL.B(Hons.)
Faculty of Law
6th Semester
DSMNRU
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
ACKNOWLEDGEMENT I, SHUBHAM TRIPATHI, I feel myself highly elated, as it gives me tremendous pleasure to come out with work on the topic “ISTRATIVE ADJUDICATION SYSTEM IN INDIA”, I started this project two weeks ago on its completion I feel that I have not only successfully completed it but also earned an invaluable learning experience.
First of all I express my sincere gratitude to my Professor Dr.Gulab Rai who enlightened me with such a wonderful and elucidating research topic. Without Him, I think I would have accomplished only a fraction of what I eventually did. I thank him for putting his trust in me and giving me a project topic such as this and for having the faith in me to deliver. His sincere and honest approach have always inspired me and pulled me back on track whenever I went offtrack. Sir, thank you for an opportunity to help me grow. I also express my heartfelt gratitude to staff and help for the completion of this project. Next I express my humble gratitude to my parents for their constant motivation and selfless . I would thank my brother for guiding me. I also express m y gratitude to all the class mates for helping me as and when required and must say that working on this project was a great experience. I bow my head to the almighty for being ever graceful to me.
SHUBHAM TRIPATHI B.Com.LL.B (Hons.), 6th Semester
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
CONTENTS INTRODUCTION EVOLUTION OF TRIBUNAL SYSTEM IN INDIA ISTRATIVE TRIBUNALS ACT, 1985 TYPES OF ISTRATIVE TRIBUNALS SOME FEATURES OF TRIBUNALS OF INDIA JUDICIAL INTERPRETATION ADVANTAGES OF ISTRATIVE TRIBUNAL
DISADVANTAGES OF ISTRATIVE TRIBUNALS STATUS AND WORKING OF TRIBUNALS IN INDIA TRIBUNALS AND NATURAL JUSTICE:
COVER UP CONCLUSION
BIBLIOGRAPHY
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
ISTRATIVE ADJUDICATION SYSTEM IN INDIA INTRODUCTION Welfare nature of government is the evolutionary goal of probably every kind of government these days in this contemporary world. There has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority. The development of welfarism led to an increase in governmental functions and the executive saw in this a need to perform a number of quasi- legislative and quasi- judicial functions, thus blurring the traditional positions of the various wings of the government under the doctrine of separation of powers, under which the powers of the government were divided between the legislature, executive and the judiciary which were to be entrusted with the power of making law, executing it and interpreting the law respectively.
But now these welfare states changed radically and involve itself in the hosting of wide socioeconomic activities; for example: providing health services, education , industrial regulation and other allied welfare measures. Now where there is these kind of activities; disputes are certain and obvious. The issues which arose from disputes on such matters raised not only legal matters but also matters which affect the society at large. The constitution and function of our court system is very traditional as well as inefficient. The inherent procedural limitations made it difficult for the courts to dispose these cases promptly thus leading to a huge backlog of cases in all levels of the judiciary. Courts therefore became deluged with litigations arising directly and incidentally from such increased governmental interventions. It was also felt in many quarters that the of the judiciary were neither adequately trained nor equipped to deal with the complex socio-economic and technical matters at hand. Thus it was felt specialised adjudicatory bodies such as tribunals needed to be created to resolve such disputes fairly and effectively. Tribunals are a “Judgment seat; a court of justice; board or committee appointed to adjudicate on claims of a particular kind”1. The essence of the meaning of the word tribunal which can be
1
Thakker, C.K., istrative Law, Eastern Book Company: Lucknow, 1996, p.226.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA culled out from the various Supreme Court authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by the State and invested with judicial and quasijudicial functions as distinguished from istrative or executive functions2. istrative tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process. According to Seervai, „the development of istrative law in a welfare state has made „istrative tribunals a necessity'.3 istrative tribunals are authorities outside the ordinary court system, which interpret and apply the laws when acts of public istration are questioned in formal suits by the courts or by other established methods. They are not a court nor are they an executive body. Rather they are a mixture of both. They are judicial in the sense that the tribunals have to decide facts and apply them impartially, without considering executive policy. They are istrative because the reasons for preferring them to the ordinary courts of law are istrative reasons. The Supreme Court in Jaswant Sugar Mills v.Lakshmi Chand4 laid down the following characteristics or tests to determine whether an authority is a tribunal or not: Power of adjudication must be derived from a statute or statutory rule. It must possess the trappings of a court and thereby be vested with the power to summon witnesses, ister oath, compel production of evidence, etc. Tribunals are not bound by strict rules of evidence. They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy.
Tribunals are supposed to be independent and immune from any istrative interference in the discharge of their judicial functions.
2
Ibid Serwai ,HM, Constitutionsl law of India 4 AIR 1963 SC 677 at 687 3
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA This project comprehensively deals with the all possible aspects regarding the tribunals in India. An exhaustive research was done using secondary sources from books, articles and over the internet. A comprehensive bibliography is provided at the end of this project.
EVOLUTION OF TRIBUNAL SYSTEM IN INDIA In India, istrative adjudication increased after independence and several welfare laws were promulgated which vested the power on deciding various issues in the hands of the istration. The modern Indian Republic was born a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense. These quasijudicial powers acquired by the istration led to a huge number of cases with respect to the manner in which these istrative bodies arrived at their decisions. The Courts held that these bodies must maintain procedural safeguards while arriving at their decisions and observe principles of natural justice-their opinions were substantiated by the 14th Law Commission Report.5 In order to avoid clogging the judicial machinery with cases which would have arisen by the operation of these new socio-economic legislations, a number of tribunals were established by the government. The tribunals were established with the object of providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare legislations.6 Another important reason for the new development is that law courts, on of their elaborate procedures, legalistic fronts and attitudes can hardly render justice to the parties concerned, in technical cases. Ordinary judges, brought up in the traditions of law and jurisprudence, are not capable enough to understand technical problems, which crop up in the wake of modem complex economic and social processes. Only s having expert knowledge can tackle such problems judiciously. To meet this requirement, a number of istrative tribunals have come into existence.
In India such tribunals were set up immediately after independence. In fact, the most important adjudicatory function is carried out by statutory tribunals created by the legislature to adjudicate upon certain disputes arising from istrative decisions or to determine issues judicially.
5 6
Nayak,R., istrative justice In India, Butterwoths : New Delhi, 1989, p.38 Jain,M.P., Principles of istrative Law, Wadhwa & Company : Nagpur, 1996, pp.246-248
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the Companies Tribunal, various Compensation Tribunals, Revenue Courts of various States, etc., can be cited as examples of such tribunals.7 Regarding the problem of backlog and delayed disposal of case the Government set up the istrative Reforms Commission in 1967. It was to examine the problem, suggests solutions and also to recommend the suitable areas in which tribunals could be set up, according to this commission The reasons for the growth of istrative tribunals are as follows: 1. Inadequacy of the traditional judiciary to effectively decide istration-related matters especially when it came to technicalities. 2. The traditional judiciary was seen to be slow, costly and excessively procedural.
The Commission also recommended the establishment of independent tribunals in the following areas: Service matters and dispute of employees under the state Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders under the Motor vehicles Act.
Period of emergency played a crucial role in the evolution of tribunals in India. There were clear signals that the executive did not want the judiciary to interfere with their developmental plans and other such decisions. Such as removing disputes regarding elections to the office of President, Prime Minister and Speaker of the Lok Sabha beyond judicial Scruitiny.8 Hence in 1976 the issue was discussed at the Conference of Chief Secretaries and from amongst all these discussions and the reports of the various bodies stated above, Parliament enacted the 42ndConstitution (Amendment) Act, 1976 inserting Articles 323A and 323B which provided for the establishment of istrative and other tribunals to deal with the matters specifically provided for.
