NATIONAL LAW UNIVERSITY

JODHPUR

ADMINISTRATIVE LAW
ASSIGNMENT (CA-II)

Tribunalisation of Justice in India with special reference to

Tribunals,courts and Enforcement Act,2007 (U.K.)

Submitted to:

Submitted by:

Prof. I. P. Massey

Niharika Choudhary

Faculty of Law

1120
Section A
VI SEMESTER

TABLE OF CONTENTS

Introduction................................................................................................................................2
Judicial Interpretation.............................................................................................................3
Reasons for the Growth of Administrative Tribunals............................................................4
Constitutional Status of Tribunals..............................................................................................6
Article 136 of Constitution.....................................................................................................6
42nd and 44th Amendment.......................................................................................................6
Constitution (44th Amendment) Act.......................................................................................8
Constitutional validity of the Administrative Tribunals Act, 1985........................................8
Tribunalisation of Justice.........................................................................................................12
Adaptation of Droit Administratif........................................................................................12
Judicial Review Of Decisions of the Tribunals....................................................................13
Power of Tribunals to Review Decisions.............................................................................14
Whether Tribunals are Bound by SC and HC Decisions.....................................................14
Tribunals, Courts and Enforcement Act, 2007.........................................................................16
CONCLUSION........................................................................................................................19

INTRODUCTION
Tribunalization in India is done in order to implement Administrative Law in India. Tribunal
is a body of administrative character powered with judicial powers to adjudicate on question
of law or fact that affects rights of citizens has judicial or a quasi-judicial functions work in a
judicial manner Since tribunals follow the principles of natural justice, they do not follow
the Indian Evidence Act, 1872 that is commonly followed in Courts. The necessity of
establishing administrative tribunals was recommended by the Swaran Singh Committee
appointed by the Parliament. Tribunal means a set or a bench upon which judge or judges sit
and decide controversies between the parties and exercises judicial powers as distinguished
from purely administrative functions. The word Tribunal has not been defined in the
constitution
But

the

or
word

has

in
been

any

defined

by

other

courts

in

the

law.

following

cases:

In Durga Shankar Mehta v. Raghuraj Singh1 the Supreme Court defined tribunal in the
following words: The expressional Tribunal as used in Article 136 does not mean the same
thing as Court but includes, within its ambit, all adjudicating bodies, provided they are
constituted by the state and are vested with judicial functions as distinguished from
administrative

or

executive

functions.

In the words of M P Jain, with regard to the functioning of a tribunal, tribunals do not have to
follow any uniform procedure as laid down under the Civil Procedure Code and under the
India Evidence Act of 1872 but they have to follow the principles of Natural Justice.
In Bharat Bank Ltd v. Employees Bharat Bank Ltd.2 The court stated that the tribunals are
adjudicating bodies which decide controversies between the parties and exercise judicial
functions

as

distinguished

from

administrative

functions.

The tribunals are established in order to provide speedy, cheap determination of disputes and
to reduce the workload of the courts. The traditional judicial system proved to be inadequate
to decide and settle the disputes as it was slow, costly, complex and formalistic.
An Administrative Reforms Commission was set up in 1967 by the Government of India to
recommend the suitable areas in which tribunals could be set up. The Commission
recommended

the

establishment

of

tribunals

1 1954 AIR 520,

2 1950 SuppSCR 317
3

in

the

following

areas

namely:-

a.

Service

matters

and

Dispute

of

employees

under

the

State

b. Orders of assessment on adjudication under customs, Central Exercise, Sales Tax and
orders

under

the

Motor

Vehicles

Act.

However, the Constitutional Status to the Tribunals were given by the 42nd (Amendment)
Act, 1976 which inserted Articles 323A and 323B by which Parliament has been authorized
to constitute administrative and other Tribunals to decide and adjudicate the matters specific
therein. Prior to 42nd Amendment, Tribunals were under the control of concerned High Court
and their orders were appealable in the High Court. These orders were also subject to the Writ
Jurisdiction

