CHAPTER 5 ADMINISTRATIVE TRIBUNALS the following topics are discussed in this Chapter A Administrative tribunals defined p. Reasons for the growth of administrative tribunals ¢. Characteristics or features of an administrative tribunal p. How an administrative tribunal is different from a court of law £. Examples of administrative tribunals F. Recommendations of the Franks Committee A. ADMINISTRATIVE TRIBUNALS DEFINED According to the traditional theory of separation of powers, the function of adjudication of disputes belongs exclusively to the judiciary. However, with the advent of the ‘welfare state’, the functions of the state have increased manifold, as it engages in commercial adventures and provides and ensures social security and social welfare for the common good of its ciizens. In a progressive democratic state, issues relating to the socio- economic and commercial activities of the state are bound to arise. The courts, overburdened as they always are, have their own shortcomings and limitations when tackling such issues. This has led to the establishment of tribunals — or ‘administrative tribunals’ as they are often referred to — for settlement of specific kinds of disputes. The Supreme Court has defined a ‘tribunal’ as including all adjudicating bodies (not being courts) provided such bodies are constituted by the slate and are vested with judicial — as distinguished from administrative or executive — functions. (Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520) As pointed out by the Supreme (AIR 1950 SC 188), although these Court in Bharat Bank Lid. v. Employees tribunals share many of the trappings (0r attributes) of a court of law and although they exercise quasi-judicial functions, they are not full-fledged courts. In other words, a tribunal is an adjudicatory body that decides controversies between parties and exercises judicial powers as distinguished from purely administrative powers. Such tribunals possess some of the trappings ofa court of law, but not all (See "How an administrative tribunal is different from @ court of law, below.) a The status of tribunals has been recognised by the Constitution heel At. 136 of the Constitution empowers the Supreme Court to hear special 67 Write a_ short note on: Admini- strative tribunals. M.U. Nov. 2008 ‘Apr. 2010 Nov. 2011 Apr. 2012 Apr. 2013 Nov. 2013 Write a short note on: Admi- nistrative tribunals in India. M.U. Nov. 2007 ‘Apr. 2018 Scanned with CamScanner| 68 ADMINISTRATIVE LAW leave petitions filed against an order or decision, inter alia, of a tribunal, Again, Art. 227 confers on the High Court the power of superintendence, inter alia, over all the tribunals in the state. The Forty-second Amendment, 1976, inserted two new Articles, Art. 323-A and Art. 323-B, under which Parliament has been empowered to constitute administrative tribunals for settlement of disputes and adjudication of certain matters stated therein, A question, however, arises as to whether the term ‘administrative tribunals’ is a correct description of such bodies. Several authors fee! that this term is a misnomer. The learned author, Wade, for instance, feels that the prefix ‘administrative’ is misleading for at least four reasons, Firstly, such a tribunal is constituted by an Act of Parliament and not by the government. Secondly, the decisions of these bodies are judicial, and not administrative in nature. Thirdly, all such tribunals do not deal with disputes in which the government is necessarily a party, as for instance, when the dispute is between a landlord and his tenant or between an employer and his workman or between two workmen. Lastly, these tribunals are independent bodies and are not subject to any administrative interference. Several authors (like Jain, for instance) feel that the word ‘administrative’ needs to be discarded and that such bodies be designated simply as ‘tribunals’. Test for determining whether a body is a ‘tribunal’ The power of adjudication of disputes does not, by itself, make a body a tribunal. What is important is that such a power of adjudication must be derived by it from a statute — and not under a private agreement between parties. Thus, a domestic tribunal (like a trade union or a club which has power to adjudicate upon disputes between its members) is not a ‘tribunal’ = although it may be called by this name. On the other hand, a Rent Control Authority is a ‘tribunal’ - although not called by that name. Thus, the following have been held to be ‘tribunals’, namely, - * Election Tribunal * Industrial Tribunal * Revenue Tribunal * Rent Control Authority * Excise Appellate Authority * National Environmental Tribunal * Telecom Disputes Settlement and Appellate Tribunal * Commissioner for Religious Endowments * Custodian of Evacuee Property + Payment of Wages Authority Scanned with CamScannerADMINISTRATIVE TRIBUNALS 69 On the other hand, the following have been held not be ‘tribunals’, namely, ~ + A domestic tribunal + A conciliation officer A private arbitrator + A customs officer + A Judges’ Inquiry Committee + An Advisory Board constituted under laws relating to preventive detention. B. REASONS FOR THE GROWTH OF ADMINISTRATIVE TRIBUNALS The rapid growth of administrative tribunals is a significant feature of the development of administrative law in the twentieth century. The main reasons for this rapid growth may be summed up as under: 1. The traditional judicial system has proved itself to be slow, what is a overburdened, complex and expensive. It is hardly possible to expect tribunal? Discuss law courts to decide urgent matters like strikes, lock-ouls and similar the reasons for 'abour disputes in an expeditious manner. To overcome this problem, the growth of industrial tribunals and labour courts (which have the technique and administrative expertise to handle complex labour issues) were established. mtn _ 2. Traditionally, administrative tribunals take a practical and functional Apr, 2011 @pproach ~ rather than a theoretical and legalistic approach generally Nov. 2014 taken by the courts. It is well-known that courts are proverbially Apr. 2015 conservative, rigid, technical and legalistic. They do not decide cases without following elaborate technicalities and all the prescribed formalities, Tribunals, on the other hand, are bound neither by the rules of procedure nor by the rules of evidence. They tend to take a Practical view of the matter under consideration and arrive at an expeditious conclusion, A court arrives at a decision after elaborately hearing the parties and alter meticulously weighing the evidence on record. An administrative ‘ribunal, on the other hand, is not bound by the rules of procedure or the rules of evidence, and can base its decision on practical common Sense, after taking all relevant factors into account. Questions which come up for adjudication are often of a highly ‘echnical nature. They sometimes involve intricate questions and Complex problems relating to atomic energy, gas, electricity, etc. The traditional judiciary cannot be expected to appreciate the niceties and 'echnicalities involved in such matters. Administrative tribunals, on the er hand, are manned by experts in the relevant fields and can, Nherefore, decide highly complex and technical issues. Scanned with CamScannerDiscuss the cha- ADMINISTRATIVE LAW 5. Courts only decide cases which are filed before hailey not take preventive action. Administrative bodies, on fan ot hand can take preventive measures like licensing, ratefcng, gol rent ete Generally speaking, preventive action is more useful an e than inflicting punishment on a person affer he has committed a wrong. As observed by Freeman, “Inspection and grading of meat answers the consumer's needs more adequately than does a right to sue the seller after the consumer is injured.” Again, administrative bodies are in a position to enforce Preventive measures, as for instance, by suspension or revocation or cancellation of a licence, acts which do not ordinarily fall within the realm of a court 70 of law. To sum up, administrative tribunals can do their work “more rapidly, more cheaply and more efficiently than ordinary courts. They possess greater technical knowledge and fewer prejudices; they pay greater heed to social interests. Thus, they decide disputes with a conscious effort at furthering the social policy embodied in the legislation.” (Robson) C. CHARACTERISTICS OR FEATURES OF AN ADMINISTRATIVE TRIBUNAL The following may be said to be the main characteristics or features of an administrative tribunal: racteristics of (1) An administrative tribunal has a statutory origin, that is, it is created administrative tribunals. M.U. Apr. 2007 Nov. 2011 Apr. 2014 Nov. 2014 Dec. 2017 Jan. 2019 May 2019 MCQ No. 33 by or under a law. Thus, the Industrial Tribunal was constituted by the Industrial Disputes Act, 1947, and the Income Tax Tribunal by the Income-tax Act, 1961. Although called ‘administrative tribunals’, these bodies are neither exclusively judicial nor exclusively administrative. (3) An administrative tribunal has some attributes of a court, but not all. (See, ‘How an administrative tribunal is different from a court of law, low.) Such tribunals perform judicial and quasi-judicial functions, as (2) 4) distinguished from purely administrative or executive functions. They are therefore bound to act in a judicial manner. Administrative tribunals are independent bodies, and are not subject to any executive influence when discharai to len dis ir judici * judicial functions, sharing fot eo a 6 (6) Pilar dcid one! is not bound by the elaborate procedure laid sewn by he, oa Procedure Code or the Criminal Procedure Cod? of evidence contained in the Indian Evidence Act. Scanned with CamScannerADMINISTRATIVE TRIBUNALS a (7) Although not bound by the rule: by courts of law, administrat