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Administrative Tribunals in India

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DOI: 10.2139/ssrn.2479241

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Administrative Tribunals in India*

Introduction

The Preamble of the Constitution of India, declares India to be a Sovereign, Socialist,

Secular, Democratic, Republic. In the wisdom of our framers of Constitution, these
ingredients were essential to establish a society which is egalitarian and a state which bases
itself on the tenets of welfarism.1 Rule of law and the administration of justice; lie at the core
of the phenomena of welfare state. The Constitution of India, by way of the Preamble,
expressly declares that “justice” is ensured to all citizens of the country, justice not only
social but economic and political as well. For justice (social, economic and political) to
prevail it is necessary that:

1. The ‘Justice Delivery System’ is not only robust but also capable (efficient and
effective);
2. There is an expeditious disposal of cases, the trials should be speedy & at the same
time the cases must be decided in due process of law;
3. Adherence must be paid to the ‘rule of law’2 (in its ideological sense, the concept of
rule of law, represents an ethical code for the exercise of public power, the basic
postulates of which are equality, freedom and accountability);
4. There must be adherence to the three timeless principles of natural justice:
a. Audi Alteram Partem (Rule of Fair Hearing)
b. Nemo Judex In Causa Sua (Rule against Bias)
c. Reasoned Order (Adjudicatory body, adjudicating a dispute must give necessary
reasons for such adjudication)
5. Law is the means, but justice is the end. In a democratic form of government for
justice to prevail, it is necessary that all laws share a common playfield of ‘Salus
Populi est Suprema Lex’ that is, welfare of people is the supreme law.

‘Justice according to Law’ is different from ‘Law in accordance with Justice’, where the
latter prevails, welfarism flows.

*Shivam Goel [B.Com(H), Delhi University; LL.B, Faculty of Law, Delhi University; LL.M, NUJS, Kolkata]
1
Although words Socialist and Secular were added to the Preamble by way of the Constitutional (Forty-second
Amendment) Act, 1976
2
The term Rule of Law is used in contradistinction to Rule of Man and Rule according to Law. Even in most
autocratic forms of government there is some law according to which powers of government are exercised but it
does not mean that there is rule of law. Rule of Law means that the law rules, using the word “law” in sense of
both jus and lex, it is an ideal and modern name for natural law.

Electronic copy available at: http://ssrn.com/abstract=2479241

 2

The traditional theory of ‘laissez faire’ has been given up and old ‘police state’ has now
become a ‘welfare state’, and because of this radical change in the philosophy as to the
role to be played by the State, its functions have increased. Today it exercises not only
sovereign functions, but, as a progressive democratic State, it also seeks to ensure social
security and social welfare for the common masses. It regulates the industrial relations,
exercises control over production, and fuels enterprises. The issues arising there from are
not purely legal issues. It is not possible for the ordinary courts of law to deal with all
these socio-economic problems. For example, industrial disputes between workers and
the management must be settled as early as possible. It is not only in the interest of the
parties to the disputes, but of the society at large. It is, however, not possible for an
ordinary court of law to decide these disputes expeditiously, as their functions are
restrained by certain innate limitations. All the same, it is necessary that such disputes
should not be determined in an arbitrary or autocratic manner. Administrative tribunals
are, therefore, established to decide various quasi-judicial issues which, if are adjudicated
upon by ordinary courts of law, will result in adjudication been neither cost effective, nor
time effective.3

The Constitution of India, being a product of the philosophy of welfare state, was bound
to recognise the existence of tribunals. Tribunals are being established to provide for
speedy disposal of cases, and thus reduce the pressure on the Civil Courts. Once such a
tribunal is established, the jurisdiction of the Civil Court to entertain cases falling within
the jurisdiction of tribunals is barred. One of the main reasons favouring their creation is
the delay in the proceedings in the High Courts. Tribunals have grown in response to the
need to provide for specialised forums of dispute settlement that would possess some
expertise and policy commitment, and would be comparatively cheaper, more expeditious
and relatively free from technical procedures. Tribunals came as a substitute for courts
when lesser formalism, greater expediency, and better expertise were required in
adjudication of disputes.4 Professor Dicey’s discourse on Rule of Law had created a bias
against tribunals in the minds of English, as well as Indian legal practitioners. In India,
due to historical reasons, a unitary system was adopted in which, unlike in France, the
tribunals were subjected to superintendence of the ordinary courts (See Appendix II).

3
See: C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, Fourth Edition, Lecture VII-
Administrative Tribunals, p.228
4
See: Dr. Ashok K. Jain, Administrative Law- Supplement 2010, Ascent Publications, Ch.8 – Tribunals, p. S-
117

Electronic copy available at: http://ssrn.com/abstract=2479241

 3

Therefore, even the draft Constitution contained reference to tribunals in Articles 136 and
227.

Under Article 136, the Supreme Court is empowered to entertain an appeal with special
leave from tribunals, and under Article 227, the High Court has power of superintendence
over courts and tribunals. In India, such judicial control is preferred to a separate
hierarchy of administrative courts as exists in France. This is obvious from the fact that
even though the word ‘tribunal’ was deleted from Article 227 by the Constitution (Forty-
second Amendment) Act 1976, the courts interpreted that, the word ‘courts’ included
tribunals for the purpose of judicial superintendence under that Article5, and by the
Constitution (Forty- fourth Amendment) Act 1978, the word ‘tribunal’ was reinstated in
that article.6 Articles 323-A and 323-B were added to the Constitution by the Constitution
(Forty- second Amendment) Act 1976. These Articles empower Parliament, and
appropriate legislatures respectively to provide for ‘the adjudication or trial by tribunals’
of the types of matters mentioned therein.7 The tribunals established under Articles 323-
A and 323-B have the same status as the High Court; as the appeals from these tribunals
can go directly to the Supreme Court under Article 136.

Article 323-A empowers Parliament to set up tribunals for dealing with ‘disputes and
complaints with respect of 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 or of
any local or other authority within the territory of India or under the control of the
Government of India or of any corporation owned or controlled by the Government’.
Thus, Article 323-A provides for the establishment of tribunals for adjudicating disputes
relating to service matters of government servants, viz. administrative tribunals.

Article 323-B empowers appropriate legislature, Central or State, depending upon the
legislative competence a propos the subject matter, to set up tribunals for dealing with
matters such as tax, foreign exchange, import and export, industrial and labour disputes,
land reforms, ceiling on urban property, elections to Parliament or State legislatures,
production, procurement, supply and distribution of foodstuffs and such other goods, as
may be declared by the President to be essential goods. Tribunals under Article 323-B can

5
See: S.D. Ghatge v. State of Bombay [AIR 1977 Bom 384]; Changanlal v. Naval Kumar [AIR 1977 Guj 180]
6
See: S.P. Sathe, Administrative Law, fifth edition, 1994
7
See: Dr. Ranbir Singh & Dr. A Laskhminath, Constitutional Law, LexisNexis Butterworths 2006, Chapter VI –
Tribunals, p.63
 4

be authorised to try certain categories of criminal offences and thus impose penal
sanctions. This is an innovation in the Indian legal system for till now criminal
punishments were imposed only by the courts and not by non- judicial bodies.8

A law made under Article 323-A and Article 323-B is intended to specify procedures to
be followed by concomitant tribunals, and may also exclude the jurisdiction of all courts,
except the Supreme Court’s jurisdiction under Article 136 of the Constitution. It is
pertinent over here to mention that in S.P. Sampath Kumar v. UOI9, the Supreme Court
held that a tribunal could be a substitute for the High Court; however in L.Chandra
Kumar v. U.O.I.10, Ahmadi CJ, speaking for the unanimous Court held that:

“Administrative tribunals under Article 323-A could examine the constitutional

validity of various statutes or rules. There would be one exception to this rule: the
administrative tribunals would not be competent to examine the validity of the statute
under which they are created. In such cases, the appropriate High Court would have to
be approached directly. Barring cases where the constitutionality of the parent Act is
challenged, all questions regarding services must be raised only before an
administrative tribunal and only writ appeals could go to a Division Bench of a High
Court. From a decision of a High Court’s Division Bench, an appeal could be
preferred under Article 136 of the Constitution of India to the Supreme Court”.

In exercise of the power conferred by Article 323-A of the Constitution, Parliament

enacted the Administrative Tribunals Act, 1985. It is an Act to provide for the
adjudication by administrative tribunals of complaints with respect to recruitment and
conditions of service of persons appointed to public services of Union or States or any
local or other authority in pursuance of Article 323-A and for matters connected therewith
or incidental thereto. The Act shall not apply to any member of the naval, military or air
forces or any other armed forces of the Union. The Act is also not applicable to any
officer or servant of the Supreme Court or of any High Court or Courts subordinate
thereto, secretarial staff of either House of Parliament or State Legislature.

8
Supra 4 at p. S-120
9
AIR 1987 SC 386
10
AIR 1997 SC 1125
 5

The Administrative Tribunals Act, 1985 provides for three types of tribunals:

1. The Central Government establishes an administrative tribunal called the Central

Administrative Tribunal (CAT), which has jurisdiction to deal with service matters
pertaining to the Central Government employees, or of any Union Territory, or local
or other government under the control of the Government of India, or of a corporation
owned or controlled by the Central Government.
2. The Central Government may, on receipt of a request in this behalf from any State
Government, establish an administrative tribunal for such State employees.
3. Two or more States might ask for a joint tribunal, which is called the Joint
Administrative Tribunal (JAT), which exercises powers of the administrative tribunals
for such States.

Each tribunal is to consist of a chairperson and such number of vice-chairpersons and

judicial and administrative members as the appropriate government might deem fit. The
ATA requires that every matter should be heard by a Bench consisting of two members,
one judicial and one administrative. The Act, however, authorises chairperson to allot
certain matters to a single member Bench. The SC maintains that this provision of the Act
must be read subject to the qualification that only matters that do not involve questions of
law or constitutional interpretation could be assigned by chairperson to a single member
Bench Mahabal Ram (Dr.) v. Indian Council of Agricultural Research11.12

The Doctrine of Separation of Powers has not been expressly provided for in the
Constitution but never the less, it can be made out from the scheme of the Constitution.
As per the doctrine of separation of powers, there are three wings of the State, namely:
the legislature, the executive and the judiciary. The legislature enacts the laws, the
executive implements the laws and the judiciary interprets the laws. Now, when we speak
of Administrative Tribunals, we speak of quasi-judicial bodies whose function is two-
fold:

1. To relieve congestion in the ordinary courts; and

2. To provide for speedy disposal of disputes relating to service matters.

11
(1994) 2 SCC 401
12
Supra 4 at p. S-124- 126
 6

What the researcher has introduced up till now is India’s idea of constitutionalism that
promulgates the ideal of welfare state, whose necessary ingredient is the ‘rule of law’,
that sees law as the means and justice as the end and expatiates the proposition that
‘justice delayed is justice denied’ as well as ‘justice should not only be done but also seen
to be done’. A brief overview thus is given of Article 323-A, Article 323-B and the
Administrative Tribunals Act, 1985. The researcher considers this discussion as just a tip
of the iceberg and guarantees that the discussion shall intensify in the chapters following,
as his research advances.

Literature Review:

The research methodology adopted by the researcher is purely doctrinal, thus so, to a large
extent the research undertaken by the researcher is library-based. The researcher has prepared
this research paper in the shield of many authoritative books, journals and reports. The
researcher has critically reviewed the content (i.e. the substance, the form and the depth) of
each of these literary works on which he has relied upon.

1. Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworths
Wadhwa Nagpur, 8th Edition 2011, Vol. 9, Part XIV-A: Tribunals, p.2075- 2088—In
very authoritative terms the author tries to explain the purpose, the scope and the field
of operation of Articles 323-A and 323-B of the Constitution of India, 1950. To a
great deal, the author has made synchronized efforts to discuss and explain the
constitutionality of Part XIV- A of the Constitution of India, 1950 with special
reference to Article 323-A, which in turn gave way to the enactment of the
Administrative Tribunals Act, 1985. The author has made noticeable efforts to explain
the jurisdictional aspects of Article 323-A and Article 323-B. Efforts made by the
author to explain the points of similarity and distinction as between Articles 323-A
and 323-B of the Constitution of India, calls for appreciation.

2. I.P. Massey, Administrative Law, Eastern Book Company, 6th Edition, Chapter 13-
Constitutional Protection to Civil Servants and Administrative Service Tribunals, p.
494- 528—Major efforts directed by the author is towards the understanding of the
Administrative Tribunals Act, 1985. In length the author discusses, the constitutional
validity of the same. The author to great deal tries to explain the working of the
administrative tribunals and the same is worth appreciating; but quantitative analysis
 7

as to the number of matters addressed and adjudicated upon by the Central

Administrative Tribunal from 1985 is only up till the year 2000 and hence the data
available is quite out-dated in context of the critical appreciation of the working of the
administrative tribunals in the present scenario.

