Law Commission Report
Review Of Functioning Of Central Administrative Tribunal
LAW COMMISSION OF INDIA ONE HUNDRED SIXTY SECOND REPORT REVIEW OF FUNCTIONING OF CENTRAL ADMINISTRATIVE TRIBUNAL; CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL AND INCOME-TAX APPELLATE TRIBUNAL 1998 ,___. D.O.No.6(3)(21)/93--LC(LS) LAW COMMISSION OF IND}.-5 SHASTFH BHAWAN NEW DELHI -110 001 TEL. : 3384475 .'.JSTiCE B. P. JEE'./AN REDDY 31"-airman Law C.:'nm!.~;~.~v. n r' r .:.-\:3 August 14, 1998 Dear Dr.M.Thambi Durai, I am forwarding herewith the One Hundred Sixty Second Report on "Review of functioning of Central Administrative Tribunal; Customs, Excise and Gold (Control) Appellate Tribunal and Income--tax Appellate Tribunal". 2. The Hon'ble Supreme Court of India in the case of R.K.Jain Vs Union if India, (i993)4 SCC 119 directed the Law Commissirn to make a comprehensive study of the functioning of the several tribunals in India and to suggest measures «or their improved functioning. It observed that the Commission may also suggest .ges in the different statutes and evolve a model on basis whereof tribunals may be cinstituted or nstituted with a view to e sure greater pendence. An extract of the relevant observations set out under paragraphs 1.1 and 1 2 of the report in this regard. 3. The previous Commissions, accordingly, took up the t e' for consideratica, prepared a 'Fues . 7 i.e' and a 'Revised Additional Questionnaire' and circulated the same for opinion to all concerned persons, departments and authorities. It received opinions, suggestions and comments from various quarters which have been duly considered by the Commission. A The Crmmission would have submitted its report an the year 1996 itself but for the fact that it was brought to its notice that the issue relating to the functioning of Administrative Tribunals and the validity of Articles 323--A and 323-8 of the constitution of India had been referred to a larger Constitution Bench for consideration and that the same was then pending. e "en--Judge Constitution Bench of the 3 s since delivered its judgment in E; Chandra .umar Vs. Union of India, (i997)3 SCC 26? ' ex ly significant and relevant for the purpose of this study and has accordingly been kept in mind while preparing this report. 6. when the Commission had initiated the study pursuant to the observations in R.K.Jain's case (supra), it devoted its attention to three types of tribunals, namely, (i) Administrative tribunal, /I ha» /'Z ....2/- constituted under the Administrative Tribunals Act, 1385, (ii) The Custcms, Excise and Gold (Control) Appellate Tribunal, and (iii) The Income Tax Appellate Tribunal. 7. The Commission decided that it would be appropriate and convenient to examine the functioning of each of these types of tribunals separately. 8. The Commission is of the considered opinion that the radical changes recommended in the report need to be taken immediately to achieve the reforms in the working of the Central Administrative Tribunal, Central Excise and Gold (Control) Appellate Tribunal, and Income Tax Appellate Tribunal to attain a sound justice deli ery system which is sine Qua non for the efficient governance of a country wedded to the rule of law. 9. Finally, we wish to express our appreciation for valuable help received from Shri Sushil Kumar, Additional Law Officer, in drafting of this 'eport and assisting the Ccmmission right through. r'\ Dr.M.Thambi Durai, Hon'b'e Minister for Law, Justi.e and Company Affairs, Shast:i Bhcwan, New Delhi. CHAPTER I CHAPTER II CHAPTER III (PART I) (PART 11) CHAPTER IV CHAPTER V CHAPTER VI CHAPTER VII ANNEXURE-I ANNEXURE-II CUSTOMS, INTRODUCTION CONTENTS THE PURPOSE OF ADMINISTRATIVE LAW 1962 EXCISE AND GOLD ADMINISTRATIVE REMEDIES IN OTHER COUNTRIES AND IN INDIA ADJUDICATION MACHINERY UNDER THE CUSTOMS ACT, CENTRAL ADMINISTRATIVE TRIBUNALS (CONTROL) APPELLATE TRIBUNAL (CEGAT) INCOME TAX APPELLATE TRIBUNAL (ITAT) CONCLUSION LETTER DATED 29TH APRIL, LETTER DATED AUGUST, 1995 1994 PAGES 1-10 11-12 13-58 59-75 76-130 131-139 140-144 145-163. 164 (i--x1x) 165 (1-xxi) ._A CHAPTER - I Introduction The Supreme Court of India in the case of ?.K.Jaih Union of India, (1993) 4 SCC 119 {A.M.Ahmadi, J.
.peaking for himself and M,M.Punohhi. J. (as they then III of the functioning of the several tribunal'
-x"-Jlve .3 model on the basis whereof tri|:nur~als rriay «ituted or reoonstituted with a view to ensur :ted the Law Commission to make a comprehensive I .1.
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and to suggest measures For their improved hing. It was observed that the Law Commission of so suggest changes in the different statut III II! (-7 IT» FD independence. It would be app'opriate to set out event observations made in the srid -eoision:--
"8. L::tly, the time is ripe for taking stock of the working of the various tribunals set up in the country after the insertion of Articles 323-4 nnfi 323-E in the Constitution. A sound justice delivery system is a sine qua non for the efficient governance n. a country wedded to the 'ule of law An independent and impartial justice delivery system .n which the litigating public has sith and confidence :lone can deliver the goods.
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Articles, Acts have been enected~ whereunder tribunals have been constituted for dispensation of justice. Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they 'were constituted. Complaints have been heard in regard to the functioning of other tribunals as well and it is time that a bodx_like the Law Commission of India has a comprehensive look--in with a view to suggesting measures for their improved functioning, That body can also. suggest changes in the different statutes and evolve a model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater independence. An intensive and extensive study needs to be undertaken by the Law Commission in regard to' the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the duality" of their performance may_improve. We strongly recommend to the Law Commission of India to undertake such an exercise on prioritx_ basis. A copy of this judgment may be forwarded by the Registrar of this Court to the Member--Secretary of the Commission for immediate action;"
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r 1.2 To the same effect are the observations of K.Ramaswamy, J. who deiivered a separate concurring judgment in the 'said decision. The learned Judge observed --
"Before parting with the case it is necessary to express our anguish over the ineffectivity of the aiternative mechanism devised for judiciai reviews. The judiciai review and remedy are .fundamenta1 rights of the citizens; The dispensation of justice by the tribunais is much to be desired. We are not doubting the abiiity of the members or Vice--Chairman (non--Judges) who may be experts in their reguiar service. But judicial adjudication is a special process and wouid effecientiy be administered by advocate Judges. The remedy of appeai by speciai ieave under Articie 136 to this Court aiso proves to be costiy and prohibitive and far--f1ung distance too is working as constant constraint to Titigant pubiic who couid iii atford to reach this Court. 53 appeai to a Bench of two Judges of the respective High Courts over the orders of the tribunais within its territorial jurisdiction on questions of law wouid assuage a growing feeiing of injustice of those who can iii afford to approach the Supreme Court. __Eoua11y the need for / / recruitment of members of the Bar< to man the tribuna1s as we11 as the working system of the tribunais need fresh 1ook and regu1ar monitoring is necessary. I An expert body iike the Law Commission of India wouid make an in--depth studx in this beha1f inc1uding the desirabiiity to bring CEGAT under the contro1 of Law and Justice Department in line with Income Tax ApDe11ate Tribunal and to make appropriate urgent recommendations to the Government of India who shouid take remedia1 steps by an appropriate iegisiation to overcome jthe handicaps and difficuities and make the tribunais effective and efficient instruments for making judicial review efficacious; inexpensive and satisfactorx."
1.3 The Law Commission of India accordingiy took up the matter for consideration, prepared a 'Questionnaire' and a 'Revised Additionai Questionnaire' Annexures I & II respectiveiy) and circu1ated the same for opinion to a1} concerned persons, departments and authorities. The response has been 'quite encouraging. It has received opinions, suggestions and comments from various sources which have been duiy considered by the Commission. 1.4 The Commission wouid have submitted its report in the year 1996 itseifi but for the fact that it was brought to its notice that the issue reiating to functioning of / the Administrative Tribuna1s and the va1idity-of firticTes 323-A and 323-8 of the Constitution of India has been referred to a larger Constitution Bench for consideration and that the 'same was pending. In view of the said information,' the Commission withhe1d further action awaiting the opinion of the Supreme Court in the matter. The seven--Judge Constitution Bench of the Supreme Court has since deiivered its judgment in L.CHANDRA KUMAR v. U.O.I. (1997) 3 SCC 261. The unanimous opinion of the Court has been deiivered by A.M.Ahmadi. C.J. The essentiai features of the judgment are in the succeeding chapters.
1.5 The above decision is extremeiy significant and re1evant for the purpose of this study and has according1y been kept in mind while preparing this report.
1.6 when the Law Commission of India had initiated the study pursuant to the observations in R.K.JAIN v. Union of India, it devoted its attention to three types of tribunais oniy viz.,--
(i) Administrative Tribuna1s constituted under the Administrative Tribunals Act, 1985 enacted pursuant to Articles 323-A of the Constitution.
(ii) The Customs, Excise and Gold (Control) Appellate Tribunal established under Section 129 of the Customs Act, 1962 and dealing with cases under both the Customs Act and the Central Excise; and Salt Act, 1944.
(iii) The Income Tax Appellate Tribunal constituted under Section 252 of the Income Tax Act, 1951., 1.7 The Law Commission of India is of the opinion, keeping in view all the relevant circumstances, that it would be appropriate and convenient to examine the functioning of each of these types of tribunals separately. Indeed these three tribunals are constituted under three different enactments. Only the tribunals mentioned in (i) above are governed by Art.323--A and not the other two types of tribunals. They are also situated differently in the matter of their powers, status, importance, method of recruitment and other conditions of service.
Major issues of study regarding functioning of Administrative Tribunals in the countty:--' The Commission has decided to confine its area of study on the following major issues pertaining to the functioning of Administrative Tribunals in the country:-
1. Appointment of members of the Tribunals, their eligibility mode of appointment etc.
2. Composition of the Tribunal.
Need to standardise the powers and procedures of
0) administrative tribunals.
4. Guarantee parties appearing before the tribunals basic procedural rights and safeguards; and ancillary issues like seeking justice through post.
5. Simplify administrative law, particularly with regard to judicial review and appeal; and
6. Ensure the requisite degree of independence when a tribunal is required to act in a judicial fashion. The Reference *0 the Law Commission is to specifically consider the functioning of those agencies which could be classified as "administrative tribunals". These agencies are authorized by the Government through law to make decisions which can affect people's fundamental rights of equality, property, economy, political and liberty rights and economic and social"
entitlements. Besides this there are many decision making bodies which are not, strictly speaking, "tribunals" which affect people and make decisions about 1 resources in a community. The Commission fee1s that the roie of such decision making bodies in the administrative justice system aiso deserves carefui consideration.
The Commission refers to the extracts of the Maiimath Committee report quoted in L.Chandra Kumar's case (1997) 3 SCC 261 pr.88 citing a number of reasons which show that severai tribunals in the country have not inspired confidence in the pubiic mind.
(i) The foremost is the Tack of competence, objectivity and judicia1 approach.
(ii) The next is their constitution, the power and method of appointment of personnei thereto, the inferior status and the casual method of working.
(iii) Their actuai composition; men of caiibre are not wi11ing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and ' poiiticai interference in judiciai functioning.
The Supreme Court observed:
"89... That the various Tribunais have not performed up to the expectations is a seif-evident and wide1y acknowiedged truth.
However, drastic measures may have to be resorted to in order to e1evate their standards to ensure that they stand up to constitutiona1 scrutiny in the discharge of the power of judicia1 review conferred upon them."
(Emphasis suppiied) Besides these reasons. we are of the view that the foiiowing issues aiso need drawing attention:--
(a)
(b) There is de1ay, iack of training and pub1ic perception of unfairness and a fee1ing that impermissibie yconsiderations piay a part in many cases.
individua1s and Issues of efficiency and cost to to the Government in the administrative system providing justice are of fundamentai concern. In particu1ar1y some cases, invoiving individua1's rights or entitiements, de1ay in the system can resuit in injustice and undermine the credibiiity of the system as a way to achieve justice.
(c) The Government, in carrying out reform, shouid try to avoid making decisions expensive.
(d) The question of appropriate procedures often seems difficuit for peopie to understand, particu1ar1y when issues re1ating to appea1s and judiciai review are invo1ved.
(e) ' There appears to be an ad hoc approach to procedures used by some tribunals on making decisions. Some agencies create their own, some are governed by regu1ations, and others have none. some objectives which shouid be achieved by an administrative justice system and a1so be ref1ected in decision making procedures inciudez Representativeness, Accessibiiity/Openness, Expertise, Accountability, Efficiency.
The attainment of these objectives by an administrative system wi11 create an environment in which the principies of naturai justice can operate and, in fact, many of these objectives are integrai to naturai justice or fairness.
CHAPTER - II 2.1 The Purpose of Administrative Law The State reguiates the 1ives of its citizens in manifoid ways. The ordinary citizen has to encounter the government at every turn, particuiariy so if he is engaged in business or is the owner of the property or empioyed in the Government or its agencies. It is, therefore, a requisite of efficient public administration that a fair baiance must be struck between the interest of the State on the one hand and those of the citizen on the other hand because of the paramount concern of administrative 1aw which is to protect the pubiic and the citizen from abuse of officia1 power. This notion of fair baiance is a justification for the existence of administrative iaw or its French equivaient, droit administratif, as part of pubiic 1aw. The courts interfere to protect the interest of the citizen on1y to the extent necessary and within the framework of principies and concepts known to the science of administrative 1aw. 'It is not for the courts, in the exercise of revisionai jurisdiction to determine in the first instance, matters of administration, before the .4 Government has itseif dealt with such matters on merit. (Z.M.Nedjati and g.E.Trice, Engiish and Continentai Systems of Administrative Law, Chapter I) 2.2 Advantages of Administrative Tribunals:-
Among the other advantages noted for such tribunals, some_ important ones, need highlighting as follows:--
(i) cheapness, where cheapness is an essential ingredient of justice (e.g. in the Central Administrative Tribunal (CAT) the application can even be sent by post).
(ii) speed
(iii) expert knowledge of the; technical matters involved.
(iv) capacity to give effect to the policies of social improvement without undue restriction arising from common law policies and the doctrine of precedent.
It is generally understood that for the creation of new standards in such diverse matters such as housing, social services, townplanning, capacity for work, control of transport, professional and trade discipline, and the like, greater technical experience, greater flexibility and a greater emphasis on social welfare are required than the ordinary judicial process and tradition allow. (Principles of Australian Administrative Law by Benjafield, D.G. and whitmore, H., page 332, (fourth edition).
CHAPTER - ILI PART-I Administrative remedies in other countries and in India 3.1 A study on the tribunais wi11 be incompiete un1ess the ~position of administrative remedies in other countries is adverted to. At the same time, the attempts to reform made in the past in India need to be referred to for taking into consideration the broader perspective of the situation.
3.2 Franks Committee Report and Committee on Minister's power (U.K.):-
The Franks Committee -
In 1955, the United Kingdom Pariiament, estabiished the Committee on Administrative Tribunais and Enquiries, usua11y. known as the Franks Committee, to examine the process of administrative adjudication, The basis for the setting up of this Committee was the anxiety of a11 political parties, prompted Targeiy by the Crichei Down affair (Criche1 Down Enquiry (Cmnd. 9176 (1954), as to the, need to protect the citizens in reiation to administrative action.
I / The Committee's genera1 recommendations inciude an appeai on fact, 1aw and merits from an administrative tribunai of first instance to an appeiiate tribunai (other than a minister himseif), except where the tribuna1 of first instance is exceptiona11y strong and we11 qualified. Further, an appeai on a point of law shouid Tie, with certain exceptions, to the ordinary court's machinery, for such appeais shouid be simp1e, cheap and expeditious. The Committee aiso recommended that no statute shouid contain words purporting to oust the remedies by way of certiorari, prohibition and mandamus. The most important recommendation was the proposai that there shouid be set up a Councii on Tribunais for Eng1and, (and a separate Councii for Scotiand), the members of which shouid be appointed by and responsibie to the Lord Chance11or. The Councii wouid suggest how the Committee's more detaiied recommendations as to the constitution, organisation and procedure of tribunais shouid be appiied to existing tribunais, and keep tribunais under continuous review and advise on the constitution and procedure of any proposed new type of Tribunai ( Principies of Austraiian Administrative Law by D.G. Banjafieid and H.whitmore, fourth edn, pp.333;336).
It would be beneficial to extract the relevant passage from D.C.M.Yardley in his book on Principles of Administrative Law, (1981) pp.198--201 regarding the extent of implementation of these two reports:--
The two major legislative achievements of the Franks Report were the creation of the Council on Tribunals and the institution of appeals on law from many tribunals 'direct to the Divisional Court. But there were many other marked effects upon the whole flavour of the system of administrative tribunals andiinquiries. The great majority of the ninety--five detailed recommendations of the Committee were promptly accepted by the Government of the day, and a number of others were later accepted either in whole or in part. Only a mere handful were in the end rejected or simply not carried into effect. But as many of the recommendations which were accepted were on matters of detail, rather than principle, it was possible to implement them without resorting to legislation. For example, the 'ecommendation that all chairmen of rent tribunals should have legal qualifications has been effected as a matter of practice without altering either the primary or the secondary legislation concerning the tribunals. Again, the emphasis placed __by the Committee upon the requirements of openness, fairness and impartiaiity has been refiected usualiy not in subsequent 1egis1ation, but by a change in generai attitude by those tribunais which had not previousiy appreciated the fu11 import of these characteristics.... the statutory instrument which governs the procedure of rent tribunais dates from 1946, though it has since been amended in some respects, and that instrument permits tribunais to sit either in private or in pub1ic at their own discretion. Before the Franks Committee Report it was quite common for rent tribunais to sit in private, and to exciude the press, but since the Franks Report chairmen of -ent tribuna1s have reaiised the importance of sitting in pubiic uniess there is some realiy compeiiing reason to sit in camera. According1y,...it is now common practice to sit in pubiic uniess persuaded to do otherwise by the principies already stated.
A host of other reforms have been achieved by changes of administrative practice. Many of these are concerned with the detaiied procedure of individuai tribunais or types of inquiry, and need not be considered here. But among the most prominent we may perhaps iist three:
(a) Appellate tribunals now customarily publish selected decisions as guidance both for themselves in later cases and for first instance tribunals.
Thus decisions of rent assessment committees are circulated to all members of the relevant panel, and to all rent officers within the panel area. Also, and perhaps of greatest importance in this context, the decisions of the Social Security Commissioners are published by Her Majesty's Stationery Office and circulated to all local insurance officers, all chairmen of local tribunals, and to selected libraries. These decisions, though not of quite the same binding precedent value upon other tribunals in the social security field which would attach to a decision of the High Court, are neuertheless considered by local insurance officers and local tribunals as generally binding upon them, so that a consistent body of social security tribunal case law is built up. Furthermore, a highly authoritative Digest of Commissioners' 'Decisions: compiled by a retired National Insurance Commissioner, Mr.Desmond Neligan OBE, and also published by the Station III r y Office, is of the greatest assistance in helping to establish this consistent body of precedent. The Digest is kept up to date by a regular loose--leaf service.
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(b) Legal representation is allowed before almost all tribunals, but it is a matter for each party whether he avails himself of such representation. The Franks Committee had recommended that the legal aid scheme should be extended to the more formal or expensive tribunals, and to final appellate tribunals. The right to legal representation is generally re--cognised, and is sometimes specifically stated in rules of procedure. Also the legal advice scheme has been progressively extended in the years since th I'D Franks Report so that it is now available to cover advice before hearings in any tribunals. But the ch IT:
III me has not yet been generally extended to cover the cost of legal representation. This may well be largely because of the cost to the public pu'se which it would entail. But other reasgn U) probably include doubts about whether solicitors, who would be the more likely practising lawyers to appear at most inferior tribunal hearings, are adequately equipped to cope with the speciali fl) .r1' law which is dealt with. Certainly in proceedings before tribunals in the social security field the experience of the present writer as chairman of a local tribunal suggests that trade union officers usually make more effective advocates for appellants than do lawyers. So parties are
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weicome to retain 1awyers to represent them in aimost a11 tribunai proceedings, but norma11y on1y at their own expense.
(c) Chairmen of tribunais must usua11y now have iegai training, and must normaiiy be selected by the appropriate Minister from a panei of persons appointed by the Lord Chanceiior, or in Scotiand by the Lord Advocate. This heips to ensure that the person who chairs any tribunai proceedings is qua1ified to appreciate the importance of a fu11 disc1osure of a11 materiai facts to a11 parties before the hearing takes piace and that. an adequate opportunity is given to a11 parties to attend the hearing (and any inspection which may be invoived). Furthermore, the iegai quaiifications of the chairman shouid he1p to ensure that a proper watch is kept from the chair to see that the ruies of naturai justice are foiiowed in the course of the hearing, and that any questions are put from the chair to parties to eiicit facts or argumentswhich are re1evant, but which may not' have been sufficiently presented without such prompting. This iatter function of a chairman probabiy more than makes up for any absence of actuai iegai representation of a party at the hearing.
.{..the overa11 effect of the pub1ication of the Report' of the Donoughmorehscott Committee on Ministers' Powers was to remove the great majority of the previous fears and apprehensions about de1egated Tegisiation; but it took many years for this effect to be appreciated, and decades before Par1iament acted upon any of the Committee's detaiied recommendations. The effect of the Franks Report was far more immediate. The first Tribunais and Inquiries Act received the Roya1 Assent on1y a year after the Report was pub1ished, and indeed a number of the administrative changes recommended by the Committee were a1ready in train by that time. The overa11 effect upon the c1imate of opinion was aiso much quicker, and by the time the Councii on Tribuna1s embarked upon its work in 1959 there was aiready a generai be1ief that any defects were being ironed out."
It is pertinent to quote from the reievant passage of H.W.R.Wade in his book, The Administrative Law, 7th Edition, pages 915-920 regarding radicai recommendations made by the committee and the extent of reforms carried out 1egis1ative1y:--
THE REFORMS OF 1958 The Tribunals and Inquiries Act, 1958 (U.K.) gave effect to the policy of the Franks Committee's report, though with some variations in detail.
The Act was short and did not present the whole picture, since important reforms were also made by, changes of administrative regulations and practice. It has now been replaced, first, by the Tribunals and Inquiries Act 1971, and now, by the Tribunals and Inquiries Act 1992 both of which are consolidating Acts which make no change of substance.
The Act of 1958 provided first for the Council on Tribunals. It has a maximum membership of sixteen; but there is special provision for a Scottish Committee of the Council, consisting partly of persons not members of the Council itself. The Council emerged as a purely advisory body, without the function of appointing tribunal members, but with general oversight over tribunals and inquiries. The tribunals under its superintendence were listed in a schedule, which included the great majority of those considered by the Committee. It was probably right that such a body, which is intended to be a watch-dog and independent of ministerial control, should not be given executive functions; it was designed to bark but not to bite. It is not, therefore, a court of appeal, or a council of state on the French or Italian Model. But it has to keep under review the 'constitution and working' of the listed tribunals, and report on any other tribunal questions which the government may refer to it. In practice, it receives complaints from individuals and invites testimony from witnesses. It is also frequently consulted by government departments in the ordinary course of their work. Its annual report must be laid before Parliament. It is specifically empowered to make general recommendations as to the membership of the listed tribunals, and it must be consulted before any new procedural rules for them are made. some particulars of the Council's work will be found below.
As the Franks Committee had recommended, the Council on Tribunals consists partly of lawyers and partly of lay members, the lay members being in the majority. The purpose of the lay majority is to make sure that the Council's guiding principle shall be the ordinary man's sense of justice and fair play, freed so far as possible from legal technicality. The membership comprises wide experience in industrial, commercial and trade union affairs, as well as administrative experience 'contributed by eminent retired civil servants. This structure has both advantages and disadvantages. A1though much of the Counci1's work, such as the vetting of Bi11s in Par1iament and procedurai regu1ations, requires the aid of Tawyers, its po1icy is to evo1ve and maintain the standards which the pub1ic demands of tribuna1s, rather than to copy the practices of the estab1ished courts of Taw. But natura11y the e1ements of substantial justice are to a Targe extent the same in both systems.
OTHER REFORMS MADE BY THE ACT OF 1958 The Tribuna1s and Inquiries Act 1958 aiso made the fo11owing provisions.
1. Chairmen of rent tribuna1s and of tribuna1s deaiing with nationa1 insurance, industria1 injuries, nationa1 assistance, and nationa1 service were to be se1ected by their ministries from pane1s nominated by the Lord Chance11or.
2. Membership of any of the Tisted tribuna1s, or of a pane1 connected with it cou1d be terminated oniy with the Lord Chance11or's consent.-:24 :-
No procedura1 ru1es or regu1ations for the 1isted tribunads might be made without consu1tation with the Counci1 on Tribuna1s.
' A right of appea1 to the High Court on a point of 1aw was given in the case of a number of specified tribuna1s, inc1uding rent tribuna1s, and tribuna1s deaiing with the chi1dren, emp1oyment, schoois, nurses and mines. In various other cases this right a1ready existed...
