Orissa High Court
Shri Ras Bihari Mohapatra vs Union Of India (Uoi), Represented By The ... on 16 May, 1996
Equivalent citations: 1996(II)OLR134
Author: A. Pasayat
Bench: A. Pasayat, A. Deb
JUDGMENT A. Pasayat, J.
1. Justice delayed is justice denied, and If the cause of delay is absence of Presiding Officers of the Court or Tribunal, the situation becomes still more alarming and critical is the main refrain in this writ application filed by an Advocate- of the Orissa High Court. Though the prayer on a surfacial reading appears to be very innocuous, several aspects of seminal importance are involved which need elaborate consideration, as recital of the factual position would indicate.
2. Orissa Administrative Thribunal (in short. 'Tribunal') was constituted on the Administrative Tribunals Act, 1985 (in short, 'the Act)coming into force. The object of enactment of the Act was to 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 any Corporation or Society owned or controlled by the Government in pursuance of Article 323A of the Constitution of India, 1950 (in short, 'the Constitution'), and for matters connected therewith or incidental thereto. The establishment of the Administrative Tribunals under Article 323 was found imperative as a large number of cases relating to service matters were pending before various Courts. The expectation was that establishment 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 persons covered by the Tribunals speedy relief in respect of their grievances.
3. Petitioner makes a grievance that the object underlying establishment of the Tribunals has been frustrated, because requisite number of members to man the Tribunal have not been appointed, resulting in accumulation of alarmingly large number of cases. Grievance is made that speedier justice was the object, and the same has not been achieved because of non-filling up of the posts of Vice-Chairman and Members of the Tribunal, In the aforesaid background, prayer is made for a direction to the State Government to fill up the vacancies, or in the alternative to direct abolition of the Tribunal and transfer of the cases to the High Court. An incidental prayer has also been made that in case the Tribunal is abolished and the cases are transferred to the High Court, more number of Judges should be appointed in the High Court and special Benches should be constituted to hear the service matters. Certain incidental matters were highlighted which we shall deal with infra.
4. No counter-affidavit has been filed by the State. When the matter was taken up for disposal, learned Advocate-General appeared for the State and submitted that necessary steps are being taken to avoid the impasse created by non-filling up of the posts. He, however, fairly stated that the Tribunal has failed to achieve its objectives not only because of non-filling up of the posts of Vice-Chairman/Members, but also because of procedural wrangles. Many senior Members of the Bar sought for our permission to assist the Court in the sensitive matter, and to highlight many aspects which according to them have nexus with effective functioning of the Tribunal. We have heard them at length and pursuant to the direction given on 24-4-1996 memorandums have been filed by many learned counsel and copies of the same have been exchanged.
5. In the background of Article 21 of the Constitution, it has been observed that speedier trial is an obligation of the State, and any unwarranted delay constitutes arbitrariness, and therefore, is violative of Article 14. In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar. Patna: AIR 1979 SC 1360, it was observed that delay in trial by itself constitutes denial of justice. The fundamental right to a speedy public trial extends to all nature of cases. The constitutional right of the accused to a speedy public trial in all criminal prosecutions now flowing from Article 21 by virtue of precedential mandate is identical in content with the express constitutional guarantee inserted by the 6th Amendment in the American Constitution. Speedy, i. e., reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21, as was observed by the apex Court in Hussainara Khatoon's case (supra) and in State of Maharashtra v. Champalal : AIR 1981 SC 1675. The right to a speedy trial may not be an expressly guaranteed constitutional right in India, but it is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21. Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be denied a fair trial. A fair trial implies a speedy trial. It means reasonably expeditious trial. Expeditious disposal of a dispute is the inherent desire of any litigant
6. Grievance is made that the difficulties encountered by the litigants are due to non-filling up of the posts of Vice-Chairman and Members in the Tribunal. Factually it is pointed out that against the sanctioned strength of six Members including one Chairman and two Vice-Chairmen, presently three Members including one Chairman and one Vice-Chairman are functioning and the said Vice-Chair., an is to retire in few months time. No clear guidelines have been laid down regarding selection of the Members and the procedure for appointment of Vice-Chairman and Members of the State Administrative Tribunal as. indicated in the order dated 27-5-1993 of the Government of - India, Personnel, Public Grievances and Pensions Department of Personnel and Training is not adequate. Though the vacancies exist for a long time, not a single meeting has been convened for meeting of minds relating to selection. It is contended that the constitution of Selection Committee of the concerned State Government has been indicated in paragraph I of the aforesaid Order dated 27-5-1993. Counsel after counsel made a grievance that the Tribunal has become a rehabilitation centre of retired or shortly to be retired bureaucrats, as a result of which functioning of the Benches at Cuttack and Bhubaneswar leave much to be desired. In spite of directions by the apex Court on many occasions permanent Benches have not yet been constituted, so far as Cuttack is concerned. With reference to certain documents filed, it is contended that even orders on matters numbering 300 are listed on some days and only a few are disposed of. That leaves the admission and hearing matters almost untouched "for months/years together. Necessity of judicially trained personnel being appointed in the Tribunals was indicated in no uncertain terms by the apex Court in S.P. Sampath Kumar v. Union of India : AIR 1987 SC 388. A few cases concerning functioning of the Tribunal had come before this Court and the apex Court. Clear directions were given about its functioning, which unfortunately do not appear to have been kept in view. There is dispute about the number of days on which the Chairman, Vice-Chairman and Members are to hold Courts. Presently equating themselves to High Court Judges, they are functioning only on 210 days, which it is submitted is founded on erroneous premises.
