Need for Research support in Administrative Tribunals – An Introspection.
-- Smt. Leena Mehendale, Hon'ble Member (A), CAT, Bangalore Bench
As any other prestigious institution of this country, the Administrative Tribunals have come through various ups and downs, and vicissitudes of its fortunes in the 25 years of its history. They have been set up under the Administrative Tribunals Act, 1985 in accordance with Article 323-A of the Constitution of India. The objective of the Act is to provide for adjudication of disputes and complaints with respect to recruitment and service conditions of persons appointed to different cadres and posts in various departments of the Union government. Similarly under Sec 4(2), the Central Govt. may, on receiving a request from State Govt. establish the State Administrative Tribunal which will cater to the needs of employees within employment of the States. The jurisdiction of CAT extends over the territory of India and all offices under the control of Govt. of India. This jurisdiction can be and has been extended over many Corporations or Societies working under the Govt. of India for administrative matters connected therewith or incidental thereto.
The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the members of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
(C) Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizations which come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals.
At this stage, we may take a clue from Physics. It is a well-known principle in Physics that the performance of a machine as also of a system can increase by a quantum jump only with an effective feed-back mechanism. The CAT has now come to a standing where such a feed-back mechanism must be introduced. By the time of its Silver Jubilee year, the CAT has accumulated a wealth of valuable judicial material in the form of decisions and judgments rendered by the eminent members of the Tribunal. It is a worthy material for a serious study and research by scholars and senior level students of law. Findings of these researches will be a valuable input for introducing reforms in administration as well as in the rules and practices of various departments from which the cases coming up before CAT get generated. Although, the reportable judgments of this Tribunal are being published in certain law journals, no effort has been made for throwing open the valued materials available from the archives of the Tribunal for encouraging study and research. Such activity is likely to benefit about 40 lacs Central Govt. employees and other nearly 60 lacs employees of the other organizations which have been brought under the purview of the CAT. Such research will also help the cases arising at the level of State Govt. employees and also in the adjudication in private sector.
But first, let us look into a few landmark judgments in the history of CAT. From Apex court they are --
S.P. Sampath Kumar Vs. Union of India – (1987) 1 SCR 435
Dr. Mahabal Ram Vs. ICAR – (1994) 2 SCC 401'
L. Chandrakumar Vs. Union of India & Ors. – JT 1997 (3) S.C. 589
State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2001(1) SCSLJ 25.
Along with them, the Report of Arrears Committee 1989-90 popularly known as the Malimath Committee Report where he comments on working of Tribunals has historical value.
Three other HC cases have also acquired importance, namely,
From High Court of Karnataka
1.Thammaiah Chari Vs. State of Karnataka & Ors - 2005(1) ATJ 324
2. Divisional Railway Manager, South Central Railway, Hubli & Ors. Vs. Smt. Gangavva Laxman Patil W.P. No.9551 OF 2003 (S-CAT
And from Kolkata High Court – W.P.C.T. 211 of 2008, dated 19.02.2010.
In the history of CAT, three core issues came up – one of which was about the working of the Tribunal in general. Another was about the validity of Act, and associated question of Writ jurisdiction of the High Courts. The third was the issue of disposal of cases by a Single Member Bench.
In Sampath Kumar Vs. Union of India (1987) which is one of the earliest cases, it was held that for recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered
Selection Committee headed by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while for recruitment to the State Administrative Tribunals the High Powered Selection Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned. It was further held that an Advocate who is qualified to be a Judge of the High Court should also be regarded as eligible as a member of CAT.
But the most important part of Sampath kumar judgement was that the Hon'ble Supreme Court emphasized the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. They upheld the validity of Article 323-A and of the Act itself as the necessary changes suggested by the court were promised to be incorporated in the Administrative Tribunal Act. The Bench held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal.
