Reviewing Decisions of Administrative Tribunal PDF

REVIEWING DECISIONS OF ADMINISTRATIVE TRIBUNAL: PATERNALISTIC APPROACH OF
THE INDIAN SUPREME COURT AND NEED FOR INSTITUTIONAL REFORMS

Author(s): P. Leelakrishnan
Source: Journal of the Indian Law Institute, Vol. 54, No. 1 (JANUARY-MARCH 2012), pp.
1-26
Published by: Indian Law Institute
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JOURNAL OF THE INDIAN ŁAW INSTITUTE
VOLUME 54 JANUARY-MARCH 2012 NUMBER 1
REVIEWING DECISIONS OF ADMINISTRATIVE TRIBUNAL:

PATERNALISTIC APPROACH OF THE INDIAN SUPREME COURT
AND NEED FOR INSTITUTIONAL REFORMS
P. lueelakrishnan *
Abstract
Institution of administrative tribunals in India had to confront with the basic

structure impediment. Invalidating the provisions under the Constitution and
law excluding judicial review, the apex court has allowed high courts to have
supervisory powers over tribunals and confined the tribunal jurisdiction to a
substantial extent. After critically evaluating the apex court decisions at these
levels, the paper examines how in the light of the recommendations of the Law
Commission of India and the recent trends of 'tribunal judiciary' as developed
in the U.K., the Indian system can be restructured and its status raised to that
of high courts.
I Introduction
IN THE long and arduous passage from monarchy to a full-fledged

democracy the institution of courts, running in the long past as mere
performers of what government had asked them to do, evolved as an
independent instrument of authority holding the government accountable
to the citizenry.1 The social, political and economic transformation that took
place at the heels of industrial revolution brought in its train greater state
indulgence and vigilance in matters thereto regarded as belonging to individual
private domains. In this scenario of mounting responsibilities of the state,
courts were found to be ill-equipped to deal with the enormous number of
♦Formerly, UGC Emeritus Fellow in Law, Cochin University of Science and Technology,
Kochi. The author acknowledges the critical comments and suggestions made by VR Jayadevan,
Associate Professor, Government Law College, Ernakulum, The ideas floated in this paper are
entirely those of the author.
1. The Act of Setdement of 1701 in Britain transferred the power to hire and fire judges
from monarchy to Parliament. Courts are today instruments of accountability holding the
government accountable to citi2enry rather performers of government task. See generally Peter
Cane, "Understanding Administrative Adjudication" in Linda Pearson, et.al. (eds.), Administrative
Imw in a Changing World 273 at 276-77(Hart, Oregan, 2008).
2 Journal of the Indian Law Institute Vol. 54 : 1
newly emerged state-versus-individual disputes. To meet this sit

provide efficient grievance redressing machinery, the legislature
to create administrative tribunals distinct from traditionally conceiv
These tribunals find facts and apply legal rules. Independent
subject to administrative or political interference as to how the
particular case, tribunals exist in order to provide simpler, spee
and more accessible justice than do the ordinary courts and sup
minimum of fairness in administration and adjudication alike.3
II Administrative tribunals in India
The founding fathers of the Indian Constitution were against wat

tight compartments of governance but were in favour of vesting qua
judicial functions in tribunals and administrative bodies.4 But, a full-fledg
administrative tribunal came into being only after the 42nd amendment of the
Constitution5 and the enactment of the Administrative Tribunals Act, 1
(ATA)6. The device is confined to adjudicating service disputes. The rationa
behind the tribunal resolving service disputes can be described in no bet
words than those of YV Chandrachud CJI in Kamal Kanti Dutta v. Union
India:7
2. Id at 274. Also see linda Pearson, "Fact-finding in Administrative Tribunals", id. at 301
3. Wade & Forsyth, Administrative haw 906-10 (Oxford, New Delhi, 9th edn., 2007).
4. VII Constituent Assembly Debates 219, 220 and 224. Calling separation of powers as an
exploded doctrine, KM Munshi was against water tight compartments in governance. He said that
the executive enjoy certain powers of legislation and can decide disputes in the modern state and
appoint members of tribunals of a quasi-judicial character. Alladi Krishnaswami Ayyar found it
impossible to work modern administrative machinery without some kind of judicial functions in
administrative bodies. He went on, The Legislature in undertaking such legislation will have to
examine the various functions which are to be discharged by administrative, quasi-administrative,
quasi-judicial tribunals and then see how far recourse to the Courts or Superior Courts can
be guaranteed, consistent with certain quasi-judicial functions being invested in administrative
bodies."
5. Arts. 323-A and 323-B are the two provisions added to the Constitution of India by the
amendment. Article 323-A enables Parliament to enact law for adjudication or trial of service
matters by tribunals and for establishment of administrative tribunal for the union and separate
administrative tribunal for the each state or two or more states. This new provision facilitated
enactment of ATA.
6. Act No. 13 of 1985. It came into force on 1st July 1985. The union had constituted
Central Administrative Tribunal (CAT) as soon as the Act was passed and states constituted
State Administrative Tribunals (SAT) subsequently. CAT adjudicates disputes and complaints
of central employees while SAT deals with those of state employees including those of state
owned corporations and of societies organized under the Societies Registration Act or similar
laws. However, the jurisdiction of the tribunals does not extend to those who are members of the
armed forces, officers and employees serving the judiciary and secretarial staff of the legislature.
See s. 2.
7. (1980) 4 SCC 38 at 39.
2012] Administrative Tribunal : Paternalistic Approach of the Indian Supreme Court 3
Public servants ought not to be driven or required to dissipate their

time and energy in court-room battles. Thereby their attention is
diverted from public to private affairs and their inter se disputes affect
their sense of oneness without which no institution can function
effectively. The constitution of service tribunals... which, in the

generality of cases should be the final arbiter of controversies relating
to conditions of service, including the vexed question of seniority,
may save the courts from the avalanche of writ petitions and appeals
in service matters. The proceedings of such tribunals can have the
merit of informality and if they will not be tied down to strict rules
of evidence, they might be able to produce solutions which will satisfy
many and displease a few.
Complex questions have propped up with the working of the administrative
tribunal during the last two decades and a half. They are of great interest t
the tribunal watchers in the land. Looking through the prism of apex court
monitoring and evaluation, this paper examines how the tribunal system can
be improved in its institutional and functional domain.
The basic structure imbroglio
Reduction of the work load of courts and speedy relief in service disputes
are the aims of the ATA.8 The constitutional amendment9 facilitates exclusion
of the jurisdiction of all courts, except that of the Supreme Court with respect
to such disputes. Section 28 of ATA also makes similar exclusion.10 It is to
be noticed that this idea of excluding judicial review had been a bone of
contention by the time when the Central Government took the initiative for
making the law and establishing the tribunal.11
Sampat Kumar case
The provision of ATA dealing with exclusion of judicial review was

challenged on the ground that it affects the doctrine of judicial review as
one of the basic features of the Constitution. In Sampath Kumar v. Union of
8. See Statement of Objects and Reasons of Act 13 of 1985. It says that a large number of
cases were pending before the various courts.
9. CI. (2) (d) of art. 323-A.
10. Initially, it had excluded all courts from hearing service disputes except the Supreme
Court exercising jurisdiction under art. 136. Later, the section was amended. This permits the
apex court to hear service disputes not only under this jurisdiction but under any other jurisdiction
provided by the Constitution.
11. KI Vibhute, Administrative Tribunals and High Courts: A Plea for Judicial Review 29 JIU 524
(1987). The author doubted the constitutionality of exclusion of jurisdiction of all courts except
the Supreme Court even before the tribunals were established.
India 12 Bhagwati CJI held that the administrative tribunals un

alternative mechanism, as effective and efficacious as the high cour
the provision will not affect the doctrine of judicial review wh
the basic structure of the Constitution. Ranga Nath Misra J also
view13. However, by striking down the provision enabling an a
member to become the chairman of the tribunal,14 both judge
they were setting up standards in selection and appointment of
of the tribunal. According to them, these standards will free
and members of the tribunal from acting under pressure and
will help build up reputation and acceptability.15 At the same
had recognized the essential inputs of administrative members i
Bhagwati J was categorical when he said that their practical e
the functioning of the services would add to the efficiency of
tribunal.16 Misra J had no doubt over their efficiency as he sa
of them do exhibit great candour, wisdom and capacity to deal
problems with understanding, detachment and objectiveness'.17
Chandra Kumar case
Sampath Kumar had dealt with only the exclusion of judicial

