Administrative

Adjudication
Module 7
 “The expression “Tribunal” as used
in Art. 136 does not mean the same
Describing thing as a court but includes within
its ambit, all adjudicating bodies,
Administrati provided they are constituted by the
State and are invested with judicial
ve as distinguished from administrative
Adjudicatio or executive functions.”

n
- Durga Shakar Mehta v. Raghuraj
Singh
 “The entire system for resolving
Describing individualized disputes between private
parties and government administrative
Administrat agencies starting with an administrative
investigation and the agency’s preliminary
ive or “front-line” decision, continuing through
the process by which a private party
Adjudicatio challenges the front-line decision, and
n concluding with judicial review.”

- Michael Asimow
Reasons for Growth of
Administrative Tribunals
• Increasing governmental functions overloaded court with cases  they were
unable to deal with it effectively.
• Traditional Judicial system  slow, costly, inept, complex, formalistic  not
possible for speedy disposal of every important matter  eg. Industrial
tribunals or labour courts - employer employee disputes, strikes, lockouts,
etc.
• Administrative Tribunal can decide matters based on policy considerations
and public interest  don’t have to only rely on settled legal principles and
objective standards.
• Administrative Tribunals are manned not but by judicial experts but
administrative/subject matter experts.
• Administrative Tribunals  not bound by rules of evidence and procedure 
functional rather than theoretical and legalistic approach.
• Can take preventative measures  not necessary only when a dispute has
arisen  licenses.
• Can take effective steps of enforcement  suspension, revocation or
cancelling a license.
• Disputed questions are technical in nature and traditional judiciary cannot
be expected to appreciate to appreciate and decide them.
 • Art. 136 - Special leave to appeal by the Supreme
Court
(1) Notwithstanding anything in this Chapter, the Supreme
Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or
India – made by any court or “tribunal” in the territory of
India

Constitutional (2) Nothing in clause ( 1 ) shall apply to any judgment,

determination, sentence or order passed or made by any

Recognition –
court or tribunal constituted by or under any law relating to
the Armed Forces
• Art. 227 - Power of superintendence over all courts
Status of by the High Court

Tribunals (1) Every High Court shall have superintendence over all
courts and “tribunals” throughout the territories
interrelation to which it exercises jurisdiction
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for
regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall
 Basic Test of a Tribunal within the meaning of Art.
India – 136 and Art 227: it is an adjudicating authority (other
than a court) vested with the judicial power of the
Constitutio State under a statute or statutory rule.

nal Three essential requisites of a tribunal:

Recognitio • It must have the trappings of a court.

n - “Tribunal
• It should be constituted by the State.
• It should be vested with the State’s inherent
within the judicial power.
meaning of Art
136 and 227” - Engineering Mazdoor Sabha vs. Hind Cycles.
 Administrative Tribunals vs. Courts

Tribunals Courts
• Is an agency created by a statute • Judicial Powers are derived from
and invested with judicial powers. the State.
• Can try cases in special matters. • Can try all suits of a civil nature.
• Are entirely in the hands of the • Independent of the executive in
executive in these matters. terms of their tenure, terms and
• Tribunal members may not be well conditions of service, etc.
trained in law. • Presided over by an officer of the
• Not bound by those rules unless the law.
relevant statute imposes an
obligation. • Bound by all rules of evidence.
• Cannot challenge the vires of a • Can decide thevires of a
legislation. legislation.
 • Creation of a statute.
• Has some trappings of a court.
• In procedural matters, they
possess the power of a court.
Characteris • Not bound by strict rules of
evidence and procedure.
tics • Independent and not subject to
any administrative interference
in discharging their judicial or
quasi-judicial functions.
 • Amendment of article 227:-
for clause (1), the following clause shall be substituted,
namely:- "(1) Every High Court shall have
superintendence over all courts* subject to its
appellate jurisdiction.";
• Art 323-A  empowers Parliament to set up tribunals
42nd for dealing with disputes and complaints with respect
of recruitment and conditions of service of persons
Constitutio appointed to public services and posts in connection
with affairs of the Union or of any State or any local or

nal other authority within the territory of India or

controlled by the Government.

