NATIONAL LAW UNIVERSITY

JODHPUR

ADMINISTRATIVE LAW

ASSIGNMENT (CA-II)

Tribunalisation of Justice in India with special reference to

Tribunals,courts and Enforcement Act,2007 (U.K.)

Submitted to: Submitted by:

Prof. I. P. Massey Niharika Choudhary

Faculty of Law 1120

Section A

VI SEMESTER

TABLE OF CONTENTS

Introduction................................................................................................................................2

Judicial Interpretation.............................................................................................................3

Reasons for the Growth of Administrative Tribunals............................................................4

Constitutional Status of Tribunals..............................................................................................6

Article 136 of Constitution.....................................................................................................6

42nd and 44th Amendment.......................................................................................................6

Constitution (44th Amendment) Act.......................................................................................8

Constitutional validity of the Administrative Tribunals Act, 1985........................................8

Tribunalisation of Justice.........................................................................................................12

Adaptation of Droit Administratif........................................................................................12

Judicial Review Of Decisions of the Tribunals....................................................................13

Power of Tribunals to Review Decisions.............................................................................14

Whether Tribunals are Bound by SC and HC Decisions.....................................................14

Tribunals, Courts and Enforcement Act, 2007.........................................................................16

CONCLUSION........................................................................................................................19

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INTRODUCTION

Tribunalization in India is done in order to implement Administrative Law in India. Tribunal

is a body of administrative character powered with judicial powers to adjudicate on question

of law or fact that affects rights of citizens has judicial or a quasi-judicial functions work in a

judicial manner Since tribunals follow the principles of natural justice, they do not follow

the Indian Evidence Act, 1872 that is commonly followed in Courts. The necessity of

establishing administrative tribunals was recommended by the Swaran Singh Committee

appointed by the Parliament. “Tribunal means a set or a bench upon which judge or judges sit

and decide controversies between the parties and exercises judicial powers as distinguished

from purely administrative functions.” The word “Tribunal” has not been defined in the

constitution or in any other law.

But the word has been defined by courts in the following cases:

In Durga Shankar Mehta v. Raghuraj Singh1 the Supreme Court defined tribunal in the

following words: The expressional Tribunal as used in Article 136 does not mean the same

thing as ‘Court’ but includes, within its ambit, all adjudicating bodies, provided they are

constituted by the state and are vested with judicial functions as distinguished from

administrative or executive functions.

In the words of M P Jain, with regard to the functioning of a tribunal, tribunals do not have to

follow any uniform procedure as laid down under the Civil Procedure Code and under the

India Evidence Act of 1872 but they have to follow the principles of Natural Justice.

In Bharat Bank Ltd v. Employees Bharat Bank Ltd.2 The court stated that the tribunals are

adjudicating bodies which decide controversies between the parties and exercise judicial

functions as distinguished from administrative functions.

The tribunals are established in order to provide speedy, cheap determination of disputes and

to reduce the workload of the courts. The traditional judicial system proved to be inadequate

to decide and settle the disputes as it was slow, costly, complex and formalistic.

An Administrative Reforms Commission was set up in 1967 by the Government of India to

recommend the suitable areas in which tribunals could be set up. The Commission

recommended the establishment of tribunals in the following areas namely:-

a. Service matters and Dispute of employees under the State

b. Orders of assessment on adjudication under customs, Central Exercise, Sales Tax and

1 1954 AIR 520,2 1950 SuppSCR 317

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orders under the Motor Vehicles Act.

However, the Constitutional Status to the Tribunals were given by the 42nd (Amendment)

Act, 1976 which inserted Articles 323A and 323B by which Parliament has been authorized

to constitute administrative and other Tribunals to decide and adjudicate the matters specific

therein. Prior to 42nd Amendment, Tribunals were under the control of concerned High Court

and their orders were appealable in the High Court. These orders were also subject to the

Writ Jurisdiction of the High Court and Supreme Court under Article 226 and 32

of Constitution of India respectively. But after the 42nd Amendment and with the insertion

of Articles 323A and 323B, the legislature had the power to exclude the Writ Jurisdiction.

The only appeal, which will lie from the orders of these Tribunals, is a specific leave petition

to Supreme Court under Article 136 of the Constitution of India.

JUDICIAL INTERPRETATION

Part XIV-A which consist of two Articles 323A and 323B deals with these Tribunals.

