Madras High Court
Tamil Nadu Government All Department ... vs Union Of India (Uoi), Rep. By Its ... on 25 April, 2005
Equivalent citations: (2005)2MLJ570
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, C. Nagappan
ORDER M. Karpagavinayagam, J.
1. The prayer in these four writ petitions is similar which is as follows:
"To issue a Writ of Mandamus directing the State of Tamil Nadu to fill up the four vacancies to the post of Chairman, Vice Chairman, two Administrative Members for the two Benches of the Administrative Tribunal and allow the Tribunal to function effectively until the Tribunal is abolished by the Central Government through the proper procedure which would take long time."
2. The circumstances brought out by the counsel for the petitioners which necessitated them to approach this Court with the above prayer for Mandamus are as follows:
"Tamil Nadu Administrative Tribunal before which the Government Servants seek redressal of their grievances started functioning from 12.12.1988. The Government appointed Administrative Staff to run the Tribunal. As it has been constituted as a substitute for High Court, more number of Staff were recruited to look after Judicial, Administrative and Establishment work. At the time of constitution of the Tribunal in 1988, the Chairman and an Administrative Member were appointed. In the year 1995, it had the full strength as it consisted of Chairman, Vice Chairman and two Administrative Members. After retirement of the Chairman and other Administrative Members in the year 2002, the entire Tribunal was manned by the sole Vice Chairman. He also retired on 2.6.2004. Subsequently, no one has been appointed. Thus, the Tribunal had become defunct w.e.f. 2.6.2004. As on today, 30,000 cases are pending for disposal. The action of the respondent State Government in not initiating any move to fill up the vacancies is not only causing major problems to the litigants, whose cases are already pending, but also to new litigants. The Constitution Bench judgment in L.CHANDRAKUMAR v. UNION OF INDIA (1997(3) SCC 261) held that the Tribunals are the Courts of First Instance. There are more advantages for the Government Servants to seek redress in the Tribunal because it provides speedy and inexpensive relief to them. Because of the non-functioning of the Tribunal, the employees have now been forced to seek relief of their grievances in the High Court, which has added to the burden and workload of this Court. In the meantime, the State Government has sent a proposal to the Central Government to take steps to abolish the Tribunal. It would take time for the Central Government to act upon the proposal sent by the State Government, since it could be done only on the proper enactment by the Parliament. Therefore, the State Government has to be directed to exercise its constitutional duty to fill up the vacancies in the Tribunal and allow the Tribunal to function effectively. Hence, these writ petitions.
3. Per contra, the learned Advocate General appearing for the State Government, the second respondent herein, would contend that on the decision taken by the Cabinet, the State Government through the letters dated 10.6.1994, 12.6.2001 and 10.8.2004 requested the Government of India by sending a proposal to abolish the Tamil Nadu Administrative Tribunal through amendment. However, based on the judgment of the Supreme Court reported in J.T.2004(7) SC 548, the Chief Secretary sent another letter on 11.2.2005 requesting the Central Government for abolition of the Tamil Nadu Administrative Tribunal through Notification which would suffice. Earlier, as per Sampath Kumar's case, the Administrative Tribunal being a substitute for High Court can decide the matter and appeal could be filed only before the Supreme Court. But, as per Chandra Kumar's case, after a decision by the State Administrative Tribunal, an aggrieved person can approach the High Court as the Tribunal is only supplemental to the High Court. The State Government has decided that it would be enough if there are two fora, namely High Court and Supreme Court on service matters and consequently, took a policy decision to abolish the Tribunal, as it felt that after the decision of the Supreme Court in L.Chandrakumar v. Union of India, there is virtually no need to continue the Tribunal. As per the Supreme Court judgment relating to Madhya Pradesh Administrative Tribunal, there is no statutory prohibition against exercise of power by the State Government to abolish the Tribunal and when such discretion for abolition has been intimated by the State Government to the Central Government, there is no option for the Central Government to accept it and issue Notification. Inasmuch as the matter is pending with the Central Government, the State Government feels that at this stage, it is not necessary to fill up the posts in the Tribunal.
4. On the other hand, the stand taken by the Central Government, the first respondent herein, is that though the Government of Tamil Nadu has sent a proposal to the Central Government for abolition, this cannot be done through Notification. The appropriate legislation for this proposal has to be brought in the Parliament and the same is being contemplated by the Law Department which after due processing and approval will be brought before the Parliament. Mere Notification of the Central Government would not suffice in this case, since Section 74 of the Madhya Pradesh Reorganisation Act, 2000 would specifically provide for the abolition through Notification. But, such a provision is not available in this State. Therefore, suitable Parliamentary amendment to the Administrative Tribunal Act is necessary to consider such proposal. The necessary steps for the same are being taken by the Central Government.