act judicially and in accord; and fair play. Thus, in one case, where the , Prosecutor was also the adjudicatin afte homies nail v. Mohd, Noor, AIR 1958 SC 86) and in another cee hei re Head Tax Tribunal relied on some evidence without disclosing it to the assessee (Dhakeswari Cotton Mills v. C.1.T., AIR 1955 SC 65), the orders of the trib ‘ supine, Cot ribunals were set aside by the 'S of procedure and evidence followed tive tribunals are nevertheless bound to ‘ance with the principles of natural justice (8) As recording of reasons in support of an order is widely accepted to be a part of natural justice, every quasi-judicial body — including an administrative tribunal — is bound to record reasons in support of the order passed by it. As observed by the Supreme Court, “A reasoned order is a desirable condition of judicial disposal.” (M. P. Industries v, Union of Inaia, AIR 1966 SC 671) Administrative tribunals generally possess certain powers enjoyed by civil courts. Thus, the Industrial Tribunal is vested with the powers of a civil court in the matter of enforcing attendance of persons, examining witnesses on oath, compelling the production of documents and issuing commissions for the examination of witnesses. (10) Although administrative tribunals enjoy a certain degree of discretion, such discretion is to be exercised objectively and in a judicial manner. Their decisions are therefore more judicial than administrative, as they have to objectively record a finding of facts and then apply the appropriate law to such facts — irrespective of the executive policy in the matter. (11) Although many tribunals (as for instance, the Income Tax Tribunal) decide cases between the government and private parties, several other tribunals are not exclusively involved in disputes where the government is a party. Thus, the Election Tribunal is generally involved in settling disputes between rival candidates, the Rent Tribunal adjudicates disputes between landlords and tenants and the Industrial Tribunal is concerned with disputes between the employer and its employees or between two or more employees inter se. ; (12) A person aggrieved by the decision of an administrative tribunal can approach the Supreme Court (under Art. 32 of the Constitution or 7 High Court (under Art. 226) for appropriate relief by way of a writ of mandamus, certiorari or prohibition. (13) An administrative tribunal has no unless such a power has been express'y ! it passes an order, it becomes functus olficio, ) power to review its decisions ~ sssly conferred on it by law. Once that is, it ceases to have Scanned with CamScannerWhat is Doctrine of Res Judicata? (2 marks) M.U. Nov. 2015 72 ADMINISTRATIVE LAW control over the matter and cannot, therefore, review an order passed by it, Such a decision — right or wrong ~ stands in the eyes of law, unless it is sot aside in appeal or in a writ petition filed in the Supreme Court or by a High Court. - (14) The doctrine of res judicata contained in S. 11 of the Civil Procedure Code applies to all civil suits. Although this section does not apply to administrative tribunals, the general principles underlying the doctrine do apply to administrative tribunals also. Shorlly stated, the doctrine of res judicata lays down that if an issue between two parties has been tried and decided by a competent court, the same issue cannot be raised again between the same parties in a subsequent suit. Applying this principle to administrative tribunals, it can be said that if the Labour Court has given its decision that Mr. X ig not a ‘workman’ within the meaning of the Industrial Disputes Act, 1947, the same question cannot be raised in a subsequent proceeding. (15) An administrative tribunal is bound by the decisions of the Supreme Court, by the judgments of the High Court which exercises jurisdiction in that territory and also by the decisions of their own higher authorities. Thus, where an Income Tax Officer refused to follow a clear direction issued by the Income Tax Tribunal, his order was set aside. (Bhopal Sugar Industries Ltd. v. |. T. O., AIR 1997 SC 3277) (16) An Act may provide that the decisions of a tribunal constituted under that Act shall be final and that no proceedings can be filed in civil courts against such decisions. The legal position as regards the jurisdiction of civil courts in such cases has been set out by the Supreme Court in Dhulabhai v. State of Madhya Pradesh, below. Finality of decisions of administrative tribunals A statute may provide that the decision of a tribunal constituted by it shall be final and no civil court will have jurisdiction to examine such a decision. Now, under the Civil Procedure Code, a civil court has jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. The principles to be followed in such a situation were enumerated by the Supreme Court in Dhulabhai v. State of Madhya Pradesh (AIR 1969 SC 78) as follows: (i) Where