Article 323A provides for the adjudication of disputes and complaints with respect to the

recruitment and condition of service of persons appointed to public services and post in

connection with the affairs of the Union or of any State or of any local or other authority

within the territory of India. Article 323B empowers the Parliament or State Legislature to set

up Tribunals for the following matters: a. Levy, assessment, collection and enforcement of

any tax; b. Foreign exchange, import and export across customs frontiers; c. Industrial and

labor disputes; d. Matters connected with land reforms covered under Article 31-A; e. Ceiling

on Urban property; f. Elections to either House of Parliament or Legislatures of the States

and; g. Production, procurement, supply and distribution of food stuffs or other essential

goods.Judicial Review of Decisions of Tribunals

No appeal, revision or reference against the decision of any Tribunal is maintained if the said

right is not conferred by the relevant Statue. Provisions can also be made ouster of

jurisdiction of civil court; and the decision rendered by these Tribunals will be treated as

final.

However if the Tribunal has:-

a. Acted without jurisdiction or

b. Failed to exercise jurisdiction or

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c. Order passed by Tribunal arbitrary or malafide or

d. Not observed the principles of natural justice or

e. Made error apparent on face of record or

f. Made an order which is ultra vires of the act

Then the same can be set aside by the High Court or Supreme Court.

REASONS FOR THE GROWTH OF ADMINISTRATIVE TRIBUNALS

According to dicey’s theory of the rule of law, ordinary law courts must administer law of the

land. He was opposed to the establishment of administrative tribunals. Regarding the classical

theory and the doctrine of separation of powers, the function of deciding disputes between the

parties’ belonged ordinary courts of law. But, as discussed above, the governmental functions

have increased and ordinary courts of law are not in a position to meet the situation and solve

the complex problems arising in the changed socio-economic context.

Administrative tribunals established for the following reasons:

Increasing governmental functions and activities overloaded courts with Cases that they

were unable to deal effectively. The system off administrative tribunals has positively

contributed to the preservation of ordinary judicial system.

The traditional judicial system proved inadequate to decide and settle all the disputes

requiring resolution. It was slow, costly, inexpert, complex, formalistic, already

overburdened, and it was not possible to expect speedy disposal of even very important

matters, e.g. Disputes between employers and employers, lockout, strikes, etc. these

burning problems cannot be solved merely by literally interpreting the provisions of any

statute, but require consideration of various other factors that could not be accomplished

by the courts of law. Therefore, industrial tribunals and labour courts were established,

which possessed the technique and expertise to handle these complex problems.

Courts of law deal with cases, which come up before them by applying settled legal

principles and by adopting objective standards. In modern society, however, complex

questions arise which cannot be decided on objective legal principle, pure and simple.

They are to be solved by keeping in mind policy consideration and public interest.

Administrative tribunals can play an ineffective role in that direction.

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Persons having knowledge often law man traditional Courts. But in modern

administration, many a time, questions of specialization and expertise arise. Knowledge

in a particular subject, hence, is necessary over and above legal knowledge. Instead of a

“one man court”, a “broad based membership” or a “mixed panel” of administrative

tribunal may better solve problems.

Administrative apologies can avoid technicalities. They take functional rather than a

theoretical and legalistic approach. The traditional judiciary is conservative, rigid and

technical. It is not possible for the courts of law to decide the Cases without formality

and technicality. On the other hand, administrative tribunals are not bound by the rules

of evidence and procedure and they can take a practical view off the matter beside

complex problems.

Administrative authorities can take preventive measures, example licensing, rate fixing,

etc. Unlike that of the courts of law they do not have to wait for parties to come before

them with disputes. In many cases, these preventive actions may prove to be more

effective and useful than punishing the person after he has committed a breach of any

legal provision.

Administrative authorities can take effective steps for the enforcement of the aforesaid

preventive measures, example suspension, revocation, or cancellation of license,

destruction of contaminated articles, etc. which are  not generally available to the

ordinary courts of law.

It ordinary courts of law, decisions are given after hearing the parties and on the basis of

the evidence on record. This procedure is not appropriate in deciding matters by the

administrative authorities where wide discretion is conferred on them and decisions

maybe given on the basis of the departmental policy and other relevant factors.

Sometimes, the disputed questions are technical in nature and the traditional judiciary

cannot be expected to appreciate and decide then. On the other hand, and administrative

authorities are usually manned by experts who can deal with and solve all these

problems, example problems relating to the atomic energy, gas, electricity, etc.

