The Working of Tribunals: the Administrative Tribunals Act 1985

Group 2: jurisdiction, sections 14 to 18

• Section 14 confers on the Central Administrative Tribunal the jurisdiction, powers and authority previously exercisable by all courts except the Supreme Court in relation to recruitment and service matters of persons appointed to All India Services, to civil services of the Union, and to posts under the Union.
• Section 15 does the same for a State Administrative Tribunal in relation to State services, and section 16 for a Joint Administrative Tribunal.
• Section 17 gives the tribunal the power to punish for contempt, the same as a High Court, which is an example of the point made in [Tribunal and Court Distinguished] that a tribunal has contempt power only where the statute confers it.
• Section 18 provides for the distribution of business among the Benches.

Group 3: procedure, sections 19 to 27

This group is where the Act's promise of speed and simplicity lives.

• Section 19 provides for applications to the tribunal by an aggrieved person, in the prescribed form and with the prescribed fee.
• Section 20 provides that an application shall not be admitted unless the applicant has exhausted the remedies available under the relevant service rules, such as departmental appeals and representations. This is a real filter and it is examinable.
• Section 21 prescribes limitation: ordinarily one year from the date of the final order, with power to admit a late application on sufficient cause shown.
• Section 22 is the heart of the procedure. The tribunal is not bound by the Code of Civil Procedure but is guided by the principles of natural justice, and subject to the Act and rules has power to regulate its own procedure. It is given the powers of a civil court under the Code for specified purposes: summoning and enforcing attendance, requiring the discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions and reviewing its decisions.
• Section 23 gives the applicant the right to take the assistance of a legal practitioner and allows the Government to be represented likewise.
• Section 24 imposes conditions on the making of interim orders, requiring copies of the application and supporting documents to be furnished to the other side and an opportunity of being heard, unless the tribunal records reasons for immediate relief, in which case the order lapses within fourteen days unless the other side is heard.
• Section 25 empowers the Chairman to transfer cases between Benches, section 26 provides for decision by majority, and section 27 for the execution of orders as a decree of a civil court.

Group 4: exclusion of jurisdiction and transitional provisions, sections 28 to 29A

• Section 28 excluded the jurisdiction of all courts except the Supreme Court under Article 136. This is the provision the Supreme Court cut down, and the position is set out below.
• Section 29 transferred pending cases from the courts to the tribunals, and section 29A provides for the filing of certain appeals.

Group 5: general and rule making, sections 30 to 37

• Section 30 deems proceedings before a tribunal to be judicial proceedings, and section 31 makes the members and staff public servants. Section 32 protects action taken in good faith. Section 33 gives the Act overriding effect. Section 34 is a power to remove difficulties, of the kind discussed in [Forms and Types of Delegated Legislation]. Section 35 confers rule making power on the Central Government and section 36 on the appropriate Government, while section 36A permits rules to be made retrospectively, which is unusual and is the express statutory authority that [Judicial Control over Delegated Legislation] says a retrospective rule requires, and section 37 requires rules to be laid, which is the laying procedure treated in [Legislative Control over Delegated Legislation].

The constitutional litigation, in two steps

Step 1: the Act upheld, with the Chairman's qualification struck down

Facts. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, arose from a challenge to the Act. Article 323A, inserted by the Forty-second Amendment, authorised Parliament to provide for adjudication by administrative tribunals of service disputes, and clause (2)(d) envisaged excluding the jurisdiction of all courts except the Supreme Court under Article 136. Section 28 as first enacted excluded even the Supreme Court's jurisdiction under Article 32; as amended by an Ordinance of 1986 and Act 19 of 1987 it saved the Supreme Court's jurisdiction under Articles 32 and 136. Section 6(1) laid down the qualifications for Chairman, clause (c) of which permitted a person who had for at least two years held the post of Secretary to the Government of India.