of

the High

Court and

Supreme

Court

under Article 226

and

32

of Constitution of India respectively. But after the 42nd Amendment and with the insertion
of Articles 323A and 323B, the legislature had the power to exclude the Writ Jurisdiction.
The only appeal, which will lie from the orders of these Tribunals, is a specific leave petition
to Supreme Court under Article 136 of the Constitution of India.
Judicial Interpretation
Part XIV-A which consist of two Articles 323A and 323B deals with these Tribunals.
Article 323A provides for the adjudication of disputes and complaints with respect to the
recruitment and condition of service of persons appointed to public services and post in
connection with the affairs of the Union or of any State or of any local or other authority
within the territory of India. Article 323B empowers the Parliament or State Legislature to set
up Tribunals for the following matters: a. Levy, assessment, collection and enforcement of
any tax; b. Foreign exchange, import and export across customs frontiers; c. Industrial and
labor disputes; d. Matters connected with land reforms covered under Article 31-A; e. Ceiling
on Urban property; f. Elections to either House of Parliament or Legislatures of the States
and; g. Production, procurement, supply and distribution of food stuffs or other essential
goods.Judicial Review of Decisions of Tribunals
No appeal, revision or reference against the decision of any Tribunal is maintained if the said
right is not conferred by the relevant Statue. Provisions can also be made ouster of
jurisdiction of civil court; and the decision rendered by these Tribunals will be treated as
final.
However if the Tribunal has:a. Acted without jurisdiction or

b. Failed to exercise jurisdiction or

c. Order passed by Tribunal arbitrary or malafide or
d. Not observed the principles of natural justice or
e. Made error apparent on face of record or
f. Made an order which is ultra vires of the act
Then the same can be set aside by the High Court or Supreme Court.
Reasons for the Growth of Administrative Tribunals
According to diceys theory of the rule of law, ordinary law courts must administer law of the
land. He was opposed to the establishment of administrative tribunals. Regarding the classical
theory and the doctrine of separation of powers, the function of deciding disputes between the
parties belonged ordinary courts of law. But, as discussed above, the governmental functions
have increased and ordinary courts of law are not in a position to meet the situation and solve
the complex problems arising in the changed socio-economic context.
Administrative tribunals established for the following reasons:

Increasing governmental functions and activities overloaded courts with Cases that they
were unable to deal effectively. The system off administrative tribunals has positively

contributed to the preservation of ordinary judicial system.

The traditional judicial system proved inadequate to decide and settle all the disputes
requiring resolution. It was slow, costly, inexpert, complex, formalistic, already
overburdened, and it was not possible to expect speedy disposal of even very important
matters, e.g. Disputes between employers and employers, lockout, strikes, etc. these
burning problems cannot be solved merely by literally interpreting the provisions of any
statute, but require consideration of various other factors that could not be accomplished
by the courts of law. Therefore, industrial tribunals and labour courts were established,

which possessed the technique and expertise to handle these complex problems.
Courts of law deal with cases, which come up before them by applying settled legal
principles and by adopting objective standards. In modern society, however, complex
questions arise which cannot be decided on objective legal principle, pure and simple.
They are to be solved by keeping in mind policy consideration and public interest.
Administrative tribunals can play an ineffective role in that direction.

Persons having knowledge often law man traditional Courts. But in modern
administration, many a time, questions of specialization and expertise arise. Knowledge
in a particular subject, hence, is necessary over and above legal knowledge. Instead of a
one man court, a broad based membership or a mixed panel of administrative

tribunal may better solve problems.

Administrative apologies can avoid technicalities. They take functional rather than a
theoretical and legalistic approach. The traditional judiciary is conservative, rigid and
technical. It is not possible for the courts of law to decide the Cases without formality
and technicality. On the other hand, administrative tribunals are not bound by the rules
of evidence and procedure and they can take a practical view off the matter beside

complex problems.
Administrative authorities can take preventive measures, example licensing, rate fixing,
etc. Unlike that of the courts of law they do not have to wait for parties to come before
them with disputes. In many cases, these preventive actions may prove to be more
effective and useful than punishing the person after he has committed a breach of any

legal provision.
Administrative authorities can take effective steps for the enforcement of the aforesaid
preventive measures, example suspension, revocation, or cancellation of license,
destruction of contaminated articles, etc. which are not generally available to the

ordinary courts of law.

It ordinary courts of law, decisions are given after hearing the parties and on the basis of
the evidence on record. This procedure is not appropriate in deciding matters by the
administrative authorities where wide discretion is conferred on them and decisions

maybe given on the basis of the departmental policy and other relevant factors.
Sometimes, the disputed questions are technical in nature and the traditional judiciary
cannot be expected to appreciate and decide then. On the other hand, and administrative
authorities are usually manned by experts who can deal with and solve all these

problems, example problems relating to the atomic energy, gas, electricity, etc.
Administrative tribunals do their work more rapidly, more cheaply, more efficiently than
ordinary courts, posses greater technical knowledge and fewer prejudices against
government, give greater heed to the social interest involved, decide disputes with
conscious effort at furthering social policy embodied in the legislation.