3. C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, Fourth

Edition, Lecture VII- Administrative Tribunals, p.227- 271—The researcher is in full
appreciation of the momentous task carried out by the author to present the subject of
‘Administrative Tribunals’ with such lucidity. The author has dealt with a host of
topics and has categorically placed them in a systematic manner, starting from the
historical growth of the administrative tribunals to the reasons behind their growth;
from distinction between administrative tribunals, courts and executive authority to
the characteristics of the administrative tribunals. The author has also dealt with
issues in regards to the significance of and the compliance of the rules of procedure
and evidence and the principles of natural justice made use by the administrative
tribunals in their working. The author has placed necessary emphasis on the ‘Working
of the Tribunals’ and on the moot question as to, ‘Whether Administrative Tribunals
are bound by the decisions of the Supreme Court and the High-Courts?’ apart from
the significance of judicial review of the decisions of the tribunals. The author has
made efforts to bring to light the recommendations of the Frank Committee in a
manner worth appreciating. The author has also discussed in length the 42nd and the
44th Constitutional amendment and has finally closed the chapter with a vast- sea level
discussion on S.P. Sampath Kumar v. UOI and L. Chandra Kumar v. UOI, but what
the author has failed to take account of is the number of cases adjudicated upon by the
administrative tribunals and the number of cases pending before them, hence nothing
major has been discussed about the adjudicatory efficiency of the administrative
tribunals.

4. Dr. Justice A.R. Lakshmanan, The Judge Speaks, Universal Law Publishing Co.,
2009, Chapter: Administrative Tribunals in India, p.239- 262-- The author has made
significant efforts to examine and explain the background and significance of the
Administrative Tribunals Act, 1985 and thereafter the author has undertaken the
critical evaluation of the Administrative Tribunals (Amendment) Bill, 2006. The
 8

author in the later-half of the chapter explains the background against which the case
of S.P. Sampath Kumar was litigated; thereafter the author explains the legal
implications of the Chandra Kumar judgement. What is worth appreciating is the
manner in which the author shapes the discussion; from Pre- Sampath Kumar position
to the Post- Sampath Kumar position and thereafter the legal proposition upheld by
the L. Chandra Kumar judgement (which substantially brought an end to the much
wanted un-cherished legal speculation). The author however did not discuss anything
major in regards to the adjudication efficiency of the administrative tribunals i.e. the
number of cases decided or pending before such tribunals, as also the quality of
decisions given by such tribunals.

5. Dr. Ranbir Singh & Dr. A. Laskhminath, Constitutional Law, LexisNexis

Butterworths- 2006, Chapter VI – Tribunals, p.63- 83-- The area of focus of the
authors throughout the chapter has been the legislative intent behind the enacting of
Part XIV- A of the Constitution of India, 1950. After detailed explanation as to the
field of operation of Article 323-A and Article 323-B, the authors have made
significant efforts to explain the development of law in regards to the Administrative
Tribunals by way of case-laws from S.P. Sampath Kumar v. UOI to J.B. Chopra and
Ors v. UOI; and thereafter from M.B. Majumdar v. UOI and R.K. Jain v. UOI to L.
Chandra Kumar v. UOI; the researcher appreciates the clarity of thought, the quality
of explanation and in depth conceptualisation over legislative aspects of Part XIV- A
of the Constitution of India, 1950 of the authors. However, no focus or considerable
light has been shed upon the success and failures as to the overall working of the
administrative tribunals in India; nothing has been discussed majorly in regards to the
administrative and adjudicatory efficiency of the administrative tribunals in India.

6. M.P. Jain, Indian Constitutional Law, 6th Edition, 2010 -- The author in
comprehensive length discusses the legislative intent and significance of Articles 323-
A and 323-B mainly by way of case-laws. The author discusses the constitutionality
of Articles 323-A, 323-B and the Administrative Tribunals Act, 1985 at appreciable
lengths. However, not much stress has been paid to the characteristic features of
Administrative Tribunals or the points of similarity and distinction between Article
323-A and Article 323-B of the Constitution of India. The author avoids sharing the
 9

political background in regards to which the Constitutional 42nd, 44th and 45th
amendment Acts were passed.

Statement of Research Problem & Objectives of Research: The objective behind

undertaking this research work are manifold- to know the legislative intent behind the
enactment of Part XIV-A of the Constitution of India, 1956; to know the constitutional
validity of Articles 323-A and 323-B and so also of the Administrative Tribunals Act, 1985;
to crucially understand how the Indian model of administrative tribunal system is different
from the French model; to critically appreciate the development of law in regards to
administrative tribunals from S.P. Sampath Kumar v. UOI to L. Chandra Kumar v. UOI ; to
critically discuss and comment upon the Administrative Tribunals (Amendment) Bill, 2006
(which has now lapsed) and the Administrative Tribunals (Amendment) Bill, 2012.

Research Questions Formulated:

1. What is the legislative intent and legislative history behind the enactment of Part
XIV- A of the Constitution of India? What is the scope of Articles 323-A and 323-B
of the Constitution of India?
2. What is the background and significance of the Administrative Tribunals Act, 1985?
3. What is the Constitutional validity of the Administrative Tribunals Act, 1985?
4. What are the reasons for growth of Administrative Tribunals and what are their
characteristics?
5. How is an Administrative Tribunal different from a Court? What is the distinction
between an Administrative Tribunal and Executive Authority?
6. Compliance by the Administrative Tribunals of the ‘Rules of Procedure and
Evidence’? What role does the principles of natural justice play in the adjudication of
disputes by the Administrative Tribunals?
7. Administrative Tribunals: Whether are bound by the decisions of the Supreme Court
and High Courts?
8. What is the jurisprudence that has developed over the period time- Post S.P. Sampath
Kumar v. UOI? What are the legal implications in regards to the judgement rendered
in L. Chandra Kumar v. UOI?
9. Critique on the Administrative Tribunals (Amendment) Bill, 2006 and the
Administrative Tribunals (Amendment) Bill, 2012?
10. Critical analysis of the success and failures of the Administrative Tribunals?
 10

Research Methodology:

Research Methodology adopted by the researcher to carry out his research work is purely
doctrinal (library based research). To understand and appraise the legislative intent behind the
enactment of Part XIV- A of the Constitution of India, 1950 (in wake of the 42nd amendment
Act, 1976); the researcher made use of the historical method of legal research. To analyse and
appreciate the administrative-justice-system of France, as so different from that exist in
common law countries (i.e. Britain and India) the researcher made use of the technique of
comparative legal research. To critically evaluate the change in the existing position of law,
from S.P. Sampath Kumar v. UOI to L. Chandra Kumar v. UOI, the researcher made use of
Case- Study based legal research. To evaluate the adjudication of disputes (in numbers or in
figures) by the Central Administrative Tribunal, over a period of time from 1985 to 2013
(June), the researcher relied upon quantitative method of legal research.

Chapterisation:

Chapter I: Legislative Intent & Legislative History behind the enactment of Part XIV-A
of the Constitution of India, 1950- Considerable focus has been placed upon by the
researcher on to the political and legislative scenario amongst which the Constitutional 42nd
Amendment Act, 1976 had been passed, thus enacting Part XIV- A of the Constitution of
India, 1950. The researcher has discussed in apt length the scope of Articles 323- A and 323-
B (points of similarity as well as distinction) & the procedure adopted by the administrative
tribunals, as to their working.

Chapter II: Background and Significance of the Administrative Tribunals Act, 1985-
Critical analysis has been made by the researcher of Article 323-A, in the light of which the
Administrative Tribunals Act, 1985 had been enacted. The researcher has discussed in apt
length the various aspects in regards to which the constitutionality of the Administrative
Tribunals Act, 1985, had been challenged. The legislative intent behind the enactment of the
Administrative Tribunals Act, 1985; the background, scope and objective of this legislation
has been the prima facie areas of concern for the researcher in this chapter.

Chapter III: Constitutional Validity of the Administrative Tribunals Act, 1985- Soon
after the enactment of Part XIV- A of the Constitution of India, 1950; several issues had been
raised challenging the validity of the enactment particularly in the light of Article 323- A (2)
(d) and Article 323- B (3) (d), of the Constitution of India, 1950. Section 28 of the
 11

Administrative Tribunals Act, 1985 also became an issue of critical review. Reviewing this
situation in particular, the researcher has made efforts to understand the efficacy of the 42 nd
Amendment Act of the Constitution in the light of the necessary case-laws.

Chapter IV: Reasons for growth of Administrative Tribunals and their Characteristics-
The reasons for the growth of Administrative Tribunals are manifold: administrative agencies
are better than ordinary courts in disposing cases timely; administrative adjudication is
cheaper than court adjudication; administrative adjudication is more convenient and
accessible to individuals compared to ordinary courts; the process of adjudication in
administrative agencies is flexible and informal compared the rigid, stringent and much
elaborated ordinary court procedures &; the special expertise knowledge administrative
tribunals manifest as compared to ordinary court judges. These reasons for the growth of
administrative tribunals have been discussed in good length by the researcher, elucidating
upon the characteristic features of the Administrative Tribunals aptly and succinctly.

Chapter V: Administrative Tribunals, Courts and Executive Authority- Administrative

Tribunals are distinct from Courts and the Executive Authority, not only in organisational
structure but also in regards to procedural compliance; the researcher has made efforts to
bring forth to light these specific distinctions in this chapter.

Chapter VI: Administrative Tribunals- Rules of Procedure and Evidence and Principles
of Natural Justice- One of the manifold purposes for the establishment of Administrative
Tribunals is the dispensation of justice in a time effective and cost effective manner.
Administrative Tribunals to a good extent avoid procedural rudimentariness and adjudicate
upon disputes relying upon the basic principles of natural justice i.e. audi alteram partem,
nemo judex in causa sua and reasoned orders. In the light of the same the discussion has been
furthered by the researcher.

Chapter VII: Administrative Tribunals- Whether bound by decisions of Supreme Court

and High Courts- In the light of Article 141 of the Constitution of India, 1950 and the case-
law: East India Commercial Co. Ltd. v. Collector of Customs, the researcher has tried to
answer this question, i.e. Whether the administrative tribunals are bound by decisions of
Supreme Court and High Courts?

Chapter VIII: Jurisprudence developed Post- Sampath Kumar & legal implication of L.
Chandra Kumar v. UOI [AIR 1997 SC 1125] - The researcher has not only discussed in
 12

detail the case of S.P. Sampath Kumar v. UOI but also has discussed the various other cases
that finally led to the development of jurisprudence as so discussed in the decision of L.
Chandra Kumar v. UOI (the law as so presently exists).

Chapter IX: The Administrative Tribunals (Amendment) Bill, 2006 and the
Administrative Tribunals (Amendment) Bill, 2012- The researcher has discussed in apt
length both the Bills; that of 2006 and that of 2012. Although so far as the status of 2006 Bill
is concerned, the same has been withdrawn. The Bill of 2012, as so of 2006, tries to adjust
the present laws (legislative) in consonance with the judgement of L. Chandra Kumar v. UOI
and also with various recommendations given over the period of time by the Law
Commission.

Chapter X: Administrative Tribunals- Critical Appraisal- The reasons for the success and
that of failure of the Administrative Tribunals in regards to the Indian experience has been
discussed in good length by the researcher in this chapter.
 13

Chapter I: Legislative Intent & Legislative History behind the enactment of Part XIV-A
of the Constitution of India, 1950

For a long time a search was going on for a mechanism to relieve the courts, including High
Courts and the Supreme Court, from the burden of service litigation which formed a
substantial portion of pending litigation. As early as 1958 this problem engaged the attention
of the Law Commission which recommended for the establishment of tribunals consisting of
judicial and administrative members to decide service matters.13 In 1969 Administrative
Reform Commission also recommended for the establishment of civil service tribunals both
for the Central and State civil servants.14 Central Government appointed a committee under
the Chairmanship of Justice J.C. Shah of the SC of India in 1969 which also made similar
recommendation. In 1975, Swarn Singh Committee again recommended for the setting up of
service tribunals.15 The idea of setting up service tribunals also found favour with the SC of
India which in K.K. Dutta v. Union of India16 advocated for setting up of service tribunals to
save the courts from avalanche of writ petitions and appeals in service matters. In the
meantime various States17 had established their own service tribunals. Service Tribunal was
also established in Andhra Pradesh in 1973 by the Thirty-second Constitution Amendment.