Administrative tribunals do their work more rapidly, more cheaply, more efficiently

than ordinary courts, posses greater technical knowledge and fewer prejudices against

government, give greater heed to the social interest involved, decide disputes with

conscious effort at furthering social policy embodied in the legislation.

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CONSTITUTIONAL STATUS OF TRIBUNALS

ARTICLE 136 OF CONSTITUTION

The status of tribunal has been recognized by the Constitution. Article 136 of the Constitution

empowers the Supreme Court to grant special leave to appeal from any judgment, decree,

determination, and sentence or order passed or made by the any tribunal in India. Likewise,

Article 227 enables every High Court to exercise power of superintendence over all tribunals

throughout the territories over which it exercise jurisdiction. The Constitution (42nd)

Amendment Act, 1976, has inserted Articles 323-A and 323-B, by which Parliament has been

authorized to constitute administrative tribunals of disputes and adjudication of matters

specific therein.3

42 ND   AND 44 TH   AMENDMENT

The Tribunals in India have a very engaging history, dating back to the year 1941, when the

first Tribunal in the form of the Income-Tax Appellate Tribunal, was established. The post

Independence era saw the insertion of Articles 323A and 323B by the Constitution (42nd

Amendment) Act, 1976, giving constitutional recognition to the Tribunals with effect from

3rd January 1977. Article 323-A exclusively relates to the Administrative Tribunals. It

empowers the Parliament to make laws, providing for the adjudication or trial by

Administrative Tribunals, of disputes and complaints with respect to recruitment and

conditions of service of persons appointed to public services and posts in connection with the

affairs of the Union or of any State Government or any of their Corporation etc. The said

Articles were inserted to enable the Parliament to establish Tribunals, which could exclude

the jurisdiction of all courts including the High Courts. However, it was only in the year 1985

that, in exercise of its powers under the aforesaid Article 323A, Parliament enacted the

Administrative Tribunals Act.4

1)      Constitution (42nd Amendment) Act

3 The Constitution (42nd Amendment) Act, 2734 Justice D.K. Jain, Central Administrative Tribunal- A Pulsating Vibrant Dispensation: An Introspection, Address at the Chandigarh Judicial Academy on the eve of Silver Jubilee of the Chandigarh Bench of the Central Administrative Tribunal (November 19, 2011).

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The Constitution (42nd Amendment) Act, 1976 was the most debatable and controversial

amendment in the Constitutional history of India. It effected drastic and draconian changes in

several provisions of the Constitution not only affecting rights of the citizens but also

restricting, limiting, curtailing and even totally excluding power of judicial review of High

Court and of the Supreme Court which was held to be a part of the “basic structure” of the

Constitution. So far as administrative tribunals are concerned, mainly the amendment made

two changes;

It took away power of the superintendence of High Courts over the administrative

tribunals which they posses under Article 227 of the Constitution.

After Part XIV, it inserted part XIV-A (Art. 323-A and 323-B) by enabling Parliament

to constitute administrative tribunals for purpose specific therein.5

Part XIV-A, as inserted by the 42nd Amendment Act, open a new dimension in Indian

constitutional and administrative law. Article 323-A enacts that Parliament may, by law,

provide for adjudication or trial by administrative tribunal of disputes and complaints

concerning recruitment and condition of service of person appointed to the public service.

Parliament may by specify the jurisdiction, power, and authority of such tribunals and

prescribe the procedure to be followed by them. Article 323-B (I) empowers the appropriate

legislature to provide for the adjudication or trial by tribunal of any disputes, complaints or

offences with respect to all or any of the matters specified in clause (2). Such law may also

provide for the exclusion of jurisdiction of all courts except that of the Supreme Court under

Article 136. The 42nd Amendment substantially excludes and curtailed power of High Court

and of the Supreme of judicial review of administrative action. It was a “retrograde

innovation” and its object was to take away the supervisory jurisdiction of the High Court

over tribunals under Article227. However Article 323- A and 323-B were not self executor

inasmuch as they themselves did not take the jurisdiction of High Court under Article 226 or

Article 227 of the Constitution, but they only enable Parliament or the appropriate legislature

to make laws to set up such tribunals and to exclude the jurisdiction of the High Court under

Article 226 and 227. It is however submitted that the above legal position has now been

substantially changed in view of a decision of the Supreme Court in Chandra Kumar v. Union

of India.6

5 Rajib Hassan, Judicial Review of the Decisions of Administrative Tribunals by the Supreme Court and High Courts: A Long-standing Controversy- Settled (October 26, 2013), http://www.articlesbase.com/national-state-local-articles/judicial-review-of-the-decisions-of-administrative-tribunals-by-the-supreme-court-and-high-courts-a-long-standing-controversy-settled-4912243.html.6 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