legislation. However, within a decade, in L Chandra Kumar v. Un
the seven-judge bench of the Supreme Court had the occas
the exclusion of judicial review and thus, to the wider dimen
basic structure doctrine. The court noted that an amendment19 of ATA had
recognized the jurisdiction of the apex court under article 32 for reviewing
12. (1987) 1 SCC 124 at 130, 131. Chandrachud CJI observed that there are always a few
whom nothing can please.
13. Id. at 138, 139. 'The mechanism is a substitute not only in form but also in content
and not only de jure but also de facto "He went to the extent of calling it a retrograde step if one
considers the tribunal as an additional forum and not as alternative forum.
14. Ibtd. If the Act enables the secretary, an administrative member, to become the chairman,
it would fail to inspire confidence and would make tribunal less effective than the high court (id.
at 132). The tribunal has to be acceptable to the litigants who are members of various services
0 id 'ě at 141).
15. Id at 134, 141. Bhagwati CJI added that the selection must be made either in consultation
with the Chief Justice or by a High Power Committee headed by the Chief Justice.
16. Id. ¿7/131.
17. Id. at 141.
18. (1997) 3 SCC 261.
19. S. 28 of ATA. The expression 'no court except the Supreme Court under art. 136 of
the Constitution' gave way to the expression 'no court except the Supreme Court'. Thus, all
jurisdictions of the Supreme Court under the Constitution were exempted from the exclusion.
While it bars the jurisdiction of the high court under arts. 226 and 227 of the Constitution, the
provision preserves the jurisdiction of the Supreme Court under arts. 32 and 136.
civil service disputes.20 The court found no reason in conferring the power
to test the constitutional validity of legislation on the tribunals21 whose
authority flows from articles 323-A and 323-B of the Constitution of India.
Both Parliament and state legislatures have competence to effect changes in
the original jurisdiction of the Supreme Court and high courts.22 Power of the
tribunals in interpreting articles 14, 15 and 16 of the Constitution in service
matters endows high court with the benefit of filtering frivolous claims and
getting reasoned decisions on merits while it decides cases under articles 226
and 227. 23 The jurisdiction of the Supreme Court for special leave is costly
and inaccessible. The court did not want its dockets to be crowded with
appeals against the decisions of the tribunal. In the end, the apex court w
of the view that all decisions of tribunals created under article 323-A will
be subject to the jurisdiction of the high court of the state within whose
territorial jurisdiction the respective tribunal is situated.24 Summing up, the
court held that the tribunals are not substitutes to high courts and that their
functions are only supplementary.25 Whenever the constitutionality of any
provision arises, the matter shall be referred to a division bench of the tribunal
consisting of a judicial member.26 The court held27 that the provisions28 added
to the Constitution that excludes the jurisdiction of courts with respect of
service disputes are unconstitutional as they offend judicial review as the basic
structure of the Constitution. According to the court, section 28 of ATA and
exclusion clauses in all other legislation enacted under the aegis of the 42nd
20. L Chandra Kumar v. UOI (1997) 3 SCC 261 at 277, 78.

21. Id. at 292.
22. Id. at 302. See entries 77,78,79 and 95 of List I, entries 65 of List II and entry 46 of List
III, 7th Schedule to the Constitution of India.
23. Id at 307, 308.
24. Id. at 308.
25. Id. at 308, 309. Tribunals can examine the vires of a statute and its subordinate legislation
other than the one under which the tribunals are created. All such decisions will be subject to
scrutiny before the division bench of the respective high courts. One cannot approach the high
court directly by overlooking the powers of the tribunals. There is no question of eliminating the
administrative member since the concept of tribunal is founded on the premises that specialized
bodies comprising both trained administrators and those with judicial experience would, by virtue
of their specialized knowledge, be better equipped to dispense speedy and effective justice. A
judicious mix of judicial members and those with grass root experience would serve this purpose.
26. Id. at 311. In this respect, the discretion conferred on the chairman under the proviso to
s. 5(6) of ATA to transfer the case to the bench of two members can be effectively used.
27. Ibid
28. CI. 2(d) of art.323-A. A law providing for administrative tribunal may "exclude jurisdiction
of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the
disputes and complaints." CI. 3(d) of art. 323-B is identical to cl. 2(d) of art.323-A.
constitutional amendment would be unconstitutional.29

The impact of Chandra Kumar is far-reaching. Complainants cannot bypass
the tribunal and go to the high court directly.30 Nor can they bypass the high
court and go to the Supreme Court directly if they want to challenge the
decision of the tribunal. Interestingly, contrary to what has been originally
planned by excluding its jurisdiction, the high court has supervisory duties
over the administrative tribunals. The situation adds to high court's burden
instead of reducing it. It is true that the decision helps reducing apex court
dockets in service matters and facilitates a remedy at close quarters without
huge expenses. As claimed by the apex court31 the decision in Chandrakumar is
a product of judicial craftsmanship and a landmark in the development of law
on administration.32 No doubt, there is a need to integrate tribunals in some
way with the machinery of justice that provides for supervisory and appeal
powers. It is universally acknowledged that the tribunal system has become the
essential part of the machinery of government and grown up as supplementary
network of adjudicatory bodies side by side with the traditional courts of law.33
Do those methods highlighted by Chandrakumar contribute to such a viable
integrated review of administrative adjudication?
Ill Administrative tribunal: Jurisdiction and powers
Validity of a statute
One finds that within a few days after the establishment of tribunals,
the apex court recognized the wider jurisdiction of the tribunals to decide
all questions relating to the constitutional validity or otherwise of laws as
offending fundamental rights in the Constitution. In JB Chopra v. Union of
Indicř 4 the court held that the tribunal has the authority to strike down a
notification if it were proved as being wholly malafide , arbitrary and irrational
and thus offending articles 14 and 16. Later, in L Chandra Kumar ,35 the court
endorsed this position and held that the tribunals can examine the vires of
29. S. 28 says "no court except (a) the Supreme Court; or (b) any Industrial Tribunal,
Labour Court or other authority constituted under the Industrial Disputes Act 1947 or any other
corresponding law for the time being in force shall have, or be entided to exercise any jurisdiction,
powers or authority in relation to such requirement or such service matters."
30. Kendreya Vidyalaya Sangathan v. Subash Sharma (2002) 4 SCC 145.
31. Ibid.
32. Id. at 153.
33. Wade & Forsyth, supra note 3 at 908
34. (1987) 1 SCC 422 at 423. In the case a notification purporting to amend R.4 of the
Central Hindu Directorate (Class II and IV) Post Recruitment Rules, 1961 was impugned.
35. (1997) 3 SCC 261 at 302.
2012] Administrative Tribunal: Paternalistic Approach of the Indian Supreme Court 7
a statute and its subordinate legislation other than the one under which the
tribunals are created.
Non-judicial member
The view of the apex court is that the cases involving questions of law and
interpretation,36 claim for higher pay37 or constitutionality of a law38 shall be
heard and decided by the division bench of the tribunal consisting of a judicial
member. Invariably, cases overriding this rule are returned to the tribunal for
disposal according to law. In one case where a policeman was alleged to have
misbehaved with a woman who had come to the police station for lodging
complaint, the non-judicial member of the tribunal sitting singly set aside
the dismissal on the ground that statement of witnesses and enquiry report
were not supplied to the police man. This ground of procedural irregularity
would no doubt vitiate the decision of the disciplinary authority. Instead of
endorsing the decision of the tribunal, in J ¿.Secretary to the Home Department v.
R Ramalingam ,39 the Supreme Court thought it proper to send back the case
"without any opinion on the decision" of the tribunal. But, in another case,40
a decision pertaining to promotion by a single non-judicial member was left
undisturbed on the ground that the decision was in consideration of merits.
According to the Supreme Court, there may be an improper disposal, but the
decision is not to be disturbed if it is in consideration of merits. Needless
to say that if the decision by a non-judicial member is correct, there is n

justification for the court to interfere and delay the matter.
Limited review of administrative orders
While the tribunal has wider powers to examine the constitutionality o

a law, the apex court limited its powers in the domain of legal and executi
policy.41 The tribunal cannot fix scales of pay of government officers42 or awa
36. State of MP v. BR Thakare (2002) 10 SCC 338 at 340.