Other tribunais couid be brought within the Act by ministeria1 order. Since Par1iament has continued to create new tribunais as fast as ever, many additions have been made to the scheduie, inc1uding menta1 heaith review tribuna1s, betting 1evy appeai tribuna1s, industria1 tribuna1s, rent assessment committees, immigration tribunals, VAT tribuna1s, schoo1 a11ocation appea1 committees, the data protection tribunai and the financia1 services tribuna1.
Judicia1 ccntro1 by means of certain remedies (certiorari and mandamus) was safeguarded. This is discussed e1sewhere.
The Act gave a 1ega1 right to a reasoned decision from any of the 1isted tribunais, provided this was requested on or before giving or notification of the decision. This is discussed below. The ministers responsib1e under the Act, and to whom the Counci1 on Tribuna1s was to report, were the Lord Chance11or and the Secretary of State for Scotiand (rep1aced for this purpose in 1973 by the Lord Advocate).
The Act fe11 short of the Committee's recommendations in certain respects, for instance in its arrangements as to the appointment of Chairman and Members of tribuna1s. Perhaps the most notabie divergence was in the faiiure to provide for appeais on questions of fact and merits. The Committee recommended a right of appea1 on 'fact, 1aw and merits', but the Act provided on1y a right of appeai on a question of 1aw. Thus the Committee's proposai that there shou1d be a right of appeai from rent tribunais to county courts remained unfu1fi11ed, and no right of appea1 was given, except on a point of 1aw, from the rent assessment committees set up by the Rent Act 1965. Jurisdictiona1 facts are of--course reviewab1e independent1y.
.r WORK OF THE COUNCIL ON TRIBUNALS A1though the Councii has no 1ega1 right to be consu1ted about Bi11s in Parliament constituting or affecting tribunais, it is in practice consu1ted as the Franks Committee intended. The Councii comments on Bi11s in much the same way as it does on procedurai rules, and in particuiar it attempts to he1p departments drafting provisions for new tribunais. In this way it has been ab1e, for example, to secure a statutory right to be heard for a 1icence--ho1der threatened with canceiiation of his 1icence.
It has investigated various comp1aints made to it by dissatisfied parties, and in some cases has been abie to obtain reform of tribuna1s' practices. It has secured improvements in tribuna1s' accommodation by fo11owing up compiaints, and a1so as a resu1t of its members' visits to tribunai hearings. It has, thus, acted as a kind of ombudsman in the sphere of tribunais, as aiso in that of inquires, though with a view to the improvement of the system rather than the remedying of individuai cases. For some years now the fiow of compiaints about tribunais has been much reduced. This may be in some degree a measure of the success of the reforms of 1958 and the improvements effected subsequent1y by government departments, stimuiated in some cases by the Councii."
3.3 The Act of 1958 has been repiaced by the Tribunais and Inquiries Act, 1992 (U.K). Sections 1-4 thereof concern the provisions of the Coungii on Trjbung1§ and their functions. Section 1 envisages the functions of the Council and inciudes inter aiia, to keep under review the constitution and working of the tribunais specified in Scheduie I of the Act and, from time to time, to report on their Constitution and working; to consider and report on such particuiar matters as may be referred to the Councii with respect to Tribunais other than the ordinary courts of iaw, whether specified or not in Schedule I of the Act.
Section 2 provides for the composition of the Councii and section 4 prescribes the procedure of making reports by the Counci1.
Section 5 envisages that the Counci1 may make to the appropriate Minister generai recommendations as to the making of appointments to membership of any tribuna1s mentioned in Scheduie I or of Paneis consituted for the -:28 :- purpose of any such tribuna1s. However, section 6 envisages the procedure of the method of appointment of the Chairman of certain tribunais. The Councii has to be consulted under section 8 of the Act in order to make the procedura1 ruies for any Tribunal specified in Scheduie I of the Act. Section 11 governs the appeais from certain Tribunais. Under sub--section (1) if any party to proceedings before any specified Tribunai is dissatisfied in point of law with a decision of the Tribuna1 he may, according as rules of court may provide, either appeai from the Tribunai to the High Court or require the Tribunai to state and submit a case for the opinion of the High Court. Under sub--section 3 thereof, ru1es of court made with respect to aii or any of the Tribuna1s may aiso provide for authorising or requiring a Tribunai in the course of proceedings before it, to state in the form of a speciai case for the decision of the High Court, any question of 1aw arising in the proceedings and the decision of the High Court shail be deemed to be the judgment of the court. Under sub section (5) it is specified that appeai to the court of appeai shaii not be brought by virtue of this section except with the ieave of the High Court or the court of appeai. 3.4 Report of the Committee of JUSTICE -- A11 Souis Review of Administrative Law in the United Kingdom has adopted the six themes as under mentioned whiie preparing its report. (paras 1.11 to 1.17 thereof). These are:
a. The need to prevent grievance;
b. The need to openness in decision making; c. The ease of access to remedies;
d. The adequacy of remedies;
e. The need to keep the Taw upto-date; and f. The need for public information.
a. The need to prevent grievance:
The Report emphasis that it is of paramount importance to minimise the number of occasions when there is any grievance to redress. In the pianning fie1d it recommended that effective appea1 procedures are essentiai as the appeiiants and objectors must feei that their case has been fairly considered.
b. The need for openness in decision making: Decisions shouid be clear and inte11igib1e. Administrators shouid be required on demand to give reasons for their decisions and to state the facts on which such decisions are based. The Report points out that a ru1e to this effect wi11 serve the purpose under
(a) above, i.e. the prevention of grievance. This is because the discipiine of having to give a properiy articuiated decision curbs the chance of an arbitrary or irrationa1 or prejudiced decision.0
Remedies should be freeiy avaiiabiez The Report emphasises the need to do away with the artificial powers which make it difficuit for a person to avaii himseif of a needed remedy. Based on this underTying principie the Report was against the principies of order 53, i.e. 1eave of the court must be obtained by the appiicant for judicial review. Similariy it was against the rule which requires that the fiat of the Attorney Generai must be obtained before an action to declare or enforce a pubiic right can be brought. d. Adequacy of remedy:
The Report observes that it is not much to the point to have a streamiined procedure for getting to court if the remedies which the Judge can award are inadequate. In this regard the Report points out that in the Ombudsman field, it is essentiai that the remedies recommended by the iocai Ombudsman should be compiied with.
LD The need to keep the iaw upto--date:
It is pointed out in the Report that there is a danger that rigidity and ossification wiil take over. It recommends that a carefui watch need to be kept over aii the institutions to ensure that they fuifii their task promptiy and efficientiy. It advocates that there is need of a standing body, independent of Government, which can comment on pending Tegisiation, itself propose reforms and draws attention to deficiency in judiciai review, in the substantive law and in the 0mbudsman's jurisdication. It proposed that such a body cou1d be created by statute or be set up as a standing Royai Commission and the Councii on Tribunais wouid remain in being and work aiongside the new Commission. The proposed body suggested in the Report is "Administrative Review Commission". (Page 75 of the said report).
f. The need for public information and access:
The Report advocates that public shouid be informed adequateiy of the avenues of redress. The grounds on which judiciai review can be sought shouid be codified in statute (though in a form which Teaves room for the growth of the Taw to continue).
¢.5 Judiciai Review in Austraiia Statutory statements of the grounds on which a court wiii set aside an administrative decision in Austraiia are as fo11ows:-
The Report of the Committee of the JUSTICE (page 18 thereof) sets out the grounds of review contained in section 5(1) of the Austraiian Administrative Decisions .s~e-Laue...
(Judicial Review) Act, 1977, as amended in 1978 and 1980, in the foiiowing abbreviated forms:--
a. Breach of the ruies of naturai justice;
b. Breach of mandatory procedural requirements; c. Lack of jurisdiction;
d. Absence of statutory authority;
e. Improper exercise of statutory power;
f. Error of iaw;
9. Decisions induced by fraud;
h. Absence of evidence;
i. Decisions otherwise contrary to iaw; .:
Section 5(2) of the Act expands on ground (e) above by stating that improper exerecise of a power is to be construed as including a reference to the fo11owing:--
a. Taking an irreievant consideration into account; b. Faiiing to take reievant consideration into account;
c. Exercising a power for non-statutory purpose;
d. Excercising a power in bad faith;
|.'D . Acting at the direction of another person; f. Appiying a ru1e or poiicy without regard to. the merits of a particuiar case g. unreasonabie exercise of power;
h. Producing an uncertain result; and an Any other exercise of a power in a way that constitutes abuse of the power.
3.6 A giance at the systems of administrative law on the continent of Europe is made by Z.M.Nedjati and J.E.Trice in the book entitled "Engiish and Continenta1 Systems of Adminsitrative Law", 1978 Edn., Chapter 3 as fo11ows:--
French Administrative Law In France there is a two--tier hierarchy of administrative courts headed by the 'ConseiT d'Etat. This speciaiised tribunal, which comprises about 150 carefuiiy seiected speciaiists had its origins in the ancient regime and is a markediy French institution. Its function is twofoid : first, to advise the government and the executive upon the impiioations and va1idity of administrative reguiations and ordinary iaws which may be submitted; second, to judge through its 1itigation department (section du contentieux) any disputes which may arise between the State or pubiic bodies and the individuai citizen. In the 1ower tier are grouped the 24 Tribunaux Administratifs which act as the administrative courts of first instance for their particuiar region.
Litigation before Administrative Courts In France, litigation between a citizen and some organ of the State in an administrative context comes within the jurisdiction of the Conseil d'Etat statuant au contentieux.
3.7 Federal Republic of Germany In the Federal Republic of Germany there are separate administrative courts and tribunals in each Land or State (Verwaltungsgericht) at local level, and an appellate Oberverwaltungsgericht or Verwaltungsgeriehtshof (High Administrative Court) in each Land. The highest court of administrative matters is the Bundesverwaltungsgericht (Federal Administrative Court). There is also a separate hierarchy of courts dealing with special administrative matters such a 0') social security courts and fiscal courts.
3.8 Belgium In the course of the nineteenth century the Belgian ordinary courts worked out a system of substantive droit administratif not far removed from the French system. The Belgian Conseil d'Etat was established by the Law of December 23rd, 1946. It consists of two sections, one of which deals with legislative matters and the other with administrative affairs. The legislative section is responsible for --:35 :- improving the drafting and editing of 1ega1 texts. The administrative section . has the task of ensuring protection of the citizens' rights and interests in re1ation to exercise of pub1ic powers. It has jurisdiction to quash a decision of the administration (contentieux d'annu1ation) on grounds (cas d'ouvertures) corresponding to the grounds of French administrative Taw.
3.9 Itaiy The new Constitution which replaced the old constitutionai statute of 1848, was promu1gated on December 27th, 1947 and came into force on January 1st, 1948.
An Act of 1889 remou1ded the organisation of the Italian Councii of State (Consig1io di Stato) estab1ishing a new division besides the three oid ones. The fourth division (or section) was vested with power to determine a1T compiaints (ricorsi) against acts of administrative agencies whenever these app1ications were not within the province of the ordinary courts. In the exercise of this jurisdiction the Consigiio di Stato could decide on the Tegaiity of administrative acts. The grounds which make an administrative act un1awfu1 were described in the statute in the sti11 Iiving formu1a:
incompetenza, eccesso di potere and vioiazioni di 1egge incompetence, excess of power and vioiation (or breach) of Taw. respectiveiy. This jurisdiction of the Consiglio di Stato, being an equivaient of what French doctrine describes as the recours pour exces de pouvoir affords the remedy of annuiment of un1awfu1 administrative action.
Section 47 of Law No.37i3/1928 is the materiai section regu1ating the substantive competence of the L7) reek Councii of State which has jurisdiction to annul administrative action on grounds not far removed from the Gas d'ouvertures of French administrative iaw.
3.11 Turkey The basis of aii judiciai jurisdictions in Turkey is the Constitution of 1961.
The princip1e of a separate and independent administrative court system was first estabiished in Turkey in 1868 under the Ottoman Empire and was continued by the Turkish Repub1ic.
Articie 140 of the 1951 Constitution deciares that the Councii of State (Danstay) is an administrative court of first instance in matters not referred by Taw to other administrative courts and an administrative court of Tast instance in generai. The Taw relating to the Turkish Councii of State is Law No.521 of 1964 which has been subsequentiy amended. The Councii of State has jurisdiction to annui administrative action on grounds of defects of jurisdiction, form, cause, subject-matter and motive.....
3.12 Human Rights under the European Convention- Reievance to Administrative iaw The European Convention on Human Rights was drawn up by the Councii of Europe in 1950 and came into force in 1953. The Member States of the Council of Europe who ratified the Convention have thereby become Contracting Parties to it. The Convention sets out certain fundamentai rights and freedoms that are to be protected in binding provisions which are interpreted and appiied by the European Commission and Court of Human Rights or, in certain circumstances, by the Committee of Ministers of the Councii of Europe.
3.13 Position in United States of America In USA, the importance in the exercise of power by the administration and judicial contro1 of administrative action was reaiised. Consequentiy, the emphasis was Taid upon procedural safeguards to ensure the proper exercise -:38 :- of administrative authority, which fact was articu1ated in the form of iegisiative enactment in the Federa1 Administrative Procedure Act, 1946, a iaw which 1ays down the basic procedures which must be fo11owed by American Administrative Agencies.
Every administrative 1aw case arises out of a controversy between a private citizen and some organ of the administration of, as it is usua11y termed in the United States, some administrative agency. According to the definition in the Federa1 Administrative Procedure Act of 1946 "agency" means each authority . . . . .. of the Government of the United States other than Congress, the Courts, or the Governments of the possessions, Territories,or the Districts of Co1ombia...." Essentiaiiy, this definition equates the agency with the executive branch of Government and under it every governmentai organ outside of the 1egis1ature and the courts is an administrative agency. The Administrative Procedure Act contains a number of provisions regu1ating the conduct of the agency hearings. A hearing examiner may not be assigned inconsistent duties nor may he consu1t "any person or party on a fact in issue (Sec.5 of the Act). Examiners are empowered to'administer oaths, to issue subpoenas, to ru1e upon matters of proof and re1evant evidence and genera11y to regu1ate proceedings (Sec.7 of the Act). In practice the procedure may range from an informa1 conference type hearing to a hearing which resemb1es a triai and extend over many days or weeks. Representation before the examinee is of right (Section 6). The examiners must keep a record and give a very detai1ed discussion which becomes part of the record; the reasoned discussion must contain findings and reasons upon a11 issues of fact, Taw or discretion presented on record (Sec.8(b). The initial decision by the examiner is deemed to be the finai decision in the absence of an appeai to the agency or a motion to review by the agency (Sec.8(a)). .... Judiciai review of administrative action is readiiy avaiiabie. The Administrative Procedure Act a11ows for review where there is error of Taw or where the agency fai1s to base its decision on substantia1 evidence on record (Sec.10) (Princip1es of Australian Administrative Law by D.G.Benjafied and H.Whitmore. pp.344--45).
3.14 Attempts of reforms re1evant to our study made in the past in India:
On parity with the theme of the Report of JUSTICE on the need to prevent grievance (quoted under para 3.4, supra), the Law Commission has aiso recommended for framing Titigation poiicy in this regard.
126th report on Government and Public Sector Undertaking Litigation Policies and strategies of Law Commission recommended inter-alia. as follows: "4.13 Assuming that litigation as a whole is unavoidable, an alternative method for resolution of dispute has to be found. An alternative method could be of a standing committee representing the employers, employees and the organisation to which every case can be taken wherever the dispute arises and the result of it must be binding. Today most of the countries are in search of non--court forums for resolution of disputes. It is therefore necessary for such an organisation, which is devoting itself to expanding social justice benefits to the employees working in industries, to organise such a forum for resolution of disputes and which must as well as satisfy the employers. The organisation is triangular in character and all the affected interests must have confidence in a forum for resolution of disputes arising amongst them. The Law Commission would certainly devise such a forum for their consideration.
"5.19 It would, itherefore, be idle parade of familiar knowledge to advance all those supporting reasons for setting up various Tribunals. However, let it not be forgotten that the approach paper re1evant to the present report invited suggestions not for setting up different forum to the exciusion of courts for resoiution of disputes invo1ving pubiic sector undertakings/Government. In fact, the search is for iitigation po1icy and strategy to be fo11owed by pubiic sector undertakings and Government, with a view to, as far as possib1e, avoiding Titigation or resort to courts and to devise a machinery to sett1e the disputes amongst contending parties. That cannot be ascertained with certainty by recommending tribuna1s involving Titigation by or against pub1ic sector undertakings as we11 as Government."
"7.5 The Law Commission has come to note that the Government has reso1ved to set up a Directorate in the Cabinet Secretariat itse1f to strengthen the machinery for redressa1 of pubiic grievances. Presumabiy, an officia1 in the rank of a Secretary to the Government of India wou1d head the Directorate. In the first instance, the new Directorate would _dea1 with grievances re1ating to rai1ways, posts and te1e-communications and banking if the concerned Department has turned deaf ear to the compiainant. The detai1s are yet to be worked out but the format appears to be of a three-tier set up : one
-242 :-
in the Department itself, a monitoring ce11 and a Directorate at the 1eve1 of Cabinet Secretary. The experiment may be evaiuated when it is made fu11y operational. For the present, the Law Commission can oniy take note of the whoiesome attempt in this behaif. What wouid be required would be a tota1 and radicai change in the attitude towards those coming forward with grievances. Experience shows that genera11y one who can set right the grievance turns deaf ear to the compiainant and he is not subject to any sociai audit. In the absence of social audit, the doctrine of accountabiiity suffers and wide yawning chasm deveiops between the maker of the grievance and the one who has power to redress the same. whiie suggesting effective measures, this aspect wiii have to be kept in centra1 focus."
"8.6 Therefore, the first thing that is required to be done is that the Government of India must issue a compulsory directive binding on pubiic sector undertakings that in the event of a dispute between any one or more public sector undertakings or between two or more pubiic sector undertakings on one hand and Government on the other, the parties shaii refer the dispute to arbitration. It shaii be presumed by a 1ega1 device, if the parties to a dispute are two or more public sector undertakings or public 'sector undertakings on one hand and Government on the other, excluding the tax authorities, that a valid arbitration agreement subsists.
"B.7 In order to provide teeth and effectiveness to this suggestion, the Government of India should set up an arbitration panel composed of retired Supreme Court Judges and High Court Judges from which the parties can agree_ to the selection of one or more arbitrators and failing agreement, the appointment will be made by the Minister of Law from the panel. There must be a fairly good number of panelists so that the work can be distributed amongst them. The fees to be paid to the panelists shall be fixed by executive order in advance and those who agree to accept the fees so prescribed may be empanelled. There is no dearth of retired Supreme Court and High Court Judges willing to put to constructive use their experience and expertise for the national good."
"8.8 If necessary, an amendment to the Arbitration Act, 1940 should be made which would empower the court before which any public sector undertaking has initiated litigation without resorting to arbitration to comps} the undertaking to go to arbitration and not mere1y stay the suit but dismiss the same.
"8.9 The award of the arbitrator sha11 be finai and uniess the Minsiter of Law permits the chaiienge of the award on a vaiid and rational ground, the same sha11 not be cha11engab1e before any court.
"8.10 In the matter of tax disputes between pubiic sector undertaking on one hand and taxing authorities on the other, ordinari1y the dispute would arise before an Income Tax Officer or Inspecting Assistant Commissioner or a Commissioner of Income Tax or the iowest grade tax officer functioning under statutes levying indirect taxes, so far, the law shouid be a11owed to take its own course. Once the Commissioner decides the dispute, the aggrieved undertaking may approach the nodai Ministry under which it is functioning seeking permission whether the matter shouid be 1itigated further at a11. If need be, an opinion from one of the paneiists in the arbitration panei may be obtained and that shouid become binding. If, however, the recommendation of_the Law Commission for setting up Tax Courts is Z / -:45 :- accepted and imp1emented, the matter_ may be Iitigated up to the Central Tax Court and must end there.
"8.11 Dea1ing with the disputes between the pubiic sector undertaking and its emp1oyees, every pub1ic sector undertaking must set up a Grievance Ce11 composed of management and workmen's representatives not exceeding three on either side and presided over by a retired Judge who has functioned as a Judge of the Supreme Court or High Court or Chairman of the Industrial Court/Tribunal. Every dispute invo1ving individua1 emp1oyee must be brought, if need be by amending the standing orders or service rules, before the Grievance Ce11. The decision of the Grievance Ce11 shall be binding. If the dispute invo1ves more than one empioyee but not a11 the empioyees of the undertaking, same procedure has to be foiiowed. Even the disputes as to seniority, promotion and a11ied issues must be brought before this Ceii. Promotion has iong since ceased to ~be a management function. Therefore, the Grievance Ce11 wouid be competent to dea1 with the same. In the first instance, the promotion may be decided by the management but the dispute arising out of promotions granted or refused may be brought before the Grievance Ce11.
The decisions of the Grievance Cell will be binding and if any one, despite this arrangement and effective implementaton, takes the matter to the court, the court must decline to entertain the dispute.
"8.20 Turning to the complaints by the employees of the Government of India vis-a--vis the departmental bosses. the procedure indicated in para 8.11 must be effectively followed. Effective Grievance Cell should be set up which must remain active and must be in a position to dispose of the problems raised by the staff. where a point of legal formulation without a precedent is involved and if the Grievance Cell is unable to deal with that point effectively, the concerned Department and the employees involved in the dispute must agree to abide by the opinion of a member of the panel of arbitrators to whom a 'reference on a point of law be made and his opinion invited. The disputes must be disposed of in consonance with his opinion.
"8.21 It is equally necessary in the larger national interest of reducing litigation and curbing litigative culture that a central body should be devised for having a continuous overview of the different bodies recommended herein. The
-roie of this centra1 body wouid be of a co-ordinating nature, of devising ways and means of reducing inter se Iitigations between Union and States, between States and States, between pubiic sector undertakings inter se, between pubiic sector undertakings and taxing authorities, and lastiy between Government and pubiic sector undertakings on one hand and citizens on the other. This needs pianning, strategy and effective impiementation of poiicy decisions. It must be a body which can effectiveiy curb the tendency to rush to the court or to rush to higher courts by preferring appeais. In fact, this body can effectiveiy Tay down ground ruies which, when effeotiveiy foliowed, wouid make a direct dent on iitigious tendencies. Such a body can be appropriateiy described a Federai Legai Ceil composed of retired Judges, retired iaw officers, both Centre] and State, and senior executives who have worked in .pub1ic sector undertakings. The function and duties of the Federai Legal Ce11 0 an be extensiveiy drawn up centering round poiicy and strategy pianning with a view to reducing frequent resort to litigation. It can aiso work as a courier between the Executive and the Judiciary.
The iink ti11 today is missing and is responsibie "8.22
for many iiis which are otherwise curabie. The Government of India shouid set up such Federai Legai ceiis with appropriate terms of reference.
.....Therefore, like the Public Accounts Commitee, there shouid be a Pariiamentary committee on Litigation with power to inquire into every iitigation taken by or on behaif of the Government to question the correctness of the decision with a view to pointing out that care shouid be taken in future not to resort to such iitigation. Pariiamentary Committee can every year seek detaiied information on expenses incurred on iitigfition by Government, pubiic sector undertakings, and Departments and instrumentaiities of the Government, and take upon itseif the inquisition of any particular iitigation which was avoidable and yet resorted to. It can inquire whether appeais are mereiy being pereferred for extraneous and irre1evant considerations. This wi11 introduce sufficient accountabiiity of the officers in whom the decision-making power for initiating and continuing litigation vests. The composition of the Committee must be a matter of concern of the Parliament itself."
DJ .15 .16 In the 131st Report on the Roie of Legai Profession in Adminsitration of Justice; the Law Commission recommended inter--a1ia as fo1lows:-
"3.15 Another tendency which has become very recentiy visibie, especiaiiy where pieadings are drawn up for Mofussii Courts, is to raise a11 and sundry, frivoious and untenabie points of facts and 1aw...."
"3.15 For a positive check, whi1e deciding the cost quantum to be awarded one way or the other, the presiding judge must aiso certify whether untenable and frivoious defences were raised, necessitating framing of the issues on which parties were at variance and the time spent in recording decisions on them. If the presiding Judge is satisfied that such frivoious and tota11y untenable defences with regard to facts and iaw were raised, same must enter the verdict and quantify the costs to be awarded."
The Law Commission in its 79th report on Deiay and Arrears in High Courts and other Appeiiate Courts recommended, inter--a1ia as fo11ows:-
"16.17 Grouping of writ petitions:~ while dealing with civil appeals we have pointed out the necessity of grouping of appeals involving the same question of law. This is all the more important and necessary in the case of writ petitions. Very often, a number of writ petitions are filed in respect of the orders of administrative tribunals, involving not only the same point of law, but also the same or similar facts. The grouping of all such petitions by the Registry will very much help in the quick and satisfactory disposal of these cases."
"17.12. conflicting views unavoidable:-- It is, no doubt, true that the disposal of references by the various High Courts sometimes results in different and conflicting views. This is in the very nature of things and cannot be helped. It, however, needs to be mentioned that as stated elsewhere, the Appellate Tribunal is empowered to make a reference direct to the Supreme Court of a question of law, if the Tribunal is of the opinion that, on account of a conflict in the decisions of High Courts in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme Court."