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CONSTITUTION (44 TH   AMENDMENT ) ACT

By the Constitution (44th Amendment) Act, 1978, Article 227 was amended and jurisdiction

of High Court over administrative tribunals has been restored. No amendment, however was

made in Part XIV-A, as inserted by the Constitution (42nd Amendment) Act, 1976 and

exclusion of jurisdiction of all courts and tribunals constituted in exercise of powers under

Article 323-A and 323-B. For revival of that power and restoration of majesty of High

Courts, legal fraternity had to wait for almost two decades.

CONSTITUTIONAL VALIDITY OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985

The enactment of Administrative Tribunals Act in 1985 opened a new chapter in the sphere

of administering justice to the aggrieved government servants. Administrative Tribunals Act

owes its origin to Article 323-A of the Constitution which empowers Central Government to

set-up by an Act of Parliament, Administrative Tribunals for adjudication of disputes and

complaints with respect to recruitment and conditions of service of persons appointed to the

public service and posts in connection with the affairs of the Union and the States. In

pursuance of the provisions contained in the Administrative Tribunals Act, 1985, the

Administrative Tribunals set-up under it exercise original jurisdiction in respect of service

matters of employees covered by it. As a result of the judgement dated 18 March 1997 of the

Supreme Court, the appeals against the orders of an Administrative Tribunal shall lie before

the Division Bench of the concerned High Court.

The Administrative Tribunals exercise jurisdiction only in relation to the service matters of

the litigants covered by the Act. The procedural simplicity of the Act can be appreciated from

the fact that the aggrieved person can also appear before it personally. The Government can

present its case through its departmental officers or legal practitioners. Thus, the objective of

the Tribunal is to provide for speedy and inexpensive justice to the litigants.

The Act provides for establishment of Central Administrative Tribunal (CAT) and the State

Administrative Tribunals. The CAT was set-up on 1 November 1985. Today, it has 17

regular benches, 15 of which operate at the principal seats of High Courts and the remaining

two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High

Courts. In brief, the tribunal consists of a Chairman, Vice-Chairman and Members. The

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Members are drawn, both from judicial as well as administrative streams so as to give the

Tribunal the benefit of expertise both in legal and administrative spheres. With a view to

easing the congestion of pending cases in various High Courts and other Courts in the

country, Parliament had enacted the Adminisitrative Tribunals Act, 1985 which came into

force in July 1985. The constitutional validity of this Act was challenged before the Supreme

Court in S.P. Sampath Kumar v. Union of India7 on the ground that the exclusion of judicial

review of the High Court violated the basic structure of the Constitution. Negativating the

contention the court held that no matter the judicial review, which is the basic feature of the

Constitution cannot be violated; but it is within the power of Parliament to amend the

Constitution so as to substitute, in place of High Court, another alternative mechanism of

judicial review, provided it is not less efficacious than the High Court.8

This question of constitutionality of the Administrative Service Tribunals Act, 1985 once

again arose before the Supreme Court in the pace-setting case of L. Chandra Kumar9. The

court in this case held that Sampath Kumar 10was decided against the background and that the

litigation before the High Courts had exploded in an unprecedented manner and, therefore, an

alternative inquisitional mechanism was necessary to remedy the situation. But it is self-

evident and widely acknowledged truth that tribunals have not performed well, hence drastic

measures were necessary to elevate their standard ensuring that they stand up to

constitutional scrutiny. The court further held that because the constitutional safeguards,

which ensure the independence of the judges of the Supreme Court and the High Courts, are

not available to the members of the tribunals, hence, they cannot be considered full and

effective substitute for the superior judiciary in discharging the function of constitutional

interpretation. Against this backdrop, the court came to the conclusion that administrative

tribunals cannot perform a substitutional role to the High Court, it can only be supplemental.

Therefore, clause 2(d) of Article 323-A and clause 3(d) of Article 32.3-B of the Constitution,

to the extent, they exclude the jurisdiction of the High Courts and the Supreme Court under

Articles 226, 227 and 32 of the Constitution, were held unconstitutional; and for the same

reason Section 28 of the Administrative Tribunals Act, 1985 which contains the "exclusion of

jurisdiction" clause, was also held unconstitutional.11

7 S.P. Sampath Kumar v. Union of India (1987) 1 SCC1248 I. P. MASSEY, ADMINISTRATIVE LAW 605-606 (8th ed. 2012).9 L. Chandra Kumar v. Union of India, (1997) 3 SCC 26110 S.P. Sampath Kumar v. Union of India (1987) 1 SCC12411 Supra Note 8.