the statute gives finality to the orders of a special tribunal, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in such a suit, (ii) Wor there is an express bar of jurisdiction, an examination of the scheme of the Act, to find the adequacy of remedies which are available, may be relevant but not decisive. Scanned with CamScannerADMINISTRATIVE TRIBUNALS Ls ii). Wher i aii) meee eye no express exclusion, an examination of the he schome of the particular Act to find out its Hada becomes Necessary and the rosult of the inquiry may praia me auch 4 case, It is necessary to seq if the statute detentinatk Pecial right or a tiability and provides for the eri lon of the right or liability, and if it further lays down that al sf ation about the said right and liability shall be determined y the tri unals SO constituted and whether remedies normally associated with actions in civil courts are prescribed by the statute. (iv) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act When a Provision is already declared unconstitutional or the constitutionality of a provision is challenged, a suit can be filed. (vi) Where the particular Act contains no machinery for refund of tax eotened in excess of constitutional limits or collected illegally, a suit lies. Vv) (vii) An exclusion of the jurisdiction of the civil court is not to be readily inferred unless the above conditions apply. It is relevant to note that the jurisdiction of High Courts under Articles 226 and 227 and the Supreme Court under Articles 32 and 136 cannot be taken away by a statute. Even if the order of a tribunal is made ‘final’ by law, if there is abuse of power or if the order is ultra vires or mala fide, it can be questioned, and set aside if necessary, in a court of law. No statute can take away the power of the Supreme Court under Art. 32 ‘or the power of the High Courts under Art. 226 of the Constitution. D. HOW AN ADMINISTRATIVE TRIBUNAL IS DIFFERENT FROM A COURT OF LAW An administrative tribunal resembles a court of law in several respects. Both are constituted by law and are entrusted with powers of adjudication. Both are invested with judicial powers and decide disputes between parties. As observed by the Supreme Court, both “discharge judicial functions and exercise judicial powers which inherently vest in a sovereign state”. (ACC Lid. v. P. N. Sharma, AIR 1965 SC 1595) However, there are several differences between the two, as tribunals Possess some — but not all — the trappings (attributes) of courts. All courts are tribunals but all tribunals are not courts. The two differ from each other in the following important matters: 1. A court of law is a part of the traditional judicial system, whereas an administrative tribunal is an agency created by a statute. Primarily, it is a part of the executive branch of the state, performing judicial functions. In the words of Lord Greene, an administrative tribunal Performs “hybrid functions”. How are Tribunals different from courts? (2 marks) MU. Nov. 2014 MCQ No. 34 Scanned with CamScannerMCQ Nos. 35. 36 74 ADMINISTRATIVE LAW diction to try all suits of a civil nature, untos, edly barred from doing so. Administratiyg d, have jurisdiction to tty only cases of 4 2. Givil courts have the juris they are expressly or impli tribunals, on the other han type specifically mentioned in tho statute. courts are totally independent of the executive, whereas 3. Judges of law members of administrative tribunals have to depend on the government in matters of their appointment, tenure, terms and conditions of service, etc. 4. A judge who presides over a court normally has years of training ang experience in the field of law. A member of an administrative tribuna| may not have such training and experience; he may not even have a law degree. 5. A judge is always an impartial adjudicator of disputes. He cannot decide ‘a matter in which he is interested. This is not true of an administrative tribunal. Thus, all cases before the Income Tax Tribunal involve a dispute with the income-tax department. 6. A court has to strictly observe the procedure laid down by the Civil Procedure Code and the Criminal Procedure Code. It must also follow the rules of evidence laid down in the Indian Evidence Act. An administrative tribunal is not bound by the rules contained in these statutes, unless it is expressly so provided. Whereas law courts decide all questions objectively and with an air of detachment, an administrative tribunal may decide a matter on the basis of common sense, after taking into account all relevant factors, including at times, the departmental policy of the government. 8. The Supreme Court or a High Court can declare a piece of legislation to be unconstitutional; an administrative tribunal cannot. 9. Unlike the Supreme Court or the High Courts, a tribunal does not have any inherent power. It can exercise only such powers as are specifically conferred on it by the statute by which it was created. 