The main distinction that can be made out between article 323A and 323B is that while 323A 7
Supra n.1 at p.66 “Tribunalisation in India” October, 2011. 8
http://legalsutra.org/1446/tribunalisation-in-india/ as on 16th
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA allows for the Parliament to by law provide for istrative tribunals to adjudicate disputes, 323B allows for the any “appropriate legislature”, to by law create an istrative tribunal for the adjudication of disputes.
ISTRATIVE TRIBUNALS ACT, 1985 In pursuance of Art 323-A Parliament has ed the istrative Tribunals Act, 1985 covering all matters falling within the clause (1) of Article 323- A. This Act authorizes central government to establish istrative tribunals for central services and on the application of States even for States services as well as for local bodies and other authorities including public corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art 136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals. A tribunal shall consist of Chairman and such number of Vice-Chairmen and other as appropriate Government may deem fit. They are appointed by the President in the case of Central tribunals and by the President in consultation with the Governors or Governors in case of State or t Tribunals. The qualifications regarding that are laid down in the Act.9
Other aspects regarding istrative Tribunals are being discussed below different headings and sub-headings.
TYPES OF ISTRATIVE TRIBUNALS There are different types of istrative tribunals, which are governed by the statues, rules, and regulations of the Central Government as well as State Governments.
Central istrative Tribunal (CAT) The enactment of istrative Tribunals Act in „1985 opened a new chapter in istering justice to the aggrieved government servants. It owes its origin to Article 323 A of the Constitution which empowers the Central Government to set up by an Act of Parliament, the 9
istrative Tribunals Act, 1985 http://cgat.gov.in/act.htm as on 18th February,2017
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA istrative Tribunals for adjudication of disputes and complains with respective recruitment and conditions of service of persons appointed to the public services and posts in connection with the Union and the States.
The Tribunals enjoy the powers of the High Court in respect of service matters of the employees covered by the Act. They are not bound by the technicalities of the Code of Civil Procedure, but have to abide by the Principles of Natural Justice. They are distinguished from the ordinary courts with regard to their jurisdiction and procedures. This makes them free from the shackles of the ordinary courts and enables them to provide speedy and inexpensive justice.
The Act provides for the establishment of Central istrative Tribunal and State istrative Tribunals. The CAT was established in 1985. The Tribunal consists of a Chairman, Vice-Chairman and . These are drawn from the judicial as well as the istrative streams. The appeal against the decisions of the CAT lies with the Supreme Court of India.
Customs and Excise Revenue Appellate Tribunal (CERAT) The Parliament ed the CERAT Act in 1986 The Tribunal adjudicate disputes,. Complaints or offences with regard to customs and excise revenue. Appeals from the, orders of the CERAT lies with the Supreme Court
Election Commission (EC) The Election Commission is a tribunal for adjudication of matters pertaining to the allotment of election symbols to parties and similar other problems. The decision of the commission can be challenged in the Supreme Court.
Foreign Exchange Regulation Appellate Board (FERAB) The Board has been set up under the Foreign Exchange Regulation Act, 1973. A person who is aggrieved by an order of adjudication for causing breach or committing offences under the Act can file an appeal before the FERAB.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA Income Tax Appellate Tribunal This tribunal has been constituted under the Income Tax Act, 196 1. The Tribunal has its benches in various cities and appeals can be filed before it by an aggrieved persons against the order ed by the Deputy Commissioner or Commissioner or Chief Commissioner or Director of 1 n c o m e ' ~ a x . An appeal against the order of the Tribunal lies to the High Court. An appeal also lies to the Supreme Court if the High Court deems fit.
Railway Rates Tribunal This-Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters pertaining to the complaints against the railway istration. These may be related to the discriminatory or unreasonable rates, unfair charges or preferential treatment meted out by the railway 'istration. The appeal against the order of the Tribunal lies with the Supreme Court.
Industrial Tribunal This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted by' both the Central as well as State governments. The Tribunal looks into the dispute between the employers and the workers in matters relating to wages, the period and mode of payment, compensation and other allowances, hours of work, gratuity, retrenchment and closure of the establishment. The appeals against the decision of the Tribunal lie with the Supreme Court.
SOME FEATURES OF TRIBUNALS OF INDIA Jurisdiction and Power: 1. After the coming into force of istrative Tribunals Act, 198510, all judicial remedies save those of the Supreme Court under Art 2 and 136 have been abolished and the pending proceeding before other courts stand transferred before the regional istrative Tribunals under s.29 of the Act.
10
The Act was brought into force with effect from 2-10-1985. The Central istrative Tribunals was set up on 1-11-1985.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA 2. istrative Tribunal is competent to exercise all powers which the respective courts had, including declaration as to constitutionality of relevant laws. In short, the jurisdiction of the Tribunal is not supplementary but is a complete substitute of the High Courts and Civil Courts.11
3. In view of s.14 of the istrative Tribunal Act,1985, in case where the suit lay, the employee will now have to seek his remedy by application under s.19 of the Act. Pending suits shall stand transferred to the istrative Tribunal having territorial jurisdiction under section 29 of the Act12.
4. Section 29A (inserted in 1986) gives an appellant jurisdiction of the Central istrative Tribunal. Appeals from judgement of Civil Courts in suits relating to service matter which are now governed by the A.T. Act shall lie to the istrative Tribunals to the exclusion of any other Civil Appellant Court or the High Court13. The central istrative Tribunal is the Tribunal constituted under Art.323-A of the Constitution and is expected to have the same jurisdiction as that of High Court.14
5. Orders of the Central istrative Tribunals are nt open to challenge before the High Court. Sources of Tribunal’s Jurisdiction Suit of proceeding transferred to it under s.29 of the Act S.19 deals with jurisdiction of entertaining original application relating to service matters Appellant jurisdiction under s.29A
What the istrative Tribunals can do-
1. Unconstitutionality of Law a. The tribunal can declare the unconstitutional a statute or subordinate legislation 11
Sampat Kumar, SP v. Union of India,(1987) 1 ATR 34 Cf. Kaptan Singh v, UOI (1986) 4 SLR 545 (Del) 13 UOI v. Deep Chand Pandey (1992) 4 SCC 432 14 UOI v. K D Batish AIR 2006 SC 789 12
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA relating to the dispute before it, which contravenes provisions of the constitution. b. Whether a body would be an „authority‟ within the meaning of Art.12. c. In a case where enquiry has been dispensed with under the 2nd proviso to Art 311(2), the tribunal is competent to examine the legal jurisdiction for such dispensation.15 d. It may decide question of law, including preliminary pleas in bar, e.g. limitation; non-der of party; territorial jurisdiction of the tribunal; res judicata.
2. Procedure I.
A Tribunal is not barred by the provisions of the Evidence Act. 16 In order to discover the truth, the Tribunal may resort to the inquisitional procedure, provided no principle of natural justice is violated.
II.
Tribunals shall be guided solely by the principles of natural justice unfettered by anything in the C and shall have the power to regulate its own procedure.
III.
A plea of violation of statutory provision can be taken before the Tribunal though not taken in the petition.
IV.
It is competent to execute its own order, though the A.T Act has no specific provision in this behalf.
3. Disciplinary matters: The Tribunal is competent to go into the facts and set aside the order ed by a disciplinary authorityWhere the conclusion arrived at is arbitrary or perverse. On the other hand , the Tribunal will not interfere – with the finding of facts of the enquiry officers where there was some evidence before him on the basis of which he could reasonably come to the conclusion that the charges against the petitioner were proved . with an order of rejection, by the Tribunal , of an application for reinstatement on the grounds of inordinate and unexplained delay.
15 16
Om Prakash Pathak v. UOI (1986) 4 SLR 251 G Mohanti v. UOI ATR (1987) 1 CAT 229
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA There has been some difference of opinion amongst the tribunals as to how far, if at all, they may interfere with the punishment awarded by a disciplinary authority
Likewise, istrative
Tribunals
can
perform
other
functions
of
Punishment,
Compulsory retirement, Interlocutory matters etc.