It was against this backdrop that Parliament passed Constitution (Forty- second Amendment)
Act, 1976 which added Part XIV-A in the Constitution. Articles 323-A and 323-B enabled
Parliament to constitute administrative tribunals for dealing with certain matters specified
therein. Article 323-A provided that Parliament may by law, provide for 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 or of any local or other authority within the territory of
India or under the control of Government of India or of any corporation owned or controlled
by the government. Parliament was further empowered to prescribe by law the jurisdiction,
power, authority and procedure of such tribunals and also to exclude the jurisdiction of all
courts except that of the SC under Article 13618. Empowered by these enabling provisions of

13
See: XIV REPORT OF REFORM OF JUDICIAL ADMINISTRATION, (1958)
14
See: REPORT ON PERSONNEL ADMINISTRATION, 1969
15
See: Perspective, (1986) 1 SLJ (Journal Section), pp. 1-5
16
(1980) 4 SCC 38: 1980 SCC (L&S) 485: AIR 1980 SC 2056
17
In Gujarat, 1973; Uttar Pradesh, 1975; Rajasthan, 1976; Assam, 1977; In Bihar, an Act was passed in 1982
but the Tribunal was never established.
18
See: Article 323-A(2)(d) and 323-B(3)(d)
 14

the Constitution Parliament enacted Administrative Tribunals Act, 198519 for the
establishment of administrative service tribunals for deciding service disputes of civil
servants of the Centre as well as of the States which was amended in 1986.20 Article 323-B
(1) empowers the appropriate legislature to provide for the adjudication or trial by tribunals
of any disputes, complaints or offences with respect to all or any of the matters specified in
clause (2).

The Constitution (Forty- second 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
citizens but also restricting, limiting, curtailing and even totally excluding power of judicial
review of High Courts and of the Supreme Court which was held to be a part of ‘basic
structure’ of the Constitution.

So far as administrative tribunals are concerned, mainly, the Amendment (the Constitution
Forty- second Amendment Act, 1976) made two changes:

1. It took away power of superintendence of High Courts over administrative tribunals

which they possessed under Article 227 of the Constitution; and
2. After Part XIV, it inserted Part XIV-A (Articles 323-A and 323-B) by enabling
Parliament to constitute administrative tribunals for the purposes specified therein.

Part XIV- A, as inserted by the 42nd Amendment Act opened a new Chapter in the Indian
Constitutional and Administrative Law. The 42nd Amendment substantially excluded and
curtailed power of High Courts and of the Supreme Court of judicial review of administrative
action. It was a “retrograde innovation”21 and its object was to take away the supervisory
jurisdiction of the High Court over tribunals under Article 227. However, Articles 323-A and
323-B were not self- executor in as much as they themselves did not take away the
jurisdiction of High Courts under Article 226 or Article 227 of the Constitution, but they only
enabled 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 or Article 22722.

19
The Act came into effect on November 1, 1985
20
See: I.P. Massey, Administrative Law, Eastern Book Company, 6th Edition, Chapter 13- Constitutional
Protection to Civil Servants and Administrative Service Tribunals, p. 515- 516
21
See: M.P. Jain, Indian Constitutional Law (1993) at p. 918
22
It is, however, submitted that the above legal position has now been substantially changed in view of the
decision of the SC in L.Chandra Kumar v. UOI
 15

By the Constitution (Forty- fourth Amendment) Act, 1978, Article 227 was amended and
jurisdiction of High Courts over administrative tribunals had been restored. No amendment,
however, was made in Part XIV-A, as inserted by the Constitution (Forty- second
Amendment) Act, 1976 and exclusion of jurisdiction of all courts and tribunals constituted in
exercise of powers under Articles 323-A and 323-B. For revival of that power and restoration
of majesty of High Courts, the legal fraternity had to wait for almost two decades (i.e. for the
position of law so to be clarified by L. Chandra Kumar v. UOI).23

Scope of Articles 323-A and 323-B of the Constitution of India24:

These two Articles, inserted by the Constitution (42nd Amendment) Act, 1976, open a new
Chapter in the Indian Constitutional and Administrative Law, by substantially excluding
judicial review of administrative decisions.

A. The features which are common to these two Articles are:

a. They empower the Legislature to set up Administrative Tribunals for the
adjudication of disputes between the State and the individual, relating to certain
specified matters, and to lay down the jurisdiction and powers of such Tribunals.
b. Such powers (as vested with the Administrative Tribunals, established under Part
XIV-A of the Constitution of India) may include the power to punish for their
contempt.
c. Such law may lay down the procedure to be followed by such tribunals, including
rules as to limitation and evidence.
d. Such law may provide for the transfer to such Tribunals cases which are pending
before a court or other authority at the time of establishment of each Tribunal.
e. Incidental provisions for their effective functioning may be included in such laws.
f. Such law may exclude the jurisdiction of all Courts, other than the jurisdiction of
the Supreme Court under Article 32 or 136, in respect of such matters.
g. The provisions of both the Articles shall override the provisions in the Constitution
or any other law, to the contrary.

B. The points on which the two Articles differ are:

23
Supra 3 at p. 264-265
24
See: Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworths Wadhwa Nagpur,
8th Edition 2011, Vol. 9, Part XIV-A: Tribunals, p.2085- 2086.
 16

a. Article 323-A is confined to matters relating to the public services. Article 323-B
relates to Tribunals relating to any of the matters specified in clause (2), e.g.,
taxation, foreign exchange, labour dispute, land reforms, elections, essential
goods; offences and incidental matters relating to such matters.
b. Under Article 323-A, only one such Tribunal may be created for the Union and
one for each State or two or more States together (no hierarchy). So far as Article
323-B is concerned, the appropriate Legislature is empowered to establish a
hierarchy of Tribunals relating to each subject specified in clause (2).
c. Under Article 323-A, the power to make such law belongs exclusively to
Parliament. Under Article 323-B, the legislative power is divided between the
Union and State Legislatures according to their respective legislative competence
over each of the subjects.

Articles 323-A and 323-B cannot be interpreted to mean that they prohibit the legislature
from establishing tribunals not covered by these articles, as long as there is legislative
competence under an appropriate entry in the VII Schedule. These two articles do not take
away that legislative competence.25

It is pertinent to note that the word ‘adjudication’ in Article 323-A (1) and 323-B (1) indicate
that the jurisdiction of Tribunals set up under both the Articles shall be confined to the
adjudication of quasi-judicial issues relating to administrative matters, such as-

1. Disputes relating to the services26, as referred to in Article 323 (1).

2. Matters specified in sub- Cl. (a) (i) of Article 323-B (2), for example:
a. Determination of an election dispute.27
b. Assessment of a tax.28
c. Adjudication of Industrial disputes.29
d. Termination of services.30

25
See: State of Karnataka v. Vishwabharthi House Building Co-op. Society [(2003) 2 SCC 412 (Para 36, 37 and
49): AIR 2003 SC 1043] relying on U.O.I v. Delhi High Court Bar Association [(2002) 4 SCC 275: AIR 2002
SC 1479] and L. Chandra Kumar v. U.O.I [(1997) 3 SCC 261: AIR 1997 SC 1125]
26
See: U.O.I v. Saxena [2 SCJ 211 (Para 6)]
27
See: Indira Nehru Gandhi, Smt. v. Raj Narain [AIR 1975 SC 2299 (Para 329): 1975 Supp. SCC 1]
28
See: Suraj Mal Mohta & Co. v. Viswanatha Sastri [AIR 1954 SC 545: (1955) 1 SCR 448]; Dhakeswari
Cotton Mills v. Commissioner of I.T. [(1955) 1 SCR 941: AIR 1955 SC 65]
29
See: Express Newspapers v. Workers [AIR 1963 SC 569: 1963 (3) SCR 540]
30
See: Calcutta Dock Labour Bd. v. Imam Jaffar [(1965) II SCA 226 (230): AIR 1966 SC 282: 1965 (3) SCR
453: 1965 (2) LLJ 112]; State of Orissa v. Binapani Dei [AIR 1967 SC 1269: 1967 (2) SCR 625: 1967 (2) LLJ
266]
 17

e. Order of a Revenue Officer, like a Custom Authority, imposing penalty.31

f. Order affecting an individual’s property.32

Procedure33-

1. The Constitution (42nd Amendment) Act, which inserted Article 323-A, itself did not
impose any conditions as to how the administrative tribunals will arrive at their
decisions.
2. That has since been laid down by the Administrative Tribunals Act, 1985.

31
See: Pioneer Traders v. Chief Controller of Import and Export [AIR 1963 SC 734 (740): 1963 Supp. (1) SCR
349]; Leo Roy Frey v. Superintendent, Dt. Jail [AIR 1958 SC 119 (121): 1958 SCR 822]
32
See: Divisional Forest Officer v. Ram Sanehi Singh [AIR 1973 SC 205: (1971) 3 SCC 864]; Sri Bhagwan v.
Ramchand [AIR 1965 SC 1767 (1771): 1965 (3) SCR 218]
33
Supra 24 at p. 2086
 18

Chapter II: Background and Significance of the Administrative Tribunals Act, 198534

Background: The framers of the Constitution of India in their wisdom invested the Supreme
Court and the various High Courts with the power of judicial review by specifically enacting
Articles 32, 136, 226 and 227 of the Constitution.35 With the enactment of Articles 12, 14, 15,
16, 309 and 311 of the Constitution36, a large number of service matters calling for the
adjudication of disputes relating to the recruitment and conditions of service of Government
servants and also of employees in other fields of public employment started coming up before
the various High Courts whose power of judicial review was invoked for the said purpose by
the aggrieved employees. The contribution by the High-Courts coupled with the growth in the
number of employees in the public field and the manifold problems arising in the context of
their recruitment and conditions of service and their implicit faith and confidence in the High-
Courts as the unfailing protector of their rights and honour, led to a gradual increase in the
institution and pendency of service matters in the High Courts. This, in turn, focused the
attention of the Union Government on the problem of finding an effective alternative
institutional mechanism for the disposal of such specialised matters. A Committee set up by
the Union Government in 1969 under the Chairmanship of Mr. Justice J.C. Shah
recommended for setting up of an independent Tribunal to handle service matters pending
before the High Courts and the Supreme Court.

The Law Commission of India in its 124th Report had recommended for the establishment at
the Centre and the State of an appellate Tribunal or Tribunals presided over by a legally
qualified Chairman and with experienced civil servants as Members to hear appeals from
Government servants in respect of disciplinary and other action against them.

The First Administrative Reforms Commission had also recommended for the setting up of
Civil Services Tribunals to deal with the appeals of Government servants against disciplinary
actions. Some of the State Legislatures thereupon enacted laws setting up Tribunals to decide
such cases. Part XIV-A, comprising Articles 323-A and 323-B was also inserted in the

34
See: Dr. Justice A.R. Lakshmanan, The Judge Speaks, Universal Law Publishing Co., 2009, Chapter:
Administrative Tribunals in India, p.240- 242
35
Article 32: Remedies for enforcement of rights conferred by Part III of the Constitution of India; Article 136:
Special leave to appeal by the Supreme Court; Article 226: Power of High Courts to issue certain writs; Article
227: Power of superintendence over all courts by the High Court.
36
Article 12: Definition of ‘the State’; Article 14: Equality before law; Article 15: Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth; Article 16: Equality of opportunity in matters of public
employment; Article 309: Recruitment and conditions of service of persons serving the Union or a State; Article
311: Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
 19

Constitution of India by the 42nd Constitutional Amendment Bill, 1976 with effect from 3rd
January, 1977.

Article 323-A, inter alia, authorised Parliament to provide by law for setting up of
Administrative Tribunals for the adjudication of disputes and complaints with respect to
recruitment and conditions of service of certain categories of employees in the field of public
employment including Government servants and also to provide for the exclusion of the
jurisdiction of all courts, except that of the Supreme Court under Article 136, with respect to
disputes or complaints of such nature. No immediate step was however taken in the direction
of enacting a law for the setting up of Administrative Tribunals as contemplated by the said
Article.

Ultimately, Parliament enacted the Administrative Tribunals Act, 1985 which received the
assent of the President on the 27th February, 1985. In pursuance of the provisions contained in
the Act, the Administrative Tribunals set up under it exercise original jurisdiction in respect
of service matters of employees covered under the Act.

Objective: The Statement of Objects and Reasons accompanying the Constitutional

Amendment Bill by which Article 323-A was sought to be inserted in the Constitution states
the following words:

“To reduce the mounting arrears in the High Courts and to secure the speedy disposal
of service matters… it is considered expedient to provide for administrative tribunals
for dealing with such matters while preserving the jurisdiction of the Supreme Court
in regard to such matters under Article 136 of the Constitution.”

The Statement of Objects and Reasons appended to the introduced version of the
Administrative Tribunals Bill, which on being passed and approved became the Act of 1985,
also contained similar recitals:

“…The establishment of Administrative Tribunals under the aforesaid provision of

the Constitution has become necessary since a large number of cases relating to
service matters are pending before the various Courts. It is expected that the setting up
of such Administrative Tribunals to deal exclusively with service matters would go a
long way in not only reducing the burden of the various Courts and thereby giving
them more time to deal with other cases expeditiously but would also provide to the
 20

persons covered by the Administrative Tribunals speedy relief in respect of their

grievances.”