37. Union of India v Hariharan (1997) 3 SCC 568. It was held that the administrative member
sitting singly is not the proper bench.
38. L Chandra Kumar, supra note 20.
39. (1996) 10 SCC 234.
40. Indermani L Kirtipalv. Union of India (1996) 2 SCC 437. The complaint of the petition
was that he was singled out in denying promotion. According to the respondent, others who we
promoted were working in ordnance factory and they are a class in themselves. The petitione
application was dismissed by the judicial member sitting singly.
41. Commissioner, Corporation of Madras v. Madras Corporation Teachers' Mandram (1997) 1 SC
723 at 724. The apex court quashed the direction of the tribunal to create a post and make
appointment. Creation of a post and prescription of the qualifications for the post being parts o
the policy of the government, the tribunal is devoid of power to give such direction.
42. Supra note 37
exemplary costs even for an unreasonable exclusion of a person

of consideration for promotion.43 In Union of India v. Jugul Kisho
court held that the tribunal has no power to straightaway direct th
to promote an employee by re- appreciating evidence despite th
service record did not contain any adverse remarks to deny pro
respondent. In Union of India v. Tejindra Singh*5 the question was
could issue an interim direction to consider a person for promotion
of whether departmental inquiry to assess his fitness was con
pending. No wonder the court held that such an attempt wou
be prejudging the whole issue. Further, in Union of India v. As
Srìvastava ,46 it was held that the tribunal should not sit in jud
interview and allot marks on its own. What ought to have been
the tribunal is whether there was compliance with the rules in
interview so long as bias of a selection committee could not b
The faith and confidence reposed in an agency supplement
court and better equipped with their specialized knowledge,47 seem
away as the apex court was consistently asking the tribunal to a
parameters of the powers set out for high courts to review a
action. The basic approach of the court is that the employer has th
to lay down criteria for selection and appointment and that the tri
competent to do so.48 On these premises the tribunal has no author
the administration to clear efficiency bars and grant monetary ben
can it include in the promotion list a person left out by the selecti
on the basis of certain remarks which in the eye of law do not
can it substitute its own judgement for that of the administrative
certain cases.51 The hands-off role assigned to the tribunal by
Court in disciplinary matters is justified in a few of cases. Th
of income for calculating tax is a quasi- judicial process. Any wr
43. Maharashtra PSC v. Bhanumathi Purushotam Rathod (1997) 5 SCC 128. T h

found that the respondent did not have the required experience of 1 5 years for
court added that even if he were found to be within the zone, the tribunal
awarded damages.
44. (2004) 13 SCC 15 at 16.
45. (1991) 4 SCC 129.
46. (2002) 1 SCC 188 at 192.
47. Supra notes 16 and 17.
48. Surendra Singh v. Union of India (2007) 1 1 SCC 599.
49. Administrator of Dadra and NagarHaveli v. HP Vora , AIR 1992 SC 2303.
50. UPSC v. Hiranyalal Dev (1988) 2 SCC 242. The court points out that the
have directed the committee to reconsider the merits of the respondent vis-a-vis
does not mean that the respondent is as good as others. The categorization of
the function of the selection committee.
51. Union of India v. SL Abbas (1993) 4 SCC 357 at 360(misappropriation of funds).
the officer in this process can be corrected in appeal and revision. However,
one cannot quarrel with the court if it holds that the wrong action is also
misconduct.52 It is interesting to note that in another case, the tribunal held the
illegal gratification accepted by an inspector of police as not a corrupt practice
but as a mere lapse of treating cash as personal property. Holding it as a patent
error committed by the tribunal, in Government of TN v. A Rajapandian ,53 the
Supreme Court upheld the dismissal of the inspector.
Probably, such wrong and unwise decisions repeatedly made by the tribunal
might have prompted the highest court of the land to take a definite stand
that even despite the punishment being harsh, excessive and disproportionate
to the misconduct, the tribunal has no power to interfere with the punishment
provided it is already based on any evidence and is not arbitrary, malafide or
perverse.54 Confusion begins when the apex court thinks that the tribunal
cannot go into the truth of allegations or charges except in a case where they
are perverse or based on no evidence and that it cannot quash the charges
when it finds them to be vague, unsustainable untrue and illegal.55 Union of
India v. Parma Nanda 56 is a problematic case wherein it was held that the
tribunal should not interfere in the punishment even it is not adequate or
proportionate to the extent of delinquency or some of the conclusions of the
inquiry officer are based on irrelevant or extraneous evidence. To drive the
point home, the court cited sections 14 and 15 of ATA which confer on the
tribunal the jurisdiction and authority exercisable by 'all courts' immediately
before ATA came into being.57
52. Union of India v. AN Saxena (1991)3 SCC 124. The Segò al trust had accumulated
unaccounted money for the members of the family by donations from dubious sources. Treating
these donations are genuine, the officer was alleged to have helped the members of the family to
evade tax. Id. at 127, 128.
53. (1995) 1 SCC 220.
54. State Bank of India v. Surendra Kishore Endow (1994) 2 SCC 537. After a detailed enquiry the
inquiry officer found three persons guilty. While letting off two of them with minor punishments
(withholding two or three future increments) the administration dismissed the respondent, a time
keeper, on the allegation that he had manipulated the pay roll by preparing a false bill and bogus
identity card with an ulterior motive to draw money. Finding that the respondent was not the only
master mind, the tribunal reduced his punishment to stoppage of increments for five years. The
apex court disagreed.
55. Transport Commissioners. A Radha Krishna Murthy (1995) 1 SCC 332 at 335. The action is
illegal in the sense that it was initiated by an authority lower than the appointing authority.
56. (1989) 2 SCC 177. The court held, "The adequacy of the penalty unless it is malafide is
not certainly a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere
with the penalty if the conclusions of the Inquiry Officer or the competent authority is based
on evidence even if some of it is found to be irrelevant or extraneous to the matter" Id. at 189.
57. Ss. 14 and 15 of ATA say that save as otherwise expressly provided in the Act, CAT
or SAT shall exercise, on and from the appointed day, all the jurisdiction, powers and authority
exercisable immediately before that day by all courts except by the Supreme Court.
Surprisingly, a curious scenario emerges when one looks at t

jurisdiction of the civil courts during the pre-tribunal days.58 Th
examining and resolving service matters were not limited to artic
jurisdiction of high court based on the no-evidence rule. In a pos
Dr. H. Mukherjee v. S.K. Bhargava* 9 the Supreme Court thought tha
damages from a superior officer for harassing the plaintiff and t
the promotion of the latter does not relate to a matter coming
tribunal jurisdiction. One may differ with due respect. Is not h
inferior officer by a superior authority in discharge of his official d
as well as a service dispute? Is it in the interest of the governme
that the hard-look doctrine previously invoked by the civil cour
disputes is denied to the domain of tribunal decision? The full po
the tribunal system stands unused if its power is limited to that
court to examine the legality of administrative acts.
Nevertheless, State of MP v. Bani Singh60 is a silver lining as
little different from others. The tribunal was dealing with an a
quash the adverse remarks concerning two years and to grant t
retrospective promotion. What the tribunal did was to delete the
one year while sustaining the remarks for the other year. Notably, t
Court gave a green signal and felt no need for interference. Obv
an approval of discretion on the part of the tribunal. Presumably
act of the tribunal in remanding the case than its urge in dele
remarks for one year might have influenced the mind of the co
predict the view of the court if the tribunal itself clinches the
and expt tiously? In Secretary of Government of TN v. Thiru M Sann
court no ed that tribunal interference is possible if among othe
conclusion of the disciplinary authority is such, which no reason
come on the existing material on record.62 A reasonable man's tes
58. Cases on tort committed by a civil servant against another provide such a j
59. (1996) 4 SCC 542. The officer had a vindictive attitude. He tampered official
a view to tarnishing image and career of the plaintiff. The intention was to block
60. AIR 1990 SC 1304. The tribunal remanded the matter to the screening c
consider all facts and circumstances of the case in granting relief.
61. (2001) 10 SCC 517. The BDO who signed the bill is as much responsible as
who had prepared and forged the bills causing loss to the state exchequer. The t
the punishment of compulsory retirement of the BDO saying that his role is
arithmetical errors and sign the bill. The Supreme Court held this wholly erroneou
62. Ibid. "A finding of inferior tribunal can be interfered with if a superior f
the conclusion either that the inferior tribunal has allowed inadmissible evidence or has based its
conclusion on an erroneous view of law or that the conclusion is such which no reasonable man can come
on the existing material on record" Id. at 519 (emphasis added).
'legality' test, gives more freedom for review of service matters, particularly,
disciplinary action.
Review of tribunal's own orders
The administrative tribunal has the power to review its own decisions.63
According to the Supreme Court, the power is held to be similar to that64 of
the civil court and to be exercised when the error is apparent on the face of
record.65 No doubt, in exercise of the power of review the tribunal cannot sit
as an appellate authority over its own judgment.66
The applicant for review should prove that even after due diligence, the
materials could not be produced early. In State of MP v Sadasiv Zamindeř1
the question was whether an upper division clerk on whom the status of a
teacher was conferred could be given arrears of salary as a teacher. In the
first instance, the tribunal rejected the application for salary; subsequently, in
review the tribunal allowed it on merits. When the case came before it, the
apex court was more concerned with the proof whether or not the applicant
had discharged the duties of a teacher. It held that before allowing the review,
opportunity ought to have been afforded to ascertain whether the respondent
had discharged the duties of a teacher.
Suppose that the apex court, without a speaking order, affirms the order
of a tribunal. No review of that order by the tribunal is possible. State of
Maharashtra v. Prabhakar Bhika/i Inglř 8 is an illustration. The circumstances made
it impossible to hold an enquiry before deciding to dismiss the civil servant.
Resorting to article 311(2)(b) of the Constitution,69 the tribunal imposed the
penalty of dismissal. Later on, the Supreme Court just confirmed the dismissal.
By confirming the order, the court was agreeing with the reasons rendered by
the tribunal. Rightly, the Supreme Court described it as 'audacious and without
63. ATA, s. 22 (30)(f).