However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter finally came to rest on being reviewed by a seven-member Constitutional Bench of the Supreme Court in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589. Here, the lordships unanimously repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals against the orders of the Administrative Tribunals. They struck down clause 2(d) of articles 323A and clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under
article 32 as unconstitutional and invalid. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction which is under Articles 226 and 227 is the basic structure of the Constitution, which cannot be taken away by an amendment or enactment by the Parliament. However, their Lordships qualified by propounding that only a Division Bench in the High Court can undertake a judicial review of the decisions rendered by the Administrative Tribunals. Additionally when it was suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall, their lordships held
“We feel this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them.”
The Apex Court suggested for creation of 'Single Umbrella organization to oversee the functioning of the Tribunals in the country.
In the same Chandrakumar case the Constitutional bench considered the malimath committee Report of suitability of continuing what he called Tribunalisation of Justice”, and observed --
"Unfortunately, we do not have the benefit of such a study. We may however, advert to the Report of the Arrears Committee (1989-90) popularly known as the Malimath Committee Report which has elaborately dealt with the aspect. The observations contained in the Report is based on review of the functioning of the Tribunals over a period of three years or so after their institution. The chapter "Alternative Modes and Forums for Disputes Resolution", in the report has dealt with the issue of Tribunals set up under Articles 323A and 323B of the Constitution. The Committee specifically recommended that the theory of alternative institutional mechanisms be abandoned. Instead, it
recommended that institutional changes be carried out within the High Courts, dividing them into separate divisions for different branches of law, as is being done in England. It stated that appointing more judges to man the separate divisions while using the existing infrastructure would be a better way of remedying the problem of pendency in the High Courts.
In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various Tribunals have not performed upto expectations is a self-evident and widely acknowledged truth. However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constitutional scheme permits the setting up of such Tribunals. However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them. (para 88,89,90 & 91).”
Much later when the Act was further amended in 2007 to equate the Members with the High Court Judges, the Apex Court has once again upheld the said amendment in Writ Petition (Civil) No.261 of 2007 – A.K. Behera Vs. Union of India & Another with Writ Petition (Civil) No.539 of 2007 – P.K. Gaikwad Vs. Union of India & Ors. decided on May 6, 2010.
The third issue that has come up before the Apex Court again and again deals with the validity of the judgments passed by a Single Member Bench. In this regard, Section 5(6) of the Act is important which reads
"(6) Notwithstanding anything contained in the foregoing provisions of the section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases of such matters or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting [two Members],
the case or matter may be transferred by the Chairman or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."
As back as in 1991 the then Chairman of CAT has looked into the question of categorization of cases appearing before the CAT and prescribed guidelines as to what type of cases can be brought and heard before a Single Member Bench. He was careful to include a comprehensive guideline to say that when the parties apply for a case to be heard by a Division Bench, then so shall be done.
In Dr. Mahabal Ram's case which came up in 1994, the matter was discussed at great length and the same was later quoted in Chandrakumar’s case with approval. Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section of the Act have to be harmoniously construed safeguarding the interest of litigants and ensuring disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel before us suggested in course of the hearing that the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps will not be appropriate to adopt.
Rather than restricting Single Member matters to judicial members alone, the apex court considered it more appropriate to prescribe some safeguards --
“On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso to section 5(6) itself indicates
Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow this. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rationalized."
Upholding this totally, the Constitution Bench in L. Chandra Kumar vs. Union of India & Ors. (1997), concluded as --
"95. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. It has been pointed out that Administrative Members who have been appointed have little or no experience in adjudicating such disputes. The Malimath Committee has noted that at times IPS officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenure. For these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies would, by virtue of their specialized knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grass-root experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that
Administrative Members are chosen from amongst those who have some background to deal with such cases."
The subject again came up in State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2002(1) SCSLJ 25. The case merits some details at this juncture. It arose from an application decided by MPAT. Therein, the Chairman of MPAT had previously issued a notification authorizing Member (Judicial) of MPAT to exercise all the powers of the State Tribunal itself. When the case of Shri Thakre & Ors. came up, it was heard by another Member (Administration) sitting single who disposed it. Hence, the main issue before the Apex Court was whether the said order was ab-initio ultra vires.
