History of CAT
In the history of CAT, three core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench.
The validity of the Administrative Tribunals Act 1985 was upheld by the Hon'ble Supreme Court of India in Sampath Kumar Vs. Union of India........... whereby the Hon'ble Supreme Court emphasised the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter came to be reviewed by the Constitutional Bench before the Supreme Court of India in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589.who repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals filed before itself against the orders of the Administrative Tribunals under Article 226 and 227 of the Constitution of India. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction is under Articles 226 and 227 of the Constitution and it is one of the basic features of the Constitution which cannot be taken away by way of 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.
In Sampath Kumar Vs. Union of India which is one of the earliest cases, it was held that in the case of 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 in the case of 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 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 most important part of Sampat kumar vs. union of India judgement was that the Supreme Court upheld the validity of art. 323-A and of the Act itself as the necessary changes suggested by the court were 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.
In a landmark judgment in L.Chandra kumar vs. union of India (AIR 1997 SC 1125) a seven-member constitutional bench of the supreme court has unanimously while reconsidering the SAMPATH KUMAR'S CASE, has 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 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
but also held that, the Tribunals are supplementary in their role and the power of 'Judicial Review' vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the 'Administrative Tribunals Act, 1985' which excludes the jurisdiction of High Courts.
�To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that 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�.
While rejecting the said plea as indicated above, the Apex Court suggested for creation of 'Single Umbrella organisation' to over see the functioning of the Tribunals in the country.
A second issue that came 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."
While examining the position of Section 5(6), it is opined by Shri Shankar Raju, (Judicial Member CAT) -- “It is no more res Integra that Section 5 of the Administrative Tribunals Act, 1985 mutatis mutandis applies to the State Administrative Tribunals in the State.” Thus the chairman of CAT as well as any State tribunal has powers to send matters to a single member bench but subject to the proviso as above.
It has been held again and again that Section 5 of the A.T. Act does not distinguish between Judicial and Administrative Members in the matter of jurisdiction, powers and authority to be exercised by the Benches.
At the same time, the Hon'ble Supreme Court also dispelled the contentions raised from various quarters about advisability of appointing the Administrative Members on these Tribunals and held that (a) there is no illegality in the appointment of the Administrative Members and (b) the Administrative Tribunals are competent to decide the constitutional validity of any statutory provision except in so far as it relates to the statutory provisions of its own Act under which the Hon'ble Members have been appointed.
Earliest, in the Dr. Mahabal Ram's case, the Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section have to be harmoniously construed. There is no doubt that what has been said in Sampath Kumar case would required safeguarding the interest of litigants in the matter of 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, he many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel suggested to us in course of the hearing that keeping the principles indicated in the Constitutional Bench judgment in view, the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps not be appropriate to adopt. 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 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 to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. 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 observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. 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), while dealing with the issue of appointment of Administrative Members, 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. Fore 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 attach 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 wherein their lordships 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. On the other hand, they found it sufficient for safeguarding the interests of claimants going before the Tribunal to hold 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 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 to to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. 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 observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. 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 rotationalized."
Thus, the Apex Court has not approved the interpretation that the constitution of a Single Bench of Judicial Member alone should be allowed. The Apex Court has clearly laid down "as a ratio of dicidendi that when before single Bench consisting of an Administrative Member the question of law and its interpretation in the context of constitutional provisions is in issue, the matter should not be assigned to a Single Member. Accordingly, the above decision does not distinguish between a Judicial Member and an Administrative Member and uniformly applies to both the categories in so far as complex nature of question of law and interpretation of certain constitutional provisions are concerned. A deemed reference is that except two categories referred to above, a Judicial as well as an Administrative Member are competent to constitute a Single Bench and also within the jurisdiction to decide the matters.
In concluding, the Hon'ble Supreme Court set aside the order passed by an Administrative Member on the ground that firstly the notification of the Chairman of MPAT 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.