CONSTITUTIONAL STATUS OF TRIBUNALS

Article 136 of Constitution
The status of tribunal has been recognized by the Constitution. Article 136 of the Constitution
empowers the Supreme Court to grant special leave to appeal from any judgment, decree,
determination, and sentence or order passed or made by the any tribunal in India. Likewise,
Article 227 enables every High Court to exercise power of superintendence over all tribunals
throughout the territories over which it exercise jurisdiction. The Constitution (42nd)
Amendment Act, 1976, has inserted Articles 323-A and 323-B, by which Parliament has been
authorized to constitute administrative tribunals of disputes and adjudication of matters
specific therein.3
42nd and 44th Amendment
The Tribunals in India have a very engaging history, dating back to the year 1941, when the
first Tribunal in the form of the Income-Tax Appellate Tribunal, was established. The post
Independence era saw the insertion of Articles 323A and 323B by the Constitution (42nd
Amendment) Act, 1976, giving constitutional recognition to the Tribunals with effect from
3rd January 1977. Article 323-A exclusively relates to the Administrative Tribunals. It
empowers the Parliament to make laws, providing for the adjudication or trial by
Administrative Tribunals, of disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public services and posts in connection with the
affairs of the Union or of any State Government or any of their Corporation etc. The said
Articles were inserted to enable the Parliament to establish Tribunals, which could exclude
the jurisdiction of all courts including the High Courts. However, it was only in the year 1985
that, in exercise of its powers under the aforesaid Article 323A, Parliament enacted the
Administrative Tribunals Act.4
1)

Constitution (42nd Amendment) Act

3 The Constitution (42nd Amendment) Act, 273

4 Justice D.K. Jain, Central Administrative Tribunal- A Pulsating Vibrant Dispensation: An Introspection,
Address at the Chandigarh Judicial Academy on the eve of Silver Jubilee of the Chandigarh Bench of the
Central Administrative Tribunal (November 19, 2011).

The Constitution (42nd Amendment) Act, 1976 was the most debatable and controversial
amendment in the Constitutional history of India. It effected drastic and draconian changes in
several provisions of the Constitution not only affecting rights of the citizens but also
restricting, limiting, curtailing and even totally excluding power of judicial review of High
Court and of the Supreme Court which was held to be a part of the basic structure of the
Constitution. So far as administrative tribunals are concerned, mainly the amendment made
two changes;

It took away power of the superintendence of High Courts over the administrative

tribunals which they posses under Article 227 of the Constitution.

After Part XIV, it inserted part XIV-A (Art. 323-A and 323-B) by enabling Parliament to
constitute administrative tribunals for purpose specific therein.5

Part XIV-A, as inserted by the 42nd Amendment Act, open a new dimension in Indian
constitutional and administrative law. Article 323-A enacts that Parliament may, by law,
provide for adjudication or trial by administrative tribunal of disputes and complaints
concerning recruitment and condition of service of person appointed to the public service.
Parliament may by specify the jurisdiction, power, and authority of such tribunals and
prescribe the procedure to be followed by them. Article 323-B (I) empowers the appropriate
legislature to provide for the adjudication or trial by tribunal of any disputes, complaints or
offences with respect to all or any of the matters specified in clause (2). Such law may also
provide for the exclusion of jurisdiction of all courts except that of the Supreme Court under
Article 136. The 42nd Amendment substantially excludes and curtailed power of High Court
and of the Supreme of judicial review of administrative action. It was a retrograde
innovation and its object was to take away the supervisory jurisdiction of the High Court
over tribunals under Article227. However Article 323- A and 323-B were not self executor
inasmuch as they themselves did not take the jurisdiction of High Court under Article 226 or
Article 227 of the Constitution, but they only enable Parliament or the appropriate legislature
to make laws to set up such tribunals and to exclude the jurisdiction of the High Court under
Article 226 and 227. It is however submitted that the above legal position has now been

5 Rajib Hassan, Judicial Review of the Decisions of Administrative Tribunals by the Supreme Court and High
Courts: A Long-standing Controversy- Settled (October 26, 2013), http://www.articlesbase.com/national-statelocal-articles/judicial-review-of-the-decisions-of-administrative-tribunals-by-the-supreme-court-and-highcourts-a-long-standing-controversy-settled-4912243.html.

substantially changed in view of a decision of the Supreme Court in Chandra Kumar v. Union
of India.6