It appears to us that while deciding the matter, their Lordships have dealt with three questions (though not specifically framed there) -
(a) Whether there is any restriction to a single member administration deciding applications?
(b) Whether the authority of the Tribunal can be delegated to a Single Member Bench?
(c) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Their lordships have quoted from both Dr. Mahabal Ram and the Chandra kumar cases and once again held,
“It is thus clear that even at the suggestion of Senior Counsel who urged that Section 5(6) should mean to cover a Judicial Member only, the Apex Court has not been ready and did not consider this view to be appropriate to adopt”.
They emphasized, while holding as sufficient, the caution mentioned for chairman in Dr. Mahabal Ram case while allocating work to the Single Member.
From all these it is clear that the honorable judges in Thakre case did not approve the interpretation that the constitution of a Single Judicial Member alone should be allowed as a Bench. They did not deviate from the stand taken by the 7-member Constitutional bench in Chandrakumar but have questioned the notification of the chairman to delegate All powers of the Tribunal to a single member as it did not account for the safeguards mentioned in the proviso of sec 5(6). They examined this question at length-
“3. Even assuming that all the powers of the Tribunal could be exercised by any Single Member, it can, only be by a Judicial Member of the Tribunal and not any other member under the aforesaid order.
5. We are not resting our decision on lack of jurisdiction of a Single member of the Tribunal as we are more concerned with the administration of justice. The Tribunal had been constituted in substitution of the High Court as was noticed by this Court in Chandra Kumar case. To have proper administration of justice while allotting work to a Single Member, whether judicial or administrative, the Chairman should keep in mind the nature of the litigation and where question of law and its interpretation are involved, they should be assigned to a Division Bench of which one of them is a Judicial Member. Keeping this in view, we think the order mad by the Tribunal should be set aside”.
In conclusion they set aside the order passed by an Administrative Member on the ground that firstly the notification to delegate All powers of the Tribunal to a single member was questionable as it did not account for the safeguards mentioned in the proviso of sec 5(6), and the Administrative
Member who passed the order sitting as a single member in any case had no authority under the said notification of the Chairman.
However, it appears that para 3 above has been construed by many to mean that this was a verdict to allow single member cases by judicial member only to the exclusion of Administrative Member.
In our view, in this judgment, their lordships have gone by the view of the Constitutional bench in L. Chandra Kumar Vs. Union of India & Ors. (1997), in reiterating that there is no distinction between the powers of a member (J) and member (A) while sitting as a single member, when care is taken as per the proviso of sec 5(6).
It is pertinent to note that although their lordships have recorded that the quashing of the orders is not merely on the ground that the Chairman had not authorized the Administrative Member but also on the questionable action of passing on wholesale delegation. On the other hand, in the notification issued for Single Member Bench in CAT, no distinction has ever been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the Chandrakumar case.
However, relying on the above judgment and especially para 3, the Hon'ble High Court of Karnataka & the High Court of West Bengal at Kolkata have remanded the cases decided by an Administrative Member sitting as a single member bench, questioning their competency to decide a matter. With due respect to the HC bench, it is our considered opinion that their lordships have gone beyond the view held by the Constitutional bench of the Apex
court and further ignored that even if Thakare case is to be construed as rejecting the jurisdiction of member (A), the facts were peculiar only to that case. It was thus a case in persona and not in rem.
The decision of the two High Courts have resulted in a piquant situation giving rise to a contention whether the notification of Hon'ble Chairman dated December 18, 1991, stands partially nullified so far as the Benches of Bangalore and Kolkata are concerned and whether the Administrative Members in these two Benches are precluded from deciding the cases falling within the list of subjects covered in the notification. Fortunately in other Benches, so far there are no such fetters on the powers of the Administrative Members. Hence, the CAT has to take up a categorical stand in the issues raised by the judgments of High Courts of Karnataka and Kolkata.