Significance: The enactment of the Administrative Tribunals Act, 1985 opened a new
chapter in the sphere of administering justice to the aggrieved Government servants in service
matters. The Act provides for establishment of Central Administrative Tribunal and the State
Administrative Tribunals. The setting-up of these Tribunals is founded on the premise that
specialist bodies comprising both trained administrators and those with judicial experience
would, by virtue of their specialised knowledge, be better equipped to dispense speedy and
efficient justice. It was expected that a judicious mix of judicial members and those with
grass-root experience would best serve this purpose.

The Administrative Tribunals are distinguishable from the ordinary courts with regard to their
jurisdiction and procedure. They exercise jurisdiction only in relation to the service matters of
the litigants covered by the Act. They are also free from the shackles of many of the
technicalities of the ordinary Courts. 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 also present its case through its Departmental officers or legal practitioners. Further, only
a nominal fee of Rs. 50 is to be paid by the litigant for filing an application before the
Tribunal.37 Thus, the objective of the Tribunal is to provide speedy and inexpensive justice to
the litigants.

The establishment of Administrative Tribunals was a right step in the direction of providing
an effective alternative authority to Government employees who feel aggrieved by the
decisions of the Government, in spite of the elaborate system of rules and regulations which
govern personnel management, for judicial review over service matters to the exclusion of all
courts including High Courts other than the Supreme Court, with the end in view of reducing
the burden of such Courts and of securing expeditious disposal of such matters.38

37
See: Section 7 of the Central Administrative Tribunal (Procedure) Rules, 1987
38
This happens to be the viewpoint of Dr. Justice A.R. Lakshmanan, as expressed by him in the book “The
Judge Speaks”, Universal Law Publishing Co., 2009, Chapter: Administrative Tribunals in India, p. 242 (within
the sub-heading “Significance of the Administrative Tribunals Act, 1985”).
 21

Chapter III: Constitutional Validity of the Administrative Tribunals Act, 1985

In exercise of the power conferred by Article 323-A of the Constitution, Parliament enacted
the Administrative Tribunals Act, 1985. Section 28 of the Act 39 excluded the power of
judicial review exercised by the High Courts in service matters under Articles 226 and 227.
However, it has not excluded the judicial review entirely in as much as the jurisdiction of the
Supreme Court under Article 136 of the Constitution was kept intact.

The constitutional validity of the Act was challenged before the Supreme Court in the leading
case of S.P. Sampath Kumar v. UOI40. Undoubtedly, the question raised was of far reaching
effect and of great public importance.

The Constitution Bench upheld the validity of the Administrative Tribunals Act, 1985.
Speaking for the majority, Ranganath Misra, J. (as he then was) observed:

“We have already seen that judicial review by this Court is left wholly unaffected and
thus there is a forum where matters of importance and grave injustice can be brought
for determination or rectification. Thus, exclusion of the jurisdiction of the High-
Courts does not totally bar judicial review… It is possible to set up an alternative
institution in place of the High Court for providing judicial review… The Tribunal
has been contemplated as a substitute and not as supplemental to the High Court in
the scheme of administration of justice… What, however, has to be kept in view is
that the Tribunal should be a real substitute for the High- Court not only in form and
de jure but in content and de facto… Under Sections 14 and 15 of the Act41 all powers
of the Court in regard to matters specified therein vest in the Tribunal—either Central
or State. Thus, the Tribunal is the substitute of the High Court and is entitled to
exercise the powers thereof.”

In concurring judgement, Bhagwati, C.J. observed:

“If this constitutional amendment were to permit a law made under clause (1) of
Article 323-A to exclude the jurisdiction of the High-Courts under Articles 226 and
227 without setting up an effective alternative mechanism or arrangement for judicial

39
See: The Administrative Tribunals Act, 1985- Section 28: Exclusion of jurisdiction of courts except the
Supreme Court.
40
(1987) 1 SCC 124: AIR 1987 SC 386: (1987) 1 SCR 435.
41
See: The Administrative Tribunals Act, 1985- Section 14: Jurisdiction, powers and authority of the Central
Administrative Tribunals; Section 15: Jurisdiction, powers and authority of State Administrative Tribunals.
 22

review, it would be violative of the basic structure doctrine and hence outside the
constituent power of Parliament. It must, therefore, be read as implicit in this
constitutional amendment that the law excluding the jurisdiction of the High- Court
under Articles 226 and 227 permissible under it must not leave a void but it must set
up another effective institutional mechanism or authority and vest the power of
judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the
High Court under Articles 226 and 227 in respect of service matters and vesting such
jurisdiction in the Administrative Tribunal can pass the test of constitutionality as
being within the ambit and coverage of Clause (2)(d) of Article 323-A42, only if it can
be shown that the Administrative Tribunal set up under the impugned Act is equally
efficacious as the High- Court, so far as the power of judicial review over service
matters is concerned.”43

The whole question of constitutionality of the Administrative Tribunals Act, 1985 once again
came under the scrutiny of the Apex Court in the case of L. Chandra Kumar v. UOI44. The
Court in this case held that Sampath Kumar was decided against the background that the
litigation before the High Courts had exploded in an unprecedented manner and therefore,
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 in order to elevate their standard by ensuring that they stand up to
constitutional scrutiny. 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 323-B45 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

42
Clause (2)(d) of Article 323-A: “exclude the jurisdiction of all courts, except the jurisdiction of the Supreme
Court under Article 136, with respect to the disputes or complaints referred to in clause (1)”.
43
Supra 3 at p. 265- 266
44
(1997) 3 SCC 261
45
Clause (3) (d) of Article 323-B: “exclude the jurisdiction of all courts except the jurisdiction of the Supreme
Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of the said
tribunals”.
 23

the same reason Section 28 of the Administrative Tribunals Act, 1985 which contains
“exclusion of jurisdiction” clause was also held unconstitutional.46

Through this classical case (L. Chandra Kumar v. UOI) 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”.47

46
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 Article 226/227
of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication by the
tribunal. The High Court will also have 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 (L. Chandra Kumar v. UOI) the existing provision of direct
appeals to the Supreme Court under Article 136 of the Constitution 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 to the Supreme Court under Article 136 of the Constitution.
47
Supra 20 at p.522- 523
 24

Chapter IV: Reasons for growth of Administrative Tribunals and their Characteristics

Reasons for growth of Administrative Tribunals48: According to Dicey’s theory of rule of

law, the ordinary law of the land must be administered by ordinary law courts. He was
opposed to the establishment of administrative tribunals. According to the classical theory
and the doctrine of separation of powers, the function of deciding disputes between the
parties belonged to ordinary courts of law. But, as can be seen over the period of time, 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 are established for the following reasons:

1. The traditional judicial system proved inadequate to decide and settle all the disputes
requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was
already overburdened, and it was not possible to expect speedy disposal of even very
important matters: e.g. disputes between employers and employees, lockouts, strikes,
etc. These burning problems cannot be solved merely by literally interpreting the
provisions of any statute, but require the consideration of various other factors and
this cannot 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.
2. The administrative authorities can avoid technicalities. They take a 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 of the
matter to decide the complex problems.
3. Administrative authorities can take preventive measures, for example, licensing, rate-
fixing, etc. Unlike regular courts of law, they have not 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 a person after he has committed a breach of
any legal provision.

48
Supra 3 at p.232- 233
 25

4. Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures, e.g. suspension, revocation or cancellation of licences,
destruction of contaminated articles, etc. which are not generally available through the
ordinary courts of law.
5. In ordinary courts of law, the decisions are given after hearing the parties and on the
basis of evidence on record. This procedure is not appropriate in deciding matters by
the administrative authorities where wide discretion is conferred on them and the
decisions may be given on the basis of the departmental policy and other relevant
factors.
6. Sometimes, the disputed questions are technical in nature and the traditional judiciary
cannot be expected to appreciate and decide them. On the other hand, administrative
authorities are usually manned by experts who can deal with and solve these
problems, e.g. problems relating to atomic energy, gas, electricity, etc.
7. In short, as Robson says, administrative tribunals do their work ‘more rapidly, more
cheaply, more effectively than ordinary courts… possess greater technical knowledge
and fewer prejudices against Government… give greater heed to the social interests
involved… decide disputes with conscious effort at furthering social policy embodied
in the legislation’.49

Characteristics of Administrative Tribunals50:

The following are the characteristics of an administrative tribunal51:

1. An administrative tribunal is the creation of a statute and thus, it has a statutory

origin.
2. It has some of the trappings of a court but not all.
3. An administrative tribunal is entrusted with the judicial powers of the State and thus,
performs judicial and quasi-judicial functions, as distinguished from pure
administrative or executive functions and is bound to act judicially.
4. Even with regard to procedural matters, an administrative tribunal possesses powers
of a court; for example, to summon witnesses, to administer oath, to compel
production of documents, etc.
5. An administrative tribunal is not bound by strict rules of evidence and procedure.

49
Quoted by Kagzi, The Indian Administrative Law (1973) at p.284
50
Supra 3 at p.235- 236
51
See: The Franks Report of 1957, Command Paper 218, Para 40
 26

6. The decisions of most of the tribunals are in fact judicial rather than administrative in
as much as they have to record findings of facts objectively and then to apply the law
to them without regard to executive policy. Though the discretion is conferred on
them, it is to be exercised objectively and judicially.
7. Most of the administrative tribunals are not concerned exclusively with the cases in
which Government is a party; they also decide disputes between two private parties,
e.g. Election Tribunal, Rent Tribunal, Industrial Tribunal, etc. On the other hand, the
Income Tax Tribunal always decides disputes between the Government and the
Assesses.
8. Administrative Tribunals are independent and they are not subject to any
administrative interference in the discharge of their judicial or quasi-judicial
functions.
9. The prerogative writs of certiorari and prohibition are available against the decisions
of administrative tribunals.

Thus, taking into account the functions being performed and the powers being exercised by
administrative tribunals it can be said that, they are neither exclusively judicial nor
exclusively administrative bodies, but are partly administrative and partly judicial authorities.
 27

Chapter V: Administrative Tribunals, Courts and Executive Authority

Administrative Tribunal and Court- Distinction52:

An administrative tribunal is similar to a court in certain aspects. Both of them are constituted
by the State, invested with judicial powers and have a permanent existence. Thus, they are
adjudicating bodies. They deal with and finally decide disputes between parties which affect
the rights of subjects. As observed by the Supreme Court in Associated Cement Co. Ltd. v.
P.N. Sharma53, ‘the basic and the fundamental feature which is common to both the courts
and the tribunals is that they discharge judicial functions and exercise judicial powers which
inherently vest in a sovereign State’.

But at the same time, it must not be forgotten that an administrative tribunal is not a court.
The line of distinction between a ‘court’ and a ‘tribunal’ in some cases is indeed fine though
real. All courts are tribunals but the converse need not necessarily be true.

A tribunal possesses some of the trappings of a court, but not all, and therefore, both must be
distinguished:

a. A court of law is a part of the traditional judicial system. Where judicial powers are
derived from the State and the body deals with King’s justice it is called a ‘court’. On
the other hand, an administrative tribunal is an agency created by a statute and
invested with judicial powers. Primarily and essentially, it is a part and parcel of the
Executive Branch of the State, exercising executive as well as judicial functions. As
Lord Greene54 states, administrative tribunals perform ‘hybrid functions’.
b. Whereas ordinary civil courts have judicial power to try all suits of a civil nature,
excepting those whose cognizance is either expressly or impliedly barred, tribunals
have power to try cases in special matters statutorily conferred.
c. The mere lack of general jurisdiction to try all cases of a civil nature does not
necessarily lead to an inference that the forum is tribunal and not a court. A court can
also be constituted with limited jurisdiction.
d. Judges of ordinary courts of law are independent of the executive in respect of their
tenure, terms and conditions of service, etc. On the other hand, members of

52
Supra 3 at p.233- 234
53
AIR 1965 SC 1595 (1599): (1965) 2 SCR 366
54
B. Johnson v. Minister of Health [(1947) 2 All ER 395 (400): 177 LT 455]
 28

administrative tribunals are entirely in the hands of the Government in respect of

those matters.
e. A court of law is generally presided over by an officer trained in law, but the
president or a Member of a tribunal may not be trained as well in law.
f. In a court of law, a Judge must be an impartial arbiter and he cannot decide a matter
in which he is interested. On the other hand, an administrative tribunal may be party
to the dispute to be decided by it.
g. A court of law is bound by all the rules of evidence and procedure but an
administrative tribunal is not bound by those rules unless the relevant statute imposes
such an obligation.
h. A court must decide all the questions objectively on the basis of the evidence and
materials produced before it, but an administrative tribunal may decide the questions
taking into account the departmental policy or expediency and in that sense, the
decision may be subjective rather than objective. “The real distinction is that the
courts have an air of detachment”.
i. While a court of law is bound by precedents, principle of res judicata and estoppel, an
administrative tribunal is not strictly bound by them.
j. A court of law can decide the ‘vires’ of legislation, while an administrative tribunal
cannot do so.55