What the istrative Tribunals cannot doHowever wide be the jurisdiction of the tribunal, it cannot exercise any jurisdiction of power which no court could exercise, e.g.,a. To question the ground of satisfaction of the President under Cl. (c) of the second proviso to Art.311 (2) 17 b. To go into the merits of an istrative determination in the absence of mala fides, arbitrariness, colorable exercise of power or exercise of power without jurisdiction; or a finding without any evidence at all. c. To overrule or by- decision of the High Court which are binding on it as precedents. d. Though, like the High Court or a Civil Court, an istrative Tribunal has jurisdiction to make interim order in like circumstances.
Appeal from istrative Tribunal to Supreme Court: Though the jurisdiction of High Court under Art 226 over service matter has been taken over by the respective istrative Tribunals Act 1985, the jurisdiction of the Supreme 17
Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA Court over these Tribunals under Art.136 has been retained. Appeals lies to the Supreme Court from orders of an istrative Tribunal, by special leave under Art 136, on the following grounds Error of Law Finding of the Tribunal being perverse. The order of the Tribunal being without jurisdiction or ultra vires. The order of the Tribunals being arbitrary or mala fide. The order of the Tribunal is such as would lead to grave injustice.
JUDICIAL INTERPRETATION As mentioned earlier, the istrative Tribunals Act was ed in 1985 under article 323A and section 28 of this Act provided for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 13618. This fuelled a sudden spurt in the number of cases that challenged the validity of the said legislation as well as that of the 42nd Amendment that introduced Articles 323A and 323B in to the constitution. Some of the prominent case in this regard is discussed below. 1. S.P.Sampath Kumar v. Union of India19 This is the first and perhaps the most important case in this period that attracted judicial scrutiny in this area. The Constitution Bench in Sampath kumar was called upon to decide on the main issue whether Section 28 of the Act was unconstitutional as it excludes judicial review, which was contended as part of the basic structure of the constitution20. The Supreme Court accepted without doubt that judicial; review is part of the basic structure. However the Court went on to observe that the creation of alternate institutional mechanisms which were as effective as the High Courts would not be violative of the basic structure. The istrative Tribunals under the Act were recognized as effective substitutes of the High Courts. This proved to be a shot in the arm of the proponents of tribunalisation. However the Apex Court came down heavily on the procedure for appointing the Chairman of the Tribunal. Section 6(1) (c) of the Act allowed a person who held the post of a Secretary to the Government of India or an equivalent post t 18
Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998 AIR 1987 SC 386 20 During the pendency of the case, the Government gave an assurance to the Court that the Act would be 19
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA become the Chairman. Since these Tribunals were to be substitutes of High Courts it is impermissible for bureaucrats to hold such a post. Hence this provision was held to be unconstitutional. The Chairman should be a retiring or retired Chief Justice of a High Court. Other have to appointed by a committee consisting of a sitting Judge of the Supreme Court. It was also suggested that the Chief Justice of India has to consult while making these appointments. The Parliament accepted these recommendations and now they find a place in the Act by way of the istrative Tribunals (Amendment) Act of 1986.
2. Sambamurthy v. State of Andhra Pradesh21 It was held in this case that Article 371D (5) of the constitution, which was inserted by the Constitution (32nd Amendment) Act,1973, was unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to modify or nullify any order of the istrative tribunal of that state. It was pointed out that such a provision was violative of the basic structure as it made the tribunal not as effective as the High Court when it comes to judicial review. Here the Court seems to be strictly adhering to the directive in Sampath Kumar‟s case that the istrative tribunals should be effective substitutes to the High Court. 3. J.B.Chopra v. Union of India22 It was held that since the istrative tribunals are meant to be substitutes of High Courts, their power of judicial review extended to power as to decide on the constitutionality of service rules. However, soon we see a reversal of trend leading to a lot of confusion. In M.B.Majumdar v.Union of India23 the Supreme Court refused to extend the service conditions and other benefits enjoyed by ordinary High Court judges to the of these Tribunals. Three years later, in R.K.Jain v. Union of India24, the Supreme Court opined that these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227. We also find very clear expression of dissatisfaction of the apex court regarding the functioning and effectiveness of istrative Tribunals especially with regard to their power of judicial 21
(1987) I SCC 386 (1987) I SCC 422. 23 (1990) 4 SCC 501. 24 (1993) 4 SCC 119 22
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA review. 4. Sakinala Harinath v. State of Andhra Pradesh25 In this case, the Andhra Pradesh High Court dropped a bomb shell by expressing serious doubts about the wisdom of the learned Judges in Sampath Kumar‟s case. The Full Bench ruled that the ruling in the above case equating istrative Tribunals to the High courts with respect to their jurisdiction under Articles 226 and 227 was inconsistent with the apex court‟s ruling in cases like Kesavanda Bharati v. State of Keral26 and Indira Gandhi v. Raj Narain27. It was pointed out that the constitutional courts could only exercise the power of judicial review. Since the logic of alternative institutional mechanism propounded in Sampath Kumar‟s case does not fit in to this scheme, it is constitutionally impermissible. As a result both Articles 323A(d) and section 28 of the Act were struck down as unconstitutional.
The judicial green signal given for tribunalisation given in Sampath Kumar can be seen to be slowly fading because of the subsequent decisions.The confusion created by these conflicting decisions ushered in the need for taking a second look at S.P. Sampath Kumar‟s case. This opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v. Union of India28 decided to refer the matter to a larger bench. This eventually led to the famous ruling of the Seven Judge Bench of the Supreme Court on L. Chandrakumar v. Union of India, which is now the law of the land. 5. L. Chandrakumar’s Case
The important issues considered by the apex court were as follows: Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the power to the Union and State Legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under Art.136, is in accordance with the power of judicial review embodied in Art.32 and 226. Whether the power of High Courts to exercise the powers of superintendence over the 25
1993 (2) An. W.R.484 (FB) (1973) 4 SCC 225 27 AIR 1975 SC 2291 28 AIR 1995 SC 1151 26
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA subordinate judiciary under Articles 226 and 227 form part of Basic Structure. The competence of the aforesaid tribunals to determine the constitutionality of any law. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in of efficiency. It was held that the power of judicial review over legislative and istrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciary29 is not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as effective substitutes to the higher judiciary in matters of constitutional interpretation and judicial review. Hence the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and istrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same.
ADVANTAGES OF ISTRATIVE TRIBUNAL istrative adjudication is a dynamic system of istration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the istrative tribunals are: Flexibility istrative adjudication has brought about flexibility and adaptability in the judicial as well as istrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they ister may become out of harmony with the rapidly changing social conditions. istrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life. Adequate Justice 29
In of qualifications, mode of appointment, tenure, mode of removal, etc.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA In the fast changing world of today, istrative tribunals are not only the most appropriated means of istrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it. Less Expensive istrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. istrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman. Relief to Courts The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.
DISADVANTAGES OF ISTRATIVE TRIBUNALS Even though istrative adjudication is essential and useful in modem day istration, we should not be blind to the defects from which it suffers or the dangers it poses to a democratic polity. Some of the main drawbacks are mentioned below. istrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. But istrative tribunals, with their separate laws and procedures often made by themselves, puts a serious limitation upon the celebrated principles of Rule of Law. istrative tribunals have in most cases, no set procedures and sometimes they violate even the principles of natural justice. istrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions. The civil and criminal courts have a uniform pattern of istering justice and centuries of experience in the istration of civil and criminal laws have borne Project on istrative Law
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA testimony to the advantages of uniform procedure. A uniform code of procedure in istrative adjudication is not there. istrative tribunals are manned by s and technical heads who may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge.
STATUS AND WORKING OF TRIBUNALS IN INDIA Tribunals are essentially those bodies of the Executive branch of the government who by virtue of some statutory provision have the power and duty to act judicially in determining disputes which come before it.30 Tribunals as stated earlier are distinct from the ordinary courts of the land and as per Chandrakumar‟s case they are not on par with the High Courts but serve a supplemental function to the High Courts. They are therefore subject to the writ jurisdiction of the superior judiciary and to the power of judicial review exercisable by the superior judiciary. In most of the tribunals appeals from their decisions lie in the High Court on substantial questions of law.