5. On the basis of the above pleas, the learned counsel for the parties on either side would elaborately argue and cite various authorities rendered by this Court as well as the Supreme Court.
6. In the light of the above arguments, the questions that arise for consideration in this case are:
1) Whether the proposal for abolition sent by the State Government becomes enforceable by mere Notification or through the amendment to be brought in the Parliament?
2) If it is through the amendment by Parliament, whether this Court could give suitable direction to fill up the vacancies for the effective functioning of the Tribunal without any further delay till the abolition of the Tribunal through the amendment which may take some time?
7. Before dealing with the above questions, it is worthwhile to refer to some chronological events relating to the issue of abolition of the Tribunal:
(a) On 10.6.1994, the State Government requested the Government of India to abolish the Tribunal.
(b) In the reply letters of the Central Government dated 18.8.1994 and 17.1.2000, the Central Government informed the State Government that the proposal of the State Government for abolition of the Tribunal has been considered in consultation with the Ministry of law and Justice.
(c) On 12.6.2001, the State Government reminded the proposal to abolish the Tribunal with a request to amend the Administrative Tribunals Act,1985, empowering the Central Government to abolish the Tribunal when it is not required by the concerned State Government.
(d) On 26.7.2002, the Central Government intimated the State Government that amendments proposed to be carried out in the Administrative Tribunals Act have been approved by the Cabinet and the Bill is being placed before the Parliament.
(e) On 2.4.2003, the Central Government sent the Draft Administrative Tribunal (Amendment) Bill, 2002 for the abolition of the State Tribunals and requested the comments of the State Governments.
(f) On 19.5.2003, consultation was made with the High Court through the letter sent to the High Court.
(g) On 4.8.2004, the Registrar General communicated to the State Government accepting the proposal for abolition.
(h) On 10.8.2004, the State Government communicated its concurrence to the draft Bill.
(i) In the meantime, the Madhya Pradesh High Court Bar Association moved the Supreme Court challenging the High Court's order quashing the abolition of the Tribunal. The Supreme Court in the judgment dated 17.9.2004 reported in J.T.2004(7) SC 548, concluded that the State Government could take a decision to abolish the State Tribunal and on receipt of such decision, the Government of India would publish a Notification abolishing the State Tribunal.
(j) In the light of this judgment, the opinion of the Advocate General was sought for. The Advocate General sent his opinion on 23.9.2004 stating that the Government of India may be addressed to issue a Notification for abolition of the Administrative Tribunal without waiting for any amendment.
(k) On the basis of the Supreme Court judgment and the opinion given by the Advocate General, on 11.2.2005, the Chief Secretary, Government of Tamil Nadu sent a letter requesting the Central Government to issue a Notification for abolition of the State Tribunal without awaiting the amendment of Section 27A of the Administrative Tribunal Act, 1985."
8. From the above correspondence, the following factors are emerged:
(1) As early as on 10.6.994 itself, the State Government took a policy decision to abolish the Tribunal and sent a letter requesting the Central Government to amend the Administrative Tribunals Act, 1985, empowering the Central Government to abolish the Tribunal as it is not required by the concerned State Government. This proposal again was reminded on 12.6.2001 through letter. On 26.7.2002, the Central Government intimated the State Government that the proposal sent by the State Government has been approved by the Central Cabinet and for the purpose of carrying out the amendment, the Bill is being placed before the Parliament. Draft Bill also was sent by the Central Government to the State Government, which in turn communicated the concurrence to the draft Bill and the same was sent after consultation and approval from the High Court. From this, it is clear that the policy decision taken by the State Government on 10.6.1994 to abolish the Administrative Tribunal was sent to the Central Government and the Central Government also approved the same and draft Bill was prepared and was placed before the Parliament. So, in regard to the decision to abolish the Tribunal, there is no controversy either from the State Government or from the Central Government.
(2) After the judgment of the Supreme Court dated 17.9.2004 reported in JT 2004(7) S.C.548 (M.P. HIGH COURT BAR ASSOCIATION v. UNION OF INDIA), in which it was observed that the State Government could take a decision to abolish the State Tribunal and on receipt of such decision, the Government of India would publish a Notification abolishing the State Tribunal, the State Government on the basis of the opinion obtained from the Advocate General, sent a letter to the Central Government stating that amendment to the Act is unnecessary in the light of the observation made by the Supreme Court and Notification of the Central Government would suffice for abolition of the Tribunal and requesting for the issuance of Notification.