Administrative Tribunal and Executive Authority- Distinction56:

An administrative tribunal is not an executive body or administrative department of the

Government. The functions entrusted to and the powers conferred on an administrative
tribunal are quasi-judicial and not purely administrative in nature. It cannot delegate its quasi-
judicial functions to any other authority or official. It cannot give decisions without giving an
opportunity of being heard to the parties or without observing the principles of natural justice.
An administrative tribunal is bound to act judicially. It must record findings of facts, apply
legal rules to them correctly and give its decisions. Even when the discretion is conferred on
it, the same must be exercised judicially and in accordance with well-established principles of
law. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals. “They are ‘administrative’ only because they are part of an

55
See: Bharat Bank Ltd. v. Employees [AIR 1950 SC 188 (206): 1950 SCR 459]; Dhulabhai v. State of M.P.
[AIR 1969 SC 78: (1968) 3 SCR 662]; L. Chandra Kumar v. UOI [(1997) 3 SCC 261: AIR 1997 SC 1125]
56
Supra 3 at p.235
 29

administrative scheme for which a Minister is responsible to Parliament, and because the
reasons for preferring them to the ordinary courts are administrative reasons.”57

57
See: Wade & Forsyth, Administrative Law (2005) at p.910
 30

Chapter VI: Administrative Tribunals- Rules of Procedure and Evidence and Principles
of Natural Justice

Administrative Tribunals have inherent powers to regulate their own procedure subject to the
statutory requirements. Generally, these tribunals are invested with powers conferred on civil
courts by the Code of Civil Procedure, 1908 in respect of summoning of witnesses and
enforcement of attendance, discovery and inspection, production of documents, etc. The
proceedings of administrative tribunals are deemed to be judicial proceedings for the
purposes of Sections 193, 195 and 228 of the Indian Penal Code, 186058 and Sections 345 and
346 of the Code of Criminal Procedure, 197359. But these tribunals are not bound by strict
rules of procedure and evidence, provided that they observe principles of natural justice and
‘fair play’. Thus, technical rules of evidence do not apply to their proceedings, and they can
rely on hearsay evidence or decide the questions of onus of proof or admissibility of
documents, etc. by exercising discretionary powers.60

In Dhakeswari Cotton Mills Ltd. v. CIT61, the Supreme Court held that the Income Tax
Officer was not fettered by technical rules of evidence and pleadings, and was entitled to act
on materials which might not be accepted as evidence in a court of law.

In State of Mysore v. Shivabasappa62, the Supreme Court observed:

“Tribunals exercising quasi- judicial functions are not courts and that therefore they
are not bound to follow the procedure prescribed for trial of actions in Courts nor are
they bound by strict rules of evidence. They can, unlike Courts, obtain all information
material for the points under enquiry from all sources, and through all channels,
without being fettered by rules and procedure which govern proceedings in Court. The
only obligation which the law casts on them is that they should not act on any
information which they may receive unless they put it to the party against whom it is
to be used and give him a fair opportunity to explain it. What is fair opportunity must
depend on the facts and circumstances of each case but where such an opportunity had

58
The Indian Penal Code, 1860: Sec. 193- Punishment for false evidence; Sec. 195- Giving or fabricating false
evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment;
Sec. 228- Intentional insult or interruption to public servant sitting in judicial proceeding.
59
The Code of Criminal Procedure, 1973: Sec. 345- Procedure in certain cases of contempt; Sec. 346-
Procedure where Court considers that case should not be dealt with under section 345
60
See: State of Orissa v. Murlidhar [AIR 1963 SC 404]
61
AIR 1955 SC 65: (1955) 1 SCR 941
62
AIR 1963 SC 375 (377): (1963) 2 SCR 943
 31

been given, the proceedings are not open to attack on the ground that the enquiry was
not conducted in accordance with the procedure followed in Courts.”

In State of Haryana v. Rattan Singh63, speaking for the Court, Krishna Iyer, J. observed:

“It is well settled that in a domestic enquiry the strict and sophisticated rules of
evidence under the Indian Evidence Act may not apply. All materials which are
logically probative for a prudent mind are permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus and credibility. It is true that departmental
authorities and administrative tribunals must be careful in evaluating such material
and should not glibly swallow what is strictly speaking not relevant under the Indian
Evidence Act… The essence of a judicial approach is objectivity, exclusion of
extraneous materials or considerations and observance of rules of natural justice.”

Tribunals maintain informality without shifting far away from known procedure of law.64

It is submitted that the following observations of the Franks Committee present the true
picture of procedure adopted by the tribunals:

Informality without rules of procedure may well assume an unordered character which makes
it difficult, if not impossible, for the tribunal properly to sift the facts and weigh the evidence.
The object to be arrived at in most tribunals is the combination of a formal procedure with an
informal atmosphere65.66

An essential feature of the Administrative Tribunals is that they decide the disputes
independently, judicially, objectively and without any bias for or prejudice against any of the
parties to the dispute. The Franks Committee, in its Report (1957) has proclaimed three
fundamental objectives:

1. Openness;

63
(1977) 2 SCC 491 (493): AIR 1977 SC 1512 (1513)
64
In Bareilly Electricity Supply Co. Ltd. v. Workmen [(1971) 2 SCC 617: AIR 1972 SC 330], speaking for the
Court, Reddy, J. observed:

“It is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify
the Tribunal in basing its award on copies of documents when the originals which are in existence are
not produced and proved by one of the methods either by affidavit or by witness who have executed
them, if they are alive and can be produced.”
65
Supra 51 at Para 64
66
Supra 3 at p.248- 250
 32

2. Fairness; and
3. Impartiality.

The Committee observed:

“In the field of tribunals openness appears to us to require the publicity of proceedings
and knowledge of the essential reasoning underlying the decisions; fairness to require
the adoption of a clear procedure which enables parties to know their rights, to present
their case fully and to know the case which they have to meet; and impartiality to
require the freedom of tribunals from the influence, real or apparent of departments
concerned with the subject- matter of their decisions.”67

The above principles are accepted in India. The Law Commission in its Fourteenth Report
(1958) has observed that administrative tribunals perform quasi- judicial functions and they
must act judicially and in accordance with the principles of natural justice.68 Administrative
Tribunals must act openly, fairly and impartially. They must afford a reasonable opportunity
to the parties to represent their case and to adduce the relevant evidence. Their decisions must
be objective and not subjective.

In, State of U.P. v. Mohd. Nooh69, where the prosecutor was also an adjudicating officer, or in
Dhakeswari Cotton Mills Ltd. v. CIT70, where the tribunal did not disclose some evidence to
the assessee relied upon by it, or in Bishambhar Nath v. State of U.P.71, where the
adjudicating authority accepted new evidence at the revisional stage and relied upon the same
without giving the other side an opportunity to rebut the same, the decisions were set aside. In
British Medical Stores v. Bhagirath72, on an application being made by the tenants, a Rent
Controller made private inquiry, visited the premises in the absence of the landlord and
without giving him the opportunity of being heard held that the contractual rent was
excessive and fixed the standard rent, the High Court set aside the order as violative of the
principles of natural justice.

67
Supra 51
68
See: Report on Reform of Judicial Administration (Vol. II, 1958) at pp. 671-695.
69
AIR 1958 SC 86: 1958 SCR 595
70
AIR 1955 SC 65: (1955) 1 SCR 941
71
AIR 1966 SC 573: (1966) 2 SCR 158
72
AIR 1955 Punj 5
 33

In the leading case of Union of India v. T.R. Varma73, the Supreme Court rightly observed
that the law requires Administrative Tribunals to observe rules of natural justice in the
conduct of the enquiry before them. If they do so, their decisions are not liable to be
impeached on the ground that the procedure followed by them was not in accordance with the
procedure followed by a Court of Law.74

73
AIR 1957 SC 882: 1958 SCR 499
74
Supra 3 at p.246- 248
 34

Chapter VII: Administrative Tribunals- Whether bound by decisions of Supreme Court

and High Courts75

Article 141 of the Constitution declares that “the law declared by the Supreme Court shall be
binding on all courts within the territory of India”. The scope of Article 141 is very wide and
it applies to ordinary courts as well as administrative tribunals.

There is no provision corresponding to Article 141 with respect to the law declared by a High
Court. The question, therefore, arises whether the law declared by a High Court has a similar
binding effect over all subordinate courts and inferior tribunals within the territories in
relation to which it exercises jurisdiction.

Generally, even in the absence of specific provisions, the same principle applies to
judgements 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, the 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 exercises its
jurisdiction. Therefore, if any administrative tribunal acts without jurisdiction, exceeds its
power or seeks 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 the case of East India Commercial
Co. Ltd. v. Collector of Customs76. The Court held:

“We, therefore, hold that the law declared by the highest court in the State is binding
on authorities or tribunals under its superintendence; and that they cannot ignore it
either in initiating a proceeding or deciding on the rights involved in such
proceeding”.

Where the tribunal notices a decision of the Supreme Court and tries to distinguish it without
distinguishing features, the approach is highly objectionable.77 A deliberate attempt to flout a
judgement of a superior court may amount to contempt of court.78

75
Supra 3 at p. 257- 258, seen generally
76
AIR 1962 SC 1893: (1963) 3 SCR 338
77
See: U.O.I v. Kantilal Hematram Pandya [(1995) 3 SCC 17: AIR 1995 SC 1349]
78
See: Bardakanta v. Bhimsen [(1973) 1 SCC 446: AIR 1972 SC 2466]
 35

Chapter VIII: Jurisprudence developed Post- Sampath Kumar79 & legal implication of
L. Chandra Kumar v. U.O.I [AIR 1997 SC 1125]

In pursuance of the power conferred upon it by Clause (1) of Article 323- A of the
Constitution, the Parliament enacted the Administrative Tribunals Act, 1985.

Pursuant to the provisions of the Administrative Tribunals Act 1985, the Central
Administrative Tribunal (CAT) comprising of five Benches was established on 1 November
1985. However, even before CAT had been established, several writ petitions had been filed
in various high-courts as well as the Supreme Court challenging the constitutional validity of
Article 323- A, as also the provisions of the Administrative Tribunals Act 1985. The principal
violation complained of was that of the exclusion of the jurisdiction of the Supreme Court
under Article 32 of the Constitution, and that of the high-courts under Article 226 of the
Constitution.

The exclusion of judicial review under Articles 226, 227 and 32 was questioned as violating
the basic structure of the Constitution in S.P. Sampath Kumar v. UOI. Two questions arose
for consideration in this case:

1. Whether the exclusion of the jurisdiction of high-courts under Article 226 and 227 of
the Constitution in service matters specified in Section 28 of the Administrative
Tribunals Act, 1985, and the vesting of exclusive jurisdiction in such service matters
in the administrative tribunals to be constituted under the impugned Act, subject to an
exception in favour of the jurisdiction of Supreme Court under Articles 32 and 136, is
unconstitutional and void?

2. Whether the composition of the Administrative Tribunal and the mode of appointment
of the Chairman, Vice-Chairman and Members have the effect of introducing a
constitutional infirmity invalidating the provisions of the impugned Act?

Chief Justice Bhagwati and Justice Ranganath Misra delivered two separate, but concurring
judgements. Chief Justice Bhagwati reiterated the earlier view expressed by him in Minerva
Mills v.UOI80 about the power of Parliament to set up effective alternative institutional

79
See: Sampath Kumar v. UOI [AIR 1987 SC 386: (1987) 1 SCR 435]
80
AIR 1986 SC 2030
 36

mechanism or arrangements for judicial review by amending the Constitution. If, by such
constitutional amendment, the power of judicial review of the high-court is taken away and
vested ‘in any other institutional mechanism or authority, it would not be violative of the
basic structure doctrine, so long as the essential condition is fulfilled, i.e., the alternative
institutional mechanism or authority set up by Parliamentary amendment is no less effective
than the high-court’.

The learned Chief Justice said that as question involving interpretation of Articles 14, 15, 16
and 3181 arise for decision, it is necessary that ‘those who adjudicate upon these questions
should have some medium of legal training and judicial experience’. In that view, he agreed
with Justice Ranganath Misra about the invalidity of Clause (c) of Section 6 (1) of the
impugned Act, which prescribed qualifications for the office of Chairman of the tribunal— at
least two years experience as Secretary to the Government of India or any other post under
the Central Government or state governments carrying the scale of pay which is not less than
that of the Secretary to Government of India. The appointment of the Chairman, the Vice-
Chairman and Administrative Members should be made, in the opinion of the learned Chief
Justice, only after in consultation with and the recommendations of the Chief Justice of India,
unless there are cogent reasons for not accepting the same.