There are different types of tribunals in India, ranging from single member tribunals to multimember tribunals. Tribunals such as the Industrial tribunal may consist of one or more , and they can be appointed by the appropriate government. The chairman of the tribunal is supposed to possess judicial qualifications and is supposed to be or have been a judge of the High Court or a District judge or be qualified for appointment as a High Court judge. The other are expected to satisfy the prescribed requirements- which are to ensure that the are experts and will be able to speedily and effectively dispose of matters. The procedure to be followed by the tribunal is prescribed by the Act and rules made there under. Though the function of the tribunal is to adjudicate on the disputes it has only some of the trappings of the court. It is not bound by strict rules of procedure and can take decisions by exercising its discretion. While accepting the fact that such tribunals must work towards furthering social justice, it has been held in J&K Iron and Steel Co. v. Mazdoor Union
31
that
tribunal cannot act beyond the scope of the law. It can decide the dispute on the basis of the 30 31
Chakraverti, S., istrative Law and Tribunals, 2nd edition, The Law Book Co. Ltd.: Allahabad AIR 1956 SC 231
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA pleadings and has no power to reach a conclusion without any evidence on record. The tribunal is expected to hold the proceedings in public, follow fair procedure and decide disputes impartially and independently.
All tribunals in India are arranged on the following basis: Created by a statute Subject to the writ jurisdiction of the superior judiciary and to judicial review. Manned by experts and persons with judicial experience. Subject to the superintendence of the concerned High Court under Art.227 Decisions may be final or appealable within the tribunal or in certain cases to the High Court.
Appeals against orders of the tribunal may be heard by the Supreme Court by special leave under Art. 136.
TRIBUNALS AND NATURAL JUSTICE: istrative tribunals must act openly, fairly and impartially. They must afford a reasonable opportunity to the parties to represent their case and adduce evidence. Thus, in State of U.P. v. Md. Nooh32 where the prosecutor was also an adjudcating officer and also in Dhakeshwari Mills33where the tribunal did not disclose some evidence to the assessee which was relied upon, the decisions were set aside. In Union of India v. T.R. Verma34 the Supreme Court held the following to be part of natural justice: Party must be able to adduce all evidence being relied upon. Evidence must be taken in the presence of both parties. Must be given opportunity to cross- examine. 32
AIR 1958 SC 86 AIR 1955 SC154 34 AIR 1957 SC 882 at 885 33
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA And no material must be relied upon without giving the party opportunity to explain the evidence.
Tribunals are free to evolve their own method of procedure as long as they conform to the principles of natural justice as outlined above. Tribunals are also expected to give reasoned decisions so as to introduce clarity, reduce arbitrariness and reduce the scope of frivolous appeals. It also provides the supervisory authority the opportunity to keep tribunals within bounds.
COVER UP In view of the increasing role of istration in citizens' life, the istrative tribunals are expected to play an important role in the redressal of citizens' grievances. In this unit we have examined the nature of istrative tribunals and the various reasons for their goping importance. Various types of istrative tribunals are set up in the country to address various issues, such as, the adjudication of disputes and complaints of the public servants, redressal of consumer disputes, industrial disputes, disputes pertaining to income tax etc.
They provide greater flexibility in istering justice and provide relief to the courts. But at the same time they suffer from some limitations as they sometimes violate the principles of natural justice, lack uniform pattern of istering justice and also suffer from the lack of a proper background on law or judicial work. However, with certain safeguards it is possible to rectify some of these limitations. The istrative tribunals should have people with legal training and experience. A code of judicial procedures should be devised and enforced for their functioning.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
CONCLUSION In practice there are a number of tribunals functioning in the country. Very few of them, however, have been able to inspire confidence in the public. The tribunals have shown a singular lack of competence and objectivity in determining disputes. Another reason for their failure is the constitution of the tribunals and the method of appointment of the personnel. Persons with expertise and the right qualifications do not want to sit on these tribunals thus leading to the unsatisfactory functioning of these tribunals.35 The uncertainty of tenure, unsatisfactory service conditions, interference by the executive and political interference have further impeded the proper development of tribunals in India. Tribunals are supposed to provide specialized adjudicatory services but the type of people appointed lack the requisite expertise and are on the tribunals merely because of political pressure and executive interference.
Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they must therefore be able to inspire public confidence by proving themselves to be a competent and expert mechanism with a judicial and objective approach. In order to achieve this it is essential that of the tribunal are equipped with adequate judicial acumen and expertise. These judicial officers need to be balanced with experts in the particular field. Only a judicious blend of the two will be able to provide an effective and result oriented tribunal system. Another important measure which needs to be taken are steps to maintain the independence of the of these tribunals from political or executive interference. Just as the ordinary judiciary are protected from political control through security of tenure and through institutionalized methods of appointment (through a selection committee comprising of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on the high courts the high courts must be divested of the supervisory jurisdiction over the tribunals. It is essential therefore that a single centralised nodal agency be established to oversee the functioning of the tribunals. Such a centralised umbrella organisation will ensure the independence of the tribunals in matters of tenure and funds. Thus the overall picture regarding tribunalisation of justice in the country is far from satisfactory. 35
Sathe, S.P., iostrative Law, 6th. Edn., Butterworths, New Delhi, 1999, pp. 245-252
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA A fresh look at the system of tribunals in India is required so as to ensure speedy justice and quick disposal of disputes arising out of istrative disputes which are essential for the development of the nation.
BIBLIOGRAPHY BOOKS: A.T. Markose: Judicial Control of istrative Action in India, 1956, Madras Law Journal Office, Madras. A.V. Dicey, Introduction to the Study of the law of the Constitution, London, 1931. istrative Law Treatise, 1958 Vol.1. Allen, Law and orders (1956). Ashok Chanda, Indian istration, London. Basu, D.D., „istrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004. D.D.Basu, Criminal Procedure Code 1973, 3 rd ed.,(I), Asoke K. Ghosh, Prentice-Hall of India Private Limited, M-97, Cannaught Circus, New Delhi-110001,1996 D.D.Basu, Indian Penal Code 1860, Asoke K. Ghosh, Prentice-Hall of India Private Limited, M-97, Cannaught Circus, New Delhi-110001,1997 Jain and Jain, istrative Law in India, 12 th edition, Eastern Book Company, Lucknow Leonord D. White, Public istration, 1953. Marshman, John Clark, The History of India, from the earliest period to the close Lord Dalhousie‟s istration, II, London: Longmans, Green, Reader and Dyer, 1867 P.M.Bakshi’s Constitution of India Seventh Edition, 2006, Universal Law Publishing Co. Pvt. Ltd Delhi. Takwani, C.K., „Lectures On istrative Law‟, Eastern Book Company, Lucknow, 2004 Upendra Baxi, Developments in Indian istrative Law, Public Law in India (1982) Project on istrative Law
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA (A. G. Noorani Ed.) p.156.
LAW JOURNALS All India Reporter All India Times Criminal Law Journal Delhi law Review. Supreme Court Cases
GOVERNMENTOF INDIA REPORTS Law Commission of India, 162nd Report, Review of functioning of Central istrative Tribunal; Customs, Excise and Gold (Control) Appellate Tribunal and Income Tax Act Appellate Tribunal.
WEBSITES www.books.google.co.in www.1egalsutra.com http://en.wikipedia.org http://esciencenews.corn http://Iegalserviceindia.com http://www.docstoc.com http://www.airwebwor1d.com www.guestia.com www.jusprudentia.com
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Dr. Shakuntala Misra National Rehabilitation University, Lucknow
ISTRATIVE LAW PROJECT ON “ISTRATIVE ADJUDICATION SYSTEM IN INDIA” (UNDER THE SUPERVISION OF Dr. Gulab Rai)
SUBMITED TO:
SUBMITTED BY:
Dr.Gulab Rai
Shubham Tripathi
Asst. Professor
B.Com.LL.B(Hons.)