7. It is to be noted here that the Orissa Administretive Tribunal (Procedure) Rules, 1986 (in short, 'the Rules') framed in exercise of powers conferred by Clauses (d), (e) and (f) of Sub-section (2) of Section 5 and Clause (c) of Section 36 of the Act provide in Rule 15 (2) that every application shall be heard arid decided, as far as possible within six months of the date of its presentation. This emphasises the sense of urgency which was in the minds of all concerned. It was felt necessary that the applications filed are to be disposed of expeditiously, keeping in view the object of enactment of the Act. Sadly the expectation has been belied.
8. Pendency position at Bhubaneswar as indicated by learned Members of the Ber shows that there are 31,295 cases out of which the cases pending for more than two years are more than 14,000, and at Cuttack it is more than 9,000. Number of cases pending for more than three years and up to 10 years forms the major bulk. This itself is apparently indicative of the fact that the Tribunal has failed to achieve the objective of its creation. Unless as rightly contended by the petitioner and the learned Members of the Bar, the vacancies In the Tribunal are filled up, the situation would become uncontrollable.
9. Justice parts company with jurisprudence when law quarrels with life. Justice is the goal of jurisprudence. It should be rooted in confidence, and confidence is destroyed when a litigant feels that even he succeeds in the litigation he cannot enjoy the fruit of success. Faith of the people is the saviour and succour for the sustenance of the rule of law, and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The primary object for which the Courts exist is to do justice between the parties. Justice is the virtue by which we give to every man what is his due, opposed to injury wrong. Justice is the dictate of right, according to the conscience mankind generally, or the ideas of those who may be governed by the same principles or morals, or the consent of that portion of mankind who may be associated in one goal, that is, the members of the community. It involves the idea of (a) punishment of offences, (b) the giving to a person of what is due to him, and (c) the impartial adjustment of disputes on principles approved by the community. The concept of giving a person what is due to him would essentially include the idea of giving to that person what is due to him expeditiously without unreasonable delay. If what is due to him is withheld unreasonably or unexpectedly the litigant may not get the real benefit of such giving. It would be a case of death of a patient, though the operation is successful. A litigant would lose patience if he has to move the corridors of justice without any noticeable progress of the adjudicatory process. Justice cannot be made to move at a snail's pace for reasons unconnected with the process of dispensation of justice Justice' says Vattel, 'is the basis of a state; a sure bond of ail commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer anything but a vast scene of robbery, if there were no respect of this virtue, which secures to everyone his own......'. 'Justice, the establishment and enforcement of which is the object of ail laws, is a comprehensive term, in which are included the three great objects for which governments among men are instituted. It is said,'Justice is blind'. Can justice by paralysed by inaction is the core question, which falls for consideration.
10. It is fairly accepted by the learned Advocate-General that there has been delay in filling up the vacancies in the Tribunal. According to him, originally the constitution of Tribunal was with one Chairman, one Vice-Chairman, and two Members--one administrative and one judicial. , Two more posts were subsequently created, t. e., one Vice-Chairman and one Member. With reference to the Order of the Government of India dated 27-5-1993 to which we have already referred to, it is submitted that since four high placed functionaries of the Judiciary and the Executive are involved in the process of selection, it takes time because only a person fit to hold the high office has to be selected. He could not, however, point out who is to convene the meeting of Selection Committee, and no reason could be pointed out as to why the meeting has not been convened for so long. It was pointed out by some of the Members of the Bar that in the past the Chief Secretary used to convene the meeting. A meeting was convened which was adjourned, and thereafter no meeting has been held and the process of selection has not stalled. .The executive is expected to approach the Chief Justice when the appointment is to be made for taking the steps to initiate the proposal, and procedure should be the same as for appointment of a High Court Judge. . That would give greater credibility to the appointment made. (See Ashish Handa. Advocate v. Hon'ble the Chief Justice of High Court of Punjab and Haryana and Ors. : 1996 (2) SCALE 771). As observed by the appex Court in R.K. Jain v. Union of India and Ors. : AIR 1993 SC 1769, 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 justice delivery system in which the litigating public has faith and confidence alone can deliver the goods.