64. Code of Civil Procedure, Order 47, Rule 1.
65. West bengal v. Kama I Sen Gupta (2008) 8 SCC 612. No review is possible either in the
case of a subsequent decision by a larger bench or by a superior court or on happening of a
subsequent event on a mere discovery of new and important matter. Id. at 637, 638.
66. Gopal Singh v. State Cadre Forest Officer, Assam (2007) 9 SCC 369; also see Subhash v. State
of Maharashstra , AIR 2002 SC 2537. Review is only if the error pointed out is plain and apparent.
Tribunal should not re-examine its own decision that the appellant had the requisite qualification
for the post of motor vehicle inspectors.
67. (1996) 4 SCC 558 at 559, 510.
68. (1996) 3 SCC 463.
69. Art. 311(2) makes it mandatory to give reasonable opportunity to the person before
making a decision for dismissal or removal or reduction in rank. An exception to this provision is
in proviso (b). The requirement can be departed from when the authority is satisfied that it is not
practicable to hold such enquiry.
judicial discipline' if the tribunal reviews the order which stands

the order of the apex court.70
For redressing grievances71 it is possible to give wider m
the expression 'person aggrieved'. But conspicuously, for lod
application72 only persons directly and immediately affected by
order can be considered as parties aggrieved.73 K Ajit Babu v. U
point out that if a wider meaning of 'a person feeling aggrieved
to 'person aggrieved', a third party may seek a review by openi
case to be decided by the tribunal. Unlike appeal, where all
open to challenge; the review is possible to an aggrieved person
grounds.75 The facts of Ajit Babu show that the Mumbai tribuna
the application merely on the ground that the Ahmadabad tribu
was to be set aside or dissented by the Ahmadabad tribunal. Acc
Supreme Court, the doctrine of precedent was applicable to the
tribunal and if it disagrees with the previous decisions, the trib
refer the judgement to a larger bench.76 Instead of adopting the
courses, in the present case the tribunal rejected the application.
unrestricted chances of reviews turning out to be appeals with n
finality and indiscriminate opportunity for any party feeling aggriev
review at any time. This is against the public policy that there shou
to law suits. Hence, the right of review shall be limited to a pers
Contempt power
Similar to high court, CAT does have contempt power

guarantee compliance with its orders and to deal with unresponsive
70. State of Maharashtra v. Prabhakar Bhikaji Ingli (1996) 3 SCC 463 at 464, 465
71. ATA, s. 19 (1).
72. Under s.22 (3)(f) of ATA and order 47 rule 1 CPC.
73. Gopabhandu Biswal v. Krishna Chandra Mohanty (1998) 4 SCC 447 at 455. Th
that the review applications were belated and review applicants not direcdy affect
74. (1997) 6 SCC 473. In the four zones classifying the establishment of Chie
Imports and Exports, those who are promoted as controllers can either stay in th
to go on transfer. Those who opt to go on transfer are promoted ad hoc. The Ahm
decided that the ad hoc promotion does not deprive seniority to those who have n
On this basis, seniority list is prepared and draft circulated for objections. Several
were filed challenging the list but they were all rejected. Interestingly, in the pr
under s. 19, the tribunal held that persons who are not parties to a decision but ar
decision are not entitled to file another original application for redressing grievan
review petitions. The Supreme Court had to hear the appeal from this decision.
75. Id. at 476.
76. Id. at 477.
77. Ibid.
departments.78 The contempt power is not intended to be used as a matter

of course. In a case where the officer had complied with the order and even
tendered an apology, the tribunal should have allowed time limit for compliance
of the order instead of punishing him for contempt. The Supreme Court
observed in Suresh Chandra Podder v. Dhani Kam:19
Courts should not feel unduly touchy when they are told that the orders
have not been implemented forthwith. If the court is told that the
direction or order of the court has been complied with subsequently,
albeit after receipt of notice of contempt, we expect the courts to show
judicial grace and magnanimity in dealing with the action for contempt.
The pronouncement is a clear message. The contempt jurisdiction is not
to be exercised casually, but only sparingly and in very deserving cases. The
apex court reminded the adage, 'It is good to have the power of giant, but
not good to use it always.'80
Contempt jurisdiction81 cannot be used to review an earlier order which
was found to be incorrect later. If the original order is wrong, the only remedy
is to seek a separate review.82 Rules lay down that 'the tribunal may make
such orders as may be necessary and expedient to give effect to its orders or
to prevent abuse of its process or to secure the ends of justice'.83 This does
not confer a power on the tribunal to exercise the contempt jurisdiction and
direct an authority to retain the lesser penalty it had originally imposed. Such
an interesting situation arose in Union of India v. JR Dhiman ,84 The appellate
authority upheld the removal of the respondent from service whereas the
revising authority changed the punishment to one of reducing the scale of pay
for two years with cumulative effect and transferring the employee to a different
station. The allegation being that that the enquiry officer failed to take into
account the statement of witnesses in the enquiry, the tribunal sent back the
78. The CAT (Contempt of Court) Rules 1992 lays down the details of the proceedings in
which the tribunal will take cognizance of the offence of contempt.
79. (2002) 1 SCC 765 at 767, 768. The tribunal held that due seniority should be given
to respondents 4 and 5 with consequential reliefs but it did not fix time for implementing the
order. In the meantime, the division bench of the high court had seized of the matter in a writ
petition but did not stay the tribunal order. In the contempt petition moved before the tribunal
the appellant tendered an apology. Still the tribunal held him guilty of contempt not for non-
implementation but for the delay in implementation.
80. Id. at 370.
81. Under rules 5(c) and 5(d) of Contempt of Courts(CAT) Rules, 1992 and s. 5(2) (b) of
Contempt of Court Act 1971.
82. KG Derasari v. Union of India (2001) 10 SCC 496 at 498. The Supreme Court set aside the
subsequent seniority list drawn in pursuance of such a review made in exercise of the contempt
jurisdiction.
83. The Central Administrative Tribunal (Procedure) Rules 1987, rule 24.
84. (1999) 6 SCC 403.
case for reconsideration. Interestingly, instead of retaining the l

it had earlier imposed, the revising authority while reconsideri
endorsed the original order of the appellate authority to remove the
from service. In exercise of its contempt jurisdiction, the tribunal d
this order and issued a direction to reinstate the respondent for
lesser penalty. The apex court did not take this move kindly bu
there is no justification for such a direction in exercise of contem
Legal and fair procedure
It is true that every tribunal shall follow the procedures laid d