Faculty of Law
6th Semester
DSMNRU
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
ACKNOWLEDGEMENT I, SHUBHAM TRIPATHI, I feel myself highly elated, as it gives me tremendous pleasure to come out with work on the topic “ISTRATIVE ADJUDICATION SYSTEM IN INDIA”, I started this project two weeks ago on its completion I feel that I have not only successfully completed it but also earned an invaluable learning experience.
First of all I express my sincere gratitude to my Professor Dr.Gulab Rai who enlightened me with such a wonderful and elucidating research topic. Without Him, I think I would have accomplished only a fraction of what I eventually did. I thank him for putting his trust in me and giving me a project topic such as this and for having the faith in me to deliver. His sincere and honest approach have always inspired me and pulled me back on track whenever I went offtrack. Sir, thank you for an opportunity to help me grow. I also express my heartfelt gratitude to staff and help for the completion of this project. Next I express my humble gratitude to my parents for their constant motivation and selfless . I would thank my brother for guiding me. I also express m y gratitude to all the class mates for helping me as and when required and must say that working on this project was a great experience. I bow my head to the almighty for being ever graceful to me.
SHUBHAM TRIPATHI B.Com.LL.B (Hons.), 6th Semester
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
CONTENTS INTRODUCTION EVOLUTION OF TRIBUNAL SYSTEM IN INDIA ISTRATIVE TRIBUNALS ACT, 1985 TYPES OF ISTRATIVE TRIBUNALS SOME FEATURES OF TRIBUNALS OF INDIA JUDICIAL INTERPRETATION ADVANTAGES OF ISTRATIVE TRIBUNAL
DISADVANTAGES OF ISTRATIVE TRIBUNALS STATUS AND WORKING OF TRIBUNALS IN INDIA TRIBUNALS AND NATURAL JUSTICE:
COVER UP CONCLUSION
BIBLIOGRAPHY
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
ISTRATIVE ADJUDICATION SYSTEM IN INDIA INTRODUCTION Welfare nature of government is the evolutionary goal of probably every kind of government these days in this contemporary world. There has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority. The development of welfarism led to an increase in governmental functions and the executive saw in this a need to perform a number of quasi- legislative and quasi- judicial functions, thus blurring the traditional positions of the various wings of the government under the doctrine of separation of powers, under which the powers of the government were divided between the legislature, executive and the judiciary which were to be entrusted with the power of making law, executing it and interpreting the law respectively.
But now these welfare states changed radically and involve itself in the hosting of wide socioeconomic activities; for example: providing health services, education , industrial regulation and other allied welfare measures. Now where there is these kind of activities; disputes are certain and obvious. The issues which arose from disputes on such matters raised not only legal matters but also matters which affect the society at large. The constitution and function of our court system is very traditional as well as inefficient. The inherent procedural limitations made it difficult for the courts to dispose these cases promptly thus leading to a huge backlog of cases in all levels of the judiciary. Courts therefore became deluged with litigations arising directly and incidentally from such increased governmental interventions. It was also felt in many quarters that the of the judiciary were neither adequately trained nor equipped to deal with the complex socio-economic and technical matters at hand. Thus it was felt specialised adjudicatory bodies such as tribunals needed to be created to resolve such disputes fairly and effectively. Tribunals are a “Judgment seat; a court of justice; board or committee appointed to adjudicate on claims of a particular kind”1. The essence of the meaning of the word tribunal which can be
1
Thakker, C.K., istrative Law, Eastern Book Company: Lucknow, 1996, p.226.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA culled out from the various Supreme Court authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by the State and invested with judicial and quasijudicial functions as distinguished from istrative or executive functions2. istrative tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process. According to Seervai, „the development of istrative law in a welfare state has made „istrative tribunals a necessity'.3 istrative tribunals are authorities outside the ordinary court system, which interpret and apply the laws when acts of public istration are questioned in formal suits by the courts or by other established methods. They are not a court nor are they an executive body. Rather they are a mixture of both. They are judicial in the sense that the tribunals have to decide facts and apply them impartially, without considering executive policy. They are istrative because the reasons for preferring them to the ordinary courts of law are istrative reasons. The Supreme Court in Jaswant Sugar Mills v.Lakshmi Chand4 laid down the following characteristics or tests to determine whether an authority is a tribunal or not: Power of adjudication must be derived from a statute or statutory rule. It must possess the trappings of a court and thereby be vested with the power to summon witnesses, ister oath, compel production of evidence, etc. Tribunals are not bound by strict rules of evidence. They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy.
Tribunals are supposed to be independent and immune from any istrative interference in the discharge of their judicial functions.
2
Ibid Serwai ,HM, Constitutionsl law of India 4 AIR 1963 SC 677 at 687 3
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA This project comprehensively deals with the all possible aspects regarding the tribunals in India. An exhaustive research was done using secondary sources from books, articles and over the internet. A comprehensive bibliography is provided at the end of this project.
EVOLUTION OF TRIBUNAL SYSTEM IN INDIA In India, istrative adjudication increased after independence and several welfare laws were promulgated which vested the power on deciding various issues in the hands of the istration. The modern Indian Republic was born a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense. These quasijudicial powers acquired by the istration led to a huge number of cases with respect to the manner in which these istrative bodies arrived at their decisions. The Courts held that these bodies must maintain procedural safeguards while arriving at their decisions and observe principles of natural justice-their opinions were substantiated by the 14th Law Commission Report.5 In order to avoid clogging the judicial machinery with cases which would have arisen by the operation of these new socio-economic legislations, a number of tribunals were established by the government. The tribunals were established with the object of providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare legislations.6 Another important reason for the new development is that law courts, on of their elaborate procedures, legalistic fronts and attitudes can hardly render justice to the parties concerned, in technical cases. Ordinary judges, brought up in the traditions of law and jurisprudence, are not capable enough to understand technical problems, which crop up in the wake of modem complex economic and social processes. Only s having expert knowledge can tackle such problems judiciously. To meet this requirement, a number of istrative tribunals have come into existence.
In India such tribunals were set up immediately after independence. In fact, the most important adjudicatory function is carried out by statutory tribunals created by the legislature to adjudicate upon certain disputes arising from istrative decisions or to determine issues judicially.
5 6
Nayak,R., istrative justice In India, Butterwoths : New Delhi, 1989, p.38 Jain,M.P., Principles of istrative Law, Wadhwa & Company : Nagpur, 1996, pp.246-248
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the Companies Tribunal, various Compensation Tribunals, Revenue Courts of various States, etc., can be cited as examples of such tribunals.7 Regarding the problem of backlog and delayed disposal of case the Government set up the istrative Reforms Commission in 1967. It was to examine the problem, suggests solutions and also to recommend the suitable areas in which tribunals could be set up, according to this commission The reasons for the growth of istrative tribunals are as follows: 1. Inadequacy of the traditional judiciary to effectively decide istration-related matters especially when it came to technicalities. 2. The traditional judiciary was seen to be slow, costly and excessively procedural.
The Commission also recommended the establishment of independent tribunals in the following areas: Service matters and dispute of employees under the state Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders under the Motor vehicles Act.
Period of emergency played a crucial role in the evolution of tribunals in India. There were clear signals that the executive did not want the judiciary to interfere with their developmental plans and other such decisions. Such as removing disputes regarding elections to the office of President, Prime Minister and Speaker of the Lok Sabha beyond judicial Scruitiny.8 Hence in 1976 the issue was discussed at the Conference of Chief Secretaries and from amongst all these discussions and the reports of the various bodies stated above, Parliament enacted the 42ndConstitution (Amendment) Act, 1976 inserting Articles 323A and 323B which provided for the establishment of istrative and other tribunals to deal with the matters specifically provided for.