Held. Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate or take it away. It is nevertheless within the competence of Parliament to amend the Constitution so as to substitute for the High Court another institutional mechanism for judicial review, without violating the basic structure, provided that mechanism is no less efficacious than the High Court. Since it is the High Court that is being supplanted, the office of Chairman must for all practical purposes be equated with that of the Chief Justice of a High Court, and judicial discipline generated by experience and training is a necessary qualification. A person who had merely held the post of Secretary to the Government of India, with no legal or judicial experience, would not inspire confidence in the public mind and would render the tribunal a much less effective mechanism than the High Court. Clause (c) of section 6(1) was accordingly struck down as invalid.

Why it matters. It accepted the substitution of tribunals for High Courts, on the express condition of equal efficacy. That condition is what the next case found had not been met.

Step 2: the exclusion of the High Courts held unconstitutional

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was heard by seven judges. The questions were whether clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, and section 28 of the Act with the corresponding exclusion clauses in other statutes, could validly exclude the jurisdiction of the High Courts, and what the position of the tribunals was in the judicial hierarchy.

Held. Clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 32, are unconstitutional, and section 28 of the Act and the exclusion of jurisdiction clauses in all other legislation under those Articles are unconstitutional to the same extent. The jurisdiction conferred on the High Courts under Articles 226 and 227 and on the Supreme Court under Article 32 is part of the inviolable basic structure. While that jurisdiction cannot be ousted, other courts and tribunals may perform a supplemental role. Tribunals under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and they continue to act as courts of first instance, so litigants may not approach the High Courts directly. Where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises before a single Member Bench, the proviso to section 5(6) applies and the matter must be referred to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters. It is the case that defines how tribunals actually work today, and it produced a paradox worth stating in an answer: the Act was passed to relieve the High Courts, and the effect of the decision is that every tribunal decision may go to a Division Bench of the High Court, so the workload returned. That is the practical criticism of the whole scheme.

A worked example

Arun Salvi, an Assistant Engineer in a Union Ministry posted at Pune, is reverted to a lower post by an order dated 1 March.

1. First, exhaust departmental remedies. Section 20 bars the tribunal from admitting his application until the remedies under the service rules have been exhausted, so he must prefer the departmental appeal first.
2. Then apply to the Central Administrative Tribunal. Section 14 gives it jurisdiction over his service matter; section 19 governs the application. He may appear in person or through a legal practitioner under section 23.
3. Within time. Section 21 requires the application within one year of the final order, with power to condone delay on sufficient cause.
4. Procedure. Section 22: the tribunal is not bound by the Code of Civil Procedure and is guided by natural justice, but may summon witnesses, require documents and take evidence on affidavit.
5. Interim relief. Section 24: ordinarily only after notice and hearing the other side; an ex parte interim order lapses in fourteen days unless the other side is then heard.
6. Decision. By majority under section 26, executable as a decree of a civil court under section 27.
7. If he loses. Not an appeal to the Supreme Court, and not a petition to a single judge. A writ petition to a Division Bench of the Bombay High Court, following L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
8. If he wants to argue that a service rule is unconstitutional, the tribunal can decide it, but not a single Member Bench: the proviso to section 5(6) sends it to a Bench of two, including a Judicial Member.

The criticism of the working of tribunals

1. The relief promised has not materialised. With review lying to a Division Bench of the High Court, a service dispute now has an extra tier rather than fewer.
2. Vacancies. Tribunals routinely function below strength, and section 5's requirement of a Judicial Member on a Bench cannot be met when there is none.
3. Independence. Appointments, service conditions and the administrative support of the tribunal lie with the Government that is the standing respondent. This is the theme of the next chapter.
4. Section 20's exhaustion requirement delays access while departmental appeals are pursued.
5. Uneven quality, since a tribunal's usefulness depends heavily on who is appointed to it.