It is stated by the learned Advocate-General that steps are being taken to fill up the vacancies within four months and he fairly stated that if we give a direction to fill up the vacancies, within four months that would be appropriate. The suggestion is very fair.. But what has surprised us is the statement made at the Bar that a person who was selected to be a Member of the Tribunal refused to accept the appointment on the apprehension that he was likely to be posted at Cuttack and not at Bhubaneswar. If true, it is shocking. In recent days the High Court Judges are transferred from one State to another. One of us (Hon'ble A. Deb, J.) has recently been transferred from Gouhati to Orissa. Presently four Judges of this Court have been transferred to act as Judges in Calcutta, Gauhati. Andhra Pradesh and Kerala High Courts. In fact the present Chairman of the Tribunal was transferred from this Court to Allahabad High Court. We find no reason, if what is stated is true, for insistence on being posted at Bhubaneswar. It is stated that Chairman has the power to transfer a Member from one Bench to another. Nothing should stand on his way for transferring a Member for proper functioning of the Tribunal, for effective dispensation of justice. It is highly desirable that persons suitable to hold the high office, which requires dispensation of justice should be selected. All possible care and caution should be taken to ensure that persons suitable to hold the office are selected. Otherwise irreparable damage will be caused to the credibility of the institution, as most important is the dignity and honour of the institution. It is submitted by the learned Members of the Bar that neither the Chairman nor the Vice-Chairman nor Members stand in the same footing as Judges of High Court. The position has been stated by the apex Court in M. B. Majumdar v. Union of India '. AIR 1990 SC 2263. It is irrelevant whether they are equivalent to the High Court Judge or not. They are part of the justice dispensing system. Any judicial officer, be it at the lowest rung of the ladder or at the top of it, is a part of the judicial system which plays the most vital role in a democratic State. It is stated that while a person is known by the company he keeps, a country is known by the Judiciary it has.
11. We, therefore, direct that within four months all the vacant posts be filled up. But while doing so due care and caution should be taken to see that undesirable persons are not selected, who would otherwise cause immense damage to the image of the office, and intrinsically the judicial system. It is submitted by the learned Members of the Bar that even after declaration of Section 6 (1) (c) of the Act to be illegal and its striking down by the apex Court in Sampath Kumar's case (supra), a conjoint reading of Sub-sections. (1) and (2) of Section 6, of the Act throw upon the possibility of an Administrative Member who is later on appointed as Vice-Chairman, becoming the Chairman. Even if this plea is accepted for the sake of argument, such appointment cannot be made in view of what has been stated in paragraphs 4 and 20 of the Judgment in Sampath Kumar's case (supra). As was observed in Sampath Kumar's case (supra). Tribunal is to be manned by competent persons so that reputation and acceptability of the institution can be built up. What is expected of them is working with all openness in an unattached and objective manner. Discipline and independence of view are hallmarks of a person dispensing justice. In the absence of any material to substantiate the plea that there is deficiency in functioning, we do not accept the plea in that regard. It. however, needs no emphasis that quality is the expected hallmark of persons manning the Tribunal. Apex Court in R. K. Jain's case (supra) has observed that time is ripe for taking stock of the working of the various Tribunals set up in the country after the insertion of Arts. 323-A and 323-B of the Constitution. Functional fitness and optitudinal approach are fundamental for efficient judicial adjudication. Then only as a repository of confidence, as its duty, the Tribunal would function properly and efficiently.