The main distinction that can be made out between article 323A and 323B is that while 323A 7
Supra n.1 at p.66 “Tribunalisation in India” October, 2011. 8
http://legalsutra.org/1446/tribunalisation-in-india/ as on 16th
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA allows for the Parliament to by law provide for istrative tribunals to adjudicate disputes, 323B allows for the any “appropriate legislature”, to by law create an istrative tribunal for the adjudication of disputes.
ISTRATIVE TRIBUNALS ACT, 1985 In pursuance of Art 323-A Parliament has ed the istrative Tribunals Act, 1985 covering all matters falling within the clause (1) of Article 323- A. This Act authorizes central government to establish istrative tribunals for central services and on the application of States even for States services as well as for local bodies and other authorities including public corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art 136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals. A tribunal shall consist of Chairman and such number of Vice-Chairmen and other as appropriate Government may deem fit. They are appointed by the President in the case of Central tribunals and by the President in consultation with the Governors or Governors in case of State or t Tribunals. The qualifications regarding that are laid down in the Act.9
Other aspects regarding istrative Tribunals are being discussed below different headings and sub-headings.
TYPES OF ISTRATIVE TRIBUNALS There are different types of istrative tribunals, which are governed by the statues, rules, and regulations of the Central Government as well as State Governments.
Central istrative Tribunal (CAT) The enactment of istrative Tribunals Act in „1985 opened a new chapter in istering justice to the aggrieved government servants. It owes its origin to Article 323 A of the Constitution which empowers the Central Government to set up by an Act of Parliament, the 9
istrative Tribunals Act, 1985 http://cgat.gov.in/act.htm as on 18th February,2017
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA istrative Tribunals for adjudication of disputes and complains with respective recruitment and conditions of service of persons appointed to the public services and posts in connection with the Union and the States.
The Tribunals enjoy the powers of the High Court in respect of service matters of the employees covered by the Act. They are not bound by the technicalities of the Code of Civil Procedure, but have to abide by the Principles of Natural Justice. They are distinguished from the ordinary courts with regard to their jurisdiction and procedures. This makes them free from the shackles of the ordinary courts and enables them to provide speedy and inexpensive justice.
The Act provides for the establishment of Central istrative Tribunal and State istrative Tribunals. The CAT was established in 1985. The Tribunal consists of a Chairman, Vice-Chairman and . These are drawn from the judicial as well as the istrative streams. The appeal against the decisions of the CAT lies with the Supreme Court of India.
Customs and Excise Revenue Appellate Tribunal (CERAT) The Parliament ed the CERAT Act in 1986 The Tribunal adjudicate disputes,. Complaints or offences with regard to customs and excise revenue. Appeals from the, orders of the CERAT lies with the Supreme Court
Election Commission (EC) The Election Commission is a tribunal for adjudication of matters pertaining to the allotment of election symbols to parties and similar other problems. The decision of the commission can be challenged in the Supreme Court.
Foreign Exchange Regulation Appellate Board (FERAB) The Board has been set up under the Foreign Exchange Regulation Act, 1973. A person who is aggrieved by an order of adjudication for causing breach or committing offences under the Act can file an appeal before the FERAB.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA Income Tax Appellate Tribunal This tribunal has been constituted under the Income Tax Act, 196 1. The Tribunal has its benches in various cities and appeals can be filed before it by an aggrieved persons against the order ed by the Deputy Commissioner or Commissioner or Chief Commissioner or Director of 1 n c o m e ' ~ a x . An appeal against the order of the Tribunal lies to the High Court. An appeal also lies to the Supreme Court if the High Court deems fit.
Railway Rates Tribunal This-Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters pertaining to the complaints against the railway istration. These may be related to the discriminatory or unreasonable rates, unfair charges or preferential treatment meted out by the railway 'istration. The appeal against the order of the Tribunal lies with the Supreme Court.
Industrial Tribunal This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted by' both the Central as well as State governments. The Tribunal looks into the dispute between the employers and the workers in matters relating to wages, the period and mode of payment, compensation and other allowances, hours of work, gratuity, retrenchment and closure of the establishment. The appeals against the decision of the Tribunal lie with the Supreme Court.
SOME FEATURES OF TRIBUNALS OF INDIA Jurisdiction and Power: 1. After the coming into force of istrative Tribunals Act, 198510, all judicial remedies save those of the Supreme Court under Art 2 and 136 have been abolished and the pending proceeding before other courts stand transferred before the regional istrative Tribunals under s.29 of the Act.
10
The Act was brought into force with effect from 2-10-1985. The Central istrative Tribunals was set up on 1-11-1985.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA 2. istrative Tribunal is competent to exercise all powers which the respective courts had, including declaration as to constitutionality of relevant laws. In short, the jurisdiction of the Tribunal is not supplementary but is a complete substitute of the High Courts and Civil Courts.11
3. In view of s.14 of the istrative Tribunal Act,1985, in case where the suit lay, the employee will now have to seek his remedy by application under s.19 of the Act. Pending suits shall stand transferred to the istrative Tribunal having territorial jurisdiction under section 29 of the Act12.
4. Section 29A (inserted in 1986) gives an appellant jurisdiction of the Central istrative Tribunal. Appeals from judgement of Civil Courts in suits relating to service matter which are now governed by the A.T. Act shall lie to the istrative Tribunals to the exclusion of any other Civil Appellant Court or the High Court13. The central istrative Tribunal is the Tribunal constituted under Art.323-A of the Constitution and is expected to have the same jurisdiction as that of High Court.14
5. Orders of the Central istrative Tribunals are nt open to challenge before the High Court. Sources of Tribunal’s Jurisdiction Suit of proceeding transferred to it under s.29 of the Act S.19 deals with jurisdiction of entertaining original application relating to service matters Appellant jurisdiction under s.29A
What the istrative Tribunals can do-
1. Unconstitutionality of Law a. The tribunal can declare the unconstitutional a statute or subordinate legislation 11
Sampat Kumar, SP v. Union of India,(1987) 1 ATR 34 Cf. Kaptan Singh v, UOI (1986) 4 SLR 545 (Del) 13 UOI v. Deep Chand Pandey (1992) 4 SCC 432 14 UOI v. K D Batish AIR 2006 SC 789 12
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA relating to the dispute before it, which contravenes provisions of the constitution. b. Whether a body would be an „authority‟ within the meaning of Art.12. c. In a case where enquiry has been dispensed with under the 2nd proviso to Art 311(2), the tribunal is competent to examine the legal jurisdiction for such dispensation.15 d. It may decide question of law, including preliminary pleas in bar, e.g. limitation; non-der of party; territorial jurisdiction of the tribunal; res judicata.
2. Procedure I.
A Tribunal is not barred by the provisions of the Evidence Act. 16 In order to discover the truth, the Tribunal may resort to the inquisitional procedure, provided no principle of natural justice is violated.
II.
Tribunals shall be guided solely by the principles of natural justice unfettered by anything in the C and shall have the power to regulate its own procedure.
III.
A plea of violation of statutory provision can be taken before the Tribunal though not taken in the petition.
IV.
It is competent to execute its own order, though the A.T Act has no specific provision in this behalf.
3. Disciplinary matters: The Tribunal is competent to go into the facts and set aside the order ed by a disciplinary authorityWhere the conclusion arrived at is arbitrary or perverse. On the other hand , the Tribunal will not interfere – with the finding of facts of the enquiry officers where there was some evidence before him on the basis of which he could reasonably come to the conclusion that the charges against the petitioner were proved . with an order of rejection, by the Tribunal , of an application for reinstatement on the grounds of inordinate and unexplained delay.
15 16
Om Prakash Pathak v. UOI (1986) 4 SLR 251 G Mohanti v. UOI ATR (1987) 1 CAT 229
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA There has been some difference of opinion amongst the tribunals as to how far, if at all, they may interfere with the punishment awarded by a disciplinary authority
Likewise, istrative
Tribunals
can
perform
other
functions
of
Punishment,
Compulsory retirement, Interlocutory matters etc.