Quick revision

1. The Administrative Tribunals Act 1985 was made under Article 323A. It has 37 sections.
2. Establishment: section 4, Central, State and Joint Administrative Tribunals. Composition: section 5, with the proviso to section 5(6) on references to a two Member Bench. Qualifications: section 6.
3. Jurisdiction: sections 14 to 16. Contempt: section 17. Distribution of business: section 18.
4. Procedure: section 19 applications, section 20 exhaustion of remedies, section 21 limitation of one year, section 22 not bound by the Code of Civil Procedure and guided by natural justice with specified civil court powers, section 23 legal representation, section 24 interim orders, section 26 majority, section 27 execution.
5. Section 28 excluded the courts; sections 29 and 29A dealt with transfer and appeals; sections 30 to 37 are general and rule making provisions.
6. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386: judicial review is basic and cannot be abrogated, but an alternative institutional mechanism no less efficacious than the High Court is permissible; section 6(1)(c) struck down.
7. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: exclusion clauses unconstitutional so far as they touch Articles 226, 227 and 32; that jurisdiction is part of the basic structure; tribunals are supplemental, are courts of first instance, may decide constitutional questions, and are reviewable by a Division Bench of the High Court.

Test yourself

1. Describe the scheme of the Administrative Tribunals Act 1985. The Act was passed under Article 323A. Section 4 establishes the Central Administrative Tribunal, and provides for State Administrative Tribunals on a State's request and for Joint Administrative Tribunals by agreement between States. Section 5 governs composition and Benches, ordinarily one Judicial and one Administrative Member, with the proviso to section 5(6) requiring a question of constitutional interpretation before a single Member to be referred to a Bench of at least two. Section 6 prescribes qualifications and sections 8 to 11 the term and conditions of service. Sections 14 to 16 confer on the tribunals the jurisdiction previously exercised by the courts in service matters; section 17 gives contempt power. Sections 19 to 27 lay down procedure: application, exhaustion of departmental remedies under section 20, limitation of one year under section 21, freedom from the Code of Civil Procedure but adherence to natural justice under section 22, legal representation under section 23, restrictions on interim orders under section 24, decision by majority and execution as a decree. Section 28 excluded the jurisdiction of the courts, and sections 30 to 37 contain general, protective and rule making provisions.

2. Discuss the constitutional validity of the exclusion of the High Courts' jurisdiction under the Act. Section 28 originally purported to exclude the jurisdiction of all courts, including the Supreme Court under Article 32, and after amendment excluded all except the Supreme Court. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the Court held that judicial review is a basic and essential feature which cannot be abrogated, but that Parliament may substitute for the High Court an alternative institutional mechanism provided it is no less efficacious, and it struck down section 6(1)(c), which permitted a Secretary to the Government of India without legal or judicial experience to be Chairman. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, seven judges held that clause 2(d) of Article 323A, clause 3(d) of Article 323B and section 28 are unconstitutional so far as they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, that jurisdiction being part of the inviolable basic structure; tribunals may perform only a supplemental role, act as courts of first instance, and their decisions are subject to review by a Division Bench of the High Court.

3. What is the effect of section 20 of the Act? It provides that an application shall not be admitted unless the applicant has exhausted the remedies available under the relevant service rules. A government servant must therefore pursue his departmental appeal or representation before he may approach the tribunal. The provision filters out disputes capable of being resolved within the department, but it also delays access to adjudication, and it is one of the practical criticisms of the working of the tribunals.

4. Is a tribunal under the Act bound by the Code of Civil Procedure? No. Section 22 provides that the tribunal is not bound by the procedure laid down in the Code of Civil Procedure but is guided by the principles of natural justice, and that subject to the Act and the rules it has power to regulate its own procedure. It is nevertheless given the powers of a civil court under the Code for specified purposes, including summoning and enforcing the attendance of witnesses, requiring the discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions and reviewing its own decisions.

5. "The Administrative Tribunals Act has not achieved its object." Comment. The object was to relieve the High Courts and to provide speedy and specialised adjudication of service disputes. It has partly failed. After L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, every decision of a tribunal may be challenged before a Division Bench of the High Court, so the tribunal has become an additional tier rather than a substitute, and the workload of the High Courts was not relieved as intended. Tribunals frequently function with vacancies, which is serious given that a Bench should include a Judicial Member. The independence of members whose appointment and service conditions rest with the Government that is the standing respondent remains open to objection. Section 20's requirement that departmental remedies be exhausted adds further delay. The specialisation and the simplified procedure under section 22 remain genuine gains.