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It was further observed by the court that the power of judicial review of the constitutional

courts is a part of the inviolable basic structure of the Constitution, which cannot be ousted.

However, service tribunals shall continue to be the courts of first instance in service matters,

and no writ can be directly filed in the writ courts on matters within the jurisdiction of

tribunals. Though the two-judge Bench, one of whom must be a judicial member, of the

tribunal can determine the constitutionality of any statutory provision, yet it cannot determine

the constitutionality of the Administrative Tribunal Act, 1985. But the exercise of this power

shall be subject to the scrutiny by the Division Bench of the High Court within whose

jurisdiction the tribunal is situated. By bringing back the tribunals within the jurisdiction of

the High Courts, the court served two purposes. While saving the power of judicial review of

legislative action vested in the High Courts under Articles 226 and 227 of the Constitution, it

will ensure that frivolous claims are filtered out through the process of adjudication by the

tribunal. The High Court will alsohave the benefit of a reasoned decision on merits which

will be of use to it in finally deciding the matter. In view of this decision the existing

provision of direct appeals to the Supreme Court under Article 136 of theConstitution also

stands modified. Now the aggrieved party will be entitled to move the High Court and from

the decision of the Division Bench of the High Court, he can move the Supreme Court under

Article 136 of the Constitution. The court saved the constitutionality of Section 5(b) by

providing that whenever a question involving the constitutionality of any provision arises, it

shall be referred to a two-member Bench, one of whom must be a judicial member.12

Through this classical case, the court has, in one sense, tried to save the jurisdiction of

constitutional courts from encroachment by the legislature by invoking the doctrine of "basic

features of the Constitution".

Again, the Supreme Court in State of T.N. v. S. Thangavell13 held that the members of the

tribunal are not judges and their order is not a judgment or decree under Section 2(9), CPC.

At best their statements can be construed to be only orders for the purpose of decision arrived

at by the tribunal under the Administrative Tribunal Act, 1985. Keeping in view the

subordinate status of the tribunal, the Delhi High Court recently held that Central

administrative tribunal couldn’t entertain a public interest litigation.

The Supreme Court has now finally settled the question of jurisdiction of the tribunals in

labour matters by holding that an administrative tribunal has no jurisdiction to adjudicate

upon the finding of an Industrial Tribunal that a person is a workman. A tribunal cannot

12 Ibid.13 T.N. v. S. Thangavell, (1997) 2 SCC 349

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assume jurisdiction by holding that the department in which the employee was working was

not an industry.14 Thus, the duality of jurisdiction in labour matter has now been abolished. It

is also now authoritatively laid down that the doctrine of precedent applies to the

administrative tribunals also. The court held that whenever an application under Section 19 of

the Administrative Tribunals Act, 1985 is filed which involves a question already concluded

by an earlier decision, the tribunal must take into account that decision as precedent and

decide accordingly. If the tribunal dissents then the matter must be referred to a larger Bench.

14 Ajay D. Panalkar v. Pune Telecom Deptt. (1997) 2 SCC 469.

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TRIBUNALISATION OF JUSTICE

In India, the tribunalisation of justice begun even before the Constitution and has been seen

with separate courts for consumer matters, company matters, civil matters, criminal matters,

and in the Armed forces Tribunal Act. Though the word “Tribunal” has not been statutorily

defined, the test for a tribunal was held in Jaswant Sugar Mills v. Lakshmi Chand 15to be

whether it was invested with the trappings of a court, such as having the authority to

determine matters, authority to compel the attendance of witnesses, the duty to follow the

essential rules of evidence and the power to impose sanctions.