Constitution (44th Amendment) Act

By the Constitution (44th Amendment) Act, 1978, Article 227 was amended and jurisdiction
of High Court over administrative tribunals has been restored. No amendment, however was
made in Part XIV-A, as inserted by the Constitution (42 nd Amendment) Act, 1976 and
exclusion of jurisdiction of all courts and tribunals constituted in exercise of powers under
Article 323-A and 323-B. For revival of that power and restoration of majesty of High
Courts, legal fraternity had to wait for almost two decades.
Constitutional validity of the Administrative Tribunals Act, 1985
The enactment of Administrative Tribunals Act in 1985 opened a new chapter in the sphere of
administering justice to the aggrieved government servants. Administrative Tribunals Act
owes its origin to Article 323-A of the Constitution which empowers Central Government to
set-up by an Act of Parliament, Administrative Tribunals for adjudication of disputes and
complaints with respect to recruitment and conditions of service of persons appointed to the
public service and posts in connection with the affairs of the Union and the States. In
pursuance of the provisions contained in the Administrative Tribunals Act, 1985, the
Administrative Tribunals set-up under it exercise original jurisdiction in respect of service
matters of employees covered by it. As a result of the judgement dated 18 March 1997 of the
Supreme Court, the appeals against the orders of an Administrative Tribunal shall lie before
the Division Bench of the concerned High Court.
The Administrative Tribunals exercise jurisdiction only in relation to the service matters of
the litigants covered by the Act. The procedural simplicity of the Act can be appreciated from
the fact that the aggrieved person can also appear before it personally. The Government can
present its case through its departmental officers or legal practitioners. Thus, the objective of
the Tribunal is to provide for speedy and inexpensive justice to the litigants.
The Act provides for establishment of Central Administrative Tribunal (CAT) and the State
Administrative Tribunals. The CAT was set-up on 1 November 1985. Today, it has 17 regular
benches, 15 of which operate at the principal seats of High Courts and the remaining two at
6 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
9

Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High Courts. In
brief, the tribunal consists of a Chairman, Vice-Chairman and Members. The Members are
drawn, both from judicial as well as administrative streams so as to give the Tribunal the
benefit of expertise both in legal and administrative spheres. With a view to easing the
congestion of pending cases in various High Courts and other Courts in the country,
Parliament had enacted the Adminisitrative Tribunals Act, 1985 which came into force in July
1985. The constitutional validity of this Act was challenged before the Supreme Court in S.P.
Sampath Kumar v. Union of India7 on the ground that the exclusion of judicial review of the
High Court violated the basic structure of the Constitution. Negativating the contention the
court held that no matter the judicial review, which is the basic feature of the Constitution
cannot be violated; but it is within the power of Parliament to amend the Constitution so as to
substitute, in place of High Court, another alternative mechanism of judicial review, provided
it is not less efficacious than the High Court.8
This question of constitutionality of the Administrative Service Tribunals Act, 1985 once
again arose before the Supreme Court in the pace-setting case of L. Chandra Kumar9. The
court in this case held that Sampath Kumar 10was decided against the background and that the
litigation before the High Courts had exploded in an unprecedented manner and, therefore, an
alternative inquisitional mechanism was necessary to remedy the situation. But it is selfevident and widely acknowledged truth that tribunals have not performed well, hence drastic
measures were necessary to elevate their standard ensuring that they stand up to
constitutional scrutiny. The court further held that because the constitutional safeguards,
which ensure the independence of the judges of the Supreme Court and the High Courts, are
not available to the members of the tribunals, hence, they cannot be considered full and
effective substitute for the superior judiciary in discharging the function of constitutional
interpretation. Against this backdrop, the court came to the conclusion that administrative
tribunals cannot perform a substitutional role to the High Court, it can only be supplemental.
7 S.P. Sampath Kumar v. Union of India (1987) 1 SCC124
8 I. P. MASSEY, ADMINISTRATIVE LAW 605-606 (8th ed. 2012).
9 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
10 S.P. Sampath Kumar v. Union of India (1987) 1 SCC124
10