Another suggestion was that district judge or an advocate who is qualified to be a judge of the
high-court should be regarded as eligible for being the Vice- Chairman of the administrative
tribunal and if, to such an effect amendment was not carried out, the impugned Act would
have to be declared to be invalid, since it cannot be severed from the other provisions.]82

Hence, in S.P. Sampath Kumar v. U.O.I, in the final decision the Court held that Section 28
which excludes jurisdiction of the High-Courts under Articles 226/227 is not
unconstitutional. The Court ruled that this section does not totally bar judicial review. It also
said that Administrative Tribunals under the 1985 Act are substitute of high- courts and will
deal with all service matters even involving Articles 14, 15 and 16. It also advised for
changing the qualifications of Chairman of the tribunal. As a result, the Act was further

81
The Constitution of India, 1950: Article 14- Equality before Law; Article 15- Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth; Article 16- Equality of opportunity in matters of public
employment; Article 31- Compulsory acquisition of property- Repealed by the Constitutional (Forty- fourth
Amendment) Act, 1978, section 6 (With effect from: 20-06-1979)
82
Supra 7 at p. 66- 68
 37

amended in 1987. In UOI v. Parmanand83, a two-judges Bench upheld the authority of the
Administrative Tribunals to decide the constitutionality of service rules.

The Sampath Kumar ruling examined the constitutionality of the Administrative Tribunals
Act, 1985 and did not consider the Constitutional validity of Article 323-A (2)
(d).Subsequently, a Full Bench of the Andhra Pradesh High- Court in Sakinala Harinath v.
State of A.P.84, declared sub-clause (d) of clause (2) of Article 323-A unconstitutional. It was
held that this provision is repugnant to the ruling of the Supreme Court in Kesavanand
Bharati v. State of Kerala85.86

In J.B. Chopra and Ors v. UOI87, a Division Bench of the Supreme Court had an occasion to
consider the question that, whether the CAT constituted under the Administrative Tribunal
Act, 1985 has the authority and the jurisdiction to strike down a rule framed by the President
of India under the proviso to Article 309 of the Constitution88, as being violative of Articles
14 and 16(1)89 of the Constitution.

When the matter came up before the Division Bench, it deferred its judgement till the final
pronouncement of the decision in Sampath Kumar. Thereafter, the Division Bench analysed
the Constitution Bench’s decision to arrive at the conclusion that:

“The Administrative Tribunal being a substitute power of the High Court had the
necessary jurisdiction, power and authority to adjudicate upon all disputes relating to
service matters including the power to deal with all questions pertaining to the
Constitutional validity or otherwise of such laws as offending Articles 14 and 16(1) of
the Constitution.”

In M.B. Majumdar v. UOI90, a Division Bench of the Supreme Court had to confront the
contention, based on the premise that in Sampath Kumar the Supreme Court had equated the
tribunals established under the Administrative Tribunals Act, 1985 with high-courts, and that
the members of CAT must be paid the same salaries as were payable to judges of the high

83
AIR 1989 SC 1185
84
(1994) 1 APLJ (HC) 1
85
AIR 1973 SC 1461
86
Supra 34 at p.255- 256
87
AIR 1987 SC 357
88
The Constitution of India, 1950- Article 309: Recruitment and conditions of service of persons serving the
Union or a State
89
The Constitution of India, 1950- Article 16 (1): There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
90
AIR 1990 SC 2263
 38

court. The court, after analysing the text of Article 323-A of the Constitution, the provisions
of the impugned Act, and the decision in Sampath Kumar, rejected the contention that the
tribunals were the equals of the high-courts in respect of their service conditions. The Court
clarified that in Sampath Kumar the tribunals under the Act had been equated with high-
courts only to the extent that the former were to act as substitutes for the latter in adjudicating
service matters, the tribunals could not, therefore, seek parity for all other purposes.

In R.K. Jain v. UOI91, a three judge Bench of Supreme Court had occasion to deal with
complaints concerning the functioning of the Customs, Excise and Gold Control Appellate
Tribunal, which was set-up by exercising the power conferred by Article 323-B. In his
leading judgement, Justice Ramaswamy analysed the relevant constitutional provisions; the
decision in Sampath Kumar, J.B. Chopra and M.B. Majumdar, and held that the tribunals
created under Articles 323-A and 323-B could not be held to be substitutes of high- courts for
the purpose of exercising jurisdiction under Articles 226 and 227 of the Constitution. Having
had the benefit of more than five years’ experience of the working for these alternative
institutional mechanisms, anguish was expressed over their ineffectiveness in exercising the
power of judicial review. It was regretted that their performance had left much to be desired.
Thereafter, it was noted that the sole remedy provided, that of an appeal to the Supreme Court
under Article 136 of the Constitution, had proved to be prohibitively costly, while also being
inconvenient on account of the distances involved. It was suggested that an expert body like
the Law Commission of India should study the feasibility of providing an appeal to a Bench
of two judges of the concerned high- court from the orders of such tribunals, and also analyse
the working of the tribunals since their establishment, the possibility of inducting members of
the Bar to such tribunals etc. It was hoped that the recommendations of such an expert body
would be immediately adopted by the Government of India, and remedial steps would be
initiated to overcome the difficulties faced by the tribunals, making them capable of
dispensing effective, inexpensive, and satisfactory justice.92

Law laid down in L. CHANDRA KUMAR v. UOI93: In L. Chandra Kumar v. UOI94, a

Division Bench of the Supreme Court expressed the view that the decision rendered by the
Constitutional Bench of five Judges in Sampath Kumar needed to be comprehensively
reconsidered, and a fresh look by a larger Bench over all the issues adjudicated in Sampath

91
(1993) 4 SCC 119
92
Supra 7 at p.73- 76
93
(1997) 3 SCC 261: AIR 1997 SC 1125
94
(1995) 1 SCC 400
 39

Kumar was necessary. In the light of the opinion of the Division Bench, the matter was
placed before a larger Bench of seven Judges.

After considering various decisions on the point, the larger Bench observed that:

1. The power of judicial review is a basic and essential feature of the Constitution and
the jurisdiction conferred on High Courts under Articles 226 and 227 and on Supreme
Court under Article 32 of the Constitution is a part of basic structure of the
Constitution.
2. For securing independence of judiciary, the judges of superior courts have been
entrusted with the power of judicial review. Though the Parliament is empowered to
amend the Constitution, that power cannot be exercised so as to damage the essential
feature of the Constitution or to destroy its basic structure.
3. The High Courts and the Supreme Court have been entrusted with the task of
upholding the Constitution (i.e. furthering the ends of the Constitution) and with a
view to achieving that end, they have to interpret the Constitution.95

The Supreme Court in this case held as follows:

1. Not only Section 28 of the Administrative Tribunals Act, 1985 was ultra-vires, but
Clause 2 (d) of Article 323-A and Clause 3 (d) of Article 323-B as amended by the
Constitution (42nd Amendment) Act, 1976 were also ultra-vires and unconstitutional
as they destroyed the basic structure of the Constitution.

2. The Court held that there was no Constitutional prohibition against administrative
tribunals in performing a supplemental as opposed to a substitutional role. In
exercising powers such tribunals cannot act as substitutes for High Courts and the
Supreme Court. Their decisions will be subject to scrutiny by a Division Bench of the
respective High Courts.96

3. Administrative Tribunals under Article 323-A could examine the constitutional

validity of various statutes or rules. There would be one exception to this rule: the
administrative tribunals would not be competent to examine the validity of the statute

95
It is the power and duty of judiciary to ensure that the legislature and the executive do not, in discharge of
their functions, transgress constitutional limitations. The said power cannot be ousted or excluded by an Act of
Parliament or even by affecting amendment in the Constitution.
96
Supra 3 at p.268- 270 (seen generally)
 40

under which they are created. In such cases, the appropriate High Court would have to
be approached directly. Barring cases where the constitutionality of the parent Act is
challenged, all questions regarding services must be raised only before an
administrative tribunal, and writ would lie against an administrative tribunal’s
decision to a High Court having jurisdiction over it. An appeal would also lie to the
High Court from a tribunal’s decision.97 From a decision of a High Court’s Division
Bench, an appeal could be preferred under Article 136 of the Constitution to the
Supreme Court.

4. Administrative tribunals need not consist only of members from the judicial stream
but could also include members from the administrative stream, because a tribunal
consisting of such mixed composition would be able to bring varied experience to
bear on the service matters that come to it for adjudication.

5. An administrative tribunal may not be subject to the power of superintendence of a

High Court under Article 227, but the tribunals could work under the supervision of a
nodal government department, which would preferably be the Ministry of Law. The
Court expressed a hope that the ministry would set up an independent nodal agency
for overseeing the work of tribunals.

In concluding remarks, the Court speaking through Ahmadi, C.J. declared98:

“In view of the reasoning adopted by us, we hold that clause 2 (d) of Article 323-A
and clause 3 (d) of Article 323-B, to the extent they exclude the jurisdiction of the
High Courts and the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of
jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A
and 323-B would, to the same extent be unconstitutional. The jurisdiction conferred
upon the High-Courts under Articles 226/227 and upon the Supreme Court under
Article 32 of the Constitution is a part of the inviolable basic structure of our
Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may

97
These directions were however, to apply to decisions rendered thereafter i.e. after the decision in L. Chandra
Kumar v. U.O.I [AIR 1997 SC 1125]
98
Supra 3 at p.269
 41

perform a supplemental role in discharging the powers conferred by Articles 226/227

and 32 of the Constitution.”

While this decision recognises the need for tribunals as distinct from Courts, it insists that
such tribunals must be subject to the writ jurisdiction of High Courts. The Supreme Court
has, in the light of last decade’s experience, come to the conclusion that, factually, no tribunal
could really be a substitute for a High Court.99

99
Supra 4 at p. S-121
 42

Chapter IX: The Administrative Tribunals (Amendment) Bill, 2006 and the
Administrative Tribunals (Amendment) Bill, 2012100

The Administrative Tribunals (Amendment) Bill, 2006101 was introduced in the Rajya Sabha
on March 18, 2006 to amend the Administrative Tribunals Act, 1985 (Principal Act). The Bill
was referred to the Departmentally Related Standing Committee on Personnel, Public
Grievances, Law and Justice (Chairperson: Shri E.M. Sudarsana Natchiappan) which was
scheduled to submit its report within three months. The Committee took note of the fact that
the Hon’ble Supreme Court has made it amply clear that the Tribunals will continue to act as
the only courts of first instance in respect of the areas of law for which they have been
constituted and that it will not be open for litigants to directly approach the High-Courts even
in cases where they question the vires of statutory legislations. The Committee was of the
considered opinion that since the Apex Court had upheld the necessity of the Administrative
Tribunals in such clear terms, there is no iota of doubt as to the fact that the Administrative
Tribunals are absolutely essential for the speedy redressal of grievances of Government
employees.102 The Bill was introduced by the Ministry of Personnel, Public Grievances and
Pensions.103

The Principal Act sought to allow administrative tribunals to adjudicate on disputes related to
recruitment and conditions of service of people appointed to public services in India and
appointed by any corporation or society owned by the Government. It aimed to exclude the
jurisdiction of all courts in such matters.

100
Based on the research carried out by PRS LEGISLATIVE RESEARCH, www.prsindia.org, Visited on: 16-10-
2013
101
See: PRS Legislative Research, http://www.prsindia.org/billtrack/the-administrative-tribunals-amendment-
bill-2006-144/, Visited on: 16-10-2013
102
Supra 34 at p. 244
103
The background note on the Administrative Tribunals (Amendment) Bill, 2006 furnished by the Ministry of
Personnel, Public Grievances and Pensions stated as follows:

“… Initially it was envisaged that litigation relating to service matters should be adjudicated upon by
Administrative Tribunals and should not increase the burden of the High Courts. Thus, the appellate
jurisdiction was with the Supreme Court of India. However, the Supreme Court in L. Chandra Kumar
v. UOI, AIR 1997 SC 1125, has held that the writ jurisdiction of the High Court under Article 226/227
of the Constitution cannot be extinguished by any Act since it is a part of the basic structure of the
Constitution. Thus, appeals from judgements of the Administrative Tribunals now lie to the Division
Bench of the corresponding High Court.”
 43

The Bill sought to modify the Principal Act to provide for abolition of administrative
tribunals if it is considered appropriate.104 The Central Government could abolish any
tribunal established for a State or a number of States and provide for the transfer and disposal
of cases pending before such tribunals.

The Chairman, Vice Chairman or any Member of a tribunal would not be entitled to
compensation for the premature termination of their term of service if they took voluntary
retirement from the services of the respective government to join the tribunal. These
Members would be entitled to get paid by the respective governments till they attain the age
of superannuation or the completion of their tenure in the tribunal, whichever is earlier.