"17.13 Substitution of Appeal for Reference:-- A view has a1so been expressed that the present procedure of the Appe11ate Tribuna1 making a reference to the High Court shouid be done away with, and, instead of that, an appea1 shouid iie to the High Court against the order of the Tribunai on a question of iaw or a substantial question of 1aw. The position, as aiready noted is that an appeai lies from the Income Tax Authority concerned to the Appe11ate Tribuna1 on a question of fact as weT1 as weii as Taw. The finding of the Appe11ate Tribuna1 on a question of fact is finai. In case, however, the assesses or the department feeis aggrieved with regard to the finding of the Appeiiate Tribunai on a question of 1aw, it can file an app1ication to the Appeiiate Tribunai under section 256(1) of the Income Tax Act, 1961, within the prescribed time, for a reference to the High Court on the question of iaw arising out of the order of the Tribune}. If the Appeilate Tribuna1 finds, after issuing notice to the opposite party, that a question of 1aw arises out of its order, it draws up a statement of case and refers to the High Court the formu1ated question of law.
If the Appellate Tribunal declines to make a reference to the High Court, it is open to the aggrieved person to apply to the High Court under sub-section (2) of section 256 of the Income Tax Act for an order directing the Appellate Tribunal to make a reference to the High Court regarding #0 the qu sticn of law about which the Tribunal had L'?
declined 0 accede to the prayer of the applicant. The High Court in such application can, after hearing both the parties, make an order if the circumstances of the case so warrant, directing the Appellate Tribunal to refer the question of law to the High Court. In pursuance of the order of the High Court the Appellate Tribunal draws up a statement of case and refers the formulated ID ID qu .ticn to the High Court."
"1?.14 Advantage of appeal:-- The advantage of doing away with the reference, and substituting in it (II
- place a right of appeal, is that the time 13' nt 1') LD p efcre the Appellate Tribunal in proceedings I for referring the question of law to the High Court would be saved. It would also obviate the necessity of filing applications under sub--section (2) of section 256 of the Income Tax Act in those cases in which the Appellate Tribunal_has declined to make a reference about a question of law to the High Court."
"17.18 Direct reference to Supreme Court by the Appeiiate Tribuna1:- It may a1so be mentioned that if on an appiication made under section 256, the Appeilate Tribunai is of the opinion that on account of a conf1ict in the decisons of the High Courts in respect of any partiouiar question of 1aw, it is expedient that a reference shou1d be made direct to the Supreme Court, the Appeilate Tribunal may draw up a statement of the case and refer it through its President direct to the Supreme Court.
"17.19 No further comments:-- Since the matter about the substitution of appeai in p1ace of reference against the order of the Tribunai has aiready been deait with by the High Courts Arrears Committee and the Law Commission in its 58th Report, sent in 1974, we do not propose to say anything further in the matter."
The Fifteenth Law Commission does not wish to pursue the idea of providing for appeai in the p1ace of reference, at this juncture.
In order to attain uniformity in decisions of higher courts, the Law Commission in its 136 report on Confiicts in High Court Decisions on Centra1 Laws -- How to foreciose and how to Resoivee recommended. inter-aiial as foT1ows:-
"Second Recommendation The need for evoiving a mechanism for nipping in the bud the conflicting interpretation at the High Court levei and the suggested solution.
"5.3.1 The question that requires to be addressed to is as regards the need for evoiving suitabie machinery so as to maintain, strengthen and restore uniformity on questions of Taw. For. the present constitutional and statutory provisions that are designed to maintain such uniformity operate only when the matter reaches the highest judiciary by way of appeai by the aggrieved party or the Legisiature finds time to attend to the confiict of decisions. If one keeps aside certain speciai provisions, such as the advisory jurisdiction of the Supreme Court, one finds that a point on which there is want of uniformity can come up for decision only when a iitigant invokes the jurisdiction of the Supreme Court. In other words, if a 1itigant who has faiied in the High Court on'a Question of iaw cannot afford to go to the Supreme Court, or does not, for any reason, propose to approach the Supreme Court, then the ruling of the High Court stands. The conflict of decisions on a particular point of law will then remain as it is. This is not a satisfactory position.
"5.3.2 To allow a conflict of views between High Courts to arise and languish in comfort for many years, even decades, before resolving it 'if' the conflict is carried to the Supreme Court and ironed out in due course 'when' the matter happens
-
t there, is less than an 0 come up for hearing exemplary solution. A much better, much speedier, and much more satisfactory solution which will systematically address this problem deserves to be evolved. And such is the present endeavour of the Commission.
The contours of the suggested solution when High Court "A" is faced with a problem pertaining to an all--India law (excluding the Constitution of India) on which High Court "B" has already made a pronouncement, if High Court "A"
holds a view different or inconsistent from the View already pronounced by High Court "8", High Court _"A", instead of making its own (2) pronouncement, shall make a reference to the Supreme Court. The order of reference shall be accompanied by a reasoned opinion propounding its own view with particular specification of reasons for differing from the view pronounced by High Court "B".
(a) The party supporting the reference may arrange for appearance in the Supreme Court but will not be obliged to do so.
(b) The said party will have the option of submitting written submissions suplementing the reasoning embodied in the order of reference.
(c) The party opposing the reference shall also have a similar option for engaging an advocate in the Supreme Court and written submitting submissions, inter alia to counter the written submissions, if any, submitted by the other side. The Supreme Court may require the Government of th (1) State in which the High Courts "A" and "B" are 1 D C!' uated to appoint at the State's cost any 1 advocate from the State panel of lawyers of the concerned States to support by oral arguments the view points of the respective High Courts. (4) (5) (6) (8) A11 such references may be assigned to a Specia1 Bench which may endeavour to dispose of a1T such references within six months of the receipt of the references in the Supreme Court in view of the inherent urgency to ensure uniformity. If any SLP or appeai is a1ready pending on the same point from judgment of High Court "8" or any other High Court, the said matter may be ciubbed aiongwith the reference. Any interested party may be permitted to appear as interveners. The Supreme Court may return the reference if it appears that the parties are acting in coiiusion. The Attorney General may be served with a copy of the reference and he sha11 be entit1ed to urge the point of view of the Centra1 Government in regard to the reievant provision of the concerned Centra1 Statute, if so desired.
The referring High Court sha11 finaT1y dispose of the appeal on a11 points in the Tight of the decision of the Supreme Court in regard to the referred point.
(9) The decison of the Supreme Court in the reference wi11 have no impact or effect on the decison of High Court "B" in the event of the Supreme Court uphoiding the reference in case it has become fina1 between the parties by reason of the matter not having been carried to the Supreme Court and the said decision shaii remain undisturbed as between the parties in High Court "B"."
"5.3.4 In order to give effect to the aforesaid recommendation, a suitab1e 1egis1ation may have to be enacted. A draft of the suggested 1egis1ation has been appended for the sake of faci1itating the task."--:59 :-
PART-LI 3.18 ADJUDICATORY MACHINERY UNDER IHE CUSTOMS ACI4 1962:
Under Section 122 of the Customs Act, in every case under Chapter XIV of the Customs Act in which anything is 1iab1e to confiscation or any person is 1ieb1e to a pena1ty, such penaity or confiscation may be adjudged:-
(a) without iimit, by a Co11ector of Customs or a Deputy Coiiector of Customs;
(b) where the va1ue of the goods 1iab1e to confiscation does not exceed Rs.50,000/--
by an Assistant Colieotor of Customs;
(c) where the value of the goods iiabie to confiscation does not exceed Rs.2500/- by a gazetted officer of customs Iower in rank than an Assistant Co11ector of Customs.
An order of confiscation for penaity under this Act is not a mere administrative or executive act, but is rea11y a quasi--judicia1 act.
-:60 :- The Act aiso provides for valuation and ciassification of goods imported and exported as the case may be.
APPEALS TO COLLECTOR (APPEALS) Under section 128, any person aqggrieved by any decision or order passed under this Act by an officer of customs iower in rank than a Co11ector of Customs, may appeai to the Coiiector (Appeais) within 3 months from the date of communication to him by such decision or order. This right extends to important matters iike ciassification and va1uation besides severa1 other matters provided by the Act.
Under Section 128 A, the Co11ector (Appea1s) after making such inquiry as may be necessary, may pass such order as he thinks fit confirming, modifying or annu11ing the decision or order appeaied against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additiona1 evidence, if necessary. On disposai of the appeai, the Collector (Appeais) communicates the order passed by him to the appe11ant, the adjudicating authority and the Co11ector of Customs.
APPELLATE TRIBUNAL Under section 129 of the Act the Central Government has constituted an appellate tribunal called the Customs, Excise and Gold (Control) Appellate Tribunal, consisting of judicial and technical members. Any person aggrieved by any of the following orders may appeal to the appellate tribunal against such order --
(a) A decision or order passed by the Collector of Customs as an adjudicating authority;
(b) An order passed by the Collector (Appeals) under section 128--A.
(c) An order passed by the Board or th ID Appellate Collector of Customs under section 128 as it stood immediately before the appointed date;
(d) Provided discretion, order
(d), where --
{i}
(ii) {iii} refuse to admit an appeai in referred An order passed by the Board or the Coiiector of Customs. either before or after the appointed date under section 130, as it stood immediateiy before that day;
that the Appeiiate Tribuna1 may in its respect of an to in oiause (b), o1ause (c) or c1ause the va1ue of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or in any disputed case other than a case where the determination of any question having a relation to the rate of duty of customs or to the va1ue of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty invoived or the duty involved: or the amount of fine or penalty determined by such order, does not exceed Rs.
sorooo/--.
Under sub-section (2), the Co11ector of Customs may, if he is of the opinion that an order passed by the Appeiiate Co11ector of Customs under section 128, as it stood immediateiy before the appointed date or the Co11ector (Appea1s) under section 128--A, is not iegai or proper, direct the proper officer to appea1 on his behaif to the Appeiiate Tribuna1 against such order. Under Section 129-3 the Appe11ate Tribunai may, after giving the parties to the appeai an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annu1Ting the decison or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appe11ate Tribunai may think fit for a fresh adjudication or decision, as the case may be, after taking additionai evidence, if necessary. POWERS OF BOARD OR COLLECTOR OF CUSTOMS TO PASS CERTAIN ORDERS Under Section 129-0, the Board may of its own motion, ca11 for and examine the record of any proceedings in which a Co11ector of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itseif as to legaiity or propriety of any such decision or order and may, by order, direct such Co11ector to appiy to the Appe11ate Tribuna1 for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Simiiariy, the Coiiector of Customs may of his own motion, ca11 for and examine the record of any proceedings in which an adjudicating authority sub~ordinate to him has passed any decision or order under this Act for the purpose of satisfying himseif as to the Tegaiity and propriety of any such decision or order and may, by order, direct such authority to appiy, to the Coilector (Appeais) for the determination of such points arising out of the decision or order as may be specified by the Coiiector of Customs in his order. Then such appiications made to the appeiiate tribuna1 or the Coiiector (Appeais) as the case may be are to be treated as if such applications were an appeai against the decision or order of the adjudicating authority and the provisions regarding appeais appiies to such appiications.
Where the decision or order appeaied against reiates to any duty demanded in respect of goods which are not under controi of the customs authorities or any penaity Tevied under this Act, the person desirous of appeaiing against such decision or order has to deposit with the proper officer the duty demanded or penaity ievied during the pendency of the appeai except in cases which wouid cause undue hardships to such persons. STATEMENT OF CASE TO THE HIGH COURTS:
Under Section 130, the Collector of Customs or the other party may against an order under section 129-B (not being on order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment) require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal is required to draw up a statement of the case and refer it to the High Court, after giving due opportunity to the opposite party. If the Appellate Tribunal refuses to state the case on the ground that no question of law arise the Collector of customs or the other party may apply to the High Court and the High Court may, if it is not satisifed with the correctness of the decision of the Appellate Tribunal require the Apellate Tribunal to state the case and to refer it and on receipt of any such requisition the Appellate Tribunal has to state the case and refer it accordingly.
If th lD Appellate Tribunal is of the opinion that on account of conflict in the decisions of the High Court in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme court, 'the Appellate Tribunal may draw up a statement of the case and refer it through the President direct to the Supreme Court under section 130--A of the Act.
If the High court or the Supreme Court is not satisfied that the statements in a case referred to it are sufficient to enabie it to determine the questions raised thereby, the court may refer the case back to the Appe11ate Tribunai for the purpose of making such additions thereto or aiterations therein as it may direct in that behalf.
Under section 130-D the High Court or the Supreme Court decides the questions of 1aw in the case referred to them and deiivers its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment is sent to the Appeliate Tribunai. The Appeiiate Tribunai then passes such orders as are necessary to dispose of the case in conformity with .such judgment.
Appeal to the Supreme Court of India:
Under Section 130-E, an appea1 1ies to the Supreme Court from --
(a)
(b) Any Judgment of the High Court deiivered on a reference made under section 130 in any case which, on its own motion or on an orai app1ication made by or on beha1f of the party aggrieved, immediateiy after passing of the judgment, the High Court certifies to be a fit one for appeai to the Supreme Court;
Any order passed by the appeiiate tribunai reiating, among other things, to the determination of any question having a reiation to the rate of duty of customs or to the va1ue of goods for purposes of assessment.
In the transitory provision every appeai which was pending immediateiy before the appointed date before the Board under Section 128 and any matter arising out of or connected with such appeai and which was so pending, was taken to be transferred to the appeilate tribunai. 3.19 Under of goods and imposition under:--
this Qentrai Excise Act. 1944 Act, the adjudication of confiscation of pena1ties is processed as Under section 33, where by the ruies made under this Act anything is iiabie to confiscation or any person is 1iab)e to penaTty, such confiscation or penalty may be adjudged --
(a) without iimit by a Co11ector of Central Excise;
(b) up to confiscation of goods not exceeding 500 rupees in value and imposition of penaity not exceeding 250 rupees, by an Assistant Co11ector of Centrai Excise.
The Centrai Board of Excise and Customs may vary the iimits of powers indicated above. This Act and the Ru1es made thereunder provide for va1uation and classification of excusab1e goods and various other incidentai matters. Under section 35 of the Act any person aggrieved by any decision or order passed under this Act by a Centre) Excise Officer 1ower in rank than a Collector of Central Excise in matters of importance Iike ciassification and va1uation apart from the matters provided under the Act may appeai to the Co1Tector of Centrai Excise (Appeals) (hereinafter referred to as the Coiiector (Appeals). The Co11ector (Appeals) may, after I;
making such further inquiry pass such order as he thinks fit confirming. modifying or annulling the decisien or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decison, as the case may be. after taking additional evidence, if necessary. On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant. the adjudioating authority and the Collector of Central Excise.
Apoeals to the Appellate Tribunal Under section 358 any person aggrieved by any of the following orders may appeal to the Appellate Tribunal U1 again t such order --
{a} a decision or order passed by the Celleetor of Central Excise as an adjudicating authority.
(p} an order passed by the Collector (Appeals) under section 35A.
(c) an order passed by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1363 (hereafter referred to as the Board) or 'the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day;
an order passed by the Board or the Coilector of Centra1 Excise, either before or after the appointed day, under section 35A as it stood immediate1y before that day;
Provided that the Appe11ate Tribuna1 may, in its discretion, refuse to admit an appeai in respect of an order referred to in ciause (b) or ciause (c) or ciause (d) where-
(i) in any disputed case, other than a case where the determination of any question having a reiation to the rate of duty of excise or to the va1ue of goods for purposes of assessment is in issue or II;
i. one of the points in issue, the difference in duty invoived or the duty invo1ved; or
(ii) the amount of fine or penaity determined by such order, does not exceed fifty thousand rupees.
The Coiiector of Centrai Excise may, if he is of opinion that an order passed by the Appe11ate Co11ector of Centrai Excise under section 35, as it stood immediateiy before the appointed day, or the Co11ector (Appeais) under section 35A, is not Tegai or proper, direct any Centrai Excise Officer authorised by him in this behalf to appeai on his behaif to the Appe11ate Tribunai against such order.
The Appe11ate Tribuna1 may, after giving the parties to the appea1, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annu11ing the decision or order appeaied against or may refer the case back to the authority which passed such decision or order with such directions as the Appeiiate Tribuna1 may think fit, for a fresh adjudication or decision, as the case may be, after taking additionai evidence, if necessary. The decision of the Appeiiate Tribunai is thus final, as regard the questions of facts are concerned except in matters (under sec.35L(b)). The Appe11ate Tribuna1 shall send a copy of every order passed under this section to the Coiiector of Centrai Excise and the other party to the appeal.
Under section 35E the Board of its own motion can caii for and examine the record of any proceeding in which a Coiiector of Centrai Excise as an adjudicating authority has passed any decison or order under this Act for the purpose of satisfying itseif as to the iegaiity or propriety of any such decision or order and may, by order, direct such Coiiector to appiy to the Appeiiate Tribunai for the determination of such points arising out of the decision or order as may be specified by the Board in its order.
At the same time, the Coiiector of Centrai Excise is aisr empowered under sub-section (2) of section 35E that he may of his own motion, ca11 for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himseif as to the iegaiity or propriety of any such decison or order and may, by order, direct such authority to appiy to the Co11ector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Coiiector of Centrai Excise in his order. Such app1ications are then treated to be as if appeais made against the decision or order of the adjudicating authority.
Statement of case to High Court Under section 35G, the Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under section 350 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purpose of assessment) by application in the prescribed form, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall if it agrees to it draw up a statement of the case and refer it to the High Court. In this process the other party is also given an opportunity to file his cross--objections. If the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Collector of Central Excise or the other party may apply to the High Court and the High Court may if it is not satisifed with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it and on receipt of any such requisiton, the Appellate Tribunal shall draw up the case and refer it to the High Court.
Under section 35H if on an application made under the above section the Appellate Tribunal is of opinion that, on account of conflict in the decisions of High Courts in respect of any particular question of law, it is expedient that a reference should be made direct to --:74 :- the Supreme Court, the Appellate Tribunai may draw up a statement of the case and refer it through the President direct to the Supreme Court. If the High Court or the Supreme Court is not satisfied to enable it to determine the questions raised thereby, the Court may refer the case back to the Appeliate Tribunai for the purpose of making such additions thereto or aiternations therein as it may direct in this behalf.
Under section 35K the High Court or the Suoreme Court iea'ing any such «fa .03 se shaii decide the questions of Taw raised therein and shali deiiver its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shaii be sent t» the Registrar of the Tribunal. The Appe1iate Tribunal has then to pass such orders as are necessary to dispose Ff the case in conformity with such judgment.
Under section 35L, an appeai shail ?ie to the Supreme Court from
(a) any judgment of the High Court de1ivered on a reference made under section 35G in any case which, on its own motion or on an oral aociication made by or on behaif cf the party aggrieved. immediateiy after the -:75 :- passing of the judgment, the High Court certifies to be a fit one for appeai to the supreme Court; or
(b) any order passed by the Appeilate Tribunai re1ating, among other things, to the determination of any question having a reiation to the rate of duty of excise or to the vaiue of goods for purposes of assessment.
3.20 Ad'udic ti n ro e s und r Go} o ro1 A t 1963 The adjudication machinery in the Goid Contro1 Act, 1968 is aimost on the same pattern as discussed above in matters relating to the Customs Act and the Centrai Excise Act, 1944. These are not being reproduced here for the sake of brevity.
A perusal of systems of administrative law on the continent of Europe reveais that the administration of justice through tribunais has taken firm roots in the foreign jurisdictions aiso and societies have been content with the system. Therefore, there is no question of aboiition of the tribunais' system in the country but we have to Took for reformative measures in the direction to further iron out the problems in achieving justice through the tribunais system.
CHAPTER - IV Centrai Administrative Tribunal 4.1 we sha11 first take up and deai with the Administrative Tribunais constituted under the Administrative Tribunais Act, 1985:
4.2 Constitution of the Centrai Administrative Tribuna1:-
In 1976, by the Constitution 42nd Amendment Act, Part XIVA containing Artic1es 323A and 3238 was inciuded in the Constitution of India by which the Pariiament and the State Legisiatures were authorised to constitute administrative tribunais for service matters and Tribuna1s for certain other matters. In 1985, the Pariiament passed the Administrative Tribunais Act. some of its relevant provisions are being discussed be1ow. Chapter II of the Act deais with the estabiishment of tribunais and benches thereof. Section 4 provides for estabiishment whiie section 5 deals with composition of the tribunai and benches thereof. Section 6 1ays down the quaiifications of Chairman, Vice--Chairman and Members. So far as the Chairman is concerned, sub--section (1) requires that he shouid be or have been-
(a) a judge of a High Court; or
(b) has, for at 1east two years, he1d the office of Vice-Chairman;
(o) (omitted by Act 51 of 1987) Sub-section (2) prescribing the quaiification for Vice--Chairnan provides that he shouid be or have been --
(a) a judge of a High Court; or quaiified to be a judge of a High Court (inserted by Section 3(b) of Act 51 of 198?); or
(b) has, for at Teast two years, heid the post of a Secretary to the Government of India or any other post under the Centra1 or a State Government carrying a sca1e of pay which is not 1ess than that of a secretary to the Government of India; or (bb) has, for at ieast five years, heid the post of an Additionai Secretary to the Government of India or any other post under the Centrai or a State Government carrying a scale of pay which is not iess than that of an Additionai Secretary to the Government of India; or
(c) has, tor a period of not iess than three years, he1d office as [a Judicial Member or an Administrative Member].
Sub-section (3) prescribes the quaiification of a Judicia1 Member and requires that:
(a) he shouid be or shouid have been or quaiified to be a judge of a High Court; or {b} has been a Member of the Indian Lega} Service and has heid a post in Grade I of that service for atieast three years.
Sub--section (3~A) provides the quaiifioation for appointment as Administrative Member and iays down that such person (a) shouid have, for atieast two years, heid the post of an Additionai Secretary to the Government of India or any other post under the Centre} or a State Government carrying a soaie of pay not less than that of an Additionai Secretary to the Government of India; or
(b) has, for at1east three years, heid the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, and sha11 in either case have adequate administrative experience. Section 8 of the Act prescribes the term of office and provides that the term for Chairman, Vioe--Chairman or Members shaii be of five years from the date on which he enters upon his office, but shaii be eligibie for re-appointment for another term of five years. The proviso to section 8 provides that no Chairman, Vioe--Chairman or other Member sha11 hoid the office after -:79 :- he has attained, in the case of Chairman or Vice-Chairman, the age of 65 years, and in the case of any other Member, the age of 62 years. Chapter III of the Act deais with jurisdiction, powers and authority of tribunals. whiie section 14 dea1s with jurisdiction, powers and authority of the Centrai Administrative Tribunai, Section 15 is concerned with State Administrative Tribunais and Section 16 deals with Joint Administrative Tribunal. It is pertinent to quote the provisions iaid down under Section 14 be1ow:~ "14. Jurisdiction, powers and authority of the Centra1 Administrative Tribuna1. -- (1) Save as otherwise expressiy provided in this Act, the Central Administrative Tribuna1 shai1 exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisabie immediate1y before that day by a11 courts (except the Supreme Court) in reiation to-
(a) recruitment and matters concerning recruitment, to any A11--India Service or to any civii service of the Union or a civii post under the Union or to a post connected with defence or in the defence services, being, in either case. a post fi11ed by a civilian;
(b) (0) a11 service matters concerning --
(i) a member of any A11--India Service; or
(ii) a person [not beig a member of an A11--India Service or a person referred to in clause (c)] appointed to any civii service of the Union or any civi1 post under the Union; or
(iii) a civiiian [not being a member of an A1T--India Service or a person referred to in clause (c)] appointed to any defence ervice or a post connected with defence; I'/I and pertaining to the service of such member, person or civi1ian, in connection with the affairs of the Union or of any State or of any 1oca1 or other authority within the territory of India or under the oontroi of the Government of India or of any corporation [or society] owned or controiied by the Government;
a1} service matters pertaining to connection with the affiars of the Union concerning a person appointed to any service or post referred to in sub--c1ause (ii) or sub--c1ause
(iii) of oTause (b), being a person whose services have been piaced by a State Government or any Tocal or other authority or any corporation [or society] or other body, at the disposai of the Central Government for such appointment. [Exp1anation. - For the removai of doubts, it is hereby dec1ared that reference to "Union" in this sub--section snail be construed as inciuding references aiso to a Union territory.] (2) The Central Government may, by notification, appiy with effect from such date as may be specified in the notification the provisions of sub--section (3) to iocai or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controiied by Government, not being a 1ocaT or other authority or corporation [or society] controiied or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of faci1itating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub--section 'in respect of different ciasses of, or different categories under any ciass of, iocai or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this , the Central Administrative Tribunal shall .also exercise, on and from the date with effect from which the provisions of this sub--section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supr III ('D m Court) in relation to-
/'\ '.1! \.z recruitment, and matters concerning recruitment to any service or post in ctnnec.ion with the C asfiars of such local or other authority or corporation [or society]; and r'\ U' \/ '13 ._J .--.J In FD <' ._l C') (D :3 :11 L'?
pr ID "u an «'1 O 3 ';
.;_rning a person [other than a person referred to in clause fa) or clause
(b) of sud-section (1)] appointed to any service or past in connection with the affairs of such local or other authority or corporation [or stciety] and pertaining to the service of such person in connection with such affairs." Section 17 empowers the Tribunal to punish for Chapter IV deals with the procedure to be followed by the Tribunal. The provisions contained under section 19 are extracted below-
"19. Appiication to Tribunais. - (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunai may make an appiication to the Tribunai for the redressa1 of his grievance.
Expianation. -- For the purposes of this sub--section, 'order" means an order made-
(a) by the Government or a iocai or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or contro11ed by the Government; or
(b) by an officer, committee or other body or agency of the Government or a 1oca1 or other authority or corporation [or society] referred to in ciause
(a).