Therefore, clause 2(d) of Article 323-A and clause 3(d) of Article 32.3-B of the Constitution,
to the extent, they exclude the jurisdiction of the High Courts and the Supreme Court under
Articles 226, 227 and 32 of the Constitution, were held unconstitutional; and for the same
reason Section 28 of the Administrative Tribunals Act, 1985 which contains the "exclusion of
jurisdiction" clause, was also held unconstitutional.11
It was further observed by the court that the power of judicial review of the constitutional
courts is a part of the inviolable basic structure of the Constitution, which cannot be ousted.
However, service tribunals shall continue to be the courts of first instance in service matters,
and no writ can be directly filed in the writ courts on matters within the jurisdiction of
tribunals. Though the two-judge Bench, one of whom must be a judicial member, of the
tribunal can determine the constitutionality of any statutory provision, yet it cannot determine
the constitutionality of the Administrative Tribunal Act, 1985. But the exercise of this power
shall be subject to the scrutiny by the Division Bench of the High Court within whose
jurisdiction the tribunal is situated. By bringing back the tribunals within the jurisdiction of
the High Courts, the court served two purposes. While saving the power of judicial review of
legislative action vested in the High Courts under Articles 226 and 227 of the Constitution, it
will ensure that frivolous claims are filtered out through the process of adjudication by the
tribunal. The High Court will alsohave the benefit of a reasoned decision on merits which
will be of use to it in finally deciding the matter. In view of this decision the existing
provision of direct appeals to the Supreme Court under Article 136 of theConstitution also
stands modified. Now the aggrieved party will be entitled to move the High Court and from
the decision of the Division Bench of the High Court, he can move the Supreme Court under
Article 136 of the Constitution. The court saved the constitutionality of Section 5(b) by
providing that whenever a question involving the constitutionality of any provision arises, it
shall be referred to a two-member Bench, one of whom must be a judicial member.12
Through this classical case, the court has, in one sense, tried to save the jurisdiction of
constitutional courts from encroachment by the legislature by invoking the doctrine of "basic
features of the Constitution".
Again, the Supreme Court in State of T.N. v. S. Thangavell13 held that the members of the
tribunal are not judges and their order is not a judgment or decree under Section 2(9), CPC.
11 Supra Note 8.
12 Ibid.
11

At best their statements can be construed to be only orders for the purpose of decision arrived
at by the tribunal under the Administrative Tribunal Act, 1985. Keeping in view the
subordinate status of the tribunal, the Delhi High Court recently held that Central
administrative tribunal couldnt entertain a public interest litigation.
The Supreme Court has now finally settled the question of jurisdiction of the tribunals in
labour matters by holding that an administrative tribunal has no jurisdiction to adjudicate
upon the finding of an Industrial Tribunal that a person is a workman. A tribunal cannot
assume jurisdiction by holding that the department in which the employee was working was
not an industry.14 Thus, the duality of jurisdiction in labour matter has now been abolished. It
is also now authoritatively laid down that the doctrine of precedent applies to the
administrative tribunals also. The court held that whenever an application under Section 19 of
the Administrative Tribunals Act, 1985 is filed which involves a question already concluded
by an earlier decision, the tribunal must take into account that decision as precedent and
decide accordingly. If the tribunal dissents then the matter must be referred to a larger Bench.

13 T.N. v. S. Thangavell, (1997) 2 SCC 349

14 Ajay D. Panalkar v. Pune Telecom Deptt. (1997) 2 SCC 469.
12

TRIBUNALISATION OF JUSTICE
In India, the tribunalisation of justice begun even before the Constitution and has been seen
with separate courts for consumer matters, company matters, civil matters, criminal matters,
and in the Armed forces Tribunal Act. Though the word Tribunal has not been statutorily
defined, the test for a tribunal was held in Jaswant Sugar Mills v. Lakshmi Chand 15to be
whether it was invested with the trappings of a court, such as having the authority to
determine matters, authority to compel the attendance of witnesses, the duty to follow the
essential rules of evidence and the power to impose sanctions.
Adaptation of Droit Administratif
Droit Administratif refers to the existence of parallel courts to deal with matters of
administration. In the 16th Century, the Consul du Roi (Kings Court) gained predominance
with its growing jurisdiction taking cognisance of all cases where the government or its
servants were involved. The jurisdiction of this tribunal gave rise to some challenges with the
jurisdiction of the civil courts. In the 17th century the Consul du Roi came to be the Conseil
Prive (along the lines of the Privy Council in Britain), which, as opposed to the civil courts
(the Conseil Commun), had jurisdiction over appeals in administrative matters. In this regard,
the Conseil du Roi, the administrative court saw growing importance in the French legal
system, even more so than the two other tribunals, the Court of Finance and the Judicial
Court. After the Revolution, in 1799, Napoleon revived the Consul du Roi as the Conseil d
Etat. The Conseil dEtat, in concurrence with the provision in the 1791 Constitution,
excluding from ordinary courts the jurisdiction to exercise administrative functions, was
vested with the jurisdiction to adjudicate administrative disputes and required its
authorization for proceeding against government agents. In India, the adjudication of
Administrative disputes has been discussed by the judiciary and remains to be much debated.
Thus, a complete adaptation of Driot Administratif is impossible in India because judicial
review of tribunals orders cannot fully be removed. Any law excluding the Supreme Courts
jurisdiction is a prima facie denial of the fundamental right conferred under Art.32, and thus
liable to be struck down. The Supreme Court has taken the stand that the power of judicial
review is an integral part of our constitutional system, and without it the rule of law would
become illusory, unless an adequate alternative is brought forth381. However, a quasi15 AIR 1963 SC 677
13