What the istrative Tribunals cannot doHowever wide be the jurisdiction of the tribunal, it cannot exercise any jurisdiction of power which no court could exercise, e.g.,a. To question the ground of satisfaction of the President under Cl. (c) of the second proviso to Art.311 (2) 17 b. To go into the merits of an istrative determination in the absence of mala fides, arbitrariness, colorable exercise of power or exercise of power without jurisdiction; or a finding without any evidence at all. c. To overrule or by- decision of the High Court which are binding on it as precedents. d. Though, like the High Court or a Civil Court, an istrative Tribunal has jurisdiction to make interim order in like circumstances.
Appeal from istrative Tribunal to Supreme Court: Though the jurisdiction of High Court under Art 226 over service matter has been taken over by the respective istrative Tribunals Act 1985, the jurisdiction of the Supreme 17
Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA Court over these Tribunals under Art.136 has been retained. Appeals lies to the Supreme Court from orders of an istrative Tribunal, by special leave under Art 136, on the following grounds Error of Law Finding of the Tribunal being perverse. The order of the Tribunal being without jurisdiction or ultra vires. The order of the Tribunals being arbitrary or mala fide. The order of the Tribunal is such as would lead to grave injustice.
JUDICIAL INTERPRETATION As mentioned earlier, the istrative Tribunals Act was ed in 1985 under article 323A and section 28 of this Act provided for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 13618. This fuelled a sudden spurt in the number of cases that challenged the validity of the said legislation as well as that of the 42nd Amendment that introduced Articles 323A and 323B in to the constitution. Some of the prominent case in this regard is discussed below. 1. S.P.Sampath Kumar v. Union of India19 This is the first and perhaps the most important case in this period that attracted judicial scrutiny in this area. The Constitution Bench in Sampath kumar was called upon to decide on the main issue whether Section 28 of the Act was unconstitutional as it excludes judicial review, which was contended as part of the basic structure of the constitution20. The Supreme Court accepted without doubt that judicial; review is part of the basic structure. However the Court went on to observe that the creation of alternate institutional mechanisms which were as effective as the High Courts would not be violative of the basic structure. The istrative Tribunals under the Act were recognized as effective substitutes of the High Courts. This proved to be a shot in the arm of the proponents of tribunalisation. However the Apex Court came down heavily on the procedure for appointing the Chairman of the Tribunal. Section 6(1) (c) of the Act allowed a person who held the post of a Secretary to the Government of India or an equivalent post t 18
Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998 AIR 1987 SC 386 20 During the pendency of the case, the Government gave an assurance to the Court that the Act would be 19
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA become the Chairman. Since these Tribunals were to be substitutes of High Courts it is impermissible for bureaucrats to hold such a post. Hence this provision was held to be unconstitutional. The Chairman should be a retiring or retired Chief Justice of a High Court. Other have to appointed by a committee consisting of a sitting Judge of the Supreme Court. It was also suggested that the Chief Justice of India has to consult while making these appointments. The Parliament accepted these recommendations and now they find a place in the Act by way of the istrative Tribunals (Amendment) Act of 1986.
2. Sambamurthy v. State of Andhra Pradesh21 It was held in this case that Article 371D (5) of the constitution, which was inserted by the Constitution (32nd Amendment) Act,1973, was unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to modify or nullify any order of the istrative tribunal of that state. It was pointed out that such a provision was violative of the basic structure as it made the tribunal not as effective as the High Court when it comes to judicial review. Here the Court seems to be strictly adhering to the directive in Sampath Kumar‟s case that the istrative tribunals should be effective substitutes to the High Court. 3. J.B.Chopra v. Union of India22 It was held that since the istrative tribunals are meant to be substitutes of High Courts, their power of judicial review extended to power as to decide on the constitutionality of service rules. However, soon we see a reversal of trend leading to a lot of confusion. In M.B.Majumdar v.Union of India23 the Supreme Court refused to extend the service conditions and other benefits enjoyed by ordinary High Court judges to the of these Tribunals. Three years later, in R.K.Jain v. Union of India24, the Supreme Court opined that these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227. We also find very clear expression of dissatisfaction of the apex court regarding the functioning and effectiveness of istrative Tribunals especially with regard to their power of judicial 21
(1987) I SCC 386 (1987) I SCC 422. 23 (1990) 4 SCC 501. 24 (1993) 4 SCC 119 22
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA review. 4. Sakinala Harinath v. State of Andhra Pradesh25 In this case, the Andhra Pradesh High Court dropped a bomb shell by expressing serious doubts about the wisdom of the learned Judges in Sampath Kumar‟s case. The Full Bench ruled that the ruling in the above case equating istrative Tribunals to the High courts with respect to their jurisdiction under Articles 226 and 227 was inconsistent with the apex court‟s ruling in cases like Kesavanda Bharati v. State of Keral26 and Indira Gandhi v. Raj Narain27. It was pointed out that the constitutional courts could only exercise the power of judicial review. Since the logic of alternative institutional mechanism propounded in Sampath Kumar‟s case does not fit in to this scheme, it is constitutionally impermissible. As a result both Articles 323A(d) and section 28 of the Act were struck down as unconstitutional.
The judicial green signal given for tribunalisation given in Sampath Kumar can be seen to be slowly fading because of the subsequent decisions.The confusion created by these conflicting decisions ushered in the need for taking a second look at S.P. Sampath Kumar‟s case. This opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v. Union of India28 decided to refer the matter to a larger bench. This eventually led to the famous ruling of the Seven Judge Bench of the Supreme Court on L. Chandrakumar v. Union of India, which is now the law of the land. 5. L. Chandrakumar’s Case
The important issues considered by the apex court were as follows: Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the power to the Union and State Legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under Art.136, is in accordance with the power of judicial review embodied in Art.32 and 226. Whether the power of High Courts to exercise the powers of superintendence over the 25
1993 (2) An. W.R.484 (FB) (1973) 4 SCC 225 27 AIR 1975 SC 2291 28 AIR 1995 SC 1151 26
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA subordinate judiciary under Articles 226 and 227 form part of Basic Structure. The competence of the aforesaid tribunals to determine the constitutionality of any law. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in of efficiency. It was held that the power of judicial review over legislative and istrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciary29 is not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as effective substitutes to the higher judiciary in matters of constitutional interpretation and judicial review. Hence the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and istrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same.
ADVANTAGES OF ISTRATIVE TRIBUNAL istrative adjudication is a dynamic system of istration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the istrative tribunals are: Flexibility istrative adjudication has brought about flexibility and adaptability in the judicial as well as istrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they ister may become out of harmony with the rapidly changing social conditions. istrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life. Adequate Justice 29
In of qualifications, mode of appointment, tenure, mode of removal, etc.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA In the fast changing world of today, istrative tribunals are not only the most appropriated means of istrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it. Less Expensive istrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. istrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman. Relief to Courts The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.
DISADVANTAGES OF ISTRATIVE TRIBUNALS Even though istrative adjudication is essential and useful in modem day istration, we should not be blind to the defects from which it suffers or the dangers it poses to a democratic polity. Some of the main drawbacks are mentioned below. istrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. But istrative tribunals, with their separate laws and procedures often made by themselves, puts a serious limitation upon the celebrated principles of Rule of Law. istrative tribunals have in most cases, no set procedures and sometimes they violate even the principles of natural justice. istrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions. The civil and criminal courts have a uniform pattern of istering justice and centuries of experience in the istration of civil and criminal laws have borne Project on istrative Law
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA testimony to the advantages of uniform procedure. A uniform code of procedure in istrative adjudication is not there. istrative tribunals are manned by s and technical heads who may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge.