(2) Every application under sub-section (1) sha11 be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) [ in respect of the fiiing of such appiication and by such other fees for service or execution of processes, as may be prescribed by the Centrai Government].
[(3) On receipt of an app1ication under sub-section (1), the Tribuna1 sha11, if satisfied after such inquiry as it may deem necessary, that the appiication is a fit case for adjudication or triai by it, admit such appiication; but where the Tribuna1 is not so satisfied, it may summari1y reject the appiication after recording (4) where an appiication has been admitted by a Tribunai under sub--section (3), every proceeding under the relevant service ruies as to redressa1 of grievances in re1ation to the subject--matter of such appiication pending immediateiy before such admission sha11 abate and save as otherwise directed by the Tribuna1, no appeai or representation in re1ation to such matter sha11 thereafter be entertained under such ruies.
Under Section 20, it is provided that appiications by the tribunai sha11 not ordinari1y be admitted uniess other remedies are exhausted. Section 21 prescribes the iimitation period within which the appiication can be entertained by the tribuna1. Section 22 provides that a tribuna1 sha11 not be bound by the procedure 1aid down by the Code of Civii Procedure, but sha11 be guided by the princip1es of natural justice and subject to other provisions of the Act and the rules made by the Centra1 Government. The tribunai sha11 have power to reguiate its own procedure including the fixing of piaces and times of its enquiry and deciding whether to sit in pubiic or in private. Sub-section (2) thereof provides that every app1ication made to the tribunai sha11 be decided expeditiousiy as possibie and ordinariiy every appiication sha11 be decided on a perusai of documents and written representations and after hearing such orai arguments as may be advanced. The powers vested in a tribunai are set out under sub--section (3) of Section 22 of the Act.
Section 24 iays down conditions as to making of interim orders.
Section 27 deais with execution of orders of a tribuna1 and section 28 exciudes the jurisdiction of courts except the Supreme Court under Artic1e 136 of the Constitution. However, the finality of the tribunais decisions is now open to chaiienge under the writ jurisdiction before the concerned High Court in view of L.Chandra Kumar's decision (infra). 4.3. Observations of the Constitution Bench of the Supreme Court in L.Chandra Kumar v. Union of India:--
The seven--Judge Constitution Bench of the Supreme Court has since delivered its judgment in L.Chandra Kumar v. U.O.I. (1997) 3 SCC 261. The unanimous opinion of the Court has been delivered by A.M.Ahmadi, C.J. The essential features of the judgment are the following:-
(a) Clause 2(d) of Article 323--A and clause 3(d) of Article 323-3 of the Constitution of India to the extent they provide for excluding the jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 136 respectively are un~constitutional on the ground that they violate the basic structure of the Constitution.
Judicial review conferred upon the High Courts and the
0) upreme Court by the aforesaid Articles, it has been held, is a basic feature of the Constitution and is not amenable to amendment, and sinc ID the 42nd Amendment Act of the Constitution which introduced the aforesaid Articles is a post--Bharati enactment, it is invalid and unenforceable in so far as it violates the said basic feature of the Constitution. Section 28 of the Administrative Tribunals Act, 1985 and other clauses in any other enactment providing for excluding the power of judicial review of the High Courts and the Supreme Court, it has been held, is equally void and ineffective.
(b) z''\ '.4 Whiie the 'power of judiciai review' of the High Courts and the Supreme Court cannot be taken away, it is open to the Tegisiature to create courts and tribunais and entrust them with judicia1 powers but such powers can oniy be suppiementary to the powers conferred upon the High Courts and the Supreme Court by Articies 226 and 227 and Articie 32 of the Constitution. The tribunais created under the aforesaid Articies, of course, are competent to pronounce upon the constitutionai vaiidity of statutory provisions and ruies, with this exception that they cannot examine or pronounce upon the vaiidity of the provisions of the enactment under which they are created. The decisions of the Administrative Tribunais created under Articie 323--A and the Administrative Tribunais Act, 1985 shaii be subject to scrutiny by a Divison Bench of the High Court within whose jurisdiction the relevant tribunai is located. The tribunais wiT1 continue to act as courts of first instance and it shaii not be open to the parties to approach the High Court directiy in the matters reiating to their conditions of service except where the constitutionaiity of any of the provisions of the very enactment under which the particuiar tribunai is constituted, is questioned.
(f) (9) The concept of judicial and quasi-judicial tribunals has a sound basis, though it may be that the tribunals constituted under various enactments have not come up to the expectations. The remedy is not in abolishing them but in improving them so that they become effective instruments of the justice delivery system.
The provision for appointment of administrative members in the Administrative Tribunals Act, 1985 cannot be said to be wrong in principle. On the contrary, the administrative members do provide a certain input and expertise which contributes to, and is conducive of, an effective, just and balanced decison by the tribunal.
No appeal shall lie to the Supreme Court against the decisions of the Administrative Tribunals directly. The parties must approach the Division Bench of the High Court concerned. From the decision of the High Court, of course, a party can approach the Supreme Court under Article 136 of the Consoitution, if he is so advised. It is necessary that an independent agency for the administration of all the tribunals constituted under Article 323-A and 323-8 be set up. All such tribunals should be placed under a single nodal
(h) agency which wi11 be in a position to supervise the working of these tribunais. UntiT creation of such a centrai independent agency, the Ministry of Law shouid supervise the working of these tribunais. The Ministry of Law may, however, appoint an independent supervisory body to oversee the working of these tribunais.
So far as the inter-piay of sub--section (2) and (6) of Section 5 is concerned, the position is that a sing1e-member of an administrative tribunal shaii not be entitied to decide a question invo1ving the interpretation of a statutory provision or ruie in relation to the Constitution. A11 matters invoiving such questions shaii be piaced before a Bench of at ieast two-members, one of them sha11 be a judiciai member.
4.4 Other reievant observations made in L;gnggd;g_§gmg; v (1) Union of India, (1997) 3 SCC 261 are as foiiowsz The power of judiciai review over iegisiative action vested in the High Courts under Articie 226 and in the Supreme Court under Artic1e 32 of the Constitution is an integrai and essentiai feature of the Constitution constituting a part of its basic structure. 0rdinari1y the power of High Courts and Supreme Court to test the constitutiona1 vaiidity of iegisiations can never be ousted or exciuded.
The power vested in the High Courts to exercise judiciai superintendence over the decisions of a11 courts and tribunais within their respective jurisdiction is aiso part of the basic structure of the Constitution. This is because a situation where the High Courts are dive (I) ted of a11 other judiciai functions apart from that of constitutionai interpretation is equa11y to be avoided.
Ciause 2(d) of Articie 323--A and c1ause 3(d) of Articie 323-8 to the extent they exciude the jurisdiction of the High Courts and the Supreme
1.'?
Court and he Supreme Court under Articies 226/227 and 32 of the Constitution are unconstitutionai. Section 28 of the Administrative Tribunais Act, 1985 and the 'exc1usion of jurisdiction' c1auses in a11 other iegisiations enacted under the aegis of Articies 323--A and 323--B are, to the same extent, unconstitutionai.
(ii) There are pressing reasons why the conferment of such a power of judicia1 review of administrative actions be preserved. when the framers of our bestowed the powers of Constitution judicia1 review of iegisiative action upon the High Courts and the Supreme Court they ensured that other constitutionai safeguards were created to assist them in effectiveiy discharging this onerous burden. The expectation was that this power wouid be required to be used on1y occasionaiiy. However, in the five decades that have ensued since Independence, the quantity of iitigation before the High Courts has expioded in an unprecedented manner. The decision in Sampath Kumar's case was rendered against such a backdrop. We are conscious of the fact that when a Constitution Bench of this Court in Sampath Kumar's case adopted the theory of institutionai mechanisms, it was remedy an a1arming practicai situation and the approach seiected by it appeared to be appropriate to meet the exigencies of the time. The various Tribunais have not performed up to the se1f--evident and expectations is a wideiy acknowiedged truth. However to draw an inference that their unsatisfactory performance points to their being founded on a fundamentaiiy unsound princip1e wouid not be correct. The reasons for which the Tribunais were constituted sti11 persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our consitutionai scheme permits the setting up of such Tribunals. However, drastic measures may have to be resorted to in order to eievate their standards to ensure tha ('9' they stand up to constitutiona1 scrutiny in th at! discharge of the power of judiciai review conferred upon them.
"Pr....78....The constitutiona1 safeguards which ensure the Independence of the Judges of the superior judiciary, are not availabie to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary 1egis1ations.' Though the subordinate judiciary or tribunais created under ordinary Tegisiations cannot exercise the power of judicia1 review of Tegisiative action to the exciusion of the High Courts and the Supreme Court there is no constitutionai prohibition against their performing a supplementai as opposed to a substitutionai role in this respect.
The Tribunals are competent to hear matters where the vires of statutory provisions are questioned, they cannot act as substitutes for the High Courts and the Supreme Court. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts.
This power of the Tribunals will be subject to one important exception that the Tribunals shall not entertain any question regarding the vires of their parent statutes. The High Court concerned may be approached directly. All other deicisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes will also be subject to scrutity before a Division Bench of their respective High Courts. 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. The litigants have to directly approach firstly the Tribunals even in I .ases where the vires of statutory legilsations /"\ except where the legislation which creates the particular Tribunals) is challenged.
A11 other decisions of these Tribuna1s, rendered in cases that they are specificaliy empowered to adjudicate upon by virtue of their parent statutes, wi11 aiso be subject to scrutiny before a Division Bench of their respective High Courts.
The decision in L. Chandra Kumar wi11 come into effect prospectiveiy.
No appeai from the decision of a Tribuna1 wi11 directiy 1ie before the Supreme O ourt under Artic1e 136 of the Constitution; but instead, the aggrieved party wi11 be entit1ed to more the High Court under Articies 226/227 0 f the Constitution and from the decision of the Division Bench of the High Court the aggrieved party can move the Supreme Court under Art. 136 of the Constitution. Regarding the need for appointment of Administrative members, the Supreme Court held:
.... It has been urged that on1y those who have had judiciai experience shou1d be appointed to such Tribunais. In the case of Administrative Tribunais, it has been pointed out that the Administrative Members who have been appointed have Tittie or no experience in adjudicating such disputes; the Ma1imath Committee has noted that at times IPS Officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures. For these reasons, it has been urged that the appointment of Administrative members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that 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, he better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grassroot experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative members are chosen from amongst those who have some background to deal with such cases."-:96 :-
(iii) The Supreme Court emphasised the need for changes in respect of appointment to Tribunals and supervision of their functioning by an independent body or authority. It held:
"96.... The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by parliamentary legislations, there is no uniformity in administration. we are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up it is desirable that all such Tribunals should be as far as possible under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take ~:9? :~ sufficient interest in the working of the Tribunals, the entire system wiii not Tanguish and the uitimate consumer of justice wiii not suffer. The creation of a sing1e umbre11a organisation wi1T. in our viewJ remove many of the iils of the present system. If the need arises there can be separate umbreila organisations at the Centrai and the State ieveis. Such a supervisory authority must try to ensure that the independence of the members of aii such Tribunals is maintained. I_ that extent, the procedure for the selection of the members of the Tribunaisy the manner in which funds are ailocated for the functioning of the Tribunals and a1I other oonseduentiai details wiii have to be oieariy speit out."
{Emphasis supp1ied) The Supreme Court feit that these suggestions shou1d be considered in detail by those entrusted with the duty of Formulating the poiioy in this respect. It couched:
"97. The suggestions that we have made in respect of appointments to Tribunais and the supervision of their administrative function need to be considered in detai1 by those entrusted with the duty of formu1ating the policy in this respect. That body wili also have to take into consideration the comments of expert bodies like the LGI and the Maiimath Committee in this regard.-:98 :-
we, therefore, recommend that the Union of India initiate action in this behaif and after consuiting a11 concerned, piece Q11 these Tribunais under one §ing1e nggai department, preferabiy the Legai Department."
(Emphasis suppiied)
(iv) The Supreme Court upheid the provision under Sec.5(6) of the Administrative Tribunais Act as vaiid, since where a question invoiving the interpretation of a statutory provision or ru1e in reiation to the Constitution arises for the consideration of a sing1e Members Bench of the Administrative Tribunai, the proviso to Sec.5(c) wi11 automaticaiiy appiy and the Chairman or the Member concerned sha11 refer the matter to a Bench consisting of at ieast two Members, one of whom must be a Judiciai Member. This wiii ensure that questions invoiving the vires of a statutory provision or ru1e wi11 never arise for adjudication before a singie Member Bench or Bench which does not consist of a Judiciai Member. 4.5 ADMINISTRATIVE TRIBUNALS CONSTITUTED UNDER THE ADMINISTRATIVE TRIBUNALS ACT. 1985 (ART. 323-A OF THE CONSTITUTION OF INDIA) The Administrative Tribunals Act, 1985 excluded the jurisdiction of the High Court in the matters within the seisin of the Tribunals created thereunder, as contemplated under clause 2(d) of Article 323--A of the Constitution. Until the decision in Chandra Kumar's case, the decision of the Administrative Tribunals could not be questioned before the High Court. Parties aggrieved with the decisions of the Administrative Tribunals had to approach and were approaching the Supreme Court directly under article 136 of the Constitution, irrespective of the fact whether the decision of the tribunal was rendered by a single member or a Bench. This was the position affirmed by the Supreme Court earlier in S.P.SamQat Kumar v. Union of India (1987) 1 SCC 124. But the later decision in L.Chandra Kumar, rendered by a larger Constitution Bench has made a substantial and qualitative'difference to the above position, as has been detailed hereinabove. with this later decision, the status of these tribunals has also undergone a radical change. They have now become tribunals subordinate to the High Court which is evidenced from the fact that the decisions of these tribunals are now amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It is no longer an alternative mechanism to the High Court, but a tribunal whose decisions are subject to scrutiny by the High Court, albeit by a Division Bench. (As a matter of fact, Shri Justice Shiva Shankar Bhat, a retired Judge of the Karnataka High Court, who was appointed as chairman of the Karnataka State Administrative Tribuna1, tendered his resignation soon after the decision in L.Chandra Kumar was rendered, compiaining that inasmuch as the position and status of the Tribunai has been downgraded by the said decision, he cannot c ntinue as the Chairman of the State Administrative Tribunai). whiie striking down certain c1auses of Articies 323--A and 323-B of the Constitution of the Administrative Tribunais Act 1985, the Supreme Court has at the same time affirmed the soundness of the principie on which these administrative tribunais are created. It did not agree with the contention that these tribunals shouid be abo1ished inasmuch as they have not proved effective in discharge of their duties and have faiied to achieve the object with which they were created. The Supreme Court has also heid that though these tribuna1s are subject to the writ jurisdiction of the High Courts, they are yet competent to decide questions re1ating to the constitutina1 validity of the statutory provisions and ru1es except, of--course, the provisions of the Administrative Tribunais Act 1985 under which they have been constituted. The Supreme Court has aiso rejected that there ought to be no technicai/administrative members in these tribunais. They said that these non--judiciaT members provide an input which may not be avai1ab1e with the judiciai members. ~
-:101:~ In the Iight of the above dicta of the Supreme Court, not much room is 1eft for the Law Commission of India to suggest any substantiai measures or recommendations with respect to the functioning of these tribunais. Even so, there are certain areas which can be and are deait with hereunder:--
(a) with a view to improve the efficiency of the administrative tirbunais, the present practice of appointing retired or about to retire District Judges as judiciai members is not entireiy satisfactory. These District Judges do not dea1 with service matters during their judiciai service and since they are appointed towards the end of their career, there is not much time and in some cases inciiniation to 1earn this branch of iaw viz., service jurisprudence. They get hardiy two to three years on the job. (It may be remembered that in the iight of the judgment of the Supreme Court in A11 India Judicia1 Officers Association case, the age of retirement of subordinate judiciary is now 60, in effect. It is obvious that those who are not a11owed to continue beyond 58 years in view of their unsatisfactory record, wouid not be considered or appointed as members of the Administrative Tribuna1). In this view of the matter, _an attempt shouid be made to recruit members of the Bar between the ages of 45 and 50
(b) --:102:- who will have a longer period available to them to prove their mettle. At the same time, it is necessary, with a view to provide an incentive to these judicial members that they should be considered by the High Court (of the State from which they hail) for appointment as judges of the High Court in the quota normally reserved for members of the subordinate judiciary and if for any reason this course is not found feasible or practicable, they may be, considered under sub-clause (b) of cl.(2) bf Art.2i7 read with Explanation (aa) and/or (b) appended to the said clause. If this assurance" is ield out, many members of the Bar may be attracted to this office. It would also mean that persons of competence, who have (acquired) expertise in rvice matters"
F/J ('D would be available to the High Court. Section 8 of the A.T.Act, 1985 may accordingly be amended. In the case of members, the initial term should be made ten years, renewable for a further period of five years.
The practice of appointing retired or about to retire High Court Judges as Chairman of State Administrative Tribunals and as Vice-Chairmen of Central Administrative Tribunals ias also not proved happy. Since the age of retirement for these posts is 65, the persons so appointed hardly get a term in U) three-year or sometimes, even les _,.
the office. It would be more appropriate if the sitting Judges of the High Courts who have got at Teast not Tess than one year to go before retirement from the High Court, shou1d be considered for appointment to these posts. In this manner, they wi11 have at Teast a four-year term which wouid give them sufficient time to settie down in the office and do some productive work. Ordinariiy, an Administrative Member shouid not be appointed as the Vice--Chairman of CAT or as the Chairman of SAT.
An appeai shouid be provided to the High Court, to be necessariiy heard by a Division Bench against the orders of the Administrative Tribunai. The appeai snail Tie to that High Court within whose territoriai jurisdiction the Tribunal rendering the judgment to be appeaied against is Tocated. This measure removes one of the serious and principai criticisms against the judgment of the Supreme Court in L.Chandra Kumar viz., that there cannot be a judiciai review of an order passed by an authority in exercise of its power of Judiciai Review. The Tribuna1's order, according to the said decision, is in exercise of a power of judicia1 review; if so, this order cannot be the subject--matter of a judiciai review once again.
Judiciai review, by its very nature, content and concept, is onTy against administrative or quasi--judiciaT action of administrative and other -:104:- authorities say the critics. The remedy of appeai shouid be provided not on1y against the finai orders but also against the interiocutory orders of the Tribunai.
The Commission is of the opinion that if the aforesaid three measures are impiemented aiong with severa1 other measures and directions issued by the Supreme court in L.Chandra Kumar, these Tribuna1s shouid become more effective instruments of 1aw and wouid give satisfaction to the parties coming before them. It may go a Tong way in making these Tribunals more effective instruments in the system of dispensation of justice. 4.6 Necessity for training of personnei manning the tribuna1s:--
The need for imparting training to personne1 (judiciai and administrative members/technical members) who man the tribunais cannot be ignored. The Frank's Committee (supra) aiso recommended the imparting of training to the members of the tribunai. The Law Commission has aiready stressed the need for imparting such training.
(a) Law Commission of India in its 116th Report on formation of A11 India Judicia1 Services recommended, inter aiia, as foiiowsz -:105:-
"5.i3....While recommending the constitution of an Indian Judicial Service, a bold step is taken to make a total departure from the earlier view that a minimum practice at the Bar is a pre--requisite to become a judicial officer. To the extent that a fresh law graduate, after qualifying at the competitive examination would enter judicial service, the importance of pre-service training both as to pattern, subject and duration, has been considerably increased....."
"5.14....It does not require a long argument to affirmatively assert that State Public Service Commissions generally have lost their credibility. Way back in 1958, the Law Commission observed that "the evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do not deserve to be in the responsible posts they occupy. In some of the southern States, 'the impartiality of the Commissions in making selections to the Judicial service was seriously questioned.....
"....Now that a judicial service at an all-India level is being proposed and recommended, it is necessary to set up a National Judicial Service Commission. Its raison d'etre, composition, powers, functions and duties will be set out in detail in a separate report dealing with this aspect. Broadly, it must be composed of a -:106:- recently retired Chief Justice of the Supreme Court of India, one or two retired Justices of the Supreme Court, three to five retired Chief Justices of the High Courts, one to two retired Judges of the High Court, two outstanding members of the Bar, President of the Bar Council of India and two to three outstanding legal academics. The body shall be constituted by the President of India."
(b) The Law Commission in its 117th Report on Training of Judicial Officers recommended, inter alia, as follows:
"Rendering justice is an art in itself and acquiring rudiments of the art needs training. The minimum equipment to render justice requires a keen intellect to sift grain from the chaff, to perceive falsehood, to appraise relative claims, to evaluate evidence, a fair and balanced approach, needs of the society, the constitutional goals and able all times a keen desire to do justice. None of these aspects are dealt with in the syllabus prescribed at law colleges. If training is imparted to an impressionable mind, not contaminated by some of the prevailing undesirable practices in vogue in the present day Bar, amongst others by judges who have mastered the art of rendering justice, the same can be acquired. In order therefore, to equip a fresh law graduate to be a good judge a pre--service training is indispensable. Similarly, those who enter -:107:- state judiciai service at grass roots ievei wi11 equa11y need training in the art of rendering justice. Whiie the basic tenets of training in respect of both may be the same, the duration may vary depending upon the minimum quaiification prescribed for becoming eiigibie for entering service. The Law Commission must cater to the needs for pre--service training at both the 1eve1s, institutionai as weii as practical training."
4.7 Measures to check deterioration in morai vaiues. Corruption. and nepotism are on the increase in the seiection process:--
There has been a deciine in morai va1ues,and A prevaience of corruption and nepotism in the past.
In the case of Ajay Hasia & Ors Vs Kha1id Mujib Sehravardi, 1981(1)SCC 722,745, (Constitution Bench) observed as fo11ows:
"Now, there can be no doubt that, having regard to the drawbacks and deficiencies in the ora1 interview test and the conditions prevaiiing in the country, particulariy when there is deterioration in mora1 vaiues and corruption and nepotism are very much on the increase, aiiocation of a high percentage of marks for the orai
-1108:-I interview as compared to the marks allocated for the written test, cannot be accepted by the court as free from the vice of arbitrariness."
with the intensity of corrosion of moral values, corruption has increased gigantically in our country even after two decades of these observations of the Supreme Court. It can be evidenced through a spurt of various scams in the country. In Shiv Sagar Tiwari V. Union of India (1997) 1 SCC 444, the prevalence of scams in the country has been judicially recognised. It speaks of the prevalent corruption in the country being at it peak, corroding the democratic structure of the country. The experience of selection of judicial personnel through SLMB State Public Service Commissions has been very discouraging inasmuch as these Commissions have lost their credibility (please refer to the observations of the Law Commission of India in its 116th 'eport quoted in this chapter).
Even if the said Commissions are excluded from the jurisdiction of the selection of personnel manning these tribunals (which are relegated to the status of District Judges/Additional District Judges), yet the manner of selection of these persons through personal interview only is not impervious to political interference, corruption, nepotism especially when no evidence of tape--recording of interview is maintained, and public -:109:- does not have access to such confidentia1 matters to enabie them to impugn the se1ection process. Candidates coming from far off p1aces do not have contacts or the time to spare to deive out the i11ega1ities in the se1ection process and thus the iTTega1ities remain hidden in the files of the seiection process. It cannot be denied that those candidates who cou1d manage to secure appointments through corrupt means, can not keep the adjudicating atmosphere free from corrosion as they seek the return of expenditure incurred by them in finding their way into the tribuna1. This forms a cycie of corruption and Towering of the judicia1 values. This cycTic procecs becomes unending because greed is never curtaiied.
As observed in L. Chandra Kumar's case paragraph 89 (supra), certain drastic measures have to be resorted to in order to eievate the standards of tribuna1s to ensure that they stand up to constitutionaT scrutiny in the discharge of the power of judiciai review conferred upon them. The Supreme Court has aTso recommended under paragraph 96 and 97 of the judgment that untiT a who1Ty independent agency for the administration of a11 tribuna1s can be set up, it is desirabTe that a11 such tribunaTs shouTd_ be as far as possibie under a sing1e noda1 ministry which wi11, inter a1ia, Tay down the procedure for the seiection of the members of the -:110:- Tribunals. That body will also have to take into consideration the comments of expert bodies like the Law Commission of India and the Malimath Committee in this regard.
In the backdrop of these developments, it is evident that the said nodal agency will have before it the data of manpower of the tribunal members, and details of their retirement, and vacancy position etc. Under the French Administrative Courts System, appointments are made through a national competitive examination (see article by V.S. Chauhan on 'Justice by Administrative Tribunals' AIR 1986 Journal 56, 58). In search of a solution to the problem under consideration, the Law Commission is of the considered view that judicial members (other than the Chairman and Vice--Chairman) to man the tribunal ought to be selected through the process of a high standard written examination followed by personal interview. It is only if he qualifies in the written examination that he should be considered for personal interview. The percentage of marks allocated for written examination and personal interview can be 85% and 15% respectively. Further more, the evidentiary record of personal interview and written test should be maintained at least for a period of two years. -
-:111:- According to section 6(3)(b) of the Act, a Judicial Member has to be selected from two categories vis. (a) a person who has been or qualified to be a judge of the High Court and (b) a person who has been a member of the Indian Legal Service and has held a post in Grade-I of that service for at least three years. In View of the fact that the Commission is recommending the selection of Judicial Members through a process of a high standard written examination followed by personal interview, it is necessary that there should be a wider choice for selecting meritorious persons as Judicial Members. Accordingly, all law officers (irrespective of their designation) holding, for at least three years, a post equivalent to the post of Joint Secretary to the Government of India or any other post under the Central or State Government or in the public undertakings owned or controlled by the Central/State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, should be made eligible for competing in the examination and selection for the post of a Judicial Member. Accordingly, it is recommended that Section 6(3)(b) of the Act should be substituted by the following words:--
"Law officers (irrespective of their designation) holding for at least three years, a post equivalent to the post of Joint Secretary to the Government of'India; or holding for at least three
--:112:--
years any other post under the Centra1 or State Government or in the pubiic undertakings owned or contro11ed by the Centra1/State Government, carrying a scale of pay which is not Tess than that of a Joint Secretary to the Government of India."