executive body could, to some extent be granted the exclusion of judicial review by High
Courts before the ratio in L. Chandra Kumar case in 1997. The exclusion of the review of
High Courts under Section 28 came up for discussion in S.P. Sampath Kumar v. Union of
India.16 Justice Bhagawati, echoing the decision of the Constitutional Bench and concurring
with Justice Ranganath Mishra expressed that .the basic and essential feature of judicial
review cannot be dispensed with but it would be within the competence of Parliament to
amend the Constitution so as to substitute in place of the High Court, another alternative
institutional mechanism or arrangement for judicial review, provided it is not less efficacious
than the High Court.
Judicial Review Of Decisions of the Tribunals
No appeal, revision or reference against the decision of an administrative tribunal is maintain
if the said right is not conferred by the relevant statue. Provisions can also be made for ouster
of jurisdiction of civil court; and the decision rendered by the tribunal will be treated as
final. This statutory finality, will not affect the jurisdiction of High Court under Article 226
and 227 and the Supreme Court under Article 32 and 136 of the Constitution. The power of
judicial review if the High Court and the Supreme Court is recognized by the Constitution
and the same cannot be taken away by any statue. If the tribunal have acted without
jurisdiction, however, or has failed to exercise jurisdiction vested in it, or if the order passed
by the tribunal is arbitrary, perverse or mala fide, or it has not observed the principles of
natural justice, or there is an error apparent on the face of the record, or the order is ultra vires
the Act, or there is no evidence in support of the order, or the order is based on irrelevant
consideration, or where the findings recorded are conflicting and inconsistent, or gave
injustice is perpetuated by the order passed by the tribunal, or the order is such that no
reasonable man would have made it, the same can be set aside by the High Court or by the
Supreme Court.
Denning LJ made the following observation,17 If the tribunal were to be at liberty to exceed
their jurisdiction without any check by the court, the rule of law would be an end. At the
same time, it must be borne in mind that the power of High Court and the Supreme Court
16 1987 SCR (3) 233
17 R. v. Medical Appeal Tribunal, ex P. Gilmore, (1957) I QB 574, 586: 1957 I All ER 796,
801 (CA); also see,HISTORY OF LAW OF ENGLAND , VOL. I, 57-63 (4thEdn.).
14

under the Constitution are extremely limited and they will reluctant to interfere with or
disturb the decision of specially constituted authorities and tribunals under the statue on the
ground that the evidence was inadequate or insufficient, or that detailed reasons were not
given. The Supreme Court and the High Court are not court of appeal and revision over the
decision of administrative tribunals.18
Power of Tribunals to Review Decisions
There is no inherent power of review with any authority and the said power can be exercise
only if it conferred by relevant statute. 19 As a general rule, an administrative tribunal becomes
fuctus officio (cease to have control over the matter) as soon as it makes an order and there
after cannot review its decision unless the said power is conferred on it by statue, and the
decision must stand unless and until it is set aside by appellate or revisional authority or by a
competent court.
In the Leading case of Northern India Caterers (India) Ltd. v. Governor of Delhi,20 Pathak J
rightly observed:
Whatever the nature of the proceedings, it is beyond disputed that a review proceeding
cannot be equated with the original hearing of the case, and the finality of the judgment
delivered by the court will not be reconsidered except where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility.
This, however, does not mean that in absence of any statutory provision an administrative
tribunal is powerless. An administrative tribunal possesses those powers which are inherent in
ever judicial tribunal. Thus, it can reopen ex parte proceedings, if the decision is arrived at
without issuing notice to the party affected, or on the ground that it had committed a mistake
in overlooking the changes in the law which has taken place before passing the order, or to

18 State of A.P v. C.V. Rao, (1975) 2 SCC 557: AIR 1957 SC 2151; Sri Rama Vilas Service (P) Ltd. v. C.
chandrasekaran, AIR 1964 SC 107: (1964) 5 SCR 869; Bombay Union of Journalist v. State of Bombay, AIR
1964 SC 1617: (1964) 6 SCR 22; Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80; AIR 1979 SC
75; PremKakar v. State of Haryana, (1976) 3 SCC 433: AIR 1976 SC 1474, Union of India v. Parma Nanda,
(1989) 2 SCC 177: AIR 1989 SC 1185.