ADAPTATION OF DROIT ADMINISTRATIF

Droit Administratif refers to the existence of parallel courts to deal with matters of

administration. In the 16th Century, the Consul du Roi (King’s Court) gained predominance

with its growing jurisdiction taking cognisance of all cases where the government or its

servants were involved. The jurisdiction of this tribunal gave rise to some challenges with the

jurisdiction of the civil courts. In the 17th century the Consul du Roi came to be the Conseil

Prive’ (along the lines of the Privy Council in Britain), which, as opposed to the civil courts

(the Conseil Commun), had jurisdiction over appeals in administrative matters. In this regard,

the Conseil du Roi, the administrative court saw growing importance in the French legal

system, even more so than the two other tribunals, the Court of Finance and the Judicial

Court. After the Revolution, in 1799, Napoleon revived the Consul du Roi as the Conseil d’

Etat. The Conseil d’Etat, in concurrence with the provision in the 1791 Constitution,

excluding from ordinary courts the jurisdiction to exercise administrative functions, was

vested with the jurisdiction to adjudicate administrative disputes and required its

authorization for proceeding against government agents. In India, the adjudication of

Administrative disputes has been discussed by the judiciary and remains to be much debated.

Thus, a complete adaptation of Driot Administratif is impossible in India because judicial

review of tribunals’ orders cannot fully be removed. Any law excluding the Supreme Court’s

jurisdiction is a prima facie denial of the fundamental right conferred under Art.32, and thus

liable to be struck down. The Supreme Court has taken the stand that the power of judicial

review is an integral part of our constitutional system, and without it the rule of law would

become illusory, unless an adequate alternative is brought forth381. However, a quasi-

15 AIR 1963 SC 677

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executive body could, to some extent be granted the exclusion of judicial review by High

Courts before the ratio in L. Chandra Kumar case in 1997. The exclusion of the review of

High Courts under Section 28 came up for discussion in S.P. Sampath Kumar v. Union of

India.16 Justice Bhagawati, echoing the decision of the Constitutional Bench and concurring

with Justice Ranganath Mishra expressed that “….the basic and essential feature of judicial

review cannot be dispensed with but it would be within the competence of Parliament to

amend the Constitution so as to substitute in place of the High Court, another alternative

institutional mechanism or arrangement for judicial review, provided it is not less efficacious

than the High Court”.

JUDICIAL REVIEW OF DECISIONS OF THE TRIBUNALS

No appeal, revision or reference against the decision of an administrative tribunal is maintain

if the said right is not conferred by the relevant statue. Provisions can also be made for ouster

of jurisdiction of civil court; and the decision rendered by the tribunal will be treated as

“final”. This statutory finality, will not affect the jurisdiction of High Court under Article 226

and 227 and the Supreme Court under Article 32 and 136 of the Constitution. The power of

judicial review if the High Court and the Supreme Court is recognized by the Constitution

and the same cannot be taken away by any statue. If the tribunal have acted without

jurisdiction, however, or has failed to exercise jurisdiction vested in it, or if the order passed

by the tribunal is arbitrary, perverse or mala fide, or it has not observed the principles of

natural justice, or there is an error apparent on the face of the record, or the order is ultra vires

the Act, or there is no evidence in support of the order, or the order is based on irrelevant

consideration, or where the findings recorded are conflicting and inconsistent, or gave

injustice is perpetuated by the order passed by the tribunal, or the order is such that no

reasonable man would have made it, the same can be set aside by the High Court or by the

Supreme Court.

Denning LJ made the following observation,17 “If the tribunal were to be at liberty to exceed

their jurisdiction without any check by the court, the rule of law would be an end”. At the

same time, it must be borne in mind that the power of High Court and the Supreme Court

under the Constitution are extremely limited and they will reluctant to interfere with or

disturb the decision of specially constituted authorities and tribunals under the statue on the

16 1987 SCR (3) 23317 R. v. Medical Appeal Tribunal, ex P. Gilmore, (1957) I QB 574, 586: 1957 I All ER 796, 801 (CA); also see,HISTORY OF LAW OF ENGLAND, VOL. I, 57-63 (4thEdn.).

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ground that the evidence was inadequate or insufficient, or that detailed reasons were not

given. The Supreme Court and the High Court are not court of appeal and revision over the

decision of administrative tribunals.18

POWER OF TRIBUNALS TO REVIEW DECISIONS

There is no inherent power of review with any authority and the said power can be exercise

only if it conferred by relevant statute.19 As a general rule, an administrative tribunal becomes

fuctus officio (cease to have control over the matter) as soon as it makes an order and there

after cannot review its decision unless the said power is conferred on it by statue, and the

decision must stand unless and until it is set aside by appellate or revisional authority or by a

competent court.

In the Leading case of Northern India Caterers (India) Ltd. v. Governor of Delhi,20 Pathak J

rightly observed:

“Whatever the nature of the proceedings, it is beyond disputed that a review proceeding

cannot be equated with the original hearing of the case, and the finality of the judgment

delivered by the court will not be reconsidered except where a glaring omission or patent

mistake or like grave error has crept in earlier by judicial fallibility.”