10. Whereas courts are bound by the doctrine of precedents, strictly speaking, administrative tribunals are not. . Courts of law follow the principles of estoppel and res judicata Administrative tribunals are not strictly bound by these principles. E. EXAMPLES OF ADMINISTRATIVE TRIBUNALS Industrial Tribunal The Industrial Tribunal was set up under the Industrial Disputes Act 1947. It consists of one or more members appointed by the Cent Government or by the ‘appropriate government’. Every such member § deemed to be a ‘public servant’ within the meaning of S. 21 of the India” Penal Code. Pal Scanned with CamScannerADMINISTRATIVE TRIBUNALS i The judedietion, of the Industrial Tribunal extends to all industrial disputes, as for Irelane, disputes between employers and their workmen. the procedure to be followed by this tribunal is prescribed by the said Act also the principles of justice, equity and good conscience. It is vested with all the powers of a civil court as regards enforcing the attendance of ersons, examining witnesses on oath, compelling the production of documents and ‘ssuing commissions for the examination of witnesses. Any inquiry or investigation conducted by it is deemed to be a ‘judicial proceeding’ under Ss. 193 and 228 of the Indian Penal Code. Income Tax Tribunal This tribunal was set up under the Income-tax Act, 1961. It consists of such (equal) number of judicial and accountant members as the Central Government deems fit. The Income Tax Tribunal sits in Benches in various cities like Mumbai, Kolkata, Chennai, Ahmedabad, Allahabad, etc. The tribunal functions under the control of the Ministry of Law — and not under the Ministry of Finance. This fact is expected to ensure the independence of the tribunal and inspire confidence in the parties who appear before it. (Incidentally, one of the parties before it is always the income-tax authority.) The Income Tax Tribunal hears appeals filed by an aggrieved party against the orders of the Appellate Assistant Commissioner, Inspecting Assistant Commissioner or the Commissioner. All such appeals are required to be filed within a period of sixty days. The tribunal decides the matter after giving an opportunity to be heard to both the sides. It is not governed by the rules of evidence contained in the Indian Evidence Act, and has the power to regulate its own procedure. After giving an oral hearing to the parties, it passes an appropriate order. Such an order is in writing and is signed by all the members of the Bench. Although the decisions of this tribunal on questions of fact are final, an appeal can be filed in the High Court against any decision on a Substantial question of law. Such a question is to be decided by a Bench of al least two Judges of the High Court. Central Administrative Tribunal (CAT) The Forty-second Amendment of the Constitution (1976) introduced a new provision in the Constitution in the form of Art. 323-A, enabling Parliament to constitute a central administrative tribunal. An Act called the Iministrative Tribunals Act was passed by Parliament in 1985 to provide “I adjudication by a tribunal of disputes and complaints with respect to “cruitment and conditions of service of persons appointed to public Services and posts. Accordingly, a Central Administrative Tribunal (CAT) W235 established in New Delhi, with Benches all over the country to deal With servicg disputes between the Central Government and its servants. Scanned with CamScannerON The constitutionality of the Administrative Tribunals Act, 1985, came % before the Supreme Court in Sampath Kumar v. Union of India (AIR 1987 SC 386) and was heard by a Bench of five Judges. The main question jy be decided was the constitutional validity of the provision of the Act unde, which the jurisdiction of the High Courts under Arts. 226 and 227 of the Constitution of India had been barred. After observing that “Judicial reviey, by the apex court has been left intact’, the 5-member Bench took a ratho, narrow view and accepted the argument that such a bar on the High Cours’ jurisdiction would not violate the basic structure of the Constitution of India. The view taken by the Supreme Court was profusely criticised by Several legal luminaries, and ultimately, when the same question came up before the Supreme Court ten years later in Chandra Kumar v. Union of India (AIR 1997 SC 1125), a larger Bench of seven Judges was constituted to hear the matter. This larger Bench overruled the decision in Sampath Kumar's case (above) and held that the jurisdiction conferred on the High Courts under Arts. 226 and 227 of the Constitution was part of the inviolable basic structure of the Indian Constitution which could not be taken away or curtailed by Parliament. Thus, after this judgment, a person aggrieved by the decision of CAT can invoke the High Court's jurisdiction under the said Articles. (Note: A similar