19 Patel NarshiThakershi v. PradyumanSinghjiArjunsinghji, (1971) 3 SCC 844

20 Northern India Caterers (India) Ltd. v. Governor of Delhi (1980) 2 SCC 167, 172
15

prevent miscarriage of justice, or to correct grave and palpable errors committed by it, or
what the principles of natural justice required it to do.21
Whether Tribunals are Bound by SC and HC Decisions
Article 141 of the Indian Constitution declares that the law declared by the Supreme Court
shall be binding on all court within the territory of India. Undoubtedly, the scope of Article
141 is very wide and it would apply to ordinary courts as well as administrative tribunals.
There is no provision corresponding to Article 141 with respect to the law declare by the
High Court. The question, therefore, arises whether the law declared by a High Court. The
question, therefore, arises whether the law declare by a High Court has a similar binding
effect over all subordinate courts and inferior tribunals within the territories in relation to
which it exercise jurisdiction.
Generally, in the absence of specific provisions, the same principle applies to judgment of a
High Court. Again, as the Supreme Court is the Apex Court in the Country, the High Court is
the Apex court in the State. Moreover, like the Supreme Court and High Court, over and
above writ jurisdiction has also supervisory jurisdiction over all subordinate courts and
inferior tribunals within the territories in relation to which it exercise its jurisdiction.
Therefore, if any administrative tribunal acts without jurisdiction exceeds its power or seek to
transgress the law laid down by the High Court, the High Court can certainly interfere with
the action of the tribunal.
This question directly arose before the Supreme Court in East India Commercial Co. Ltd v.
Collector of Customs.22 In that case proceedings had been initiated by the Collector of
Customs against the petitioner company on allegation that it had violated the conditions of
license and illegally disposed of goods and thereby committed an offence. The High Court
confirmed the order of acquittal passed by the trial court holding that it cannot be said that a
condition of the license amounted to be an order under the Act and therefore, no offence was
committed by the company. The High Court also passed an order directing the seized goods
to be sold and the sale proceeds to be deposited in the court. After those proceedings, a notice
was issued by the Collector on the company to show cause why the amount should not be
confiscated and the penalty should not be imposed. It was contended by the company that
when once the High Court had decided that the breach of a condition of the license cannot be
21 Shivdeo v. State of Punjab, AIR 1963 SC 1909, 1911
22 East India Commercial Co. Ltd v. Collector of Customs AIR 1962 SC 1893:
16

said to be breach of order, the Collector had no jurisdiction to issue the show-cause notice. It
was submitted that the decision of a High Court on a point is binding on all subordinate court
and inferior tribunals within its territorial jurisdiction and the notice was therefore, required
to be quashed.
Where the tribunal notices a decision of the Supreme Court and tries to distinguish it with
distinguishing features, the approach is highly objectionable. 23 A deliberate attempt to flout a
judgment of a superior court may amount to contempt of court.24

23 Union of India v. KantilalHematranPandya, (1995) 3SCC 17

24 BaradakantaMisra v. Bhimsen Dixit, (1973) I SCC 166
17

TRIBUNALS, COURTS AND ENFORCEMENT ACT, 2007

The TCEA 2007 created a new structure for tribunals. There are now two tribunals in the
unified tribunals system with generic rules of procedure, a system of appeals and one Senior
Precedent. The two tribunals are the First-tier Tribunal and the Upper Tribunal. All the
previously existing tribunals (with the exception of Patent Office tribunals and the
Investigatory Powers Tribunal) are now contained within the unified tribunals. It should be
noted that the Employment Tribunal and the Employment Appeal Tribunal are not within the
unified structure, however these are not in essence administrative tribunals but deal mainly
with private issues. The First-tier Tribunal is a fact-finding tribunal which hears appeals
directly from decision makers. Thus, if an individual is unsatisfied by a decision made eg by
a Secretary of State he may appeal to the First-tier Tribunal. The First-tier Tribunal is divided
into Chambers, with each Chamber having its own President and its own area of law eg social
security. This separation into legal-area Chambers allows the system to continue to provide
specialist judges with relevant experience to the area in question in each individual case. The
Upper Tribunal is mainly an appellate tribunal to hear appeals from the First-Tier tribunal.
However, it also has primary jurisdiction to hear certain matters including finance and tax
matters.
Section 22 TCEA 2007 requires that Tribunal Procedure Rules are made by the Tribunal
Procedure Committee and states that the objectives of the rules are that: justice is done; the
tribunal system is accessible and fair; proceedings are handled quickly and efficiently; the
rules are both simple and simply expressed; and that the rules where appropriate confer on
members of the relevant Tribunal responsibility for ensuring that the proceedings are handled
quickly and efficiently. There are variations in procedure depending on the area of law
involved. However, each set of procedures must follow the basic objectives listed above.
Schedule 5 TCEA 2007 provides the rules relating to the tribunal procedures. Part 1 sets out
that the procedural rules may contain certain provisions relating eg to time limits, whether
hearings should be in public or private, representation, evidence, witnesses and notice. The
Tribunal Procedure Committee is in charge of creating the individual sets of procedural rules.
So far several sets of procedural rules have been devised including those relating to social
entitlement, health and education. Generally, the procedural rules do not require leave for the
commencement of proceedings, but normally the applicant should send an application within
18