4.8 Constitution of National Appe11ate Administrative Tribunai : An aiternative recommendation The Supreme Court has Taid down in L. Chandra Kumar's case (supra) that an aggrieved party can have recourse to the jurisdiction of the respective High Court under Artic1e 226/227 of the Constitution of India, against the decision of the Centra1 Administrative Tribunai. The repercussions of this deve1opment of Taw have aiready been feit. The Karnataka Government has sought to aboiish the Karnataka State Administrative Tribunal. In the news items in the recent past, it has appeared that even the Centrai Government is proposing to aboiish CAT. The remedy of judicial review by the High Court provided against the decision of the Administrative Tribunal and a possibie further appea1 to the Supreme Court under Artic1e 136 is not on1y time--consuming but a1so expensive. Besides this, the various High Courts may interpret differentiy any statutory provision concerning the service conditions governing the -:113:- empioyees. Thus the Tack of uniformity in the High Court decisions and consequent1y in CAT benches wiii create confusion in the mind of the Titigant. It wi1T further make the pubiic Toose faith in seeking justice through the judiciary, and thus undermine the democratic norms. The Commission is of the considered view that a National Appeiiate Administrative Tribunai be constituted on the lines of the Nationai Consumer Disputes Redressal Commission under section 20 of the Consumer Protection Act, 1986. It shaii be manned by a retired Chief Justice of a High Court or a retired Judge of the Supfeme Court of India. An appeai, on substantiai questions of law and fact may Tie to the proposed Appeiiate forum, against the decision of the Centrai Administrative Tribunal. The proposed forum may have branches aTT over the country to reduce the cost of Titigation to the Titigant. The decision of the proposed Appeiiate court wiii be binding on a11 benuhes of CAT. The proposed forum wi1T be of status higher than a High Court but beiow the Supreme Court.
An appeai may Tie against the decision of the proposed appeT1ate forum to the Supreme Court. Under section 130-E of the Customs Act, 1962, an appeai Ties from the decision of the CEGAT to the Supreme Court. -:114:- Simi1ar1y, under section 23 of the Consumer Protection Act, 1986, an appeai iies against the National Commission's decision to the Supreme Court. It wi11 not be advisabie to convert the Supreme Court to a first appeiiate court, because f1ooding of appeais against the Tribunais' orders may diiute the importance of the Supreme Court and consequentiy our democratic poiity wi11 suffer (1994(2) Journal Section SCALE J1 by Justice A.M. Ahmadi). In this manner, an aggrieved party wi11 not have a right of recourse to the writ jurisdiction under Articie 226/227 of the High Court against the decision of CAT inasmuch as it is settied 1aw that where adequate remedy of appeal is there, one cannot have recourse to the writ jurisdiction (see AIR 1996 SC 1209; AIR 1997 SC 2189). Though it is undisputed that where the vires of the statute under which the Tribunai is constituted, is chaiienged, one can have recourse to the writ jurisdiction under Articie 226/227 of the Constitution of India but such cases wiii be insignificant in number. Simi1ar1y when a right to appeai is contemp1ated to the Supreme Court against the decision of the proposed Appeiiate Administrative Tribunai, one cannot have recourse to the writ jurisdiction of the High Court under Articie 226/227 of the Constitution. This procedure wi11 take care of the ensuing prob1ems cropping up after the decision in L.Chandra Kumar's case (supra).
The proposed President of the Appeiiate forum wi11 continue to draw the same salaries and perks as are admissibie to a sitting Judge.
A11 pending writ petitions against the decision of CAT/SAT in pursuance of L. Chandra Kumar's case (except 1 .4 0 se in which the vires under which the Tribunai is F) F?' .ons ituted, is cha11enged), may be transferred to the proposed Appeiiate Forum.
This proposai can be effective and beneficia1, oniy if Benches of the Appe11ate Forum are estabiished at a11 important centres, at 1east in the capitai of every State, on the pattern of the High Court. 4.9 Grouping ADDea1s before CAT/SAT and the Drooosed Nationai Appe11ate Administrative Tribuna1 I'D It is the n.ed of the hour that for expeditious disposai of c :13 se fl) , a11 cases which raise one or more common questions of 1am and on the basis of which, the cases can be disposed off by a common judgment, shou1d be grouped together and heard together. Thus in the 7'th Report of the Law Commission of India on delay and arrears in High Courts and other appeiiate courts, this recommendation has been echoed as quoted in Chapter III (supra).
4:116:-
4.10 Simi1arTy, the Law Commission of India has recommended in its 125th report on "The Supreme Court A fresh Took" in paragraph 4.20:-
"Cases covered by ear1ier judgments of the Court must be grouped together by a computer."
Besides the decisions of the apex court, if there are judgments of the proposed Appe11ate Forum, then the cases covered by it, and pending before CAT/SAT and even before the proposed forum, shou1d be grouped together and disposed off together.
In order to impiement the recommendations contained under thi 0':
paragraph and the preceding paragraph, in a true spirit, CAT/SAT and the proposed Appe11ate Forum should appoint research officers, to assist the respective Tribunais in this regard, in finding out the common cases, and the judgments aiready pronounced by' courts which are binding on the cases pending. They wi11 be definite1y assisting the Tribunai in increasing the expertise and efficiency of the Tribuna1 and thus reaiise these objectives. CAT/SAT and the proposed forum may from time to time invite app1ications from the Titigants/opposite parties. T The Research Officer may then scrutinise the c1aim of the app1icant and put up the research note to the Bench for passing the 'appropriate orders. The Forum may issue notice to the parties before disposing of the cases as -:117:- per the judgment a1ready pronounced by the higher court and binding upon it. 8imi1ar1y, an exercise may be done by the Research Officer for grouping of the pending cases which can be heard together.
4.11 Disposa1 of cases on the basis of arguments fi1ed by the parties even through the DOSt:
Towards achieving the objectives of easy accessibi1ity/openness, under Section 19 of the Centra1 Administrative Tribunals Act, 1985, an app1ication can be fi1ed by a party even through the post (Rule 4 of the Centrai Administrative Tribuna1 (Procedure) Ru1es, 1987). It foiiows that if notice is issued by CAT/SAT or the proposed forum the opposite party may be aiiowed to send his repiy even through post and it can aiso be Taid down that the app1icant can fi1e his rejoinder to the repiy in the same manner.
Simi1ar1y, the appiicant shou1d be permitted to fiie his written arguments/briefs with precedents on the ana1ogy of the recommendation of the Law Commission of India in its 125th report on "The Supreme Court - A fresh Took , pr. 4.18 as fo11ows:--
"4.18 .... Therefore, it is now inevitabie that this reverentia1 approach to ora1 arguments must yie1d to the necessities of time. There are a -:118:- number of cases which can be identified by the Chief Justice of India in which oral arguments can be totally dispensed with. Petitions for special leave which can be admitted without oral arguments need not be listed in court but must be admitted by circulation.... The Courts must be empowered to dispense with oral arguments and insist upon written briefs."
The proposed research officers may assist the Tribunal in disposing of the case on the basis of the written briefs received.
This practice of making written submissions will at least take care of holding favourable attitude against a particular lawyer and save tribunal's time. Above--all, it may be necessary to circulate for information of all the members of the Tribunals, the effect of not following the judgment of the Higher Court, especially when attention was drawn by the party in the written brief. The .ffect is it leads to contempt of Court as held in Shri Baradakanta Mishra Vs. Shri Bhimsen Dixit, AIR 1972 SC 2466:-
"15--16 .... any deliberate and mala--fide conduct of not following the law laid down in the previous decision undermines the constitutional authority
-:119:fi and respect of the High Court. .... It is ....
also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law."
This recommendation will be a U1 tep in the direction of making the Tribunal member accountable for his action if he violates the Rule of Law. It has been observed that litigants and their advocates many a time raise disputes before the superior courts that though a particular decision of the higher court was -ited before the lower court, yet it failed to discuss the same in its judgment. In order to advance the cause of the administration of justice so that the rule of law can be further strengthened, it is felt that it may be provided in the procedure followed by the tribunal that before the beginning of the arguments, both the parties be required to file their written arguments and counter arguments, if they desire to do so, and I11 I.''' the conclusion of the arguments both the parties be required to file a list of the cases cited by them before the tribunal during the course of the hearing. Such a course will avoid the raising of any dispute on those issues as well as compel the presiding officer to adhere to the rule of law laid down by the superior court and avoid harassment to the litigants and confusion in the administration of law.
-:120:- 4.12 Constitution of Benches of retired members of Tribunals As observed by the Law Commission of India in its 124th Report, on 'The High Court Arrears -- A fresh look'. paragraphs 3.15 to 3.26, there are numerous cases which are more than five years old in the High Courts. It recommended that Benches of retired Judges may be constituted to do civil, criminal and miscellaneous work in the morning from 8.30 a.m. to 12 or 12.30 noon. The High Court Judges will then assemble from 12 or 12.,0 noon and work up to 5.30 claiming a half hour lunch break. Thus the rich experience of judges and expertise in the justicing process can be used. Similarly, the services of retired tribunal members can be utilised for disposal of old matters pending before Tribunals, without involving any additional costs on buildings, libraries, etc. 4.13 Laying down of the policy and machinery to curb litigation between employees and the Government:--
Unless a proper litigation policy is evolved by the Government or the public sector undertakings, it would be an idle parade of familiar knowledge to advance advocating the setting up of various tribunals. The Law Commission of India has already recommended the setting -:121:- up of an Effective Grievance Ce11 to dispose of the probiems raised by the staff in its 126th report as cited in chapter III, supra.
we reiterate those recommendations without repeating them with the observation that uniess an appropriate litigation poiicy and machinery is evoived to curb the probiems, industriai reiations wiii suffer and productivity wi11 go down.
4.14 Need to quantify the costs for raising frivolous defences:--
There is a general prociivity to raise a11 the sundry, frivoious and untenabie points of facts and Taw. The Law Commission of India has recommended in its 131st report on the "Roie of Legai Professian in the Administration of Justice", (cited in chapter III, su ra), that the presiding judge must aiso certify at the time of passing the judgment whether untenabie and frivoious defences were raised how much time was spent in recording the decisions on them, and if so, quantify the costs to be awarded. This wiT1 curb the tendency of fiiing frivoious cases. we reiterate those recommendations for impiementation in the Tribunais aiso.
--:122:--
4.15 Need to evoive a mechanism for nipping in the bud the confiicting interpretation at the CAT/High COl.H't 2 "
Uniess uniformity of the decisions at higher 1eve1 is maintained, it is iikeiy to raise confusion in the minds of Iitigants. The Commission has exhaustiveiy dea1t with the probiem and recommended measures to tackle the prob1em, in its 136th report on "Conf1icts in High Court Decisitns on Centrai Laws -- How to resoive", (chapter III, supra).
We reiterate tho in e measures quoted under chapter III and recommended that the tribunais shouid a1so be empowered to refer the confiicting decisions to the Supreme Court. This wi11 a1so give a chance to the aggrieved party to present his point of view. 4.16 Locus standi of aggrieved party to review the order and the need to provide exp1icit1y the extent of the powers of review of CAT and the need to pub1ish it in the news papers and to circu1ate it by the concerned department so that persons can intervene in the proceedings by which they wi11 be adverse1y affected:--
--:123:--
Section 22(3)(f) of the Administrative Tribunals Act, 1985 enunciates the powers of the tribunal concerning reviewing its decision and provides as follows:--
"(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same If! powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,-
(F) reviewing its decisions"
Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 prescribes the procedure for making an application for review. Under sub--rule (1) of rule 17, it is provided that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of a copy of the order sought to be reviewed.
In the case of K.Ajit Babu v. Union of India, AIR 1997 SC 3277 the question arose as to whether a review application can be filed by a person not a party to a case but who would be adversely affected by an earlier judgment of the tribunal. The Supreme Court held as follows:--
-:124:-
"4....rr.uOften in service matters the judgments rendered either by the tribunal or by the court also affect other persons, who are not parties to the cases. It may help one class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the Courts or the Tribunals may not be strictly judgments in personam affecting only to the parties to the cases, they would be judgments in rem. In such a situation, the question arises; what remedy is available to such affected persons who are not parties tt a case, yet the decision in such a case adversely affects their rights in the matter of their seniority. In the present case, the view taken by the Tribunal that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application under 8.19 of the Act. Section 22(3) (f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Administrative Tribunal (Procedure and Rules) (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date. of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to
-1125:-
a case. However, even if we give wider meaning to the expression "a person feeling aggrieved"
occurring in 8.22 of the Act whether such person aggrieved can seek review by opening the whole case decided by the Tribunal. The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking the 0.4? of the Code of Civil Procedure may not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a deci.ion. Besides that, the right of review is available if such an applicationn is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be end to law suits and if the view of the --:126:- Tribunai is accepted the proceedings in a case wi11 never come to an end. We, therefore, find that a right of review is avaiiabie to the aggrieved pesons on restricted ground mentioned in 0.47 tf the Code of Civi1 Procedure and if fiied within the period of Timitation."
In a recent decision in the case of Sri Gopa Bandhu Biswal v. Krishna Chandxu Mohanty, 1998 (3) SCALE 226, the decision in K.Ajit Babu (supra) was a1so referred to and it was observed as regards third parties are concerned as fo1Tows:-
"10.... We wi11 assume for the time being that the appiicants are person I'll aggrieved. Even so, the question is whether they can have a judgment which has attained finality by virtue of an order of this Court, set aside in review. There is no doubt that as between the parties to the main judgment, the judgment is finai and binding. The respondents, State of Orissa and Union of India, are therefore, bound to give effect to the judgment of the Tribunal in T.A. No. 1 of 1989 in the case of Gopa--Bandhu Biswal. If this is so, can a third party by fiiing a review petition get that same judgment reviewed and obtain an order that Gopa-Bandhu Biswai is not entitied to the benefits of the directions contained in the main
-:127:--
judgment since that judgment is now set aside? In our view this is who11y impermissibie. It wi11 Tead to reopening a matter which has attained finaiity by virtue of an order of this court. The appiicants, even if they are persons aggrieved, do not have, in the present case, a right of review under any part of Order 47 Ruie 1. Even under Order 47 Rule 1 (2), the party not appeaiing from a decree or order _ can appiy for review only on grounds other than the grounds of appea1 which were before the appeliate court, and during the pendency of the appeai. In the present case a11 the grounds which were urged in review were, in fact urged before the Tribune} at the time when the tribunai decided the main appiication and they were a1so urged by the petitioner in the Speciai Leave Petition which was fiied before this court. The Speciai Leave Petition has been dismissed. The same grounds cannot be again urged by way of a review petition by another party who was not a party in the main petition.
"11. According to the appiioants certain documents though produced before the Tribunal were not noticed by the Tribunal in deciding the main matter. Even so once a judgment of a tribuna1 has attained finaiity, it cannot be reopened after the Special Leave Petition against that judgment has -:128:- been dismissed. The on1y remedy for a person who wants to chaiienge that judgment is to fi1e a separate application before the Tribunai in his own case and pursuade the tribuna1 either to refer the question to a iarger Bench or, if the tribunal prefers to foiiow its ear1ier decision, to fiie an appeai before the Tribuna1's judgment and have the Tribuna1's judgment set aside in appeai. Review is not an avai1ab1e remedy.
"12. Undoubted1y when the tribunai interprets Service Ruies and Reguiations, the interpretation so given may affect other members of that service past, present or future. One can understand a wider meaning in this context being given to the phrase person aggrieved", thus eniarging the right of perscis to intervene at the hearing before the Tribuna1, or in appeai, or for fiiing a review petition. Neverthe1ess, this right must be exercised at the appropriate time and in accordance with 1aw. A review petition must be within the scope of section 22 ( Ia) .)(f) of the Administrative Tribuna1s Act read with Order 47 Ru1e and must compiy with the ruies framed under the Adminsitrative Tribuna1s Act. The present review appiications are not within the principies iaid down in Order 47 Rule 1. They aiso do not comp1y with the reievant ru1es. Ruie 17 of the -:129:- Central Administrative Tribuna1 (Procedure) Ruies, 1987 prescribes, inter-a1ia that no appiication for review shaii be entertained uniess it is fiied within 30 days from the date of the receipt of the copy of the Order sought to be reviewed...."
"16.... If the tribunai decides to fo11ow its eariier judgment the respondents in these app1ications can fiie petitions for 1eave to appeai if they so desire; and any other person aggrieved may aiso, with the ieave of the court, appiy for speciai ieave to fiie an appeai. In the event of the Tribunai coming to a conciusion that its eariier judgment requires reaconsideration, the tribunai can refer the question t- a larger III Bench. In either cas. the persons aggrieved can app1y and intervene to put forward their point of From the aforesaid decisions of the Supreme Court, it is evident that:--
(a) ordinariiy a right of review is avai1ab1e only to those who are party to a case.
(b) in circumstances where the judgments may a1so affect other persons, who are not parties to the cases, such judgments being strictiy not judgments in personam affecting oniy the parties to the
-:i30:-
cases, a right of review shouid be avai1ab1e to L'?
he aggrieved persons with the 1eave of the Tribunai on the restricted grounds mentioned in Order 47 of the Code of Civi1 Procedure and above a11 if an appiication is fi1e CL within the period of 1imitation.
(J) the right 0 'h T It) < 4 .
ID E 0
-9:
1'9' 3' ID decisiois of the tribunai or court shouid be avaiiabie oniy on _1imited grounds mentioned in Order 47 CPC and the princip1es contained therein have to be extended tL the tribunai.
In view of the above, the Commission is of the considered opinion that section 22 (3)(f) of the Act shouid be amended to explicitiy incorporate the right of review to an aggrieved person (who is not a party to the proceedings) with the ieave of the Tribunai but restricted to the ground mentioned in Order 47 CPC. so Far as the parties are concerned, the right of review is a1ready secured by the said provision.
4.17 There shouid be a reform of the administrative justice system in order to ensure better standards of independence, acoessibiiity/openness, expertise, representativeness, efficiency and aocoutabi1ity.--:131:-
CHAPTER -V CUSTOMS. EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL §CEGAT).
The CEGAT is constituted under Section 129 of the Customs Act, 1962 and by virtue of the definition of the "Appe11ate Tribunai" in ciause (AA) of Section 2 of the Centrai Excise and Sait Act, 1944 read with Sections 35B, 35C and 350 of the said Act, the said Tribunal is aiso the Appe11ate Tribunai for the purpose of the Centrai Excise and Salt Act, 1944. This Tribunal , it is necessary to point out, is not constituted under Articie 3238, but under the specia1 enactments aforementioned 35L(b) of the Centrai Excise Act and Section 130E(b) of the Customs Act, 1962 provide for a direct appea1 to the U) upreme Court against the orders of the Tribunai in matt rs reiating to determination of any question having a re1ation to the rate of duty payabie or to the va1ue of the goods for the purpose of assessment, hereinafter referred to for the sake of convenience, as ciassification and vaiuation respective1y. In other matters, a reference is provided to the concerned High Court under Section 35G of the Centrai Excise Act and Section 130 O m I th. Customs Act. As a matter of fact, not Tess than haif of the matters which come before the CEGAT under both the enactments pertain either to the rate of
-:132:--
duty payable or to the value of the goods for the purpose of assessment. In this manner, a direct statutory appeal to the Supreme Court is provided against half the number of orders passed by the Tribunal under both the enactments and these matters appear to be more significant having regard to the stakes involved therein both for the Revenue as well as the assessees. In other matters decided by the Tribunal, recourse to High Court by way of reference has to be adopted. Even here 1 against any Judgment delivered by the High Court on such reference, an appeal is provided to Supreme Court under Sectign 35L(a) of the Central Excise Act and Section 130E(a) of the Customs Act. Though these two enactments do not directly and specifically provide for an exclusion of judicial review by the High Court and the Supreme Court, they do so by necessary implication. By providing a direct appeal to Supreme Court in a good number of cases decided by the Tribunal, which remedy is a far better and a wider remedy than the remedy of judicial review available under Article 226 or 227 or under Article 32 of the Constitution of India and by providing for the reference to the High Court in other cases, the intention to exclude the right to judicial review by the High Court and the Supreme Court is abundantly manifested. The remedy of a reference to the High Court, a procedure prescribed by the Income--Tax Act, 1861 (as well as the repealed Indian Income--Tax Act, 1922), is a well-established procedure and no one has suggested that
-:13?:-
the right to judiciai review is avaiiabie against the orders of the Income Tax Appeiiate Tribunai in addition to the remedy of reference to the High Court and the appeai to Supreme Court from the orders of the High Court.
The Law Commission is of the opinion that the function performed by the CEGAT is of crucia1 importance both from the point of View of the Revenue as weli the assesses. The matters coming before the Tribunai invoive huge stakes , sometimes running into tens and hundreds of urores. The Tribunai has aiso got the power to grant s.ay pending the appeai, vide the provi.o to Sectian 35F of the Centrai Excise Act and the proviso to Section 129E «n of the Custom. Act. If a stay is granted and the appeai is not decided by the Tribunal within a reasonably short time, it wiii resuit in prejudice both to the Revenue as we11 as to the Assessees. This is more so after the judgment of the Targer Constitution Bench of the Supreme Court in Mafatiai Industries Ltd. V. Union of India 1397 (t) SCC 536, affirming and uphoiding the doctrine of unjust enrichment and the vaiidity of (Amending) Act 40 of 1991 giving statutory recognition to the aforesaid doctrine. It is in the intemst of the assessees in particuiar that the disputes reiating to ciassification and vaiuation are disposed of as quickiy as possibie. The Law Commission has a feeiing that the highiy significant nature of the function performed by this -:134:- Tribunai has not been du1y and sufficient1y appreciated by thote concerned and it is probab1y for this reason that adquate number of Benches have not been created by the government which is absoiuteiy essentiai for the prompt disposai of the Targe number of appeais fiied before the Tribunai. (As a matter of fact, the facts and figures made avai1ab1e by the Tribuna1 show that the fiiing is increasing with every passing year which is oniy adding to the probiem of the huge backiog which has aiready accumuiated.) In view of the fact that in a buik of matters decided by this Tribunai, appeai Ties to the Supreme Court directly under the two statutes aforementioned, it wouid not be unreasonabie to infer that this Tribunai has been treated by the Pariiament aimost on par with the High Court. The status and dignity of this Tribunai deserves to be enhanced accordingiy.
with a view to make this Tribunal a more effective instrument of Taw for achieving the objectives for which it has been constituted and for achieving the objectives underiying the Centrai Excise Act and the Customs Act the foiiowing recommendations are made which the Commission hopes, wi11 be given effect to, without any deiay, by the Government of India. The recommendations are I ' (A) -:135:- No person shall be appointed as the President of the Tribunal unless he is or has been the Chief Justice of a High Court. He must be a person reputed for his efficiency, integrity and hard work. Immediately upon his appointment he must be provided a residence in New Delhi consistent with his status besides other perquisites and amenities to which he was entitled as the Chief Justice of the High Court. The selection of the President should be made by a committee consi .ing of .he Hon'ble Chief Justice of India and the two senior of the Supreme Court. As a matter of convention, it must be ensured that there is no time lag between the retirement of a President and the appointment of his successor. Qnly where a suitable sitting or retired Chief Justice is not available, should a senior sitting or retired High Court Judge with the requisite qualities be considered. An effective and efficient President would go a long way in improving the work--culture of the Tribunal - a fact borne out by experience.0
Section 129 of the Customs Act calls for an amendment. The appointment of the President of the Tribunal should be a direct appointment in the manner stated above, whereas section 129, as it stands now, contemplates appointing one of the Members of the Tribunal as the President thereof. '5
-:136:-- « while the appointment of the Vice--President can be done from among the Members, the President of the Tribunal should be chosen directly from among the sitting or retired Chief Justices or retiring or retired senior Judges of the High Court. In the matter of appointment of Judicial Members of the Tribunal, an attempt should be made, as far as possible, to recruit Members of the Bar between the age of 45 and 50. Thev must be provided with an official residence as soon as possible upon their appointment/posting to a particular city and ould .J they si also be entitled to all the perouisites and amenities admissible to their office. Not making a suitable residence available almost immediately upon their posting to a place and driving them to seek private accommodation at exhorbitant cost acts as a disincentive to those considering joining this service. It is equally necessary to provide that these Judicial Members should be considered for appointment as Judges of the High Courts (of the State from which they , in the quota normally reserved for members of the subordinate judiciary and if for any reason this course is not found feasible or practicable, they may be considered under sub-clause (b) of clause 2 of Article 217 read with extension (aa) and/or (b) appended to the said clause. If this Administrative Members is again a necessity, an obvious requirement, practice.