This, however, does not mean that in absence of any statutory provision an administrative

tribunal is powerless. An administrative tribunal possesses those powers which are inherent

in ever judicial tribunal. Thus, it can reopen ex parte proceedings, if the decision is arrived at

without issuing notice to the party affected, or on the ground that it had committed a mistake

in overlooking the changes in the law which has taken place before passing the order, or to

prevent miscarriage of justice, or to correct grave and palpable errors committed by it, or

what the principles of natural justice required it to do.21

WHETHER TRIBUNALS ARE BOUND BY SC AND HC DECISIONS

Article 141 of the Indian Constitution declares that “the law declared by the Supreme Court

shall be binding on all court within the territory of India.”  Undoubtedly, the scope of Article

18 State of A.P v. C.V. Rao, (1975) 2 SCC 557: AIR 1957 SC 2151; Sri Rama Vilas Service (P) Ltd. v. C. chandrasekaran, AIR 1964 SC 107: (1964) 5 SCR 869; Bombay Union of Journalist v. State of Bombay, AIR 1964 SC 1617: (1964) 6 SCR 22; Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80; AIR 1979 SC 75; PremKakar v. State of Haryana, (1976) 3 SCC 433: AIR 1976 SC 1474, Union of India v. Parma Nanda, (1989) 2 SCC 177: AIR 1989 SC 1185.19 Patel NarshiThakershi v. PradyumanSinghjiArjunsinghji, (1971) 3 SCC 84420 Northern India Caterers (India) Ltd. v. Governor of Delhi (1980) 2 SCC 167, 17221 Shivdeo v. State of Punjab, AIR 1963 SC 1909, 1911

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141 is very wide and it would apply to ordinary courts as well as administrative tribunals.

There is no provision corresponding to Article 141 with respect to the law declare by the

High Court. The question, therefore, arises whether the law declared by a High Court. The

question, therefore, arises whether the law declare by a High Court has a similar binding

effect over all subordinate courts and inferior tribunals within the territories in relation to

which it exercise jurisdiction.

Generally, in the absence of specific provisions, the same principle applies to judgment of a

High Court. Again, as the Supreme Court is the Apex Court in the Country, the High Court is

the Apex court in the State. Moreover, like the Supreme Court and High Court, over and

above writ jurisdiction has also supervisory jurisdiction over all subordinate courts and

inferior tribunals within the territories in relation to which it exercise its jurisdiction.

Therefore, if any administrative tribunal acts without jurisdiction exceeds its power or seek to

transgress the law laid down by the High Court, the High Court can certainly interfere with

the action of the tribunal.

This question directly arose before the Supreme Court in East India Commercial Co. Ltd v.

Collector of Customs.22 In that case proceedings had been initiated by the Collector of

Customs against the petitioner company on allegation that it had violated the conditions of

license and illegally disposed of goods and thereby committed an offence. The High Court

confirmed the order of acquittal passed by the trial court holding that it cannot be said that “a

condition of the license amounted to be an order under the Act” and therefore, no offence was

committed by the company. The High Court also passed an order directing the seized goods

to be sold and the sale proceeds to be deposited in the court. After those proceedings, a notice

was issued by the Collector on the company to show cause why the amount should not be

confiscated and the penalty should not be imposed. It was contended by the company that

when once the High Court had decided that the breach of a condition of the license cannot be

said to be breach of order, the Collector had no jurisdiction to issue the show-cause notice. It

was submitted that the decision of a High Court on a point is binding on all subordinate court

and inferior tribunals within its territorial jurisdiction and the notice was therefore, required

to be quashed.

Where the tribunal notices a decision of the Supreme Court and tries to distinguish it with

distinguishing features, the approach is highly objectionable.23 A deliberate attempt to flout a

judgment of a superior court may amount to contempt of court.24 22 East India Commercial Co. Ltd v. Collector of Customs AIR 1962 SC 1893:23 Union of India v. KantilalHematranPandya, (1995) 3SCC 1724 BaradakantaMisra v. Bhimsen Dixit, (1973) I SCC 166

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TRIBUNALS, COURTS AND ENFORCEMENT ACT, 2007

The TCEA 2007 created a new structure for tribunals. There are now two tribunals in the

unified tribunals system with generic rules of procedure, a system of appeals and one Senior