9. In the light of the above fact and legal situation, let us now deal with the first question.
10. According to the counsel for the writ petitioners, Notification would not suffice and the Tribunal could be abolished only through the amendment to be brought in Parliament and as it would take some time, the vacancies are to be filled up to allow the Tribunal to function effectively.
11. Arguing contra, the learned Advocate General appearing for the State Government would submit that the Notification by the Central Government is sufficient and the early Notification on the proposal of the State Government will solve the issue in question.
12. As a matter of fact, both the State Government and Central Government originally took the stand that the policy decision taken by the State Government to abolish the Tribunal which is accepted by the Central Government was to be carried out by suitable amendment for abolition of the Tribunal. But, only after pronouncement of the Supreme Court judgment in J.T.2004(7) S.C.548 (supra), the State Government has now taken up a stand that after obtaining approval from the High Court administratively and also after getting opinion of the Advocate General, it sent a requisition to the Central Government to issue Notification as in its view that it would suffice to abolish the Tribunal.
13. Let us now consider the question as to whether the observations made by the Supreme Court would support the plea of the State Government.
14. The following are the relevant observations of the Supreme Court:
(A)Once we hold that it is within the power of the State Government to continue or not to continue State Administrative Tribunal, it is open to the State Government to take such a decision. After the decision of this Court in L.Chandra Kumar, an aggrieved party could approach the High Court, the object for establishment of the Tribunal has been defeated. It is amply clear that relevant, germane, valid and proper considerations weighed with the State Government and keeping in view development of law and the decision of the larger Bench of this Court in L. Chandra Kumar, a policy decision has been taken by the State Government to abolish State Administrative Tribunal. The decision, in our opinion, cannot be regarded as illegal, unlawful or otherwise objectionable.
(B) The Administrative Tribunal was to be created for a particular State. Neither under Article 323A of the Constitution nor under the Administrative Tribunals Act, 1985, the Central Government could have created such Tribunal except in accordance with the provisions of sub-section (2) of Section 4 of the Act. The Central Government could exercise the jurisdiction, power and authority conferred on the Administrative Tribunal for the State by or under the said Act only "on receipt of a request in this behalf from any State Government". Essentially therefore, it was on the request made by the State of Madhya Pradesh to the Central Government that the power to create and establish Administrative Tribunal in the State of Madhya Pradesh was exercised by the Central Government and the Tribunal was established. We, therefore, see no objection in conferring the power on the State Government to continue or to abolish such Tribunal.
(C) In view of the subsequent development of law in L.Chandra Kumar, the State of Madhya Pradesh felt that the continuation of State Administrative Tribunal would be "one more tier" in the administration of justice inasmuch as after a decision is rendered by the State Administrative Tribunal, an aggrieved party could approach the High Court under Article 226/227 of the Constitution of India. Hence, it felt that such Tribunal should not be continued further, in our opinion, it cannot be said that such a decision is arbitrary, irrational or unreasonable.
(D) It cannot be said that once a Tribunal is constituted, created or established, there is no power either in the Central Government or in the State Government to abolish it. There is no constitutional or statutory prohibition against exercise of such power.
15. The above observations made by the Supreme Court would make it clear that once the State Government takes a policy decision to abolish the Tribunal, it is open to the State Government to request the Central Government to abolish the Tribunal and if such a request is made, the Central Government has no option but to issue a Notification. As a matter of fact, the Madhya Pradesh High Court in A.K.SHRIVASTAVA v. UNION OF INDIA (2002 M.P.L.S.R.646) relating to the abolition of Tribunal, held that it is open to the State Government to take a decision to abolish the State Administrative Tribunal and once it takes a decision, it is open to the State Government to request the Central Government to abolish the State Administrative Tribunal and if such a request is made, the Central Government has no option but issue a Notification. In Madhya Pradesh case, the Notification abolishing the Tribunal was made by the Madhya Pradesh Government and it was quashed on the ground that the State Government can only take a decision and an actual Notification should be made only by the Central Government. Challenging one portion of the judgment of the Madhya Pradesh High Court which held that it would be permissible for the State Government to take a decision to abolish the Tribunal, the Madhya Pradesh Bar Association filed an S.L.P. before the Supreme Court. However, the Supreme Court has upheld the view of the Madhya Pradesh High Court and held that it would be open to the State Government to take a decision to abolish the State Administrative Tribunal, but it cannot issue Notification and it has to request the Centre to issue a Notification for abolition of the Tribunal without waiting for any other formality and thereupon, the Central Government has to issue such a Notification.