The Principal Act empowered the administrative tribunals to exercise the same power as the
High Court with respect to contempt of court. The Bill brings the administrative tribunals
under the jurisdiction of the High-Courts105 and abolishes the tribunals’ power to punish for
contempt of court. If a person is aggrieved by the decision of the tribunal, he can file an
appeal in the High Court within 60 days from the date of the decision of the tribunal.106

So far as the status of the Bill (The Administrative Tribunals (Amendment) Bill, 2006) is
concerned, the same at present stands withdrawn.107

Now, it is pertinent to discuss:

The Administrative Tribunals (Amendment) Bill, 2012108:

 The Administrative Tribunals (Amendment) Bill, 2012 was introduced in the Lok
Sabha on April 27, 2012 by Mr. V. Narayanasamy, Minister of State for Personnel,

104
A number of State Governments had proposed for the abolishing of SATs essentially on the ground that since
the orders of the SAT had become appealable before the Division Bench of the High Court, it has merely added
one more tier in the judicial hierarchy. The State Governments also stated that the SATs have become very
expensive to administer. At the Central level too, it was found that some Benches of the CAT had become
unnecessary (or will become unnecessary in the near future) since the cases pending before them have
diminished in number.
105
Section 27D(1) as proposed in the Bill provides as follows:
“Any person aggrieved by any decision or order of the Tribunal may file an appeal to the High Court.” The
Committee deliberated upon the proposed amendment in the backdrop of Article 323-A(d) of the Constitution
which excludes the jurisdiction of all Courts except that of the Supreme Court under Article 136 of the
Constitution of India.
106
In pursuance of L. Chandra Kumar v. U.O.I [AIR 1997 SC 1125 (1156)]
107
See: PRS India, Bill Track, http://www.prsindia.org/billtrack/security-law-strategic-affairs/withdrawn/,
Visited on: 16-10-2013
108
The status of the Bill at present is that, it is pending. See: http://www.prsindia.org/billtrack/security-law-
strategic-affairs/pending/, Visited on: 16-10-2013; Also see: http://www.prsindia.org/billtrack/administrative-
tribunals-amendment-bill-2012-2300/, Visited on: 16-10-2013
 44

Public Grievances and Pensions. It was referred to the Standing Committee on

Personnel, Public Grievances, Law and Justice on May 29, 2012.

 The Bill amends the Administrative Tribunals Act, 1985. The Act establishes
Administrative Tribunals to adjudicate on disputes relating to the conditions of
service of public servants at the central, state and local level authorities.

 Under the Act, the Chairman of the Tribunal shall be a present or former judge of a
High Court. The Bill provides that the chairman shall be a ‘Supreme Court judge’ or
‘the Chief Justice of a High Court’.

 Under the Act, the Chief Justice of India is consulted only in case of the appointment
of the Chairman and members of the Central Tribunal. In case of the State Tribunals
and Joint Administrative Tribunals, the Chairman and members are appointed by the
President in consultation with the Governor of the concerned state. The Bill provides
that Chief Justice of India shall also be consulted in the appointment of the Chairman
and the members of the State and Joint Administrative Tribunals.

 The salaries and other benefits of the Chairman shall be on the same terms as a
Supreme Court Judge or the Chief Justice of a High Court. In case of the other
members, they shall be eligible to the benefits that are applicable to a High Court
Judge.

 The Act confers the power to transfer a pending case from one bench to another bench
on the Chairman of the Tribunal. The Bill provides that in addition to the Chairman, a
member authorised by the Chairman shall also be empowered to transfer the pending
cases.

 The Bill states that it shall be applicable prospectively. However, the Chairman and
members eligible for re-appointment shall be considered for fresh appointment in
terms of the Bill.

The status of the Bill (The Administrative Tribunals (Amendment) Bill, 2012) is that it is still
pending.
 45

How-so-ever the position of law as enunciated by L. Chandra Kumar v. U.O.I remains intact,
that is:

a. Articles 323-A and 323- B are unconstitutional to the extent they exclude jurisdiction
of the High-Courts under Articles 226/227 and of the Supreme Court under Article 32
of the Constitution.
b. The tribunals constituted under Part XIV- A of the Constitution are possessed of the
competence to examine the constitutional validity of statutory provisions and rules
except statutes establishing these tribunals.
c. These tribunals will continue to work as courts of first instance in respect of the areas
of law for which they have been constituted. The litigants cannot move the High
Court directly.
d. No appeal will lie under Article 136 to the Supreme Court directly from the decisions
of these tribunals. Special leave petition will lie from the decision of the High Court.
 46

Chapter X: Administrative Tribunals- Critical Appraisal109

Not much research has been done in the area in regards to the ‘Working of the Administrative
Service Tribunals’, however from whatever material that is available, a few but rather
significant trends in regards to the working of service tribunals (especially the Central
Administrative Tribunal), may be discussed.

At present there are two categories of service tribunals, one constituted by the States under
their own legislations and the other constituted under the Central Legislation, the
Administrative Tribunals Act, 1985. There was a third category also in which a service
tribunal had been established in Andhra Pradesh through the amendment of the Constitution
in 1976 which was abolished in 1989. While the States of Uttar Pradesh, Rajasthan, Gujarat
and Assam have established service tribunals under their own laws, the States of Orissa,
Himachal Pradesh, Karnataka, Madhya Pradesh, Tamil Nadu and Maharashtra have
established tribunals for their employees under the Central legislation. A Central
Administrative Tribunal has also been established for Central Government employees. This
Tribunal (CAT) works in eighteen places through its Benches. Besides these, Circuit Benches
are also held at other places particularly where the seat of High Court is located.

The basic purpose behind the establishment of the administrative tribunals was to provide
expeditious justice to the civil servants, which was not available through the traditional
system. How far this purpose has been achieved is a moot question. If available data is any
indicator, the trend which was discouraging in the beginning has now shown encouraging
trends.110

After the constitution of the Central Administrative Tribunal in 1985, in the beginning, under
Section 29 of the Administrative Tribunals Act, 1985111, the Tribunal received on transfer
from the High Courts and Subordinate Courts 13,350 cases, which were pending there.

Thereafter, till November 2001; 371,448 cases were instituted in the Tribunal. Out of these,
333,598 cases have been disposed of. The total number of cases received on transfer as well
as those instituted directly at various Benches of the Tribunal till 30th June, 2006 were
476,336, of which the Tribunal has disposed of 451,751 cases leaving a balance of 24,585

109
See: http://cgat.gov.in/, Visited on: 16-10-2013; Also see: http://cgat.gov.in/intro.htm, Visited on: 18-10-
2013
110
Supra 20 at p.524
111
The Administrative Tribunals Act, 1985: Section 29- Transfer of Pending Cases
 47

cases which constitutes disposal of 94%. The institution of cases in the Tribunal has
increased tremendously so also the rate of disposal of the cases and in the Principal Bench of
the Tribunal at New Delhi, the disposal is 94%.

During the year 2000, over 91% of cases of the Principal Bench of the Tribunal have been
upheld in Writ Petition by the Delhi High Court and so qualitatively also the Tribunal has
performed well.

In the year 2010, cases transferred from various courts and fresh cases filed with the Central
Administrative Tribunal (CAT) were 26,620; howsoever, cases disposed during the year were
25,477; cases pending at the end of the year were 23,670.

In the year 2011, cases transferred from various courts and fresh cases filed with the Central
Administrative Tribunal (CAT) were 25,869; howsoever, cases disposed during the year were
24,750; cases pending at the end of the year were 24,789.

In the year 2012, cases transferred from various courts and fresh cases filed with the Central
Administrative Tribunal (CAT) were 27,733; howsoever, cases disposed during the year were
24,206; cases pending at the end of the year were 28,316.

Up to June, 2013, cases transferred from various courts and fresh cases filed with the Central
Administrative Tribunal (CAT) were 12,780; howsoever, cases disposed up to June, 2013
were 10,032; cases pending up to June, 2013 were 31,064.112

Hence, so far as the figures are concerned, the trend in regards to the adjudication of disputes
by the Central Administrative Tribunal seems enthusiastic.

The Tribunal follows the principles of natural justice in deciding cases; and the procedure
prescribed by the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908 does not
apply. The Tribunal is also a specialized organization, which deals with only service matters
in respect of the Central Government employees and other employees who have been
notified113.

112
See: Statement/Graphs, http://cgat.gov.in/, Visited on: 18-10-2013
113
Under the Administrative Tribunals Act, 1985 read with Part XIV- A of the Constitution of India, 1950
 48

Where the pendency of cases is on higher side in any Bench, Members are being deputed
from other Benches to that Bench for wiping out the pendency. The original Applications in
the Principal Bench are generally disposed of in four to six months, thus justifying the aim of
the Legislature in setting up the Administrative Tribunals to provide a speedy, relatively
inexpensive and efficacious remedy to the employees who feel aggrieved.

The Central Administrative Tribunal is empowered to prescribe its own rules of practice for
discharging its functions subject to the Administrative Tribunals Act, 1985 and Rules made
there under. For this purpose, the Central Administrative Tribunal Rules of Practice, 1993
have been notified. Similarly, for the purpose of laying down a common procedure for all
Benches of the Tribunal, the Central Administrative Tribunal (Procedure) Rules, 1987 have
been notified. Under Section 17 of the Administrative Tribunal Act, 1985 114, the Tribunal has
been conferred the power to exercise the same jurisdiction and authority in respect of
contempt of itself as a High Court.

The employees of the Central Administrative Tribunal are required to discharge their duties
under the general superintendence of the Chairman. Salaries, allowances and conditions of
service of the officers and other employees of the Tribunal are specified by the Central
Government. Pursuant to these provisions the Central Government have notified the Central
Administrative Tribunal Staff (Conditions of Service) Rules, 1985. There are 1288 posts
classified in 38 categories for assisting the Tribunal in discharging its functions. The Central
Administrative Tribunal seems to be a growing institution with increasing responsibilities and
load of work.

114
The Administrative Tribunals Act, 1985: Section 17- Powers to punish for Contempt
 49

Conclusive Remarks115:

“Nothing is more remarkable in our present social and administrative arrangements than the
proliferation of tribunals of many different kinds. There is scarcely a new statute of social or
economic complexion which does not add to the number.” - Sir C.K. Allen

A sound justice delivery system is a sine qua non for the efficient governance of a country
wedded to the Rule of Law. An independent and impartial judiciary in which the litigating
public has faith and confidence alone can deliver the goods.116

In a democracy governed by rule of law, the only acceptable repository of justice is a court of
law. Judicial review is an integral part of our legal system and basic and essential feature of
the Constitution and it cannot be dispensed with by creating tribunals under Articles 323-A
and 323-B of the Constitution. Any institutional mechanism or authority in negation of
judicial review is destructive of basic structure. So long as the alternative institutional
mechanism set up by any Act is not less effective than the High Court, it is consistent with
the Constitutional scheme.

The faith of the people is the bedrock on which the edifice of judicial review and efficacy of
adjudication are founded. The alternative arrangement must, therefore, be effective and
efficient. For inspiring confidence and faith in the litigating public, they must have an
assurance that the persons deciding their disputes are totally and completely free from
influence or pressure from executive. To maintain independence and impartiality, it is
necessary that the persons appointed in tribunals have judicial and objective approach as also
sufficient knowledge and legal training.117

115
“…They (administrative tribunals) could offer speeder, cheaper and more accessible justice, essential for the
administration of welfare schemes involving large number of small claims… The process of courts of law is
elaborate, slow and costly… it (court process) is to provide the highest standard of justice; generally speaking,
the public wants the best possible article and is prepared to pay for it… In administering social justice… the
objective is not the best article at any price but the best article that is consistent with the efficient administration.
Disputes must be disposed of quickly and cheaply for the benefit of the public purse as well as for that of the
claimant.” [Philips, Jackson and Leopold: p.886]
116
L. Chandra Kumar v. UOI, [(1997) 3 SCC 261 (306, 311): AIR 1997 SC 1125]; R.K. Jain v. UOI, [(1993) 4
SCC 119 (134)]
117
Ibid.; See also: S.P. Sampath Kumar v. UOI [(1987) 1 SCC 124: AIR 1987 SC 386: (1987) 1 SCR 435], S.S.
Bola v. B.D. Sardana [(1997) 8 SCC 522: AIR 1997 SC 3127 (3166-71)]
 50

It is submitted that the following observations of Arrears Committee (Malimath Committee)

must always be borne in mind while dealing with the powers and jurisdiction of tribunals.
After in-depth study, the Committee concluded:

“It must not be forgotten that what is permissible to be supplanted by another equally
effective and efficacious institutional mechanism is the High-Court and not the
judicial review itself. Tribunals are not an end in themselves but a means to an end;
even if the laudable objectives of speedy justice, uniformity of approach,
predictability of decisions and specialist justice are to be achieved, the framework of
the tribunal intended to be set up to attain them must still retain its basic judicial
character and inspire public confidence. Any scheme of decentralisation of
administration of justice providing for an alternative institutional mechanism is
substitution of the High-Courts must pass the aforesaid test in order to be
constitutionally valid”118.119

118
See: Report of Arrears Committee, (1989-90, Vol. II) Chapter VIII, Para 8- 65, Cited in L. Chandra Kumar
v. UOI [(1997) 3 SCC 261: AIR 1997 SC 1125]
119
Supra 3 at p.270-271
 51

Appendix I: Part XIV- A of the Constitution of India, 1950120

Article 323- A: Administrative Tribunals

(1). Parliament may, by law, provide 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 or any local or other authority within the territory of India or under the control of the
Government of India or of any corporation owned or controlled by the Government.