Precedent. The two tribunals are the First-tier Tribunal and the Upper Tribunal. All the

previously existing tribunals (with the exception of Patent Office tribunals and the

Investigatory Powers Tribunal) are now contained within the unified tribunals. It should be

noted that the Employment Tribunal and the Employment Appeal Tribunal are not within the

unified structure, however these are not in essence administrative tribunals but deal mainly

with private issues. The First-tier Tribunal is a fact-finding tribunal which hears appeals

directly from decision makers. Thus, if an individual is unsatisfied by a decision made eg by

a Secretary of State he may appeal to the First-tier Tribunal. The First-tier Tribunal is divided

into Chambers, with each Chamber having its own President and its own area of law eg social

security. This separation into legal-area Chambers allows the system to continue to provide

specialist judges with relevant experience to the area in question in each individual case. The

Upper Tribunal is mainly an appellate tribunal to hear appeals from the First-Tier tribunal. 

However, it also has primary jurisdiction to hear certain matters including finance and tax

matters.

 Section 22 TCEA 2007 requires that Tribunal Procedure Rules are made by the Tribunal

Procedure Committee and states that the objectives of the rules are that: justice is done; the

tribunal system is accessible and fair; proceedings are handled quickly and efficiently; the

rules are both simple and simply expressed; and that the rules where appropriate confer on

members of the relevant Tribunal responsibility for ensuring that the proceedings are handled

quickly and efficiently. There are variations in procedure depending on the area of law

involved. However, each set of procedures must follow the basic objectives listed above.

Schedule 5 TCEA 2007 provides the rules relating to the tribunal procedures. Part 1 sets out

that the procedural rules may contain certain provisions relating eg to time limits, whether

hearings should be in public or private, representation, evidence, witnesses and notice. The

Tribunal Procedure Committee is in charge of creating the individual sets of procedural rules.

So far several sets of procedural rules have been devised including those relating to social

entitlement, health and education. Generally, the procedural rules do not require leave for the

commencement of proceedings, but normally the applicant should send an application within

28 days of the decision in dispute. The respondent must then state the grounds, if any, on

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which the application will be opposed. A hearing will then normally take place, with the

general rule being that these are in public except in relation to mental health issues and some

educational issues. Each party may have a representative, who may be legally qualified or

not, and the tribunal has wide powers to control the way in which evidence is given and the

amount of evidence which may be presented. Once a decision has been reached the Tribunal

must provide written reasons for it and notification of any rights of review or appeal.

The First-tier Tribunal is capable of reviewing its own decisions on application by a

dissatisfied party. Decisions reached by the First-tier Tribunal may be appealed to the Upper

Tribunal. Beyond this, the next point of appeal is the Court of Appeal, rather than the High

Court as was previously the case.

In the United Kingdom, the Tribunals, Courts and Enforcement Act, 2007 (for short, the

‘TCEA’) explicitly confirmed the status of Tribunal Judges (as the legally qualified members

of the Tribunals are now called) as part of the independent judicial system, extending to them

the same guarantees of independence as apply to the judges in the ordinary courts. From the

analysis of the above system of administrative justice prevalent in United Kingdom, a very

subtle and clear distinction from other laws is noticeable in as much as the 61 sensitive

personal data and right of privacy of an individual is assured a greater protection and any

request for access to such information firstly, is subject to the provisions of the Act and

secondly, the members of the Tribunals, who hear the appeals from a rejection of request for

information by the Information Commissioners under the provisions of either of these Acts,

include persons qualified judicially and having requisite experience as Judges in the regular

courts.25 It is recommended that the model which was adopted in the United Kingdom in the

Tribunals, Courts and Enforcement Act of 2007 (“Tribunals Act”) be followed in India. The

guarantee of judicial independence is available to most tribunal members. For the members of

the tribunals which are created under the Tribunals Act, appointments would be made only

after the recommendations of the Judicial Appointments Commission. The eligibility criteria

for being a member of the Judicial Appointments Commission is that the person had to be a

solicitor or a barrister or possessed a qualification awarded by the Institute of Legal

Executives or by anybody authorised to confer rights of audience or rights to conduct

litigation.  Hence, all the formal links with the ‘sponsoring department’ are severed.

25 Namita Sharma v. Union of India (2013) 1 SCC 745

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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 specialised 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 members 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 members 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 as tribunal have come to stay and the basic premise of the establishment of tribunal is

sound, resolving the current issues will help in improving the tribunal system in India and

hopefully will make the process of litigation easier for those who wish to approach tribunals..

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