statute by which it is created.86 This provision notwithstanding, the
by the Supreme Court shall be the law of the land binding on all cou
the territory of India.87 Needless to say, the tribunal shall not d
this supreme law.88 The apex court has taken particular care in l
workable norms and guidelines of procedure for the tribunal to
The government sends written instructions to its counsel directin
mould its case. Obviously, these directions are not to be taken
evidence to decide a service dispute.89 As noted earlier,90 the ap
demarcated matters to be dealt with by non-judicial member when h
If he crosses the boundary but takes a decision considering the
decision is only an irregular decision which a losing party canno
Suppose a gradation list is questioned merely on the ground of
irregularities, for example, that there were no supporting mater
challenge of the list is not prevented if it is on merits.91 Same
85. Id. at 406. In Vijay Singh, Secretary, Home v. Mittan lal Hindoliya (1997)
tribunal had to face such a difficult position. The department considers the rep
the complainant as directed by the tribunal but at the same time rejects the re
correct the date of birth. The Supreme Court held that the tribunal cannot interf
of contempt proceeding.
86. S. 22(1) says that the tribunal has power to regulate its own procedures guid
justice and subject to other provisions in ATA and its rules.
87. Art. 141, the Constitution of India.
88. Ajaya Kumar Bhuyam v. Orissa (2003) 1 SCC 707. Once the apex court had al
that ad hoc employees appointed by the DGP under the Police Manual should n
regular employees, the tribunal cannot deviate from this position of law to hold th
appointments were regular.
89. Navneet Rajan Wasan v. Union of India (1996) 7 SCC 630. The dispute was wh
applicants were officiating in cadre posts in the IPS. Their year of allotment was t
after this decision.
90. Indemani L Kirtipal v. Union of India (1996) 2 SCC 437. See supra notes 36 -4
91. N Annapa v. State of Karnataka (1999) 5 SCC 188. Tribunal dismisses the
Then second application is dismissed on res judicata, , the high court approves. The
interferes.
the Supreme Court dismisses an appeal without a speaking order. There is no

res judicata against orders without reasons. The position will be different if the
Supreme Court confirms the reasoned order of the tribunal. Obviously, the
court accepts the reasons rendered by the tribunal in such cases.
Representative application and public interest litigation
There may be instances when all parties affected or all those going to
be affected are not in the party array. Should the non-parties be left with no
remedy at all? In Union of India v. MP Singh 92 the apex court became tolerant
and held that all the parties need not be added where the validity of a rule
is being challenged. It suffices if some of those directly and or immediately
affected are already parties to the case. Thus representative application is
possible as is under the Code of Civil Procedure.93 On the strength of the
CAT Rules an association representing a class, grade or category of persons
can file an application.94
Under ATA the 'person aggrieved' by any order has the right to make the
application for redressing 'his' grievance.95 'Service matters', in relation to a
person, means all matters relating to the conditions of ťhis' service.96 In Dr
Duryodan Sahu v. Jitendra Kumar Mishra ,97 the apex court pointed out that the
expression 'his' in the provisions of the Act makes it imperative that only a
person aggrieved by an order can make an application. Manifestly such a literal
interpretation was made to rule out the scope of PIL under ATA. Reducing
the burden of courts and bringing speedy relief being the aims of ATA, the
court concluded that if PIL at the instance of strangers is allowed, the very
object of speedy disposal of service matters would be defeated.
92. AIR 1990 SC 1098.

93. Order 1 rule 12 of the Civil Procedure Code lays down representative suits. The court
held that representative application akin to such a suit is possible, ibid.
94. R.4(5) of the CAT (Procedure) Rules 1987. CL (a) provides that one or more persons
having common interest may join in the matter in a single application. CL (b) extends this right t
an association provided that at least one affected person joins such an application.
95. ATA, s. 19. It makes the cognizance of a case by the tribunal if there is an 'order' against
a 'person aggrieved' that can make an application.
96. Id, s.3(q).
97. (1998) 7 SCC 273. Creation of the post of a lecturer in the Department of Gastroenterology
was challenged on the ground that it was initiated to accommodate the incumbent who did not
have the required qualification, namely, general surgery plus 'special training' in a recognized
institution as prescribed by the Medical Council of India. He was specialized in general surgery
and had 'assisted the head of the department for five years'. The tribunal did not consider this
period of assistance as special training. The Supreme Court held it as sufficient experience in
special training. The court rejected the plea that the application was filed in the nature of issuing
quo warranto. Though filed against creation of post, the application was in fact for prevention of
authorities from posting the incumbent, see at 281- 283.
Locus standi before the tribunal
The persons who are not specifically exempted under the Act
the locus standi to approach the tribunal.98 In more instances th
Supreme Court has scrutinized when and to whom access to trib
allowed. It was held that an assistant public prosecutor, appointed
government, has to approach a state tribunal if there is one, not the h
against the termination of his service." On the other hand, an em
the post and telegraphs department, deputed to army postal serv
have gone up to the rank of a major on temporary commission b
not full-fledged army personnel, can raise service dispute only b
and not before the high court.100 How about the employee in a
the telephone departmental canteen department? In the court's v
holding civil post and hence, can approach the administrative tr
redressing his grievance.101 What can a civil servant do when he
by a superior officer for fabricating documents? He may find h
helpless demoralized plight. Can he be dissuaded from filing a suit
against his superior officer for harassment and vindictive attitude? Th
specific legislation in India guaranteeing remedies against tort com
public servants in the discharge of their duties. Hence the questio
extremely important. As already seen in H Mukherjee(Dr) v. SK Bh
the Supreme Court held that the subject-matter being a tort of
and mental pain by fabricating evidence, and not being a service
civil court, and not the administrative tribunal, has jurisdiction. I
that the statutory exclusion103 of court's jurisdiction does not bar fil
suit for the tort committed by a civil servant.104 Administrative trib
not allowed to be good Samaritans to help the 'little Indians' such
98. See s. 2(c) of ATA

99. Samarendra Das, Advocate v. State of West bengal (2004) 2 SCC 274.
100. Major MR Penghal v. Union of India , AIR 1999 SC 543.
101. Bombay Telephone Canteen Employees' Association v. VOI (1997) 6 SCC 723. T
has held that the Telephone Nigam Limited, Bombay is not an 'industry'. It, ther
jurisdiction to adjudicate the dispute.
102. (1996) 4 SCC 542. The respondent plaintiff was selected by UPSC to the p
Controller of Explosives. The plaintiff alleges that respondent defendant, acting
ad hoc basis, wanted to mar his record and career by destroying his chance of being
Chief Controller of Explosives.
103. S. 28 provides for exclusion of jurisdiction of any court, other than the Sup
under art. 136 of the Constitution, from dealing with a dispute relating to any r
matter concerning recruitment to any service or post or service matters concerning
any service or persons appointed to any service or post.
104. H Mukherjee(Dr) v SK Bhargava (1996) 4 SCC 542 at 545.
men working in a military academy and getting monthly remuneration not

from a public fund but from a 'regimental fund'created by collections from
the allowance of every cadet. In Union of India v. Chotelal ,105 the tribunal had
asked the National Defence Academy to prepare a scheme for appointing the
washer-men on a permanent basis. The Supreme Court hardly brooks such
generosity. The fact that the commanding officer exercises some control over
the dealings is no justification for treating that the washer-men are holding
civil post. Similar technical objections are the grounds on which in State of
Karnataka v. Ameerbi ,106 the anganwadi workers, developed as a dynamic work
force to look after the health of children and pregnant mothers at the grass
roots, are denied access to tribunal justice.107 Several are the occasions when
the jurisdiction of the tribunals is declared as 'akin' to that of the high court.
The activist stance of the former is not encouraged while that of the latter less
discouraged. Should it not be desirable to render a more liberal interpretation?
Laches and Limitation
Before a civil servant approaches the tribunal, it is necessary that h

should have exhausted all available alternative remedies.108 Same rules ap
to tribunal procedure. The applications filed in time are disposed on me
but the one filed after the limitation period cannot be admitted unless t
is request on genuine grounds for condoning delay.109 The tribunal should
have any compassion to condone the delay if an application for compassio
appointment is filed very late. It was correctly held in Dhalla Ram v. Un
of India, 110 an appointment on compassionate grounds is not a method
recruitment but is a facility to provide for immediate rehabilitation of
family in distress for relieving the dependent family members of the decease
employee from destitution. If the tribunal condones the delay in one ca
for example admitting a challenge against a notification adversely affect
retirement benefits, the same liberal approach is to be the norm in iden
situations.111
105. (1999) 1 SCC 554