District Judges of the promotion --:137:- assurance is heid out, many members of the Ear may be attracted to this office. which may incidenta11y have the added advantage of making avai1ab1e persons of competence, who have acquired in Centrai Excise and Customs matters to the High Courts.
The prompt recruitment and posting of Judiciai and which though has not realiy been honoured in In this connection, the practice of taking on deputation to work as Judicial Members Tribunai should be encouraged. They shouid retain parent service so that their chances of or of appointment to the High Court are not jeopardised.
In matters where a reference iies to the High Court under section 35G of the Central Excise Act and Section 130 of the Customs Act, the requirement of app1ying to the Tribunai for making a reference as provided by sub--section (1) of section 35G and sub--section (1) of section 130 respective1y of the said enactments may be dispensed with. Section 358 and section 130 may be suitahly amended providing that any person aggrieved with the decision of the Tribunai may apply to the High Court for directing the Tribunal (E) (F)
-:138:--
to refer the questions of iaw arising from the decision of the Tribuna1. The time limitation for making such an appiication can be retained at six months as is now provided by sub--section (3) of the aforesaid sections. It must however be provided that a person so appiying to the High Court should clearly state the questions of Taw which he seeks to raise and shouid aiso specify the paragraphs in the decision/judgment of the 4 Tribunai reievant to the questions sought to be raised. Such a provision is necessary in View of the fact that the judgment of the Tribunai may deai with severe] other questions of law and fact.
In every High Court there shouid at Teast be one Bench reguiariy hearing matters arising under the Income--Tax Act, Centre? Excise and Sait Act and the Customs Act. The matters arising under the iatter two enactments shou1d. as far as possibie, be given precedence in the matter of hearing.
Every Bench of the Tribunai should be headed by a Vice-President. For this purpose, there must be as many Vice--Presidents as there are Benches of the Tribune}. At any rate, the important centres like Munbai. Ahmedabad, Chennai and Caicutta shouid necessariiy have a Vice--President each.
(G) r'\ I \_/
-:139:--
The number of Benches shouid be commensurate with the work in the Tribuna1. Sin 0 «D V EVEFY Member/Bench of the Tribunai is exp. ted to I F:
dispose of a particuiar number of cases every year, the number of Benches shouid be determined on the above basis and provided for. On the present pendency, there ought to be at 1eas L".-
20 to 22 Benches, in a11. As stated hereinabove, the fiiing in the Tribuna1 is going up with every passsing year - and not decreasing.
Speciai care shouid be taken whiie appointing the Senior Departmenta1 Representatives (SDRs) and Junior Departmenta1 Representa L'?
ives (JDRs). Their roie is no iess important. Persons of competence and integrity aione shou1d be designated as such. The recommendations made regarding Centrai Administrative Tribunai under paragraphs 4.9- 1 4.10; 4.11 and 4.13, supra, shaii aiso be extended to CEGAT a1so.
-:140:- CHAPTER - VI INCOME-TAX APPELLATE TRIBUNAL (ITAT) 6.1 So far as ITAT is concerned, the Commission is of the opinion that no change is called for in the working of this Tribunai since it has been working satisfactoriiy for the Tast severai decades. There is however one measure of improvement which we wish to propose, nameiy, the dispensing with of the requirement of appiying to the Tribunai in the first instance for making a reference to the High Court as provided by sub-section (1) of section 256 of the Income-Tax Act, 1961. The procedure can be simpiified and a Tot of time can be saved by providing that a person aggrieved with the decision/judgment of the Tribunal may appiy to the High Court straightway requesting the High Court to direct the Tribunal to state the questions of Taw which according to him (the applicant) arise from the decision of the Tribunai. The present practice of c1earTy stating the questions of Taw which a person wants to raise must be continued. The appiicant must be further directed to specify the paragraphs in the decision of the Tribunai which are reievant to each of the questions of Taw raised by him, separateiy. It shouid aiso be provided that such appiications shouJd be Tisted before the appropriate Bench in the High Court as soon as they are ready For hearing. This is being emphasised for the reason that in -:141:- certain High Courts, appiications under section 256(2) are kept pending for years together before they come up for hearing.
5.2 It has been observed that the same question of Taw is invoived in the case of many assessees every year repeatediy in the taxation matters, ti11 the question of Taw is finaiiy' decided by the higher courts. This resuits in a geometric increase in the number of cases on questions and aiso Teads to uncertainty in respect of the payment of taxes. In the event of a decision ho1ding against the assessee on those recurring questions of law, the cumuiative interest on taxes payabie, under various heads as determined by the court to be payabie by the assesses, sometimes reach very high figures, which may give a joit to the industry and even Tead to the closure of the industry in some cases. Therefore, justice demands that the recurring disputes on account of common questions of Taw shou1d be fina11y settied at the ear1iest.
The so1ution to this prob1em may Tie on1y if adequate attention of ITAT is drawn to such common issues. Therefore, the ITAT may, through the assistance of research officers specified under paras 4.9 and 4.10, supra, invite appiications regarding such common issues/recurring issues from the assesses/appeliants or from the Repondent/Revenue department by advertising from
--:142:--
time to time in newspapers and on notice boards. The research officers may a1so deive into court fi1es to find out such common questions of iaw and put them up before the ITAT. The Tribuna1 shou1d decide such issues on a priority basis. In their judgment, the Tribunai may refer to the fact of taking up the common issue on an expeditious basis, so that the High Court may aiso take it up on a priority basis. Simi1ar1y, the High Court may mention in their judgment about taking up the matter on :11 priority basis, so that in case the matter goes to the Supreme Court, it may also decide the case expeditionsiy
6.3 The rectmendations made regarding Centra1 Administrative Tribuna1 under paragraphs 4.9; 4.10; 4.11 and 4.13, supra, sha11 aiso be extended to ITAT aiso. -:143:- CERTAIN GENERAL OBSERVATIONS It may be mentioned that both in the first questionnaire and the revised questionnaire as we11 as in the suggestions received pursuant to these questionnaires, one of the major issues debated was the estabiishment of a Nationai Tax Court (for direct taxes) and a Nationai Court of Indirect Taxes (for the purposes of Centrai Excise and Sa1t Act and Customs Act) while exciuding the jurisdiction of the High Court a1together in these matters. This idea is no Tonger reievant first for the reason that both under the Centrai Excise Act and the Customs Act, a direct appeal to the Supreme Court is provided for in important matters viz., ciassification and va1uation and second1y because of the decision of the Supreme Court in L.Chandra Kumar. According to this decision, whose -ssentia1 features have already been detaiied hereinabove, whi1e such Tribunais can be created, the judicia1 review of the High Courts under Articies 226 and 227 and of the Supreme Court under Articie 32 cannot be exciuded, which means that the orders of such Nationa1 Courts wou1d sti11 be subject to judiciai review by various High Courts in the country, un1ess a direct appeai is provided to the Supreme Court against the orders of such Nationai Tax Court/Nationa1 Court of Indirect Taxes, which course wou1d mi1itate against the very raison dTetre of the idea. And if no such appeai is provided, SLMBOHE may 1egitimate1y say -:144:- that the remedy of judicia1 review even against such Nationa1 Tribuna1s oannot be exo1uded. For the above reasons, the said idea has not been pursued in this Report so far as these tribuna1s are concerned. -:145:- QHAPTER-VII Conc1usions:
7.1 On the basis of the discussions contained in the preceding Chapters, the Commission is of the considered opinion that the fo11owing radical changes need to be taken immediate1y to achieve the reforms in the working of the Centra1 Administrative Tribuna1, Centra1 Excise and Go1d (Contro1) Appe11ate Tribunal and Income Tax Appe11ate Tribuna1 to attain a sound justice de1ivery system which is a sine qua non for the efficient governance of a country wedded to the ru1e of 1aw. Thus the substance of the recommendations made in the preceding Chapters is cu11ed out be1ow:-
7.2 The Law Commission makes the fo11owing recommendations insofar as the administrative tribuna1s constituted under the Administrative Tribuna1 Act, 1985 enacted with reference to Artic1e 323 of the Constitution of India:
(a) with a view to improve the efficiency of the administrative tribunais, the present practice of appointing retired or about to retire District Judges as~ judicia1 members is not entireiy satisfactory. These District Judges do not dea1
--:i46:-
with service matters during their judicial service and since they are appointed towards the end of their career, there is not much time - and in some of them, inclination - to learn this branch of the law viz., service jurisprudence, they get hardly two to three years on the job. (It may be remembered that in the light of the judgment of the Supreme Court in All India Judicial Officers Association case, the age of retirement of the subordinate judiciary is now 50, in effect. It is obvious that those who are not allowed to continue beyond 58 years in view of their unsatisfactory record, would not be considered or appointed as Ill members of the Administrative Tribunal). In this view of the mat I.'+ er, an attem t should be made to D recruit members of the Bar bet I een the ages of 45 and 50 who will have a longer period available to them to prove their mettle. At the same time, it is necessary, with a view to provide an incentive to these judicial members that they should be consid :1) red by the High Court (of the State from which they hail) for appointment as judges of the High Court in the quota normally reserved for members of the subordinate judiciary and if for any reason this course is not found feasible or practicable, they may be considered under sub--clause-(b) of clause (2) of Article 217 read with Explanation (aa) and/or (b) appended to the said c1ause. If this assurance is held out, many members of the Bar may be attracted to this fiffice. It would aiso mean that persons of competence, who have (acquired) expertise in service matters wouid be avai1ab1e to tie High Court., Section 8 of the A.T.Act, 1985 may accordingiy be amended. In the case of members, the initiai term should be made ten years, renewabie for a further period of five years.
(b) The practice of appointing retired or about to retire High Court Judges as Chairman' of State Administrative Tribunais has a1so not proved happy.
Sinc th II) III age of retirement for these posts is 65, the persons so appointed hardiy get a three--year term or sometimes even iess *-- in office. It wouid be more appropriate if the sitting Judges of the High Courts, who have got 't ie ' ) II) t not iess than one ye_r to go b for III 0 retirement from the High Court, shou1d be conside'ed for aapointment to these posts. In this manner, they wi11 have :t ierst a four--year term which wouid give them sufficient time to settie down in the office and do some productive work. Ordinariiy, an Administrative Member shouid not be appointed a the Vice--Chairman of CAT or as m the Chairman Of SAT.
(paragraph 4.5(b), supra) (C) An appeai shouid be provided to the High Court, to be necessariiy heard by a Division Bench against the orders of the Administrative Tribunai. The appeai sha11 be to that High Court within whose territoriai -:148:- jurisdiction the Tribunai rendering the judgment to be appealed against, is iocated. This measure removes one of the serious and principa1 criticisms against the judgment of the Supreme Court in L.Chandra Kumar viz., that there cannot be a judiciai review of an order passed by an authority in exercise of' its power of judicia1 review. The Tribuna1's order, according to the said decision, is in exercise of a power of judiciai review; if so, this order cannot be the subject matter of a judiciai review cice again. Judiciai review, by its very nature, content -nd concept, is on1y against administrative or duasi--judicia1 action of administrative and oeher authorities -- say the critics. The remedy of appeai shouid be provided not oniy against the finai orders but aiso against the interiocutory orders of the Tribunai.
(paragraph 4.5(c), supra)
(d) As an aiternative tL the recommendation contained in (c) above, it is recommended that the Government may constitute a Nationai Appeiiate Administrative Tribunai to entertain appeais against the orders passed by the Adminsitrative Tribunais. Such a National Apeiiate Tribunai shail have Benches in ail important centres in the country, if not in the capitai of every State, generaiiy consistent with the pattern of the High Court. Such an appeiiate forum shouid be headed by a former -:149:- Chief Justice of a High Court or a former Judge of the Supreme Court and whose other members sha11 be either retired Judges of the Supreme Court or retired Chief Justiues of the High Courts as the case may be. An appeai shouid be provided direct1y to the Supreme Court and to the Supreme Court a1one against the orders of such an Appe11ate Tribunai. Such a court on the iines of the Nationai Consumer Dispute Redressal Commission created by the Consumers Protection Act, 1986 wouid ensure that the power under Articie 226 and 227 of the Constitution is not invoked against the orders of the appe11ate forum. Once an appeai is provided by the statute tL the Supreme Court against the orders of the appe11ate forum, it can be statec with certainty that the High Courts would not interfere with the orders of the appeilate forum. Such a course would also be consistent with the provisions of .he Customs Act and the Centrai Excise Act which provided direct appea1 t; the Supreme Court against th- orders of CEGAT in matters relating to ciassification and vaiuation. If such an Appe11ate Tribunai is constituted, the writ petitions pending in the severai High Courts against the orders of the Administrative Tribuna1s sha11 stand transferred to the appropriate Bench of the Appe11ate Tribunai and be deait with in accordance with iaw. It is obvious that subject to the appeai to the Supreme Court the orders of the Nationai Appe11ate Tribunai sha11 be finai.
--:150:- (paragraph 4.8, supra)
(e) The need for imparting training to personnel manning the tribunal is essential as discussed in Chapter I V .
(paragraph 4.6, supra '.1
(f) In order to combat and check deterioration in moral values, corruption and nepotism which are on the increase in the selection process, the Commission is of the considered view that Judicial Members (other than the Chairman and Vice--Chairman) to man the tribunal should be selected through undergoing the process of a high standard written examination followed by personal interview. It i IT) only if he qualifies the written examination that he should be considered for personal interview. The percentage of marks allocated for written examination and personal interview can be 85% and 15% respectively. Further more, the evidentiary record of pe'sonal interview and written test should be maintained at least for a period of two years.
According to section 6(3)(b) of the Act, a Judicial Member has to be selected from two categories vis. (a) a person who has been or is qualified to be a judge of the High Court and (b) a person who has been a member of the fndian Legal Service and has held a post in Grade--I of that service for at least three years. In
-:151:--
view of the fact that the Commission is recommending the selection of Judicial Members through a process of a high standard written examination followed by personal interview, it is necessary that there should be a wider choice for selecting meritorious persons as Judicial Members. Accordingly, all law officers (irrespective of their designation) holding, for at least three years, a post equivalent to the post of Joint Secretary to the Government of India or any other post under the Central or State Gov .rnment or in the public undertakings owned 0 O 3 3 L'?
o' .-I ..J
-1) Q. U' y the Central/State Government or carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, should be made eligible for competing in the examination and selection for the post of a Judicial Member. Accordingly, it is recommended that Section 6(3)(b) of the Act should be substituted by the following words:-
"Law officers (irrespective of their designation) holding for at least three years, a post equivalent to the post of Joint Secretary to the Government of India; or holding for at least three years any other post under the Central or State Government or in the public undertakings owned or controlled by the Central/State Government, carrying a scale of pay which is not less than -:152:- that of a Joint Secretary to the Government of India."
(para 4.7, supra)
(g) It is essential that for the expeditious disposa1 of cases, a11 cases which raise one or more common questions of Taw and on the basis of which the cases can be disposed of by a common judgment, shouid be grouped together and heard together. In this spirit, the Centrai Administrative Tribuna1/State Administrative Tribunai and the proposed appeiiate forum should appoint research officers to a sis J cf the respective tribunais in this 'egard, in finding out the common cases and the judgments a1ready pronounced by the courts which are binding on the cases pending. These officers wiT1 definite1y assist the tribuna1 in increasing the expertise and efficiency of the tribuna1 and thus reaiise these objectives. CAT/SAT and the proposed forum may from time to time invite appiications from the Titigants/opposite parties through advertisement on the notice boards/papers. The Research Officer may then scrutinise the ciaim of the appiicant and put up the research note to the Bench for passing the appropriate orders. The Forum may then issue notice to the parties before disposing of the cases as per the judgment aiready pronounced by the higher court and binding upon it. Simiiariy, an exercise may be done by -:153:- the research officer for grouping the pending cases which can be heard together.
(paragraphs 4.9 and 4.10, supra)
(h) Disposal of cases can be done by the tribunal on the basis of arguments filed by the parties even through post in the manner discussed earlier It has been observed that litigants and their advocates many a time raise disputes before the superior courts that though a decision 0 'H the higher court was cited befgre th IT.-
3E III "a 3
-f '-, yet it failed to discuss the same in it; judgment. In order to advance the cause of the administration of justice so that the rule of law can be further strengthened, i L'?
is felt that it may be provided in the procedure followed by the tribunal that before the beginning of the arguments, both the parties may be required to file their written arguments and counter arguments, if they desire to do so, and at the conclusion of the arguments both the parties be required to file a list of the cases cited by them before th tribunal during the course of the hearing. Such a course will avoid the raising of any dispute on those issues a
47) well as compel the presiding officer to adhere to the rule of law laid down by the superior court and avoid
--:154:--
harassment to the Iitigants and confusion in the administration of 1aw.
(paragraph 4.11, supra)
(i) Constitution of Benches of retired members of the tribunals can be uti1ised for disposa1 of old matters pending before the tribunals without invoiving any additionai cost on bui1ding, 1ibraries etc. in the manner discussed eariier.
(paragraph 4.12, supra)
(j) A proper Titigation po1icy and machinery shouid be evoived by the Government or Pubiic Sector Undertakings to curb Iitigation.
(paragraph 4.13, supra)
(k) uost for raising frivoious defences shou1d be quantified by the tribuna1 and awarded to the opposite party as this wi11 curb the tendency of Fi)ing frivo1ous cases.
(paragraph 4.14, SUDTE) I (1) There is an essentiai need to evo1v m a mechanism for nipping in the bud the confiicting interpretations by the CAT/High Court in the manner discussed above. (paragraph 4.15, supra)
(m) The Commission has made recommendations regarding the Tocus standi of an aggrieved party to appiy for review of the order with the leave of the Tribunai and the grounds on which review can be sought by a person not a party to the decision but affected by it. (paragraph 4.16, supra)
(n) There shouid be a reform of the administrative justice system in order to ensure better standards of independence, accessibiiity/openness, expertise, representativeness, efficiency and accoutabiiity. (paragraph 4.17, supra) 7.3 The recommendations of the Commiesion in so far as the Centrai Excise and Ggid (Controi) Appeilate Tribuna1 are as foT1ows:--
(a) No person sha11 be appointed as the President of the Tribunai uniess he is or has been the Chief Justice of a High Court. He must be a person reputed for his efficiency, integrity and hard work. Immediateiy upon his appointment he must be provided a residence in New Deihi consistent with his status besides other perquisites and amenities to which he was entitied as the Chief Justice of the High Court. The seiection of the President should be made by a committee consisting of the Hon'b1e Chief Justice of India and the two senior most Judges of the Supreme Court. As a matter of convention, --:156:- it must be ensured that there is no time Tag between the retirement of a President and the appointmens of his successtr. Qn1y where a suitab1e sitting or retired Chief Justice is not avaiiabie, shouid a senior sitting or retired.High Court Judge with the requisite dua1ities be considered. An effective and efficient President wouid go a Tong way in improving the work--cuTture of the Tribunai -- a fact borne out by experience.
(paragraph 5.1.A, supra)
(b) Section 129 of the Customs Act caiis for an amendment. The appointment of the President of the Tribunai shouid be a direct appointment in the manner stated above, whereas section 129, as it stands now, contemplates appointing one of the Members of the Tribunai as the President thereof. while the apptintment of the Vice--President can be done from among the Members, the President of the Tribunal shouid be chosen directiy from among the retired Chief Justices or retiring or retired senior Judges of the High Court (paragraph 5 1.B, supra)
(c) In the matter of appointment of Judiciai Members of the Tribunai, an attempt should be made, as far as possibie, to recruit Members of the Bar between the age of 45 and 50. They must be provided with officiai residence as soon as possibie upon their appointment/posting to a particular city and they should also be entitled to all the perquisites and amenities admissible to their office. Not making a suitable residence available upon their posting to a particular place and driving them to seek private accommodation at exhorbitant cost acts as a disincentive to those considering joining this service. It is equally necessary to provide that Jhese JLdicial Members should be considered for appointment as Judges of the High Courts (of the State from which they hail) in the quota normally reserved for members of the subordinate judiciary and if for any reason this course is not found feasible or practicable, they may be considred under sub--clause (b) of clause 2 of Article 217 read with extension (aa) and/or (b) appended to the said clause. If this assurance is held out ) many memb Itv rs of the Bar may be attracted to this office which may incidentally have the added advantage of making available p (D "n 0/) O 3 all 3
-f ctipetence, who have acquired expertise in Central The prompt recruitment and posting of Judicial and Administrative Members is again a necessity, which though an obvious requirement, has not really been honoured in practice. In this connection, the practice of taking District Judges on deputation to work as Judicial Members
-:158:--
of the Tribunai shouid be encouraged. They shouid retain a iien in their parent service so that their chanse- of promotion or of appointment to the High Court are not jeopardised.
(paragraph 5.1.0, supra)
(d) In matters where a reference 1ies tn the High Court under section 356 of the Centrai Excise Act and Section 130 of the Customs Act, the requirement of appiying to the Tribunai for making '.13 E 'in ID "u «D 9 I D 7- as provided by sub--section (1) of S9CsiLH 35G and sub--section (1) of section 130 respectiveiy of the said enactments may b III dispensed with. Section 35G and section 130 may be suitabiy amended providing that any person aggrieved with the decision of the Tribunai may appiy to the High Court for direcfing the Tribune?
to refer the questions of iaw arising from the decision of the Tribunai. The time limitation for making such an application can be retained at six months as is now provided by sub--section (3) Jf the aforesaid secti 0 ns. It must however be provided that a p ('D U1 r.on so applying to the High Court shouid c1ear1y state the questions of law which he seeks to raise and shouid also specify the paragraphs in the decision/judgment of the Tribunai' relevant to the questions sought to be raised as such a provision is necessary in View of /'\ ID N} the fact that the judgment of the Tribunal may deal with several other questions of law and fact. (paragraph 5.1.D, supra) In every High Court there should at least be one Bench regularly hearing matters arising under the Income--Tax Act, Central Excise and Salt Act and the Customs Act. The matters arising under the latter two enactments should, as far as possible, be given precedence in the matter of hearing. (paragraph 5.1.E, supra) Every Bench of the Tribunal should be headed by a Vice-President. For this purpose, there must be as many Vice--Presidents as there are Benches of the Tribunal. At any rate, the important centres like Mumbai, Ahmedabad, Chennai and Calcutta should necessarily have a Vice--President each. (paragraph 5.1.F, supra) The number of Benches should be commensurate with the work in the Tribunal.
Member/Bench of the Tribunal is dispose of a particular number of cases every year, the number of Benches should be determined on the above basis and provided for. On the present pendency, there ought to be at least 20 to 22 Benches, in all. As stated hereinabove, the --:160:- fiiing in the Tribuna1 is going up with every passsing year -- and not decreasing. (paragraph 5.1.G, supra)
(h) Speciai care be taken whi1e appointing the Senior Departmentai Representatives (SDRs) and Junior Departmental Representatives (JDRs). Their ro1e is no Tess important. Persons of competence and integrity aione shou1d be designated as such. (paragraph 5.1.H, supra)
(i) The recomendations made regarding Centrai Administrative Tribunal under paragraphs 4.9; 4.10; 4.11 and 4.13, supra, shali aiso be extended to CEGAT aiso.
(paragraph 5.1.1, supra) 7.4 so far as ITAT is concerned, the Commission is of the opinion that no change is ca11ed for in the working of this Tribuna1 since it has been working satisfactoriiy 1/1 for the Tant severai decades. There is however one measure of improvement which we wish to propose, nameiy, the dispensing with of the requirement of appiying to the Tribunai in tie first instance for making a reference to the High Court as provided by sub--section (1) of section 256 of the Income--Tax Act, 1961. The procedure can be simpiified and a Tot of time can be saved by providing that a person aggrieved with the decision/judgment of the -:161:- Tribunal may apply to the High Court straightway requesting the High Court to direct the Tribunal to state the questions of law which according to him (the applicant) arise from the decision of the Tribunal. The present practice of clearly stating the questions of law which a person wanes to raise must be continued. The CT"
to applicant must further directed :7?' 0 specify the paragraphs in the decision of the Tribunal which are relevant to each of the questions of law raised by him, separately. It should also be provided that such applications should be listed before the appropriate Bench in the High Court as soon as they are ready for hearing. This is being emphasised for the reason that in I'D rtain High Courts, applications under section 256(2) are kept pending for years ogether before they come up for hearing.
7.4.1 It has been tbserved that the same question of law is involved in the case of many assessees every year FD (ta r.p atedly in the taxation matters, till the question of law is finally decided by the higher courts. This
-2162:-
resuits in a geometric increase in the number of cases on simiiar questions and aiso Teads to uncertainity in respect of the payment of taxes. In the event of a decision hoiding against him on those recurring questions of iaw, the cumuiative interest on taxes payable under various heads II I L11 I)':
CL etermined by the court to be payabie by the assesses, sometimes reach very high Figures, which may give a joit to the industry and even 1ead to the closure of the industry in some cases. Therefore, justice demands that th ID recurring disputes on account of common questions of law shouid be finaliy settled at the eariiest.
Tie solution to this prob1em may lie on1y if adequate attention of ITAT is drawn to such common issues. Therefore, the ITAT may, through the assistance f research officers specified under paragrapis 4.9 and 4.10, supra, invite appiications regarding such common issues/recurring issues from the assesses/appeiiants or from the Repondent/Revenue department by advertising from time to time in newspapers and on notice boards. The research officers may also deive into court fiies to find out such common questions of iaw and put them up before the ITAT. It may decide such issues on a priority basis.
In their judgment, th.
II:
--I "i ._l .