In Thammaiah Chari Vs. State of Karnataka & Ors. the main issue before the Karnataka High Court was a single member deciding in a case of major penalty whereas the classification for single member case clearly restricts their jurisdiction only to minor penalties. However the Hon’ble Judges have additionally referred to para 3 of the Thakare judgement above, thereby creating an apparent anomaly of restricting the jurisdiction of a Single Administrative Member. In Smt. Gangavva Laxmi Patil case and so also in Kolkata High Court case, they have simply remanded back the decision of a single administrative member. It would appear that the clear opinion in Chandrakumar case as expressed by a 7-member bench of Supreme Court was not brought to their notice.
It was mentioned in the 1987 malimath committee report
"The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition."
Following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case, there was reintroduction of the jurisdiction of High Courts. Much water has flown under the bridge since the L. Chandrakumar's case. With due respect for the Hon'ble Supreme Courts decision, it may be noted that many State Governments found it unviable proposition to continue with the Administrative Tribunals when the Supreme Court restored to the High Courts the power of judicial review over the decisions of the Administrative Tribunals. They have gone on record that this entailed administrative financial burden to the parties, besides dragging litigation. It is also pertinent to know that the Law Commission of India has also recommended for reversing the ratio of the Supreme Court in the L. Chandrakumar's case whereby the jurisdiction of the High Courts over the decisions of the Administrative Tribunals was restored. They have instead, recommended for an Appellate mechanism under the Administrative Tribunals Act itself so as to obviate the need for judicial review of the High Courts. Although that will not bring down the number of times a litigation will be fought, we feel that it will lessen the already overburdened High Courts.
It is satisfying so far, that the CAT has been continuing its journey and no adverse observations have emanated from any of the higher Courts including the Supreme Court about its efficacy and capacity to render justice. There was a time when it would appear that the Central Govt. was contemplating seriously in terms of closing the CAT and the then Cabinet Secretary has gone on record to state the thinking of the Central Govt. on these lines. However, the day is well past. It is now for certain that the Central Administrative Tribunals have come to stay as an alternative form for grievance redressal for the Central Govt. employees. The Administrative Tribunals (Amendment) Act, 2007, has further brought far reaching amendments, the vires of which was challenged and upheld before the Hon'ble Supreme Court in Writ Petition (Civil) No.261 OF 2007 A.K. Behera Vs. Union of India & Another with Writ Petition (Civil) No.539 OF 2007 P.K. Gaikwad Vs. Union of India & Ors. In view of said judgment, all the Members of the Tribunal appointed after the amendment have been equated with the High Court judges. It is required that the quality of the output of the Tribunal has also to be comparable to that of the High Court, even though, it is no longer treated as a substitute to the High Court.
For raising the standards of the CAT, however, these amendments in the Act are a necessary but not sufficient condition. We may recount some efforts towards system-improvement. For example, the status and the qualifications of the Presiding Officers of the Tribunal have been raised to a level equal to the High court Judge and the Hon'ble Members have strived to live up to the expectations of the public. Another good scheme is that the Hon'ble Chairman has been deputing the newly appointed Members to the
Interactive Sessions in the National Judicial Academy, so as to update their knowledge. A third initiative is the website of CAT (though it requires many improvements) where daily cause list and judgments are available on-line. A fourth initiative is a system of Annual Conference of Hon'ble Members where serious discussions take place over various administrative and judicial matters and efforts are made to clear all possible bottleneck in the discharge and functions of Tribunals. To these we may add the need for skill upgradation of the administrative staff. The members of the staff as well as officers in the Registry are no doubt quite experienced in the functioning of the Tribunal and in discharging their functions as per law, yet, they require constant updating of their knowledge in administrative and judicial matters. This will be done only by imparting to them the required training in the Administrative Training Institutes as well as judicial Academies. The CAT, Principal Bench may have to bestow their attention and efforts in evolving an arrangement whereby the members of the staff and the officers of the Registry are constantly exposed to the rules and the basic principles of law governing their administrative and quasi-judicial functions.