16. Though it is referred to by the Additional Solicitor General appearing for the Central Government, the first respondent herein regarding the scope of Section 74 of the Madhya Pradesh Reorganisation Act, in our view, the said issue may not be relevant for the issue to be decided in this case. Admittedly, the analogous provision of Section 74(1) of the Act is not available in the instant case. Similarly, no specific procedure has been provided for abolition of a Tribunal in the Administrative Tribunals Act.
17. In this context, Section 21 of the General Clauses Act, 1897 would be relevant. Section 21 of the General Clauses Act runs as under:
"Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.--Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
18. The above section would indicate that the power to create includes the power to destroy, and also the power to alter what is created. In other words, the power to rescind a notification is inherent in the power to issue the notification. As such, the specific provision regarding the power to vary, amend, or rescind notification etc. could also be made in the Act itself. It is also well settled that where the specific provision is made in the Act itself, the specific provision would prevail and in that case there is no need to invoke Section 21 of the General Clauses Act. Since there is no provision at all in the Administrative Tribunals Act regarding the mode of abolition of the Tribunal, in our opinion, the provisions of Section 21 of the General Clauses Act would apply. If any notification issued by the Government is to be rescinded by virtue of the powers given under Section 21 of the General Clauses Act, such power to rescind the notification must be exercised in like manner and subject to the like sanction and condition as in the case of issuing the notification.
19. In view of the above circumstances, we are of the considered opinion that since no mode to rescind the notification establishing the Tribunal has been provided in the Administrative Tribunals Act, the provisions of Section 21 of the General Clauses Act will have to be invoked for rescinding the Notification earlier issued establishing the Tribunal.
20. Admittedly in this case, the Notification for establishment of Tribunal was issued on the basis of the request from the State Government under Section 4(2) of the Administrative Tribunals Act by the Central Government. In the same way, on the basis of the request made on behalf of the State Government, the Central Government may issue a Notification rescinding the earlier Notification establishing the Tribunal. In this case, the State Government already made a request on the basis of the policy decision to abolish the Tribunal. It is admitted that such policy decision also has been approved by the Central Government. Since the correspondence referred to above would indicate that the Central Government has already accepted the request of the State Government and in consequence thereof, it is under its obligation to issue Notification rescinding the earlier Notification whereby the Tribunal was established.
21. A similar view has been expressed by the Madhya Pradesh High Court in the very same decision (A.K.SHRIVASTAVA v. UNION OF INDIA, 2002 M.P.L.S.R.646) which has been confirmed by the Supreme Court in JT 2004(7) SC 548 (supra). As a matter of fact, some of the observations made by the Madhya Pradesh High Court were referred to by the Supreme Court in the said decision by affixing the seal of approval. The relevant observations by the Supreme Court referring to the observations by the Division Bench of Madhya Pradesh High Court are as follows:
"It was then contended that once the power to constitute a Tribunal had been exercised, Parliament was denuded of any power to make any legislation providing for abolition of such Tribunal. The Division Bench negatived the contention and observed:
"It is difficult to swallow that Parliament after enacting law on a particular subject shall have no power to amend, modify or repeal the same. The power of the Parliament, in our opinion, does not exhaust by enactment of any law and we are of the considered opinion that Parliament can make law in relation to a subject for which it has the legislative competence, notwithstanding the fact that law on a particular subject was enacted by the Parliament earlier. The theory of exhaustion is unknown so far as the legislative powers are concerned. What Parliament has done, Parliament can undo."
The above observations, in our view, are in consonance with law and lay down correct proposition of law."
22. A careful reading of both the Madhya Pradesh High Court judgment and the Supreme Court judgment would clearly indicate that it cannot be said that once a Tribunal is constituted, there is no power either in the Central Government or in the State Government to abolish it. There is no constitutional or statutory prohibition against exercise of such power. To put it in nutshell, the Parliament which allowed the State Government to request the Central Government for establishment of an Administrative Tribunal under the 1985 Act has authority, power and jurisdiction to enable the State Government to take an appropriate policy decision to continue or not to continue such Tribunal and the provision authorising the State Government to abolish such Tribunal cannot be held to be impermissible or inconsistent with the law laid down by the Supreme Court in L.Chandra Kumar's case.