28 days of the decision in dispute. The respondent must then state the grounds, if any, on
which the application will be opposed. A hearing will then normally take place, with the
general rule being that these are in public except in relation to mental health issues and some
educational issues. Each party may have a representative, who may be legally qualified or
not, and the tribunal has wide powers to control the way in which evidence is given and the
amount of evidence which may be presented. Once a decision has been reached the Tribunal
must provide written reasons for it and notification of any rights of review or appeal.
The First-tier Tribunal is capable of reviewing its own decisions on application by a
dissatisfied party. Decisions reached by the First-tier Tribunal may be appealed to the Upper
Tribunal. Beyond this, the next point of appeal is the Court of Appeal, rather than the High
Court

as

was

previously

the

case.

In the United Kingdom, the Tribunals, Courts and Enforcement Act, 2007 (for short, the
TCEA) explicitly confirmed the status of Tribunal Judges (as the legally qualified members
of the Tribunals are now called) as part of the independent judicial system, extending to them
the same guarantees of independence as apply to the judges in the ordinary courts. From the
analysis of the above system of administrative justice prevalent in United Kingdom, a very
subtle and clear distinction from other laws is noticeable in as much as the 61 sensitive
personal data and right of privacy of an individual is assured a greater protection and any
request for access to such information firstly, is subject to the provisions of the Act and
secondly, the members of the Tribunals, who hear the appeals from a rejection of request for
information by the Information Commissioners under the provisions of either of these Acts,
include persons qualified judicially and having requisite experience as Judges in the regular
courts.25 It is recommended that the model which was adopted in the United Kingdom in the
Tribunals, Courts and Enforcement Act of 2007 (Tribunals Act) be followed in India. The
guarantee of judicial independence is available to most tribunal members. For the members of
the tribunals which are created under the Tribunals Act, appointments would be made only
after the recommendations of the Judicial Appointments Commission. The eligibility criteria
for being a member of the Judicial Appointments Commission is that the person had to be a
solicitor or a barrister or possessed a qualification awarded by the Institute of Legal
Executives or by anybody authorised to confer rights of audience or rights to conduct
litigation. Hence, all the formal links with the sponsoring department are severed.
25 Namita Sharma v. Union of India (2013) 1 SCC 745
19

20

CONCLUSION
In practice there are a number of tribunals functioning in the country. Very few of them,
however, have been able to inspire confidence in the public. The tribunals have shown a
singular lack of competence and objectivity in determining disputes. Another reason for their
failure is the constitution of the tribunals and the method of appointment of the personnel.
Persons with expertise and the right qualifications do not want to sit on these tribunals thus
leading to the unsatisfactory functioning of these tribunals.[35] The uncertainty of tenure,
unsatisfactory service conditions, interference by the executive and political interference have
further impeded the proper development of tribunals in India. Tribunals are supposed to
provide specialised adjudicatory services but the type of people appointed lack the requisite
expertise and are on the tribunals merely because of political pressure and executive
interference.
Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they
must therefore be able to inspire public confidence by proving themselves to be a competent
and expert mechanism with a judicial and objective approach. In order to achieve this it is
essential that members of the tribunal are equipped with adequate judicial acumen and
expertise. These judicial officers need to be balanced with experts in the particular field. Only
a judicious blend of the two will be able to provide an effective and result oriented tribunal
system. Another important measure which needs to be taken are steps to maintain the
independence of the members of these tribunals from political or executive interference. Just
as the ordinary judiciary are protected from political control through security of tenure and
through institutionalized methods of appointment ( through a selection committee comprising
of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on
the high courts the high courts must be divested of the supervisory jurisdiction over the
tribunals. It is essential therefore that a single centralised nodal agency be established to
oversee the functioning of the tribunals. Such a centralised umbrella organisation will ensure
the independence of the tribunals in matters of tenure and funds.
Thus as tribunal have come to stay and the basic premise of the establishment of tribunal is
sound, resolving the current issues will help in improving the tribunal system in India and
hopefully will make the process of litigation easier for those who wish to approach tribunals..
21