Having examined these issues, we come back to the question of quantum jump in system building through research. It is the need of the day to have a continuous scheme of research. If someone will study the statistics of the writ of appeals before the High Courts and the Supreme Court where the decisions of the Tribunals were upheld, then alone we will know the percentage of confirmation of the decisions rendered by Tribunals which we feel, will be very high. Such statistics will be a great indicator of efficacy and success of the justice rendering mechanism of the Tribunals.
We are not aware if any such statistics are available in the DoPT or at any other forum, hence, we strongly feel that such a mechanism should be created. Although our decisions are reported by some journals, there is no instance of any scholarly assessment and presentation of the contribution made by this Tribunal in the area of administrative law. The CAT, has played a pivotal role in the development of administrative law, as a specialized branch of law. If the rate of approval of its judgments on appeal before the Hon'ble High Courts and Hon'ble Supreme Court is any guide, our achievement is of a high order. We have a wealth of precious materials available with us and it should be used more fruitfully for the purpose of research which could be of immense use not only for legal practitioners of Administrative Law, but for more than 272 services/organizations falling under the jurisdiction of this Tribunal.
It is suggested that the Tribunal may engage the services of students prosecuting courses in law in various colleges and Universities for studying and preparing data-bank from the various judgments of this Tribunal. Then comes data sorting and data mining thorough their research from where it is possible to formulate and assimilate the legal principles and theories that have evolved over a period of time through the decisions of this Tribunal. This study and codification through the senior-level students prosecuting law in the Colleges and Universities may go a long way in tracing the evolution of the legal principles in administrative law. This will serve as a guide not only for all the Central Govt. officers and other participating institutions in this Tribunal, but for other similar Tribunals and adjudicating bodies in private sector too. Further, nearly 40 lakh Central Govt. employees and other
employees of organizations under the Tribunal will find the effort and its result very useful. The decisions will serve as a guideline for many administrative reforms. Such research will also give a better career prospect to the students of Law who may specialize in this field.
It would not be amiss to mention some impressions that I collected in my short spell of working as Member CAT for last six months about the nature of cases. First, I find that a number of cases come from Group 'C' and 'D' employees and it is really a good idea of approaching CAT which is less expensive for them than approaching High Court. Second, we receive many cases in which a request for compassionate appointment is rejected. These cases when seen together as a group, makes one feel that the departments need to have more transparency review and clarity in their Rules. Admittedly, only 5% of the total vacancies can be filled from applicants claiming compassionate appointment. The departments are therefore, required to decide priority based list of cases taking into consideration the economic hardship. Some departments have made elaborate rules as to how they allocate marks and deal with various grounds for economic hardship. Yet, the fact remains that the concept of economic hardship has lot of intangible angles to it and thee can be no perfect mathematical formula. This factor contributes largely in increasing the number of cases coming up before the Tribunal where the subject matter is the rejection of application for compassionate appointment. Hence, through the Research support as discussed earlier, if it is possible to rise above the daily routine of the work in the Bench, then, a more cogent view can be formulated and proper directives can be given to the administrative departments.
Similarly, I have come across large number of cases where the subject matter is merely a request to the department to finish a departmental enquiry within a reasonable time or even worse, to consider a representation either for transfer or some such small issue in which the department has just not bothered to give a reply to the applicant in a reasonable time. These cases are definitely not in the spirit of “Good Administrative Practices”, they are indicative of a certain amount of careless attitude that appears to be cropping up in the administrative system and are a pointer to a certain irreversible malice. It is therefore, a subject matter of a good academic research which needs to be conducted by students or teachers in academia, but with active consultation with the Members in CAT .
We feel that the occasion of the Silver Jubilee is a right muhurat for launching this type of study by the CAT.