23. This could be viewed from yet another angle as pointed out by the Supreme Court. Article 323A does not create or establish Administrative Tribunals. It is merely a permissive or an enabling provision allowing Parliament to make law to establish Administrative Tribunal if it wishes to do so. Thus, there is no binding requirement on the part of the Parliament (or State Legislature) to create such a forum as contemplated by Article 323A of the Constitution of India.
24. Neither under Article 323A of the Constitution nor under the Administrative Tribunals Act, 1985, the Central Government could have created such Tribunal except in accordance with the provisions of sub-section (2) of Section 4 of the said Act. The Central Government could exercise the jurisdiction and power to create Administrative Tribunal for the State by or under the said Act only "on receipt of a request in this behalf from any State Government". Essentially therefore, it was on the request made by the State Government to the Central Government that the power to create the Tribunal was exercised by the Central Government and consequently, the Tribunal was established. We, therefore, see no hurdle in conferring the power on the State Government to take a policy decision to continue or to abolish such Tribunal. When such power is exercised by the State Government, the Central Government, as pointed out by the Supreme Court, has no other option except to accept the request and to abolish the Tribunal through Notification.
25. In the light of the above discussion, the following things are clear:
(i) The State Governments have got powers to take a decision to abolish the Administrative Tribunals.
(ii) On such decision, the State Governments will have to address the Central Government for issuing Notification.
(iii) Only on the issuance of Notification by the Central Government, the State Tribunals shall cease to function.
(iv) In view of the judgment pronounced by the Supreme Court of India reported in J.T.2004(7) S.C.548 and in the light of the provisions Section 21 of the General Clauses Act, there is no need to introduce draft Bill before the Parliament for abolition of the Administrative Tribunal.
26. Admittedly, there is no material placed by the petitioners to show that the policy decision taken by the State Government as early as in the year 1994 to abolish the Tribunal is not based on the sound reasonings. On the other hand, the decision taken by the Government in 1994 has never been challenged till now. Even in the writ petitions filed by the petitioners, the only contention raised by the petitioners is that amendment is necessary and as it would take time, the vacancies are to be immediately filled up. As such, it is not the case of the petitioners that the Tribunal should not be abolished ever nor the decision taken by the Government to abolish the Tribunal is wrong.
27. When a policy decision was taken to abolish the Tribunal, which is not questioned and when the constant efforts are taken by the State Government to pursue the Central Government to take steps to abolish the Tribunal through continuous periodical correspondence, we are not inclined to compel the State Government to fill up the vacancies by appointing the Presiding Officers in the Tribunal.
28. In the light of Chandra Kumar's case wherein it was held that the Tribunal is not a substitute and it is only a supplemental and in the light of the judgment of the Supreme Court in Madhya Pradesh Bar Association case, wherein it is held that once the policy decision is taken by the State Government to abolish the Tribunal, the State Government can request the Central Government to issue Notification intimating the said proposal of policy decision and on the basis of that, the Central Government has to issue a Notification for abolition, we deem it appropriate to direct the Central Government to issue such Notification as there is no necessity for the Central Government to wait for the amendment before the Parliament and the mere issuance of Notification would suffice for abolition of the Tribunal. In our considered opinion, that alone would be proper, as the constitution of the Tribunal was made through the Notification of the Central Government in pursuance of the request by the State Government and in the same way, the Tribunal can be abolished on the request of the State Government through Notification. The first question is answered accordingly.
29. In regard to the second question relating to the direction to fill up the vacancies in the Tribunal, it is to be stated, as indicated above, that when we directed the Central Government to issue a Notification for abolition of the Tribunal on the basis of the request for the same on the strength of the policy decision of the State Government, it is unnecessary for us to give a direction to fill up the vacancies. Therefore, the prayer contained in the second question need not be granted.
30. To sum up:
(1) Since the request with the proposal for abolition of the Tribunal sent by the State Government with approval of the High Court and opinion of the Advocate General, dated 11.2.2005 has already been accepted and approved by the Central Government, the Central Government, the first respondent herein is directed to issue Notification abolishing the Tribunal without waiting for any other formality, within one month from the date of receipt of this order.
(2) Once a decision has been taken by the State Government to abolish the Tribunal which has been approved by the Central Government and once we issue direction to the Central Government to issue necessary Notification within one month, there is no need for direction to appoint the Presiding Officers in the Tribunal.
3) Subsequent to the Notification, within two weeks thereafter, all the pending cases and records in the Tamil Nadu State Administrative Tribunal are directed to be sent back to the High Court.
31. With the above observations, all the writ petitions are disposed of. Consequently, connected W.P.M.Ps. are closed.