tribunal called CEGAT (Customs, Excise & Gold (Control) Appeliate Tribunal) has been set up to decide matters relating fo customs, excise and gold control] Consumer courts 76 ADMINISTRATIVE LAW With a view to ensuring the protection of consumer interests and bringing justice to the doorsteps of the consumer, a 3-tier system of Consumer courts has been set up under the Consumer Protection Act 1986. A District Forum is set up at the district level throughout India with jurisdiction to entertain consumer complaints where the value of the goods or services does not exceed As. 20 lakhs. Appeals against decisions of the District Forum can be filed before the State Commission (one in each Slate), which also has original jurisdiction in respect of consumer complain's Where such value is more than As. 20 lakhs but less than As. one crore Appeals against an order of a State Commission can be filed in the National Commission in New Delhi, which also has original jurisdiction in respect of complaints where such value exceeds Rs. one crore, Appeals against the orders of the National Commission lie to the Supreme Cout of India. Bar Council The Advocates Act, 1961, provides for the establishment of @ 0 ncil at the central as well as the state levels, The main function ©| Cou Scanned with CamScanneryr Council is to enforce discipline in the legal prc vir ne aint that an advocate has committed an tet of misconduct in 2 a tet relating to the profession, the matter is referred to the Disciplinary nmittee of the Bar Council of the state. Such a reference may also be on ‘without a complaint, that is, suo motu, After inquiry, if the Disciplinary made “ee finds that there is a prima facie case of professional misconduct, notice to the advocate concerned and also to the Advocate-General tate. Following the procedure laid down in the Act, it imposes an te punishment on such advocate if he is found guilty of such ADMINISTRATIVE TRIBUNALS 7 Sm in gives of thes -oprial isconducl. : ‘an appeal can be filed against an order passed by the Disciplinary mittee of a State Bar Council before the Bar Council of India. The pesiplinary Committee of the Bar Council of India hears the appeal and es such order as it deems fit. A second appeal lies directly to the Sypreme Court against the order passed by the Bar Council of India. All proceedings before a Disciplinary Committee of a Bar Council are deemed to be ‘judicial proceedings’ within the meaning of Ss. 193 and 228 af the Indian Penal Code. Likewise, the Disciplinary Committee is deemed tobe a ‘civil court’ under Ss, 346 and 349 of the Criminal Procedure Code. F, RECOMMENDATIONS OF THE FRANKS COMMITTEE In 1955, a Committee was appointed in England under the Chairmanship of Sir Oliver Franks to study the constitution and working of administrative tribunals in England, to address the growing concern as to the range and diversity of such tribunals, the uncertainty of the procedures followed by them and to look into complaints and suggestions received in that regard. The Committee (popularly referred to as the Franks Committee) spent two years in making an exhaustive study of administrative tribunals in England and finally submitted its report in 1957. The following is a summary of the main recommendations made by the Franks Committee: * The hearings of administrative tribunals should be open to the public - except in cases involving public security, intimate personal or financial circumstances or a person's professional reputation. 10 take evidence on * Administrative tribunals should have the power to tals cath, to summon witnesses and to award costs. Parties should also be allowed to cross-examine witnesses directly. * Parties should be allowed to be represented by their lawyers — xcept in most exceptional circumstances. The procedure to be followed by the tribunals should be based on common principles, but suited to the needs of every individual tribunal. Scanned with CamScanner78 — ADMINISTRATIVE LAW As soon as possible after the hearing, the decision of the tribunals must be made available to the parties in writing along with the reasons for the decision. Final appellate tribunals should publish and circulate selected decisions. Chairmen of administrative tribunals should be appointed by the Lord Chancellor. As far as possible, Chairmen of administrative tribunals should Possess legal qualifications. However, Chairmen of appellate tribunals should always have a legal qualification. The remuneration for serving on the tribunals should be reviewed by the Council on Tribunals from time to time, Generally speaking, there should be an appeal to an appellate tribunal on matters of law, facts and merits, An @ppeal to a court on a Point of law should always be made available to the aggrieved party. Judicial control of the tribunals by Way of remedies like Mandamus, certiorari ani never be taken away by the statute. 0 ood Scanned with CamScanner