(2). A law made under clause (1) may-

(a). provide for the establishment of an administrative tribunal for the Union and a separate
administrative tribunal for each State or for two or more States;

(b). specify the jurisdiction, powers (including the power to punish for contempt) and
authority which may be exercised by each of the said tribunals;

(c). provide for the procedure (including provisions as to limitation and rules of evidence) to
be followed by the said tribunals;

(d). exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under
Article 136, with respect to the disputes or complaints referred to in clause (1);

(e). provide for the transfer to each such administrative tribunal of any cases pending before
any court or other authority immediately before the establishment of such tribunal as would
have been within the jurisdiction of such tribunal if the causes of action on which such suits
or proceedings are based had arisen after such establishment;

(f). repeal or amend any order made by the President under clause (3) of Article 371 D;

(g). contain such supplemental, incidental and consequential provisions (including provisions
as to fees) as Parliament may deem necessary for the effective functioning of, and for the
speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

120
Part XIV- A, containing Articles 323- A and 323- B, was inserted by the Constitution (42 nd Amendment)
Act, 1976. [Owing to opposition in the Rajya Sabha, the 45 th Amendment Bill, 1978, failed to omit Articles 323-
A and 323- B]
 52

(3). The provisions of this Article shall have effect notwithstanding anything in any other
provision of this Constitution or in any other law for time being in force.

Article 323- B: Tribunals for other matters

(1).The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals
of any disputes, complaints, or offences with respect to all or any of the matters specified in
clause (2) with respect to which such Legislature has power to make laws.

(2).The matters referred to in clause (1) are the following, namely:-

(a). levy, assessment, collection and enforcement of any tax;

(b). foreign exchange, import and export across customs frontiers;

(c). industrial and labour disputes;

(d). land reforms by way of acquisition by the State of any estate as defined in Article 31- A
or of any rights therein or the extinguishment or modification of any such rights or by way of
ceiling on agricultural land or in any other way;

(e). ceiling on urban property;

(f). elections to either House of Parliament or the House or either House of the Legislature of
a State, but excluding the matters referred to in Article 329 and Article 329- A;

(g). production, procurement, supply and distribution of food stuffs (including edible oilseeds
and oils) and such other goods as the President may, by public notification, declare to be
essential goods for the purpose of this Article and control of prices of such goods;

121
(h). rent, its regulation and control and tenancy issues including the right, title and interest
of landlords and tenants;122

(i). offences against laws with respect to any of the matters specified in sub- clauses (a) to
(h)123 and fees in respect of any of those matters;

(j). any matter incidental to any of the matters specified in sub-clauses (a) to (i).124

121
Inserted by the Constitution (75th Amendment) Act, 1993, with effect from 15-05-1994
122
Ibid.
123
Ibid.
 53

(3). A law made under clause (1) may-

(a). provide for the establishment of a hierarchy of tribunals;

(b). specify the jurisdiction, powers (including the power to punish for contempt) and
authority which may be exercised by each of the said tribunals;

(c). provide for the procedure (including provisions as to limitation and rules of evidence) to
be followed by the said tribunals;

(d). exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under
Article 136 with respect to all or any of the matters falling within the jurisdiction of the said
tribunals;

(e). provide for the transfer to each such tribunal of any cases pending before any court or any
other authority immediately before the establishment of such tribunal as would have been
within the jurisdiction of such tribunal if the causes of action on which such suits or
proceedings are based had arisen after such establishment;

(f). contain such supplemental, incidental and consequential provisions (including provisions
as to fees) as the appropriate Legislature may deem necessary for the effective functioning of,
and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(4).The provisions of this article shall have effect notwithstanding anything in any other
provision of this Constitution or in any other provision law for the time being in force.

Explanation: In this article, “appropriate Legislature”, in relation to any matter, means

Parliament or, as the case may be, a State Legislature competent to make laws with respect to
such matter in accordance with the provisions of Part XI.

124
Ibid.
 54

Appendix II: The Organisational Structure of Administrative Tribunals: France125

In France, there is a clear demarcation between administrative law and private law on the one
hand and between the institutions that interpret and apply these laws to resolve specific
disputes, i.e. administrative courts/ tribunals and ordinary/ regular courts on the other hand,
respectively.

The French formed a three- tier administrative court system having general judicial
jurisdiction on administrative matters. The structure of French administrative courts having
general jurisdictions, just like the ordinary courts, has a pyramidal form. At the apex, there is
one “Conseil D’ Etat” (Council of State) in Paris, below which are the seven intermediary
regional “Cours Administratives D’ Appel” (administrative courts of appeal) followed by the
thirty-five “Tribunaux Administratifs” (administrative tribunals) in metropolitan France.

The ‘Conseil D’ Etat’ is the court of final resort on administrative matters. It exercises
appellate and cassation powers over decisions of subordinate administrative courts. It has also
original jurisdiction on some administrative matters. The ‘Cours Administratives D’ Appel’ is
the administrative counter part of the French High-Court. It entertains appellant jurisdiction
over justiciable administrative disputes brought from lower administrative tribunals and
original jurisdiction in certain matters reserved to it. The ‘Tribunaux Administratifs’ is the
administrative counter part of the French first instance courts. It hears administrative disputes
at the first instance level. That is, it is the court of the first instance on administrative matters.

In addition to these administrative courts of general jurisdiction, there are a number of other
administrative tribunals exercising judicial functions in particular spheres. They are referred
to as ‘Specialised Jurisdiction Tribunals’ that entertain administrative disputes in particular
fields of administration. Decisions of these specialised tribunals may be reviewed by the
Conseil D’ Etat by way of appeal or cassation. In general, the Conseil D’ Etat (Council of
State) plays advisory and judicial role on administrative matters.

Unlike in France, there is no integrated-administrative-justice-system in many countries

following the common law tradition. In Britain, for example, there are numerous ‘Specialised
Jurisdiction Tribunals’ that exercise jurisdiction in particular fields of the administration.

125
See: Advantages and Disadvantages of Administrative Adjudication,
http://www.abyssinialaw.com/root/study-online/item/314-the-advantages-and-disadvantages-of-administrative-
adjudication, Visited as on: 17-10-2013
 55

Conversely speaking, there are no structured administrative courts of general jurisdiction.

Rather, there are numerous specialised tribunals having specialised jurisdiction limited to
particular sphere of the administrative fields of activity. Many tribunals/adjudicating agencies
having first instance jurisdiction over administrative disputes are found in almost all the
particular spheres of the administration. There exists also numerous specialised jurisdiction
administrative review tribunals that are established to entertain cases appealed from lower
adjudicating agencies or tribunals.

Qualification, Appointment and Dismissal of Administrative Judges: France

There is three- tier administrative justice system in France- the Council of State at the apex,
the Administrative Courts of Appeal at the intermediary and Administrative Tribunals at the
bottom of the pyramid. The Council of State (Conseil d’ Etat) plays a double role, both as an
advisory body charged with advising ministers and the Head of State on the drafting of
legislation and regulations and on administrative matters generally, and as a judge of final
resort of the administration. So far as the membership of the Conseil d’ Etat is concerned, it is
the part of the French administration and is staffed entirely by Civil Servants. So far as the
manner of recruitment is concerned, there are two distinct avenues of access to the Conseil d’
Etat: examination and invitation.

Most members of the Conseil d’ Etat are recruited from the National School of
Administration (l’Ecole Nationale d’ Administration) which was founded by the Provisional
Government of General de Gaulle in 1945 to serve as a ‘graduate staff college for the higher
ranks of the administration’. Admission to l’Ecole Nationale Administration (l’ENA as it is
popularly called) is by a stiff concours, or open competitive examination, one being
conducted for recent graduates of universities and other comparable institutions (only a
minority being law graduates), and a second for those who are already members of the civil
service. After 2 years of intensive studies, the outgoing class is arranged in order of merit,
according to their performance in the final examination and over the course as a whole.
Depending on this placement, each successful graduate from l’ENA then chooses from
among the administrative posts which happen to be available at the time. The double sieve
imposed by the concours on entry and the placing at the end of the course, guarantees that
entrants to the Conseil by way of l’ENA are necessarily of the highest intellectual quality. In
addition the nature and the content of their strenuous course at l’ENA ensures that they have
a thorough training (both theoretical and practical) in the field of public administration.
 56

The other method of recruitment is by way of the ‘active administration’ or invitation. It is a

long-standing practice to recruit about a quarter of the entrants to the Conseil d’ Etat ‘from
outside’, that is from the rank of those who have already distinguished themselves in the
practice of public administration. Recruits of this second category will necessarily be
considerably older than those in the first and will usually enter at the higher levels of
Conseiller (the highest grade) or Maitre-des-requites (the intermediate grade).

Currently, one Conseiller out of every three and one Maitre-des-requite out of every four
must be recruited externally. This mixed system of entry provides the Conseil with a
remarkable combination of young intellect and mature experience. It ensures that the Conseil
has within its ranks both theoretical and practical expertise in public administration.
Recruitment to the lower courts (Cours Administratives d’ Appel and Tribunaux
Administratifs) resembles Conseil d’ Etat, discussed above.

Membership of the Conseil is divided into three basic grades: Conseiller (the highest grade),
Maitre-des-requetes (the intermediate grade) and the Auditier (the lowest grade or
‘Auditorat’, which is in turn subdivided into Auditeur-de-premiere-classe and Auditeur-de-
seconde-classe). There are also certain posts of special responsibility. Members of the
Conseil are civil servants (fonctionnares) with the usual safeguards, which French law
confers in matters of promotion and discipline. In matters of discipline, the reform of 1963
has provided a number of new safeguards, but members of the Conseil still lack that status of
irremovability, although practically it is unthinkable that a member should be dismissed or
otherwise disciplined by reason of political consideration. However, members of the lower
tiers of administrative courts are conferred with the status of irremovability; they cannot be
transferred to a new post without their consent, even by way of promotion.
 57

Appendix III: Franks Committee126

In 1955, a Committee was appointed by the Lord Chancellor under the Chairmanship of Sir
Oliver Frank to look into the complaints and make recommendations of the constitution and
working of the administrative tribunals in England.

The Committee considered the grievances and submitted its report in 1957 and made the
following recommendations:

1. Chairman of the tribunals should be appointed and removed by the Lord

Chancellor; members should be appointed by the Council and removed by the
Lord Chancellor.
2. Chairman should ordinarily have legal qualifications and always in the case of
appellate tribunals.
3. Remuneration for service on tribunals should be reviewed by the Council on
Tribunals.
4. Procedure for each tribunal, based on common principles but suited to its
needs, should be formulated by the Council.
5. The citizen should be helped to know in good time the case he will have to
meet.
6. Hearings should be in public, except only in cases involving (i) public
security, (ii) intimate personal or financial circumstances, or (iii) professional
reputation, where there is a preliminary investigation.
7. Legal representation should always be allowed, save only in most exceptional
circumstances. In the case of national insurance tribunals, the Committee was
content to make legal representation subject to the Chairman’s consent.
8. Tribunals should have power to take evidence on oath, to subpoena witnesses,
and to award costs. Parties should be free to question witnesses directly.
9. Decisions should be reasoned, as full as possible, and made available to the
parties in writing. Final appellate tribunals should publish and circulate
selected decisions.
10. There should be a right of appeal on fact, law and merits to an appellate
tribunal, except where the lower tribunal is exceptionally strong.

126
Supra 3 at p.263- 264
 58

11. There should also be an appeal on a point of law to the courts; and judicial
control by the remedies of certiorari, prohibition and mandamus should never
be barred by statute.
12. The Council should advise, and report quickly, on the application of all these
principles to the various tribunals, and should advise on any proposal to
establish a new tribunal.

Griffith and Street127 have included:

13. Adjudications of law and fact in which no policy question is involved should
not be carried out by Ministers themselves or by Civil Servants in the
Minister’s name.
14. The personnel of tribunals deciding issues of law or fact or applying standards
should be independent of the departments with which their functions are
connected.
15. The personnel should enjoy security of tenure and adequacy of remuneration
essential to the proper discharge of their duties.
16. At least one member of the tribunal should be a lawyer if the questions of fact
and law arise; one member may have expert knowledge where such
knowledge would be helpful to guide discretion and apply standards.
17. An appellate system should be provided so that those aggrieved by the
adjudication may go to a higher tribunal and ultimately matters of law should
reach the court.

The recommendations were accepted by the Government and implemented by the Tribunals
and Inquiries Act, 1958 which was substituted by the Act of 1971 and then by the Act of
1992.

127
See: Principles of Administrative Law (1963) at p.193

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