12. So far as appointment of Vice-Chairman and Judicial Members is concerned, it is submitted that in order to become Judicial Member, the eligibility criteria is that the person concerned is or has been or; is qualified to be a Judge of a High Court. It is stated that in respect of a person who is or has been a Judge of the High Court there can be no difficulty in selection. But no criteria has been fixed for a person who is qualified to be a Judge of a High Court. Article 217 of the Constitution provides as to who is qualified for appointment as a Judge of the High Court: Clause (2) provides that a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India, or has for at least ten years been an advocate of a High Court. As was clarified by the apex Court in Prof. Chandra Prakash Agarwal v. Chaturbhuj Das Parikh and Ors. : AIR 1970 SC 1061 an advocate practising in the Courts other than the High Court is also encompassed by the expression advocate of a High Court. This is the position in view of the provisions of Advocates Act. 1951. It, therefore, becomes a difficult task to consider the cases of those who are qualified to be High Court Judges. There must be some rationale in the selection. It is the stand of learned Advocate-General that since the Hon'ble the Chief Justice of the Court is involved in the process of selection, it is expected that proper persons would be selected. It was suggested by some learned Members of the Bar that white making appointment to the post of Vice-Chairman priority should be given to a parson, who is or has been a Judge of the High Court because of his tested merit and abilities. This is an aspect which is to be considered by the Selection Committee while making the selection.
13. So far as functioning of the Benches is concerned, it is an accepted position that certain directions have been given by the apex Court as regards functioning of the Benches. (See Dhuliram Pattnaik and Anr. etc. v. Union of India and Ors. : 71 (1991) CLT 853, and order of the apex Court dated 3-9-1991 in S L. P. No. 13498 of 1991, and in State of Orissa etc. v. Dhuliram Patnaik and Ors. : 74 (1992) OLT 647 (SC). There is no dispute that the directions given by this Court and the apex Court are to be followed. It is desirable that those should be carried out with immediate effect in case those have not been carried out. We are making this direction without going into the question whether there has been any violation of any order, warranting action for non-compliance.
14. So far as number of days on which the Benches of the Tribunal are to function is concerned, it is fairly accepted by the learned Advocate-General that the Presidential mandate that High Court Judges shall work for 210 days annually is not applicable to the Tribunal. It is the Chairman of the Tribunal who has - to fix up the number of working days and timings of the Tribunal. Though Rule. 25 of the Rules deals with working hours of the Tribunal, and Rule 26 deals with sitting hours of the Tribunal, there is no specific provision as to the number of days on which the Benches are to function. It is logical to conclude that the Benches have to function on all working days of the Tribunal, i. e., except Sundays, public holidays and the vacations to be notified by the Chairman.
15. in Amulya Chandra Kalita v. Union of India : (1991) 1 SCC 181, it was observed by the apex Court that the Administrative Member of Tribunal alone is not competent to hear and decide a case. Subsequently in Dr. Mahabal Ram v. Indian Council of Agricultural Research : (1994) 2 SCC 401, it was opined by the apex Court that any matter involving questions of law or interpretation of constitutional provision should be assigned to a two-Member Bench and parties can request the single Member to refer the matter to a larger Bench of two Members and such request should ordinarily be accepted. Various questions relating to the interpretation of Sub-section (6) of Section 5 of the Act and correctness of the decision in Sampath Kumar's case (supra) is under consideration of the Constitution Bench on a reference being made to such Bench. (See L.Chandra Kumar v. Union of India and Ors. : AIR 1995 SC 1151).
16. A grievance is made that the Tribunal is functioning without adequate space to accommodate the court room. Chambers and office. This is an aspect which the State Government shall consider, on the Chairman moving the State Government in that regard. This is an administrative matter which can be sorted out by effective communication.
17. A faint plea was taken about lack of quality in the working of the Tribunal. We are not inclined to go into that aspect. Persons selected to hold high offices are presumed to act bona fide to the best of their ability, and in the greatest interest of the institution. All that can be said by us as an observation is that any Court or Tribunal must have the atmosphere conducive for effective dispensation of justice. We find no reason to accept the stand that the same is not the case in the Tribunal. It is the duty of all concerned to see that litigants do not come away with the feeling that they had been to a fish market and not to a Court of Justice.
18. So far as dissolution of the Tribunal is concerned, this is an aspect for which no direction can be given. It is for the Legislature to consider whether an institution created by a statute deserves to be dissolved, having failed to achieve its objective. While deciding that question, relevant facts like the object of its creation and results achieved are to be taken note of.
19. We dispose of the writ application with the directions and observations as aforesaid. It is undertaken by the learned Advocate-General that after four months a report shall be submitted to this Court regarding the actual position relating to tilling up of the vacanies, and compliance with other directions. We record our appreciation for the fair and valuable suggestions given by the petitioner, who appeared in person, learned Advocate-General, learned Senior standing Counsel (Central) and other learned Members of the Bar. and for points taken to furnish large number of datas.
A. Deb, J.
I agree.