106. (2007) 11 SCC 681.
107. Id. at 688, 689. The tribunal held that though paid honorarium, anganwadi workers h
civil post. On the contrary the Supreme Court thought that appointed on an approved
scheme without a statutory backing, they do not hold civil post.
108. ATA, s. 20.
109. Id. s. 1.
110. (1997) 11 SCC 201 at 202.
111. KC S h arm a v. Union of India (1997) 6 SCC 721. Appellants' challenge against an adve
notification was dismissed as time-barred. In another case the full bench of the tribunal held
notification invalid. Referring to this full bench holding, the appellants approached the tribu
The facts of Union of India v. MK Sarkeřxl were that a pensioner

for switch over to the pension scheme after he had enjoyed th
of provident fund for long 24 years of retirement. The apex cou
such deliberate attempt to revive a dead and time barred issue
encouraged on the ground that similarly placed persons were given o
for re-option in the past. A wrong grant shall not be viewed as
for making a wrong grant. Article 14 of the Constitution is a positiv
Illegality or irregularity committed in one case cannot be invoked to
illegality. An application for seniority after many years of silenc
be dealt with in the same way.113 Successive representations one
will not be useful to extend limitation.114
However, the rule of limitation is not without exceptions. Suppose during

the long period, the provisional seniority list was issued several times placing the
temporarily promoted persons over direct recruits. It was held in VP Srivastava
v. State of MPU5 that the eight-year delay in challenging the final list does not
lead to limitation in such peculiar circumstances. The apex court hardly goes
mechanical so as to impose the rules of limitation when there are just and
sufficient reasons for the delay. Ram Ujarey v. Union of India1 16 illustrates how
the court saved a low paid employee, a fitter, from the woes of being driven
out of benefits by a change in law. He had won his case before a court in
1981 against his reversion. The appellate court seized of the matter only after
ATA in 1985 came into being and went against him on the ground that as
ATA came into force the court had no jurisdiction. Unfortunately for him a
fresh application filed subsequently before the tribunal was rejected on the
ground of limitation. Rightly, the Supreme Court interfered and said that at
this stage it would be too much for an employee of the status of the appellant
to be driven out of court on the ground of limitation saying that his original
application was beyond time by one-and-a-half month or three-and-a-half
months.117 The apex court directed for placing the appellant back on duty with
all consequential benefits.
Again the application was dismissed on the ground of limitation. The Supreme Court held this as
a fit case for condoning the delay.
112. (2010) 2 SCC 59 at 66.
113. State of Orissa v. Chandra Sekher (2002) 10 SCC 383. In another case conferment of IFS
had been made on 1976 but the direct recruits challenged the fixation of seniority only in 1986.
See Y Ramamohan v. Government of India (2001) 10 SCC 537.
114. Administrator of Union Territory of Daman and Diu v. RD Valid (1995) Supp.(4) SCC 513.
115. (1996) 7 SCC 759.
116. (1999) 1 SCC 685.
117. Id. at 693.
IV Towards a tribunal judiciary*
As early as 1993 the Supreme Court had proposed for a study of certain
tribunals including CAT with a view to ensuring their independence and
improving the quality of their performance.118 The Law Commission of India
felt the need for a fair balance between the interests of state and interests
of individuals. They were of the opinion that courts can interfere with the
tribunal jurisdiction only to that extent which Science of administrative law
permits' and that there is sufficient leeway left for the government to determine
administrative matters in the first instance.119
But, after the Chandra Kumar pronouncement, the orders of the
administrative tribunals are being routinely appealed against in high courts,
whereas this was not the position before. The status of the tribunal has under-
gone a radical change; the tribunal is no longer alternative to high court but
subject to the scrutiny by the high court.120 How to deal with this situation not
envisaged by the constitutional amendment and the legislation was a subject of
study.121 The real concern was the Chandra Kumar dictum that judicial review by
high courts is part of the basic structure and that the constitutional amendment
and the legislation in relation to administrative tribunal violate the doctrine of
basic structure.122 The pronouncement had anomalous consequences such as
subjecting the orders of administrative tribunals to the review by high courts
and creating chances of different high courts striking down constitutional
amendments following the dictum. It is also apprehended that various high
courts and tribunals may interpret any statutory provision concerning the
service conditions differently resulting in the lack of uniformity and loss
of public faith in seeking justice. It is assumed that the reach and range of
judicial review of Supreme Court and high courts are identical. It is stated to
be 'bad enough' in the context of democracy as there is juristic opinion that
judicial review of the Supreme Court only is to be considered as the basic
feature of the Constitution.123 The scenario becomes critical as it tends to
118. RK lain v. Union of India (1993) 4 SCC 119 at 134 and 175.
119. The Law Commission of India, 162nd Report on Review and Functioning of Central
Administrative Tńbunal (1998), para. 2.1 at 11.
120. Id. para.4.5 at 99. The commission had cited the example of a retired judge of the High
Court of the Karnataka High Court resigning the chairmanship of the tribunal soon after Chandra
Kumar decision feeling that the status of the tribunal was downgraded.
121. Ibid.
122. The Law Commission of India, 215th Report on L. Chandra Kumar be Revisited by a Larger
Bench of the Supreme Court (2008).
123. Nageswara Rao and GB Reddy, "Doctrine of Judicial Review and Tribunals: Speed
breakers Ahead" 39 /JLJ 410 at 421, 422 (1997).
defeat the very object of the administrative tribunals, namely, r

workload of high courts and providing quick and expeditious reme
service disputes.124 Although jurists and political leaders are now
to describe administrative tribunal as "a viable substitute to high c
as "effective alternative adjudicative system",126 the confusion cre
Chandra Kumar case continued to affect not only the administrati
under ATA but every other species of tribunals. To combat the adv
there are many proposals:
(i) Permanent service benches of high courts.127
(ii) National Appellate Administrative Tribunal with branches al
country with power to hear appeals on substantial questions of law
(iii) Zonal benches consisting of three or more members hear
tribunal appeal from various state benches with scope for special
to the Supreme Court afterwards.129
(iv) Reconsideration of the judgment in JL Chandra Kumar by a lar
of the Supreme Court.130
The proposal for administrative bench of high court to hear a
not accepted in the past. Further, it may be that the bench will incre
court dockets instead of reducing them. The suggestions for sepa
124. The idea that service tribunals would reduce the work load of high cour
disputes is a time honoured one. In 1974, the Law Commission had recognized tha
of service courts would reduce the growing volume of arrears in the high court and
Court provided that the service courts should be immune from the interference of
under article 226 and of the Supreme Court under articles 133 and 136 of the Con
Law Commission of India, 58th Report on Structure and Jurisdiction of the Higher J
para. 8.29.
125. In the Fourth Conference of CAT, Bhandari J preferred to call CAT as a substitute, not
as a supplement. "Central Tribunal a viable substitute to high courts" The Hindu , 7th November,
2011.
126. Ibid. RK Bansal, Minister of Parliamentary Affairs.
127. Supra note 119, para.7 (2) ( c). Provision for appeal to the Division Bench of high courts
was suggested at 147, 148.
128. Id. para.7 (2) (d) at 148. For the views of Chandrachud CJI see supra note 14.
129. See supra note 122, para. 4.10. By way of suitable amendment, a provision for intra-
tribunal appeal can be made so that an order passed by a single member bench of the tribunal
would be amenable to appeal before a division bench, and the decision of a division bench can be
challenged before a bench consisting of three or more members. Four zones in the country,
North, East, West, and South, can be made where the appeals from various benches may be filed.
After the decision recorded by an appellate bench, the matter can be taken to the Supreme Court
by way of special leave petition, para. 8.2.
130. Id. para 8.5. The Law Commission is of the view that reconsideration of the case is
necessary in the interest of the government servants, both central and the state, to achieve the
object of the Act, namely, speedy and less expensive justice. It is also noted that if the proposal is
taken up in the right perspective, it will not only reduce the heavy expenditure by way of fees etc.
to the counsel and also the time.
or intra- tribunal appeal are more or less similar but significant as they can be
treated as adequate alternative remedies of appeal that prevent the aggrieved
party to have to recourse to writ jurisdiction of high court against tribunal
decisions. It is time that the Government of India goes ahead and deliberates
which among the second and third proposals can be adopted and implemented.
Despite the proverbial opposition against creation of full-fledged
administrative tribunals of the French type, the United Kingdom has made a
comprehensive re-structuring of their tribunal system into two tiers with 'first-
tier Tribunal' and the appellate 'Upper Tribunal'.131 Judges of high court or
court of appeal sit in the upper tribunal while the senior president of the upper
tribunal service is a judge of the court of appeal.132 Thus, the judges of the high
court and the court of appeal are closely associated with the decision making
process of 'first-tier Tribunal' and 'Upper Tribunal'.133 Appeal from the upper
tribunal goes to the court of appeal and further appeal to the UK Supreme
Court. Institutionally and procedurally, with the 'guarantee of continued judicial
independence', the UK tribunals are considered rather as the 'machinery of
adjudication' than the 'machinery of administration.'134 Though they do not
hold judicial office in the traditional sense, the legally qualified members of
the tribunal are called 'judges' under the Tribunals, Courts and Enforcement
Act 2007. 135 Experts can be nominated as assessors to the tribunals.136
In India the institutional link between the court and the tribunal is
nominal. Retired judges appointed invariably as chairman or members of