STATUS AND WORKING OF TRIBUNALS IN INDIA Tribunals are essentially those bodies of the Executive branch of the government who by virtue of some statutory provision have the power and duty to act judicially in determining disputes which come before it.30 Tribunals as stated earlier are distinct from the ordinary courts of the land and as per Chandrakumar‟s case they are not on par with the High Courts but serve a supplemental function to the High Courts. They are therefore subject to the writ jurisdiction of the superior judiciary and to the power of judicial review exercisable by the superior judiciary. In most of the tribunals appeals from their decisions lie in the High Court on substantial questions of law.
There are different types of tribunals in India, ranging from single member tribunals to multimember tribunals. Tribunals such as the Industrial tribunal may consist of one or more , and they can be appointed by the appropriate government. The chairman of the tribunal is supposed to possess judicial qualifications and is supposed to be or have been a judge of the High Court or a District judge or be qualified for appointment as a High Court judge. The other are expected to satisfy the prescribed requirements- which are to ensure that the are experts and will be able to speedily and effectively dispose of matters. The procedure to be followed by the tribunal is prescribed by the Act and rules made there under. Though the function of the tribunal is to adjudicate on the disputes it has only some of the trappings of the court. It is not bound by strict rules of procedure and can take decisions by exercising its discretion. While accepting the fact that such tribunals must work towards furthering social justice, it has been held in J&K Iron and Steel Co. v. Mazdoor Union
31
that
tribunal cannot act beyond the scope of the law. It can decide the dispute on the basis of the 30 31
Chakraverti, S., istrative Law and Tribunals, 2nd edition, The Law Book Co. Ltd.: Allahabad AIR 1956 SC 231
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA pleadings and has no power to reach a conclusion without any evidence on record. The tribunal is expected to hold the proceedings in public, follow fair procedure and decide disputes impartially and independently.
All tribunals in India are arranged on the following basis: Created by a statute Subject to the writ jurisdiction of the superior judiciary and to judicial review. Manned by experts and persons with judicial experience. Subject to the superintendence of the concerned High Court under Art.227 Decisions may be final or appealable within the tribunal or in certain cases to the High Court.
Appeals against orders of the tribunal may be heard by the Supreme Court by special leave under Art. 136.
TRIBUNALS AND NATURAL JUSTICE: istrative tribunals must act openly, fairly and impartially. They must afford a reasonable opportunity to the parties to represent their case and adduce evidence. Thus, in State of U.P. v. Md. Nooh32 where the prosecutor was also an adjudcating officer and also in Dhakeshwari Mills33where the tribunal did not disclose some evidence to the assessee which was relied upon, the decisions were set aside. In Union of India v. T.R. Verma34 the Supreme Court held the following to be part of natural justice: Party must be able to adduce all evidence being relied upon. Evidence must be taken in the presence of both parties. Must be given opportunity to cross- examine. 32
AIR 1958 SC 86 AIR 1955 SC154 34 AIR 1957 SC 882 at 885 33
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA And no material must be relied upon without giving the party opportunity to explain the evidence.
Tribunals are free to evolve their own method of procedure as long as they conform to the principles of natural justice as outlined above. Tribunals are also expected to give reasoned decisions so as to introduce clarity, reduce arbitrariness and reduce the scope of frivolous appeals. It also provides the supervisory authority the opportunity to keep tribunals within bounds.
COVER UP In view of the increasing role of istration in citizens' life, the istrative tribunals are expected to play an important role in the redressal of citizens' grievances. In this unit we have examined the nature of istrative tribunals and the various reasons for their goping importance. Various types of istrative tribunals are set up in the country to address various issues, such as, the adjudication of disputes and complaints of the public servants, redressal of consumer disputes, industrial disputes, disputes pertaining to income tax etc.
They provide greater flexibility in istering justice and provide relief to the courts. But at the same time they suffer from some limitations as they sometimes violate the principles of natural justice, lack uniform pattern of istering justice and also suffer from the lack of a proper background on law or judicial work. However, with certain safeguards it is possible to rectify some of these limitations. The istrative tribunals should have people with legal training and experience. A code of judicial procedures should be devised and enforced for their functioning.
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA
CONCLUSION In practice there are a number of tribunals functioning in the country. Very few of them, however, have been able to inspire confidence in the public. The tribunals have shown a singular lack of competence and objectivity in determining disputes. Another reason for their failure is the constitution of the tribunals and the method of appointment of the personnel. Persons with expertise and the right qualifications do not want to sit on these tribunals thus leading to the unsatisfactory functioning of these tribunals.35 The uncertainty of tenure, unsatisfactory service conditions, interference by the executive and political interference have further impeded the proper development of tribunals in India. Tribunals are supposed to provide specialized adjudicatory services but the type of people appointed lack the requisite expertise and are on the tribunals merely because of political pressure and executive interference.
Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they must therefore be able to inspire public confidence by proving themselves to be a competent and expert mechanism with a judicial and objective approach. In order to achieve this it is essential that of the tribunal are equipped with adequate judicial acumen and expertise. These judicial officers need to be balanced with experts in the particular field. Only a judicious blend of the two will be able to provide an effective and result oriented tribunal system. Another important measure which needs to be taken are steps to maintain the independence of the of these tribunals from political or executive interference. Just as the ordinary judiciary are protected from political control through security of tenure and through institutionalized methods of appointment (through a selection committee comprising of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on the high courts the high courts must be divested of the supervisory jurisdiction over the tribunals. It is essential therefore that a single centralised nodal agency be established to oversee the functioning of the tribunals. Such a centralised umbrella organisation will ensure the independence of the tribunals in matters of tenure and funds. Thus the overall picture regarding tribunalisation of justice in the country is far from satisfactory. 35
Sathe, S.P., iostrative Law, 6th. Edn., Butterworths, New Delhi, 1999, pp. 245-252
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA A fresh look at the system of tribunals in India is required so as to ensure speedy justice and quick disposal of disputes arising out of istrative disputes which are essential for the development of the nation.
BIBLIOGRAPHY BOOKS: A.T. Markose: Judicial Control of istrative Action in India, 1956, Madras Law Journal Office, Madras. A.V. Dicey, Introduction to the Study of the law of the Constitution, London, 1931. istrative Law Treatise, 1958 Vol.1. Allen, Law and orders (1956). Ashok Chanda, Indian istration, London. Basu, D.D., „istrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004. D.D.Basu, Criminal Procedure Code 1973, 3 rd ed.,(I), Asoke K. Ghosh, Prentice-Hall of India Private Limited, M-97, Cannaught Circus, New Delhi-110001,1996 D.D.Basu, Indian Penal Code 1860, Asoke K. Ghosh, Prentice-Hall of India Private Limited, M-97, Cannaught Circus, New Delhi-110001,1997 Jain and Jain, istrative Law in India, 12 th edition, Eastern Book Company, Lucknow Leonord D. White, Public istration, 1953. Marshman, John Clark, The History of India, from the earliest period to the close Lord Dalhousie‟s istration, II, London: Longmans, Green, Reader and Dyer, 1867 P.M.Bakshi’s Constitution of India Seventh Edition, 2006, Universal Law Publishing Co. Pvt. Ltd Delhi. Takwani, C.K., „Lectures On istrative Law‟, Eastern Book Company, Lucknow, 2004 Upendra Baxi, Developments in Indian istrative Law, Public Law in India (1982) Project on istrative Law
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ISTRATIVE ADJUDICATION SYSTEM IN INDIA (A. G. Noorani Ed.) p.156.
LAW JOURNALS All India Reporter All India Times Criminal Law Journal Delhi law Review. Supreme Court Cases
GOVERNMENTOF INDIA REPORTS Law Commission of India, 162nd Report, Review of functioning of Central istrative Tribunal; Customs, Excise and Gold (Control) Appellate Tribunal and Income Tax Act Appellate Tribunal.
WEBSITES www.books.google.co.in www.1egalsutra.com http://en.wikipedia.org http://esciencenews.corn http://Iegalserviceindia.com http://www.docstoc.com http://www.airwebwor1d.com www.guestia.com www.jusprudentia.com
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