D' C § _-I 3 D '< refer to the fact of taking up of the common issues on an expeditious basis so thrt the High Court may aiso take it up on a priority .igh Court may mention in its it m:y aiso decide the case expedntiousiy to settle the matter I - A \ gpara 0.4, auprng 7.4.1 The recommendations made regarding Central (mars 8,? \u F3:
\,- n - -, - -, |.b- -___._._..-_.l _..___.- '-_'1., we reccuuenu accuvdiuguy.
(MR.JUSTICE B.P.JEEVAN REDDY)(RETD) E ($%u9'£:
(DR.N.M.GHATATE) (R.L.MEENA) M€7§E§_____--------'_ MEMBER MEMBER - " SECRETARY DATED: 29th July, i998 r'\ E m o C.' U I 4 H 0 In P I11 I-I |_ ib U) ITI 4 I \-J r''\ 3!) ITI 4 U \.l "9 I6H:~~ ANNEXURE -- I CHNRMAN LAW COl\/'ll'v1lSGl()l'l GOVERNMl--ir~.|T OF lNl)I/\.
sHAs1nnnuAmuui NEW DELHI - I ll) 001 Tm.on;384475 Res. 3019455 K. N. SINGH onien CHIEF JUSTICE or INDIA) D.O.No.6(3)(2l)/93--LC(l.S) ,\pr_i_1_ 29, 1994 Dear Chief Justice, '1 have addressed you a letter zil0Iip,\vil_|1 questionnaires [or ellcltllig your valued opinion regarrling the functioning of Central Admiiiistrative Trllmnal and income Tax Appaellate Tribunal and Customs, Excise and Gold Control (Appellate) Tribuu'al. The details are given in the letter and the questionnaires .
I would be grateful if. you could kindly ci.rr:ulute the letter and the questionnaires to the llon'b_le Judges of your Court to enable them to express their vimvs in the matter... I am aware this w.i.J.l_ cause,you some inr.on\It-ruieiicv but the L'ommi.s-sion will not be able to complete 'the iu~ depth study of the matter without your valued Co--operatiou. With regards, Yours s'nrerely, it ' é\ (K.N_;/5INc.ii) () To Chief Justices of All lligh Courts I).O. No. 6(3)(2l)/93~LC(LSI _ April :40, iunri Dear By the l42nd Amendment Act, I976 the Constitution was &1m«.'tir|i'rI .-nut Articie 323-18 and 32 -B were" inserted to provide by law eii1pmvm"tii;; the Parliament and the tate Legislature to enact laws [Gr the constitution of Administrative Tribunals for the adjudication and coiitrol oi. disputes and complaints relating to the service matters of public servants belonging to the Union or'the States. The Parliament enacted the Administrative Tribunal Act, I935 for constituting the Central Administrative Tribunal. Some of the States have also constituted State Administrative Tribunals for the adjudication and trial of the service matters. These tribunals exercise the jurisdiction and power which were earlier. exercised by the courts including the High Court and their orders are not amenable to judicial review by the High Courts and the only remedy available to the aggrieved party against the order of the Tribunal is under Article I36 of the Constitution. The Chairman of lln--'s<~' tribunals is a retired Judge or Chief Justicejiof a high Court and t|u-- \'i«e Chairman is- Secretary to the Government or equivalent post holder with :1 requisite experience. The selection of the Chairman, 'v'ice-Cliairnian and the Members is made by a committee 'headed by the Chief Justice or his nmninee Judge from the Bench. Ordinarily the Tribunal consists of a Judicial'Uirirer and an t'\dministrative Member and its admini.str'c\tive control is under the executive. Orders" of these Tribunals are final subject to a Special Leave Petition under Article I36 oi the Constitution. As regards the Income--tax Appellate Tribunal, its orders are -'~'\il)ii~'r'i to the judicial review of the High Court' and under Section 256 oi the Income Tax Act references are made to the High Court on questions of law. Since a number of references in tax matters were kept pending lor long years Iyvfore the High Court, the Revenue laced great difficulty in col.lecti.n;2 the dues {rum the assessees. The Law Commission by its II5th Report made recomint;m|;,1tion for the constitution of a Central Tax Court with all India jurisidrtion to introduce an all India perception in the matter of implementing of tax law and eliminating conflicting decisions and delay at the High Court level in rel":-1 vitri- cases. The Tax Reforms Committee set up by the (luv:-:rnin<.-nt oi" Ilnliu hen. also recommended for the setting up of a Central. Tax Court. The orclers ol the proposed Central Tax_Court will not be subject to judicial review by the High Court.
Under Section I29 of the Customs Act, Customs," r;)(t'.l3~2L' .-ind (IuI\I (Control) Appellate Tribunal (CEGAT) has been constituted. Its orclers are final subject to an order» made on reference by the High Court under Sf;'Ci'l0ll I30. The appointment of the President of CEGI-\T and its lnnctioning came up for consideration before the Supreme Court in R.K_H.___':l_§1_l_Il v. ,:l;lV1'_L:_illV\_.I\)_l1>"Kill India, AIR I993 SC I769. While considering the qtaestiiiii of eippnininwnt. selection and functioning of the CEG/'\T, the Court re[e.t'retI to the anpointim-nt and functioning of other tribunals also including the Cf'\T and In<:onn- I';i>< Appellate Tribunal. The Supreme Court observed:
"The dispensation of justice by the Tribunals is much to he desircgd. But judicial adjudication is a special process and would elficieiilly be administered by advocate Judges. The remedy of appeal hi-4
special leave under /\rt.l.36 to the Supreme ijonrt also costly and prohibitive and far-flung distance too is constant constraint to litigant public who could ill afford to the Supreme Court. An appeal to ':1 Bench of two Jticlgges ol lin- respective High Courts over the orders of the Tribunals within its; territorial jurisidction on questions of law would assuage El growling feeling of injustice of those who can ill afford to 'ctpnt'uat'l) the Supreme Court. Equally the need for recruitment hf lIH3ll'1l)(!l'H of tin- Bar to man the Tribunals as well as the worl<ing,~_».system by the Tribunals need fresh look and regular monitoring is ltt'.('(;'S5:&l"}.'. Except body like the Law Commission of India \vould inal<e an indepth study in this behalf including the desirability to luring (LEG/\T under the control of law and justice department in line with Income Tax Appellate Tribunal and to make appropriate UI';1_L'nl recommendations to the Govt. of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effect.ive and efficient lltSTt'lItnt't\l.\ for making Judicial review efficacious, inexpensive and satislactot'_v."
provecl to he wnt'l< nnz as r r'{--lr"l] l'roceed.in;z_,further the Supreme Court observed that these it'll)Ul1{tl:: .'n<' not wholly independent bodies like courts in view of their constitution. nl members and the administrative control over them by HM' 1,-'Xt?t','llll\'l'. the- Supreme Court directed the' Law Commission of India to tnt(let'lal<e an inti»-naive and extensive study in regard to the constitution of the tribunals ltlnlt-I' lhv various statutes with a view to ensuring their independence so that l_llt-' pnhlir conf.idence in such tribunals may increase and the cntality of their may improve.
p or lL'l'lllF_lllr'(' Pursuant; to the directions of the Supreme ijonrl the Lmv ('.oI1tttiis:~'iuI\ of India has undertaken indepth study of the tribunals with a view In ~;nl_nnlt its suggestions to the Government to make the functioning of the tribunals effective and efficient and provide speedy and inexpensive. justice to the litigant public. Even though a number of tribunals are functioning. the Law Commission has for the present confined its exercise with t't-.'§')ill'(l to administrative tribunals dealing with service matters and the lnconn-. Tax Appellate Tribunal and the CEGAT. In this context the (jotitniissinti hits prepared two sets of questionnaires, one relating to the functioning of the service tribunals and the other relating to IT/»\T and t,'l";(}/\T, to elicit \'l(_T\'\'\ of the Hon'ble Judges, lawyers, jurists, academicians and officers nl the department, as their response would provide valuable assi.slatirn to the Commission in formulating its recotmnendations. We are enclosing El <.'op_\-' of the two questionnaires to you for your kind perusal and study. I would, therefore, request you to kindly spztre sontv of your precious time .in giving your valued opinion to the issues t'ai.~;i-it in tin' questionnaire at your earliest convenience, preferably within one month. Looking forward to your cooperation. With regards, Yours 5' ll1'."_'l't-'l \' .
QUESTIONN/\1RE ON SERVICE 'l'RlDUN/\LS I. Are you .'h'tli!|lir'(l with the, luurllnnln;v_ nl Hu- Central and State /\du1lnlstratlve 'l'rl|)t.uml:;'." ll not, kindly state your reasons"for-the same. ..
2\(a). Do you think' that the present system o[ constitutioni of the Tribunals having Judicial and /\dministrativ..e Members is satisfactory and working efficiently? If not, please give your reasons and suggestions .
2(b). 'Do you agree with the suggestion that these tribunals should "be manned only by the Judges and judicial officers to the exclusion of the administrative members? If so, state your reasons.
3." Do you think that the service tribunals as they are constituted presently are satisfactorily catering to th_e.needs of the litigants? Is it correct to say that the tril>u'nals as constituted U .at present,' are good substitutes for the High .(,Iourts? If'not, kindly state your reason.-;. 14(a). At present there is no appeal against the order of the tribunal but appeals are strztiglmtztway being filed " "before the Supreme Court under
--iv---
/ttb).
t5(E.1).
ycost and Constitution /\rticle . I36 of the \\'hi<:h _ is increasing the workload on the apex constitutional court. Should this system be Continued? ll not, what modification you would suggest- in -this regard.
/\ny party" filing appeal before Supreme tfourt under, Article l36 ol the Constitution against the L I order of the tribunal has to incur exorbitant even for trivial service tnattet'.-< arising out of disputes relating to increment, Q ' -
seniority, promotion, interpretation of service rules. etc., a litigant has to lrttvcl to Delhi lrom-far oil places by incurring CUl1.\'l(lCl'{\l)lC I / Cost. Does this require a change in the 5§)'2§l('lH by devising 'any other appellate forum? It so, in what manner?
Do you agree with the suggestion that there should be'one appeal on 'lacts as well as on questions of law against orders of the trihunnl":' (fnttrl.
If so, before which authority, the High the Supreme Court or al separate f\p|)(.'ll£tt(.' Tribunal.
Do' you agree that appeals against the order oi A _ h _ tribunals should be maintainable, béilore the High Court on questions of fact and law and in order to ensure; speedy disposal the High Courts constitute permanent should beiirequired to I service benches for the Central Government and the State Government servants to deal with the service matters exclusively?
It you do"not agree with the -ttppeul being filed belore the High Court, do you agree with the suggestion for the constitution of appellate tribunals with Benches on regional basis to entertain and hear appeal against the orders qt I the tribunals? ' Do you agree with the View that the multiplicity of the tribunals is destructive of the uniformity of 1law in India? it so', please state your reasons.' Do 'you agree with the suggestion that the selection of Chairman/Vice_;Chairman and AgM.tL./ Members of the tribunal/ be ntailéfl by the Chief Justice of India_in case or CAT and in the case of SAT by the Chief Justice ofiirespective High Court or a Committee ' appgolnted by the respective Chief Justice. It not', [)iC£t.'$<' state ~ \/'.;'~ your r(~:t.~:im_~:.
Do you agree with the suggestion that Hw '/\cIIn'm'1stratlvc !\'1iI1istz-y_:.. Ior the (7/\'l' nml S.'\l' should be Ministry of Law?
Do you suggest any change in the cI<~:Iin'Llion of "service matters"?
Have you any other suggestions to make'? ' I /\i,)l)ITlONf\L QUt;ST[0NN/\lRt; ow 'S[';|l\'_|__tTl'. .|'ll'll\l|Ni\i.I\ \ Whether the existing ot'o\'is.ions Ul\(i('l' Scrtioii (~ rent! with Section 8 of the /\dmin.istrati\'c'5iribunals /\t.'t. I985. pt'cSCt"ibintz voualiiication I01' 7apuointment oi afltulirzial i_ V .
Member that "a person is,'j.or"has been. or is cmaiitietl to be a Jud::c_ of at Hitzh C0i\tl't '.i......
"and he shall not hold the office alter he has iilIE1ir1('.(i . - . - . .
(b) in the case of Member, the age of sixty two years.".
provide any incentive to at \vo'ri<in;; High Court §futi;:r~ to join the CAT?
H Whether the words or is ciualiiictl to be at §iu<11:t* oi the High" -Court" in the aioreouoted, section 6. have acivancecl the objective oi makintz the otteseut iortun oi t':\'1'. tt';\ii'_~' . ¢ ii a substitute of High Court? '_ "
Whether the provisions under S"1CIi0H 6 of the r\ct makimz '|'out't Jticltzcs eiiuibio for 1 i persons other than the High apoointment have lliEiii1tEiinC(i the St{\I\tiCH'(i.0i the iota oi Cl\'i' rcruardinyz its eificiency. eiit*t~tivt~:icss. t'iii('(1Lf§' .-is that of a High Court not only in Iorm and cieiurcr but in Content and dc Iacto?
..(VI'i-1, Should the existihg adtninistt*at.i\'e I\lt'IIIl)t'l.l~ he only assessors or continue to be members 01 the t'/\I'?
Do you agree'wlth thesutztzestlon that exisiima justice h A delivery sy'stem.|throu;1h CAT and 'SAT has iIt.~i|)it'('d faith 5 « I and Confidence in litigants? llC'>n0t.
g._',«', plea.-<53 elaborate CZIUSGS .
Tribunal Whether in your opinion, the members ol independence lroml executive enjoy _thed repute ol inlluentre, other pres:'.ttt'(:5 or lt';Il'lL'.'€S§tlL'.'i3~ t~l |)t\\\'L'l' centres, economic or ' political, _mul ll't'tftlt'lII from prejudices acoulred and nourished by the rlaséz to which they belong'? . V Whether. there should be a statutory |\\ll"LlH to keep under review the constitution andd \\~erk|in;: ol the tribunals:
also to consider and report on such |Mll'llt'lll(ll' matters and may be referred. to such fora?' It so. what should be' the nature of the ('omposition ol the Stlltl lortmt?
F-,' V U. a. :-
3.
QUI3S"IOI\JNAIHE ON INCOME-'rAx' AND CL'1G1\'1' Tl{'i1__'\_L.vJI9__,-\;i._.\_'_'a'_ Do you agree with the suggestion that existing justice delivery system through CEGAT/ITAT has inspired faith and confidence in litigating public that these are comgmtent and expert mechanism with judicial aj_3proach :u'1I..1_ <~.h;ju>c:t:.5.v.1 t§.«~'{ If not, please elaborate causes/reasons. Whether in your opinion, the members of the 'L'.r-;i.1.um::1.l r,'l\_\")():c the repute of independence from eiecutive pressures or influence, feerlessness of other power centres, economic or qpoliticel, and freedom from prejudices acquired and nourinhvd J by the class to which they belong?
Comgositionz
(a) Do you think that the present composition of the iribunols whereunder one Member is n Judicini Humhvr nnd the other is'a non--judicial one, is sound in principle and satisfactory to secure the ends of justice? ilenne give reasons for your yiew end suggestions, if nny.
(b) would you agree to the suggestion that the Tribunal:
in question should consist of exolusively persons with fiudicial experience?
QC) Whether the existing technical members/nccountnnt members under the CEGAT or ITAT respectively he onlv aqeessors or continue to he Dbmbers of thu'TPihHuuln?
(Ci) IY1 1'e{;2n*d 'to j11djJ3lJ1l 1manfi)e1's, vnxert, ix) yroxnh <wpixriiun, should be the minimum qualifications or experience requisite for appointment to the Tribunals?
(e) Rule 10 of the CEGAT Members (Recruitment end Conniiiona of Service) Rules, H987 prescribes qualifications For' ') >o~-au'..«9r\ ~\'/LU ----
appointment as Member and President, it states:
"serving judge of a 1Ii(;h Court...os1m.'l.;L hold o,f'ff:1_cr3 l as Presidentw....till he attains the age of 62 '"5 years....."
\ The Rule does not provide any incentive to a servinfi High Cogrt Judge to join the CEGAT in View of constitutional provin si under Article 217 that he holds office until he attains thelage of 62 years. This runs counter to common inclination why a sitting judge would opt to servé r CEGAT as its President, if h is to retire at the same age without any benefit; in your pinion, what suitable changes should be made to make the terms and conditions of service more attractive so that sitting High Court Judges may opt for appointment as the F~esident of the CEGAT and eten for post of Member of the CEGAT to raise its 5 tend f,1I'Cl . , ' (e)(iT would you suggest,_in the light of the above, that, as in the case of the Central Administrative Tribunal (CAT), the retiring age of the President and Vice~Fresident should be raised to 65 years while in the case of other members it may continue at 62 years?
(ii) ./is a corollary to the above, would you :'$L1_',g0:'»['. that lzh-". post of President and/or'Vice~President of these Tribunals should be restricted only to a sitting/or retired Judge of a High Court or would you make it available for promotion to judicial and/or technical or accountant Hemhurs of the Tribunals as well? Would you restrict the eligibility of Members only to the posts-of Vice~President and that too 5 I only to a proportion of such posis?
\'Lx:_ an.-ua.q>.-y M. ...)...
(1?) "vlhether the existing section 129(2) oi' 1-m Cur: l:(m1.<:
Act, 1962 providing, for qualifice-J.t.iOns Ci' (.1 ;jnd.i.<-..'i:2l v«m'nh:-.r that ~ "A judicial member shall be a gerson who hug for at least ten years held a judicial office in the territory of India or who has been a member of the Central Legal Service and has held a post in Grade I of thut service or any equivalent or higher post for at least three years, or who has been an advocate for at least ten yearsoo..."
and similarly section 252(2) of the lncome»Tax Act, 1361, need amendment in the context of the qualifications of the President of the CEGAT quoted above.
Do you agree that merely rélsing the:3tatus of the President of the Tribunals is not sufficient but the status of the members of the Tribunals as well should bqiuired oorrespondingly?
Considering that two of the three qualifications referred to earlier are also qualifications which make a person eligible to be considered for appointment as a high Court Judge; in what way do you consider it possible to raise the status Of the members consistent with the u status to be prescribed for the Fresident sud/or Vice~ President."
I Whether a litigant is able to get his case decided OKpudi~ tiously? If not, how much period is normally consumed 'for final disposal before the Tribunals?
\ .4 -7' _' .....h.-,
--~>"("---
\.:"1 I
7.
-4-' Cs', Administrative"Authority:
Do you agree that there should be an authority to have administrative control with power to issue administrative iinstructions in the functioning of the Tribunals.
If so, which authority, you would prefer: the Supreme Court o£_India/Ministry of Law/Ministry of Finance of Government of India.
rlease indicate reasons for your preierenceo which authority should hold selection 01 Chnirmnn, Vicc~ Chairman and Members of the Tribunals in question?(3)
(b) The Chief Justice of India, or a Committee appointedlby the Chief Justice of India, or (0) (6A) Do you agree that whichever authority for selection the Central Government.
is constituted, it should be in charge of selection of all )4 Amembers ~ hoth judicial and technical members ~ of the Tribunals?' (68) fromotion Committee to decide, from time to time, on Should such Selection Board be also constituted as the promotion of members of the Tribunal as Vico~Irosinont/ President,.if eligible under the rules? (6C) would you suggest any other powers to the Selection Board in matters of administration of the Tribunal? ggpealsz General Should there be a provision for second appeal against the order of Tribunal?
(i) If so, should-the second apfcal he on [nets Hm well as on law oroonly on questions or law. llense indicate y 01.11"' FL' £153 ODS o r.
an-co-oc_)oon ix}-
.. L) :-
(ii) If you suggest an appeal against the order of tun \ Tribunal_should lie, what in your opinion, should we the forum for appeals against the judgments of the Trituu1als in rpuzstion? Vkmild 34$; fnvou1':u1:wppenl to the ~
(a) Supreme Court,
(b) High Court, (0) any other National Tax Court/Appellate Tvfihuvml to be newly constituted?
O
8. Do you agree with the View that procedure for reference by I the Tribunal to the High Court (ynder Section 256, lncome~ Tax Act, 1961; Section 130 of the Customs Act, 1903) shoutd be abrogated, instead appeal shouLi lie to the High Court on substantial qiestions of law against the order of the Tribunal.
is BA. Another suggestion[that a partial abrogation of the 4 reference procedure 4 hy.eliminating the need to apply I I to_the Tribunal for reference to the High Court in the firs; instance and, on failure, to apply to the High Court for H mandamus -- and substituting it by a simple procoduvn of seeking a direction from the High Court for a reference only on substantial questions of law arisin§'out of the \1TibUnal'S order would ~ \ '
(i) eliminate a step in the present law which only causes delay and is perhops unnecessary; and
(ii) make the system almost as good and effective no a direct aPDQal to the High Court from the Tribunal':
order. .~'"
What are your views on these suggestions?
p<:An(..-3:,-0 'X;/w
9..
10. ln case you favour appeal to the High Court in pt no of ".',W.' H i yr}:
reference, do you agree with the suggestion that Courts should be required to constitute lwrwmnent Hnnnhen for hearing appeals from the lribunnl§{m1<uunMfionT In case-you favour the continuance of the present nyfitvm of reference, do you consider it useful to constitute 'permanent Benches for disposing of such reference?
.(i) Do you agree that the jurisdiction of the High Hourt he abrogated under Articles 226/227 of the Constitution of India against the decisions of the myflunfiijvw under the Income~tax Act, 1961, or under the CWUAT by constituting an equally efficacious, effoctlvo forum like National Tax Court or Appellate lribunals? If so, 'what should be its composition?
(ia) Will not the proyisicn of such a Court or tribunal he really the repetition of a provision for tax nnsvssevn of a third tier of appeal while litigants in other branches of law have, in general, only two tiers of appeal available to them?
(ii) In case you favour the creation of a separate Aprollntv Tribunal like National Tax Court or Tribunal against judgments of the Tribunals in qiestion, should the tribunal hold its :
n in)sny, four regions (North, South, East and W"Ht):
(iii) How far do you think such regional Benches will be able
(a) "to coye LnQ\ui111 the vunfl<load innnalved vdyuflm mt s.£:\'e.l':§1l }'.1'.}jh ',.'r'>='.."l.'= .;
present is distributed among aI1(l '
(b) to Dilfil the obgective of Hurrying JU3tiCO nearer ,-.
..-9.».-V.-l'.~-an _ X /71'.
sixhtirngs tkn~oLu3h }3er1c!n2s jUJnfYti(H1iH['
11.
12.
-7 ...
to the doorstep of the assessees?'
(iv)Do you agree that the proposed National Court or Appellate Tribunal should also be vested with jurisdic« tion to deal with constitutionelityfiof tax legislation, (hmilit'tho1m2 he znmy (nx3eL>tlo11'to lflttn (unav{w~ It Ilw= Tribunal proposed either consists ~ only of Jndivflnl members or, if it is provided that only Benches of the Tribunal consisting of such members will deal with such questions? / ()1 '(v) There is a View that unless the original Jnrlnldiutiwn of determining the constitutionality of tax legislation is conferred upon the proposed forum of National Tax Court or other Appellate '.£ribunr.\l l:L'tig-;;-u1'l::; \.'I:9.ll he .'\hl"- to resort to High Courts under Articles 296 or the Constitution of India and frustrate the objective or expeditious disposal of matters? How to mrot the nilnn~ tionp indicate your reasons.
Should the National Tax Court or Appellqle Tribunal be constituted exclusively by judges, under the administrative control of Supreme Court?
Under the present system, provision for aptenls with special deave to the Supreme Court under Article #36 or the Cunntiw tution against the Judgmentsbf the Tribunals M1 minntnnu, fls lncreésing the workload of the Supreme Court and in causing hardship to litigants who have to travel to Delhi from far off places. would Ou favour nnr amendment in r this regard, and if so, in'what direction? I * XIV --
1h.
_;
'L.' ' '16.
17° _8~ Have you any Changes to sug{_:es't re[§a1'din,0,' 'the Jl_.11'is=.«i.i.C[jinn of the.Tribunals in question? If so, kindly give your suggestions in detail with reasons. Do you agree_with the view that the fiultiplicity of (Ion lit-Hrzl i =.'r= Tribunals to deal with various matters is of the uniformity of law in India? II 509 plnns~ mukc aey concrete suggestions that you may like to he considered in this.regard4 There is a proposal to uholimh the JTAT nun lhn WHHAT Wu constituted r a National Tribunal having a number of Bunches ln llm I at preserrt and. to subsififlnmte 'U1onq4u%lwn1nls lg', country to deal with the appeals arising out o£'thv lncowom Tax Act and the Customs Act.
Go) Do you agree that the constitution of a nlnfllo National Tax Court or National Tribunal (in place of thn oxicu ting trfibunals) will effectively solrc the vowed pro~ blem of a conflict of Judicial opinion and promnte 'certaihty in the law or would you suggest that the existence of conflicts is necessary and healthy to promote a full discussion of all points of vlnw Oyfifl on any question? .
The proposed National Tribunal is to be conutitutvd under Article 323B of the Constitution excluding the jurisdic- 1 tion of the'High Court under Articles 226 and """
«er of the Constitution as well as abrogating the roibrence wrooeduro. Do you agree to this proposal?
If the Hirh Court "urisdiction is taken awnv will it not' . 1:
increase the workload in the Supreme Court under Article IE3 Do you agree to thin proposal?
19° of the Constitution as the aggrieved party will approach the Supreme Court under that provision against the uxfler of the proposed tribunal.