administrative tribunal get too short a term to do productive work.137 This i
convincing reason to discontinue the practice. Instead, one may find a wel
change if sitting judges are deputed or appointed to the tribunal as it go
long way in raising the status of the administrative tribunals to the leve
high court. In addition, the quality, status and the tenure of members
improve if lawyers between the ages 45 and 50 as recommended by the
131. Tribunals, Courts and Enforcement Act 2007, ss. 3, 4, 5 and 6. The Sir Andrew Le
committee gave a report of review of tribunals suggesting new system of tribunals. Tribunal
Users One System, One Service (2001), paras 6.5, 6.6, 6.10 and 6.11.
132. Peter Cane, supra note 1 at 286, 287.
133. Tribunals, Courts and Enforcement Act 2007, s.6(l). Ordinary judge of Cour
Appeal in England and Wales can be appointed as Senior President of Tribunals [Schedule 1
1]. An ordinary judge of Court of Appeal in England and Wales and a puisne judge of the
Court of England and Wales are in the First Tier Tribunal [Schedule 2, para. 6(3) and (b)]. 'J
by request of the Upper Tribunal', ordinary judges of Court of Appeal in England and Wal
a puisne judge of the High Court of England and Wales [Schedule 3, para. 6(3)].
134. The Constitutional Reform Act 2005(UK), s. 3.
135. Peter Cane, supra note 1 at 285 -287. Also see Linda Pearson, supra note 1 at 301(2
136. Tribunals, Courts and Enforcement Act 2007, s. 28.
137. See supranoxz 119 at 102, 103.
Commission are inducted as judicial members.138 For providing

for the members and the chairman and uniformity among differ
tribunals, it is now recommended that chairpersons and members
age 70 and 65 years respectively.139 The amendment of ATA in 2
the status of the members of the tribunal by making a minimum in
the high echelons of administration necessary for appointment as ad
member.140 The amendment has equated the status of members,
and administrative, with that of judges of high court. Howeve
attempt is to be made to bring these "unsung heroes of the jus
system"141 as pictured by Varma CJI, on par with the judges of the
so that their dignity and status is perfectly safeguarded by the adm
and the members of the public.142
There has been a demand for a nodal agency to monitor the w
the tribunals. Different tribunals, whether examining service matter
issues, may render different interpretation on questions of law and
Even two service tribunals, one to look after the Central Governmen
and the other to examine state services, may stand at differ
identical issues. In more times than one, the apex court express
that all tribunals should be brought under one single monitoring
Chandra Kumar 143 the Supreme Court had asked the Union of India
action, consult those concerned and place the tribunals under one
department, preferably the legal department. In a later case the
watched the steps taken by the Central Government in this dire
nodal agency brings in more benefits than one. It helps create
138. Ibid.
139. The Law Commission of India, 232nd Report on Retirement of Age of Cha
Members of Tribunals - Need for Uniformity para. 2.1 (2009).
140. The Administrative Tribunals (Amendment) Act 2007.
141. Supra note 125.
142. On the other hand, one of the bizarre incidents placing a judicial m
administrative tribunal in an agonizing situation was reported. He was taking r
house in the evening after his official work. An Inspector General of Police walks
abuses him and takes away his identity card, flight ticket and tour program. N
Director General of Police comes. He apologises for the misconduct with a typ
his colleague is a litde eccentric. No doubt the Supreme Court has taken a serio
event and asked the state governments to provide for minimum courtesy and adequ
tribunal members. Relating to Criminal Intimidation In Re v. Union of India (2009) 8
143. jL Chandra Kumar, supra note 20 at 310.
144. B. Ramanjini v. State of Andhra Pradesh (2002) 5 SCC 533. However, the Su
did not approve that such a direction could be given by the high courts. In the cas
issued a direction in what manner a retirement vacancy should be filled. It should
so when the Supreme Court was seized of the matter. The apex court said that the
been carried away by some kind of adventurism and virtually tried to overreach w
has stated which course should have been avoided at all costs. Id. at 541 .
temper and generate right atmosphere suitable for an adjudicatory tribunal with
uniformity in the constitution, structure and procedure not only of tribunals
constituted by central legislation but also of those set up by state legislation.145
It is essential that a member of the administrative tribunal should be free
from any undue influence and be professionally efficient, totally independent

for discharging his functions, morally upright and be assured of complete
disassociation with anti-social elements.146 An upper quasi-legislative monitoring
agency can formulate the procedure for selection of the members and disposa
of cases, the manner of fund allocation and all other consequential matters
that can be spelt out. Such an agency will bring fairness, accessibility, efficiency,
uniformity and homogeneity, as are present now in the United Kingdom.147
The functions of the UK Administrative Justice and Tribunals Council are to
keep administrative justice system under review, consider the ways to make
the system accessible, fair and efficient, advise the Lord Chancellor and the
Scottish and Welsh ministers and the senior president of the tribunals on the
development of the system, refer proposals for changes in the system to them
and to make suggestions for research into the system.148 It is the responsibility
of the council to keep tribunals under review, report on their constitution and
working, consider and report on any other matter relating to tribunals, consider
matters referred to it and scrutinize legislation and tribunal rules.149 The
145. For example, see Rajendra Singh Yadav v. State of UP (1990) 2 SCC 763. The Supreme
Court is of the view that service tribunals set up in UP under the UP Public Service Act
1976 should give way to those under ATA for the purpose for uniformity of functioning of
administrative tribunals as well as relief to the high court from dealing with service disputes.
Instead of administrative officers in the species of tribunals, adequate number of judges should
man the tribunals. Id. at 765, 766.
146. Union of India v. Kali Da Bastish (2006) 1 SCC 779. The list of lawyers selected for
membership did not contain a few names recommended by the selection committee. Adverse
report by Intelligence Bureau was the cause for their exclusion. Justifying the process of IB
verification, the Supreme Court added that the verification of antecedents of nominees is
essential and it should "include various factors like association with anti-social elements, unlawful
organizations, political affiliations, integrity of conduct and moral uprightness." Id. at 787.
147. Tribunals, Courts and Enforcement Act, 2007, ss. 44 and 45 and schedule 7, parts 1
to 3. Besides Parliamentary Commissioner for Administration the Council consists of ten to
fifteen members appointed by the Lord Chancellor and Scottish and Welsh Ministers with mutual
concurrence. The Council works as agent of the Crown enjoying its status, immunity or privilege,
see Part 1, paragraphs 1 and 11.
148. Id. schedule 7, part 2, para 13(1) and (4). The administrative justice system is defined
to mean as 'the overall system by which decisions of an administrative or executive nature are
made in relation to particular persons, including, (a) procedure for making such decisions, (b) law
under which decisions are made, and (c) the system for resolving disputes and airing grievances
in relation to such decisions'.
149. Id. part 2, para 14.
minister will consult the council before he approves procedural r

characteristics of the UK Administrative Justice and Tribunals C
light on how a monitoring body for the tribunals in India can be
It is highly essential that a tribunal judiciary with such identical
importance among the incumbents in the tribunal is developed in
other common law countries have gone ahead with progressive leg
tribunal system casting out their prejudices against administrative ju
is no reason for the Indian legal system to lag behind.151
V Conclusion
An efficient mechanism of settling service disputes, necessary to mai

a well- organized and resourceful bureaucracy, is the cornerstone of g
governance. However, one shall not close one's eyes at certain conventi
restrictions built in or retained to tie down its hands.
Judicial expertise and knowledge are essential attributes of an administrative

tribunal to interpret law and the Constitution and the bench on such occasions
must consist of essentially a judicial member. One may not object if the rule is
relaxed when a non-judicial administrative member takes a perfectly right and
unbiased decision on matters likes seniority and disciplinary action. Judicial
mind is no doubt the gift of the judiciary but by no means, is its exclusive
faculty. Endowed with the task of free and independent decision-making powers
and insulated with the guarantee for functional and institutional freedom,
an experienced administrator can be impartial and free from bias when he
sits down to make a decision. There is profound criticism against denial of
discretion to the tribunal in reviewing matters like fixing scales of pay, assessing
an interview and in changing the quantum of punishment. This criticism is
based on the principle that discretion may bring justice when rules fail.152 No
doubt, tribunals everywhere shall abide by law but they shall not be deprived
150. Id. part 3, para 24