This judgement thus makes it clear that 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)
However, relying on the above judgment the Hon'ble igh Court of Karnataka & the High Court of West Bengal at Calcutta have remanded the cases decided by an Administrative Member sitting as a single member bench, questioning his 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 the case State of Madhya Pradesh Vs. B.R. Thakare & Ors. is to be construed as rejecting the jurisdiction of member (A), the facts were peculiar only to that case.
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 subjects covered in the notification of the Hon'ble Chairman, dated December 18, 1991. Fortunately in other Benches, so far there are no such fetters on the powers of the Administrative Members.
The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
© Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizationswhich 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.
The third issue is about working of State tribunals. A study of the details of the above mentioned case law of L. Chandrakumar Vs. Union of India reported in JT 1997(3) SC – 589, throws light on the impressions created in the mind of the Hon'ble judges about the functioning of the Administrative Tribunals. Without any exception, all the Members of the Bar arguing before the Bench and expressed a view that the functioning of the Tribunals leave much to be desired. The Hon'ble Supreme Court referred at length to the report of Justice V.S. Malimath Committee on the functioning of the Administrative Tribunals in which Hon'ble Justice Malimath has elaborately discussed the short- falls in the functioning of the Tribunals. He has concluded that "Tribunalization of justice in our country is not satisfactory and encouraging."
Although, there is no internal evidence to prove our point, it seems to us that the adverse observations and comments that are raised in the Justice Malimath's report and the judgment of the Hon'ble Supreme Court in L. Chandrakumar's case arose out of a poor performance of some of the State Administrative Tribunals. The following observation of Justice Malimath Committee report which has been extracted by the Hon'ble Supreme Court in the case referred to above is revealing:-
"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."
In this context, it may be noted that in some States the State Administrative Tribunals have been wound up following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case. These State Governments observed that by reintroducing the jurisdiction of High Courts over the matters in which the State Administrative Tribunals alone had jurisdiction hitherto entails an additional financial burden to the parties thereto, besides dragging the litigation further. It is possible that these states also found that the performance of the State Administrative Tribunals was not quite satisfactory. A joke is told about the UPAT that they decided to summon the Chief Secretary, whereopon the government promptly decided to take away the powers of contempt from them.
We did not come across any such adverse observation made by the Justice Malimath Committee or by the Hon'ble Supreme Court in the above case about the functioning of the CAT or State Tribunals. 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 incidence of confirmation of the decisions of the Tribunal will be a great indicator of efficacy, success of the justice rendering mechanism of the Tribunals. We are not aware if any such statistics are available in the DoPT or any other forum, but, we strongly feel that such a mechanism should be created.
In the history of CAT, two core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench. 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. Also, later in the case of ........... Ram Vs. ICAR, their lordships in case No................... have held that there is no bar on a Single Member Bench hearing and disposing the cases except when there is an issue of constitutional interpretation. This was further quoted in L. Chandra Kumar Vs. UOI in Ors. In which their Lordships held that the vires of Sec. 5(6) is not questionable. However, precaution must be taken that when a question of constitutional interpretation comes, the matter must be referred to a Division Bench of the Tribunal. Subsequently, another case became important in the history of CAT namely ..............Govt. of MP Vs. Thakre & Ors. The case is interesting enough to merit some details at this juncture. First of all, it arose not from any application decided by CAT but 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. While deciding the matter, their Lordships came across two issues -
(a) Whether the authority of the Tribunal can at all be delegated to a Single Member Bench?
(b) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Without any need to go into first question, their Lordships have set aside the decision of MPAT on the ground that the matter was disposed of by a Single Member (Administration), who was not authorized by Chairman.
It is pertinent to note that in the said judgment 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. On the other hand, in case of CAT, the notification issued about Single Member Bench cases, no distinction has been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the case of L. Chandrakumar Vs. Union of India & Ors. Hence, the CAT has to take up a categorical stand in the issues raised by the subsequent judgments of High Courts of Karnataka and Kolkata.