A .7n The proposed National Tribunal, in the absence of a Constitutional amendneht, cannot have any jurisdiction to determine the question of constitutionality of laws end the jurisdiction of the High Court under Article 226 would be likely to mainvoked to challenge the oonsti~ tutional validity of the Income--Tax Act and the Customs Act and the rules,firamed thereunder. iwill this not frustrate the object and prpose of the constitution of the "qtional Tribunal and cause delay?
Have you any other suggestions to make in this matter, 'XWF
2.
. f L) SUPPLEMENTARY QUESTIONNAIRE ON INCOME TAX hfiQ"§h§AIm@hifiUfl}7i Agter Question 3(e), we add:
"(efi) would you suggest, in the light of the above, that, as in the case of the Central Administrative Tribunal (CAPX the retiring age of the President and Vice~vregkdnnt gngutq be raised to 65 years while in the case of other members git may continue at 62 years?
(exli) As a corollary to the above, would you sufiflésh myu the post of President and/or Vice President of those Tribunals should be restricted only to n sittinc/or , retired Judge of a High Court of would you make it available for promotion to judicial and/or technical or accountant Members of the Tribunals ashell? would you restriot.the eligibility of Members only to the posts of Vioe»President and that too only to a proportion of such posts?
K At the end of the¥second Phrt of Question 3(f), we add:
ficonsidering that two of the three qualificatiovs referred i to earlier are also qualifications which make a person eligible to be considered for appointment as a High Court Judge, in what way do you consider it possible to raise the status of the members consistenwkith the status to be prescribed for the President and/or Vice President." After fiuestion No. 6, insert the following:
"@A) Do you agree that whichever authority for soioctflul is constituted, it should be'in charge of selection of all members a both judicial and technical members ~ oi the Tribunal?
X vii
5.
6.
7. (6 B) Should such Selection Board be also constituted as Promotion Committee to decide, from time to time, on the promotion of members of the Tribunal as Viee~President/ President, if elmgible under the rules?
(6 C) would you suggest any other powers to the Selection .Boerd in matters of administration of the Tribunal?"
After Question 8, we insert the folflowing question:
"BA. Another suggestion is that a partial abrogaLion of the reference pzocedure -- by eliminating the need to aoply to the Tribunal for reference to the High Court in the first instance and, on failure, to apply to the High Court for e mandamus - and substituting it by a simple procedure of seeking a direction from the High Court for 5 reference only on'substantigl questions of law erising out of the Tribunal's order would ~
1) eliminate afitep in the present law which only cnuses v d lay and is perhape unnecessary ; and
(ii) make the system almost as good-and effective as n direct apgeal to the High Court from the Thibunul's order. What are your views on these'suggestions", After Question 10(i), insert the following:
"(ia will not the provision of such a court or tribunal be rgally the repetition of a provision for tax asuesceos of a third tier of appeal while litigants in other branches of law have, in generol, only two tiers of appeal available to them?" "
In Question 10, odd after (11)
(iii) How far do you think such regional Benches will he
---xvh}¥
-.2
7. able (a) to copy up with the workload involved which at present is distributed among several High Courts and
(b) to fulfil the objective of carrying Juntjcn nnnlwr to the doorstep of thgosscscees?
In Question 1D(i1i) add: _ "Could there by any objection toithis course if the Trihuunl proposed either consists ~ only or judicial members or, if it is provided that only Benches of the Tribunal consisting of such members will deal with such questions?"
After Quegtion 15 we add:
"(a) Do you agree that the constitution of a sinnle National Tax Court or National Tribunal (in place of the existing tribunals) will effectively solve the vexed oroblem of a conflict of judicigl opinion and promote certainty in the law or would you suggest that the existmnce of conflicts is neccssnxy and healthy to 'promote a full discussion_o£ all points of view open 'on any question?"
.------Xj>'K___ ANNEXURE - II D_ O_ NO' 6(3)(2l)/93--LC(LS) .
' 3.
Dr. S. C. Srivastava Joint Sccrctzxry & Law Omccr GOVERNMENT OF IND!/\ MINISTRY OF L/\\\', JUSTICE & COMPANY AFFAIRS DEI'I\RTMI3NT OF LliCi/\L, /\FF.'\'lRS'_ I..'\\\' COMMISSION SHASTRI BIIAWAN, NEW 1)ELlll- H0001 v Tcl. : 383682
l):1|<:d Dear Sir, The Law Commission had circulated a Questionnaire on Service Tribunals vide its letter of even number dated September 4, 1994, soliciting views from Hon'ble Judges, Chairman/Vice--Chairman of various tribunals, lawyers, jurists, academicians and State Governments etc. The Law Commission has been benefited immensely through various responses projected by many eminent persons. After perusing those views, it is felt to enlarge the scope of . the Questionnaire on Service.Tribunals so that the working of the tribunals may be dealt with in a broader perspective keeping in view the responses 'and observations of the Supreme Court, particularly with regard to the concept of judicial review, a basic feature of the Constitution. A detailed Questionnaire on Service Tribunals has been prepared, which is enclosed herewith. 'This Commission solicits your valuable views on the Questionnaire enclosed to enable the Commission to prepare a comprehensive report on the subject. It is likely that some of the questions_ might have found place in the previous Questionnaire on Service Tribunals, and you might have already sent your valuable views on those issues. In such a situation, you may not repeat it.
Some of the excerpts from the judgment of the Supreme Court in R.K. Jain 'V. Union of India, (l993)4 SCC 119, which impelled the Commission to undertake the exercise, are enclosed for your reference;
In view of the above, we request you to kindly spare some of your precious time in giving your valuable opinion on the issues raised in the Questionnaire enclosed, at the earliest, preferably by 15th September, 1995. I). O. NO.
('.()\'l~'RNMl?.NT ()1? INDIA MINISTRY (VF LAW, _lUS'I'lCI-Z & ('.(H\1l'/\NY Al-'I'/\lR!~'
l)IZl'AR'|'MIZN'l' ()l-' l,l§(i/\l. /\I~'I'/\IR!\' I./\\V ('.'(H\'1l\H.\.\'l()N SHAMRInHAwAN.NEwIHflMI-Hnmn 'l'cl.: 33.1%'?
Dr. S. C. Srivastava Jninl Sccrclnry & Lnw Ofliccr _ 2 _ Dnlcd Since the Commission is intending to hold a Workshop on Administrative Tribunals and their working in October, 1995, your valuable views will be of great assistance to this Commission for further deliberations in the said workshop.
Looking forward to your co--oporation. With regards, Yours sincerely, Encl: As above ( S.C. Srivastava )
-'L;_ ...\. -4..
Extracts taken from. the Judgment of R.K. JAIN v_ UNION or INDIA (1993) ii scc_ 120 -
8. Lastly, the time is ripe for taking stock of the working of the various tribunals set upyixx the country after the insertion of Articles 323--A and 323-8 in the Constitution. 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 alone can deliver the goods. After the of whereunder and confidence incorporation these two Articles, acts have hnvn enagted tribunals have been conntitnlud Mn dispensation of jpstice. Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they hnvv served the purpose and objectives for which they were constituted} Complaints have been heard in regard to Lhv functioning of other tribunals as well and it is time that a body like the Law Commission' of lndia has a comprehensive iook--in with a view to suggesting measures for their improved functioning.' That body can also suggest changes hi the different statutes gnu! evolve A model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater An intensive and extensive study needs to by the to of tribunals under independence.
be constitution Law Commission in the undertaken regard statutes with a that various view to ensuring their independence so the public confidence in such tribunals may increase and the quality of their performance may improve. We strongly recommend to the Law Commission of India to undertake such an exercise on priority basis. A copy of this judgment may be forwarded by the Registrar of this Court to the Member- Secretary of the Commission for immediate action.
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66. In S.P. Sampath Kumar v. Union of India this Court held that the primary duty of the_ judiciary is to interpret the Constitution and the laws and this would predominantly be a matter fit to be' decided by the judiciary, as judiciary alone would be possessed of expertise in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. The Constitution has, therefore, created an independent machinery i.e. judiciary to resolve disputes, which is vested with the power of judicial review to determine the legality of the legislative and executive actions and to ensure compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by Lhv judiciary by exercising the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrograted without affecting the basic structure of the Constitution. The basic and essential feature of judicial review cannot be dispensed with but it would-be competence of Parliament to amend the a within the Constitution and it provide alternative institutional mechanism or arrangement for judicial review, provided it is no less efficacious than the High Court. It must , therefore, be read as implicitj in the constitutional scheme that the law excluding the jurisdiction of the High Courl; under l\rti.cles 7.26 and 227 porInis:'~il~l1' umlvt' n, \ 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 which must be equally effective and efficacious in exercising the power of judicial review. The tribunal set up under the Administrative Tribunals Act, 1985 was required to interpret and apply Articles 14, 15, 16 and 311 in quite a_ large number of \caSes. Therefore, the 'personnel manning the administrative tribunal in their determinations not only require judicial approach' but also 'knowledge and expertise in that particular branch- of constitutional and administrative law. The efficacy of the administrative tribunal and tho legal input mould undeniably be more important and sacrificing the legal input and not giving it sufficient weightage .would definitely impair the efficacy and effectiveness of the Administrative Tribunal. Therefore, it was held that an appropriate rule should be made to recruit the members: and to consult the Chief Justice of India in recommending appointment of the Chairman, Vice~ Chairman and Members of the Tribunal and to constitute a committee presided over by the Judge of the Supreme Court to recruit the members for appointment. In M.n. Majumdir v. Union of India when the mebers of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court, this Court held that they are not on a par with the judges but a separate mechanism created for their appointment pursuant to Article 323--A of the COnstitution. Therefore, what was meant by this Court in Sampath Kumar case ratio is that the tribunals when exercise the pnwvr and functions, the Act created institutional alternative mechanism or authority to adjudicate the service disputations. It must be effective and efficacious to exercise the power of judicial review. This Court did not appear to have meant that the tribunals are substitutes of the High Court under Articles 226 and 227 of the Constitution. J.B. Chopra v. Union of India merely followed the ratio of Sampath Kumar. a--V_ 5
76. Before parting with the case it is "necessary to express our anguish'.over the? ineffectivity of the alternative mechanism devised for;judicia1 reviews. The judicial review and remedy are fundamental rights of the citizens. The dispensation of justice by the tribunals is much to be desired. We are not doubting the ability of the members or Vice-Chairman (non-Judges):,who may be experts 'in_ their regular service; ' 'But judicial .adjudication is a special process and would efficiently be jadministered by advocateiJudges,'The remedy of appeal by special leave under Article 136 of this Court also proves to be costly and prohibitive and'far--flung distance too is working as lconstant' constraint .to litigant public who could ill afford to reacfi this Court: An appeal to a Bench of two Judges of the respective High Courts over the orders of "the .tribuna1s within its territorial jurisdiction on questions of law would assuage a growing feeling of injustice of those 'who 'can ill' afford- to approach' the ,Supreme Court:g' Equally ~the need for recruitment of members of the Bar to man the tribunals as well as the.working system of the tribunals need fresh look and regular monitoring is necessary; An expert body like theLLaw Commission of India would make an in-depth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income 'Tax Appellate pTribunal and to make appropriate urgent recommendations to the Government of flndia who should take"remedial steps by an appropriate legislation toupvercome the handicaps and difficulties and make the tribunals effective and efficient instruments for making judicial review efficacious, inexpensive and satisfactory.
_lvL_ LAW COMMISSION OF INDIA REVISED ADDITIONAL QUESTIONNAIRE ON ADMINISTRATIVE TRIRHHALS C Q~fl_Lm§_N.l.§ PART ~ I CENTRAL/STATE ADMINISTRATIVE TRIBUNAL SECTION I ~ Working of AdmlH1StFflt|V9 ir=nunnI<- Proposed changes in SfiFUyTU'Q a~* measures to be taken for r«~:vH-n:
an efficacious Iorum.
SECTION 11- 'Proposais to make the Genny»-~.i,/'Si'-"«.r< Administrative Tribuna1 1 red' substitute to the High Court Tor fihw purposes of satisfying ihw reQLJirenmyiLS (WI _u1Hic hi' i-":i~w. basic ieatutu of the UunsLnLuIinn.
SECTION III- Proposed Changes in Struutnre and Functioning.
PART ~ [I THE CREATION OF THE APPELLATE FORUM SECTION I - Appeal to the Speyiul F~n»u O?
Fii gli CLWLIVT .
SECTION II.- Appeal to the pfopoeed Huticna' Administrative Tribunal.
SECTION III- Creation of an Appellnun §~rum xnw the requirements of judicial I9V!?W. fx) (.0 REVISED ADDITIONAL QUESTIONNAIRE ON ADMINISTRATIVE TRYBUNALS PART-I: Central/State Administrative Tribunal SECTION I WORKING OF ADMINISTRATIVE TRIBUNALS: PROPOSED CHANGES IN STRUCTURE AND MEASURES TO BE TAKEH FOR PROVIDING AN EFFICACIOUS FORUM I Do you think that the existing arrangements of HuYivw 'Administrative and Judicial Members under in» Administrative Tribunals Act. 1985 are satisincrbrx in~ working effectively?
Should the Administrative Member always sit in n Renrr alongwith the Judicial Member?
Whether Administrative Member's help is necessary in dealing with the ;complex administrative mntterc mniw effectively bv using his expertise on the subject? I I Do you think that the provisions of Section G ifilgbi y the Administrative Tribunals Act, 1985, namely. a vnvcwn shall not be qualified for appointment as a Judisini Member unless "he has.been a Member of the Indian L"QJi Service and has heTd a post in Grade 1 of that SGVVEC9 for at lenst three years" has really hoipvd av !2hYH:'"4
-\/;I'I-' effectiveness, efficacy, standard and status as that of High Court? If not. what are your suggestions on it? would 'you isuggest for,enlarging the ambit mi Rouryn u personnel for 'eligibility as 'Judicial' Members h including 'personnel from all departments of Ministry of Law of Government of India and of Law Departments a' State Governments, who are holding the rank equal to thy rank of a Joint Secretary to the Government of Indiw dealing With law?
J' Should the Tribunal constituted under the Administratixv Tribunal Act, 1985 be placed vunder the administratixe control of the Ministry of Law and Justice? Should_ the «necessary grules be framed governing the matters which will be heard by a Single Member Bench of 'the V Centralism-Administrative -Tribunal or State _Administrative Tribunal respectively? what suggestions would youfmake in respect of allocation J 4 ' ( A .of cases for disposalfby a §Bench comprising a Single Member and gby.a Division Bench in regard to the matters falling withini the jurisdiction of the Central/Stats Administrative 'Tribunal in order to bring uniformity and facilitate proper exercise of jurisdiction?
10.
11.
12.
13. Do you agree that in cases where the Benches of the Centrai Administrative Tribunai or the State Administrative Tribuna1 are required to comprise only one I member, he should necessariiy be a judiciai member? s Shouid the Administrative Member whiie sitting in a Bench aiong with a Judiciai Member act on1y in the capacity of an assessor? I Shou1d his roie be confined oniy to assessment of facts?
V Do you think that if the Bench is to consist of two i .
members then it shouid be presided over oniy by Judicial Member?
shouid anvappeai iie against the decision of the Bench gt Tribunai comprising a singie member, to a iarger Bench of the Centrai "Administrative Tribuna1 or ' State Administrative Tribuna1.respective1y? whether Athe. concerned larger Bench of the Central/State Administrative Lfjbunai can post the appeai for admission after due notice and dispose of the same at the admission stage if the apbea1 is not maintainabie? *
14.
15. SECTION II PROPOSALS TO MAKE THE _CENTRAL/STATE ADMINISTRATIVE TRIBUNAL A REAL SUBSTITUTE TO THE HIGH COURT FOR THE PURPOSES OF SATISFYING THE REQUIREMENTS OF JUDICIAL REVIEW, A FASIC FEATURE OF THE CONSTITUTION Do you think that if the status of the presen:
' Central/State Administrative Tribunal is raised to thni of a High Court in all respects, including composilion.
service conditions eligibility criteria and disposal 07 cases hereinafter suggested and by also providing --
i) that these Tribunals are manned only by Judicia?
members who are equally competent as that of a High Court Judge;
(ii) the role of Administrative Member is limitwd to [Hal of an assessor; M
(iii) the power of making decision would rest only with the Judicial Member{ whether sitting in a Single Member Bench or in a Division Bench as per the allocation or tho cases?
If so, _whether the proposed constitution of Such a Central or State Administrative Tribunal does become a real substitute to the High Court satisfying the requirements of basic feature of the Constitution. as X'-
r
16.
17. iaid down in Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and Minerva Mi11 Ltd. v}"Unjo«_ofMIndia. (1980) 3 S.C.C. 625.
If the answer of the above questions is in affirmative. whether the exc1usion of jurisdiction of the High Court under Articies 226 and Q27 of the Constitution of India is va1id and justifiab1e andithe requirements of judicial _review, a basic feature of- the Constitution remain unaffected? T SECTION III - PORPOSED CHANGES IN STRUCTURE AND FUNCTIONING
(a) Shouid such proposed Central Administrative Tribunal at De1hi consist of:--.
(a) Chairmanfi".
(b) Judicia1 Members; and
(c) Administrative Members (to act as assessors 1 oniy.)
(b) Shouid such proposed- Bench of the Central Administrative Tribunai at-various places consist of:- E
(a) Vice-Chairman;;TA
18.
19.
20.
21.
(b) Judiciai Members; and
(c) Administrative Members (to act as assessors oniy.) Shouid every such proposed State Administrative Tribunal oonsist of:-- L i
(a) Chairman;
(b) Vice--Cheirman;
(o) Judiciai Members; and
(d) fidministrative Members (to act as assessorsi. I I Shouid a person be eiigible toébe appointed as Chairman of the Central/State Administrative Tribunai, if he --
(a) is, or has been the Chief Justice of a High Court, or
(b) has, for at ieast 2 years. heid the office of Vice+Chairman appointed as suggested in question No.20. Should a person be eiigibie to be appointed as a Vice-Chairman of the Central/State, Administrative Tribunai if he -
(a) is, or has been, a judge of a High Court, or
(b) has, for at ieast two years, been a Judicial Member appointed as suggested in question No.21. Shouid a person befie1igib1e,to be appointed as a Judiciai Member of the Centra17§tate Administrative Tribunal if he is, or has been, a Judge of a High Court or has been a
22. 23L
24. District Judge and he1d judicial office for a period or not less than 10 years or is quaiified to be a judge of the High Court?
/ Shouid the appointments of Chairman, ViCe--Chairman and Members of the-Centrai Administrative Tribunal be made by a permanent High Powered Seiection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court nominated by him and in the case the State F ii Administrative Tribunai by the Chief Justice of the State High Court or any other sitting Judge nominated by the Chief Justice of the -State High Court concerned, as suggested in s.P.Sampath Kumar v. Union of I dig, (198?) v 1 SCC 124.
Shouid there be a time-iimit within which proposals for appointment' of members of tribunais ought to be processed, and periodic review of optimum strength of .members in each tribunai be undertaken so that delay in disposai of cases may be avoided _because of Tack of appointment of a Member?
Shou1d a person be eiigible to be 'appointed as an Administrative Member of the Central/State Administrative Tribunai to act as assessor in the aforesaid manner if he has heid the post;/of a Secretary to the Government of
25.
26.
27. India or any other 'post under the State Government carrying the scale of pay which is not less than that of a Secretary to the Government of India? s Do you agree that if aforesaid changes in the structure and functioning of Central/State Administrative Tribunal are made, would they not become a real substitute to the .High Court in a11 respects satisfying the requirement of judicial review, a basic feature of the constitution. V PART II - THE CREATION OF AN APPELLATE FORUM Do you agree with the suggestion that a regular appeal should :lie" against the orders of the Central/State Administrative Tribunal? If yes. what should be the nature and structure of the.appellate forum? SECTION I APPEAL TO THE SPECIAL BENCH OF THE HIGH COURT' Do you agree that appeals against the order of the tribunals should be maintainable before the High Court on questions of fact and law, and in order to ensure speedy disposal, the High Courts_ should be required to constitute permanent iservide Benches for the Centrai Government and the Gtate Government servants to deal with the service matters exclusively?
28.
29.
31. SECTION II APPEAL TO THE PROPOSED l:IATION/\L ADMINISTRl\TI\'E~ APPELLATE TRIBUNAL would you suggest that an appeal should lie from Pnv decision of the Central Administrative Tribunal and rh.
-- State Administrative Tribunal to the proposed Hatiwn~= Administrative Appellate Tribunal? 3 .would you 'suggest that the proposed Nu rvna' iAdministrative Appellate Tribunal should be .l0cnl0d xi Delhi, having four or more benches in various Vtrts ~2 the country?
Should the National Administrative Appellate Tr=bwni' "have overall control in administative, FlnJHu\Jl av- other matters over all the Benches of the Tribunal? Should the National Administrative Appellate Tribunal.v Delhi consist of -- '
(a) Chairman; and
(b) One or two judicial Members only.
32.
33.
34.
35.
36. Should every other Bench of the proposed National Administrative Appellate ; Tribunal consist of a vice--Chairman and one or two Members, or two or more u Members?
Should the appointment of the Chairman, Vice--Cnairman and Members of the'proposed National Administrative Appellate _Tribunal be made by a permanent high--powered selection committee headed by the Chief Justice of India or a sitting judge of the Supreme Court nominated by him. as 1:
suggested in S.P. Sampath Kumar v. Union of India, case .
Should a person be eligible to be appointed as a Chairman of the proposed National Administrative Appellate Tribunal if he has been the Chief Justice of the Supreme Court of India or a Judge of the Supreme Court of India?
'Should a person be made eligible to be appointed as Vice--Chairman of the proposed National Administrative Appellate Tribunal if he has been either a Judge of the Supreme Court or a Chief Justice-of a High Court?
Should a person be made eligible to be appointed as a Judicial Member of the proposed National Administrative Appellate Tribunal, it "he is or has been a Judge of at High Court?
.1
-"' YVH -»
37.
38.
39.
40. Shouid the term' of appointment of the Chairman. Vice Chairman and 'Member' of the proposed Nationai Administrative Appellate Tribunai be three years with a I ' ~ ' further provision that they may be' re--appointed for n _ _ . 3 period upto three years as the situation requires? Do you agree' with the view that the orders of the proposed Nationai Administrative Appeiiate Tribunal or Benches thereof shaii be finai and no appeai shaii iie against its_order in any court?
Do you agree with the suggestion that the appeai to the proposed Nationai Administrative Appeiiate _Tribuna1 shouid iie oniy on the foiiowing grounds:-
(a) Vioiation of Fundamentai Rights;
(b) Want or excess of jurisdiction;
(c) Substantiai duestion of iaw of generai importance; I
(d) Error of iaw; or error apparent on the Face of record; and
(e) Perverse findings.
Do you_ agree that an appeai may be Fiied in the respective Bench of the Centrai Administrative and the State Administrative Tribunai as the case may be against whose order the appeai has been preferred? If so, the Registry of the ,Tribuna1 sha11 forward the same to the . s - , concerned Bench of the proposed Nationai Administrative
41.'
42. '43.
Appellate Tribunal."T The Bench of the proposed National Administrative Appellate Tribunal shall fix the tentative date for admission before it and accordingly inform the parties concerned.
. ,.
The appeal may then be heard by the concerned Bench of the National Administrative Appellate Tribunal? However, 'in urgent matters involving stay of proceedings or other matters, the aggrieved party may directly File the appeal before the concerned Bench of the proposed National Administrative Appellate Tribunal ShouldLthe concerned Bench of the National Administrative Appellate Tribunal befiempowered to dispose of the appeal at thegadmission stage;,if'it is not maintainable? Whether there should be a time himit for the disposal of i an appeal? If so, what shoufid be 'the .time limit? Do you agree that no appeal5shalW lie before the National Administrative Appellate"Tribuhafl against the decision of a SingleM=Member iBencn;'oT the Cent}alT Administrative Appellate 'Tribpnal-'or_the State Administrative Tribunal in View of fihe Droposed provisionszfor appeal against the decision of the Single Member Bench to a larger Bench of the Central/State Administrative Tribunal respectively?
44.
45.
46. -: 13 :- whether there shouid be a time 1imit for disposal of such an appea1? If so, what shou1d be the time+1imit? SECTION III CREATION OF AN APPELLATE FORUM AND [HE REQUIREMENTS OF JUDICIAL REVIEW Whether the provision, either by constituting permanent Service Benches' in the High Courts or by constituting proposed Nationai Administrative Appe11ate Tribunaié wouid satisfy the requirement of judiciai review which is the basic ;feature of the Constitution as he1d in the Keshvananda Bharati v. gtate of Kerala, AIR 1973 SC 1461 and Minerva'Mi11 Ltd. v. Union of India, (1980) 3 S.C.C. 625.
If the answer to the above question is in affirmative. whether the jurisdiction of the High Court under Articie 226 and 227 of the Constitution of India can be exciuded with regard to the decisions of the Centrai/State Administrative Tribunai because of the availabiiity of an equa11y efficacious and speedy remedy by way of appeal and would satisy the requirements of the judiciai review; the basic feature of the Constitution.
47.
48. Shouid the present structure subject 'to modification suggested in question Nos. 4,5,9 and 11 can continue in .
view of the proposed; Appeiiate Forum being provided against the decision of the Centrai/State Administrative Tribunai satisfying the requirements of judicial review? Any other suggestions which you propose to offer.