151. The Law Commission was for discontinuing the practice of appointing retired judges
as members or as chairman of the tribunal as they may not get time for settling themselves in the
new assignments. Other suggestions include appointment of lawyers between the ages 45 and
50 who can also be selected as judges of the high court by applying the provisions in art. 217 (2)
(aa) of the Constitution. In short the Law Commission has begun to think that there should be
mobility of assignments between the judges of the high court and the members of the tribunal.
See supra note 119 at 101, 102.
152. KC Davis points out, "Even when rules can be written, discretion is often better.
Rules without discretion cannot fully take into the need for tailoring results to enquire facts
and circumstances of particular cases. The justification of discretion is often the need for
individuated justice. This is so in the judicial process as well as in the administrative process"
Discretionary Justice 17 (Lousisianna State University, 1969).
of their discretion when there is no law or a rule or when strict adherence to

law may work injustice.
Denunciation of tribunal discretion to vary harsh and disproportionate
punishment has provoked displeasure among the writers on administrative
law,153 who hold the view that the jurisdiction and powers of the tribunals
should not be confined to examine questions of law and jurisdictional errors.
The provisions154 in the Act relating to the jurisdiction, powers and authority
of the administrative tribunal may also extend its adjudication of disputes and
complaints to the wider dimensions of service matters so as to mould efficient
and contended service personnel. Inevitably, in this process the tribunals may
have to look into the various aspects of evidence on substantive matters. No-
evidence rule155 followed by high courts in judicial review of administrative
action does not fit in to the nature of decision-making process by the tribunal
that may consist of an admixture of administrative experience and judicial
expertise. While courts' duty is to mete out individual justice to those who
are before the court with a case or a controversy, the administration primarily
oriented towards the promotion of social goals does collective justice to
a much larger segment of the general public with its expert administrative
decisions.156 Probably, this is one of the reasons why the apex court review of
tribunal decisions are expected to have a deferential approach to administrative
expertise and wisdom of administrative tribunals. The focus of judicial review
of tribunal findings and reasoning need be whether the tribunal met the
minimum standards of rationality.157
The wide meaning to the expression 'the person aggrieved' is helpful
to render locus standi to those who are not parties to the original case and
enable those who are directly or immediately affected to apply for review by
the tribunal of its own decision. By underlining the word 'his' service in the
153. Alice Jacob, "Bar on Tribunal's Discretion to Examine the Adequacy of Punishments
in Disciplinary Cases "31 JIU 250 (1989); Anupama Thaplayil, "Role of Central Administrative
Tribunal: Whether Confined to Judicial Review, A Critique of Union of India v Prema Nandď
(1990) 1 SCC (jour.) at 11.
154. Ss. 14 and 15 of ATA.
155. No evidence in judicial review is that so long as there is some evidence to support
a finding of fact, there is no error of law. US courts take a broader view, for example, the
substantial evidence test. See Linda Pearson, supra note 1 at 312, 313.
1 56. Peter Cane, supra note 1 at 294, 295. He continues on this distinction, "In the adjudication,
the individual is put in the spotlight (this is what the basic features of adjudication are designed
to achieve), whereas in administration individuals figure more anonymously as members of the
social groups or of society as a whole (and so adjudicatory procedures are more-or-less out of
place in this context). Put crudely, in the political world and the administrative process, individuals
are statistics. In the court or the tribunal, the individual is a person."
157. Supra note 154 at 301.
definition of service matters the court made too technical an interpre

kept PIL away from tribunal jurisdiction. Such a holding comes
the position that in service matters no PIL is allowed. The advice
by the Supreme Court that in the exercise of its contempt power
should show grace and magnanimity is remarkable. In a case where
has apologized and even implemented the order, there is no reason
him guilty for the delayed implementation of the order.
Diverse are the responses to the rules of behaviour designed by
court for the tribunal. At one time the apex court acts like a m
fondles the child in her hands as it grows. Unsurprisingly, as th
becomes a full-grown adult institution, the apex court goes patern
its judicial imprimatur to keep its functions within the discipline
appreciating fair procedure by tribunals, approving contempt pow
essential situation and in insisting on a hands-off position to execu
making, the Supreme Court had been vigilant throughout. This
process has taken the system of administrative tribunals to a high
adding to their status as adjudicatory machinery. Undoubtedly, furthe
will improve the institution.

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REVIEWING DECISIONS OF ADMINISTRATIVE TRIBUNAL: PATERNALISTIC APPROACH OF

THE INDIAN SUPREME COURT AND NEED FOR INSTITUTIONAL REFORMS

VOLUME 54 JANUARY-MARCH 2012 NUMBER 1

REVIEWING DECISIONS OF ADMINISTRATIVE TRIBUNAL:

Institution of administrative tribunals in India had to confront with the basic

IN THE long and arduous passage from monarchy to a full-fledged

newly emerged state-versus-individual disputes. To meet this sit

II Administrative tribunals in India

The founding fathers of the Indian Constitution were against wat

Public servants ought not to be driven or required to dissipate their

effectively. The constitution of service tribunals... which, in the

The basic structure imbroglio

Sampat Kumar case

The provision of ATA dealing with exclusion of judicial review was

India 12 Bhagwati CJI held that the administrative tribunals un

Chandra Kumar case

Sampath Kumar had dealt with only the exclusion of judicial

20. L Chandra Kumar v. UOI (1997) 3 SCC 261 at 277, 78.

constitutional amendment would be unconstitutional.29

Ill Administrative tribunal: Jurisdiction and powers

to say that if the decision by a non-judicial member is correct, there is n

Limited review of administrative orders

While the tribunal has wider powers to examine the constitutionality o

36. State of MP v. BR Thakare (2002) 10 SCC 338 at 340.

exemplary costs even for an unreasonable exclusion of a person

43. Maharashtra PSC v. Bhanumathi Purushotam Rathod (1997) 5 SCC 128. T h

Surprisingly, a curious scenario emerges when one looks at t

Review of tribunal's own orders

63. ATA, s. 22 (30)(f).

judicial discipline' if the tribunal reviews the order which stands

Similar to high court, CAT does have contempt power

departments.78 The contempt power is not intended to be used as a matter

case for reconsideration. Interestingly, instead of retaining the l

Legal and fair procedure

It is true that every tribunal shall follow the procedures laid d

the Supreme Court dismisses an appeal without a speaking order. There is no

Representative application and public interest litigation

92. AIR 1990 SC 1098.

Locus standi before the tribunal

98. See s. 2(c) of ATA

men working in a military academy and getting monthly remuneration not

Laches and Limitation

Before a civil servant approaches the tribunal, it is necessary that h

105. (1999) 1 SCC 554

The facts of Union of India v. MK Sarkeřxl were that a pensioner

However, the rule of limitation is not without exceptions. Suppose during

IV Towards a tribunal judiciary*

defeat the very object of the administrative tribunals, namely, r

nominal. Retired judges appointed invariably as chairman or members of

Commission are inducted as judicial members.138 For providing

from any undue influence and be professionally efficient, totally independent

minister will consult the council before he approves procedural r

An efficient mechanism of settling service disputes, necessary to mai

Judicial expertise and knowledge are essential attributes of an administrative

150. Id. part 3, para 24

of their discretion when there is no law or a rule or when strict adherence to

definition of service matters the court made too technical an interpre

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