Amendme
• Art 323 B  empowers appropriate legislature, central
or state, depending upon the legislative competence a
propos the subject matter, to set up tribunals for
nt (1976) dealing with matters such as, tax, foreign exchange,
import and export, industrial and labour disputes, land
reforms, elections, etc.
• Law made under these articles is intended to specify
procedure to be followed by concomitant tribunals and
may also exclude the jurisdiction of all courts except
the jurisdiction of the Supreme Court under art. 136 
Art 323A (2)(d) and Art 323B (3)(d).
 Categories of Administrative Tribunals 42nd
Amendment

• Art 323-A and 323-B were added to the Constitution by the 42nd
Amendment Act, 1976. These articles provide for ‘the adjudication and
trial by Tribunals’ pertaining to the types of matters mentioned.
• Art 323-A  empowers Parliament to set up tribunals for dealing with
disputes and complaints with respect of recruitment and conditions of
service of persons appointed to public services and posts in connection
with affairs of the Union or of any State or any local or other authority
within the territory of India or controlled by the Government.
• Art 323 B  empowers appropriate legislature, central or state,
depending upon the legislative competence a propos the subject
matter, to set up tribunals for dealing with matters such as, tax, foreign
exchange, import and export, industrial and labour disputes, land
reforms, elections, etc.
 Categories of Administrative Tribunals

• Law made under these articles is intended to specify procedure to be

followed by concomitant tribunals and may also exclude the
jurisdiction of all courts except the jurisdiction of the Supreme Court
under art. 136  Art 323A (2)(d) and Art 323B (3)(d).
• Issue that arose: The exclusion of the jurisdiction of the High Court
in relation to service matters was against the spirit of the Constitution.
 1958
Law Commission which recommended for the establishment of tribunals consisting of
judicial and administrative members to decide service matters.

1969
Administrative
Reform Commission also recommended for the establishment of civil service tribunals

1975
Swarn Singh Committee again recommended for the setting up of
service tribunal

K.K. Dutta v. Union of India

setting up of service tribunals to save the courts from avalanche of writ petitions
Enter….. • An Act to provide 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 or of any local or
other authority within the territory of
India or under the control of the
Government of India or of 1 [any
The corporation or society owned or
Administrative controlled by the Government in
pursuance of article 323A of the
Tribunal Act, Constitution] and for matters connected
1985 therewith or incidental thereto.
 • Draconian provisions  excluding power of
judicial review of High Courts and of the
Supreme Court which was held to be a
part of ‘basic structure’ of the
Constitution  but only applies when the
Legislature makes a laws under Art 323 A
and B.
• Section 14. Jurisdiction, powers and
authority of the Central Administrative
The Tribunal.—(1) Save as otherwise expressly
Administrative provided in this Act, the Central
Tribunal Act, Administrative Tribunal shall exercise, on
1985 and from the appointed day, all the
jurisdiction, powers and authority
exercisable immediately before that day
by all courts (except the Supreme
Court)…….
 • The Administrative Tribunals are distinguishable from the
ordinary courts with regard to their jurisdiction and
procedure.
• They exercise jurisdiction only in relation to the service
matters of the litigants covered by the Act.
• They are also free from the shackles of many of the
technicalities of the ordinary Courts.
• 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 also present its case through its
Departmental officers or legal practitioners.
• Only a nominal fee of Rs. 50 is to be paid by the litigant for
filing an application before the Tribunal.
The Administrative • The objective of the Tribunal is to provide speedy and
inexpensive justice to the litigants  exclusion of all courts
Tribunal Act, 1985 including High Courts other than the Supreme Court, with the
– Key features end in view of reducing the burden of such Courts

Constitutional validity tested!!

Constitutionality of Article 323A and 323B

• 44th Amendment Act, 1978 – jurisdiction of the HC over administrative

tribunals had been restored  however, 323 A and 323 B were not
amended.
• Sampath Kumar vs. Union of India  In exercise of power conferred
by Art. 323A of the Const, the Parliament enacted the Administrative
Tribunals Act, 1985. Section 28 of the Act excluded the power of judicial
review exercised by the HC in service matters under Art. 226 and 227.
However, it did not exclude the jurisdiction of the SC under Art. 136.
• Constitutional validity of the same was challenged.
• The Constitutional Bench upheld the validity of the Administrative
Tribunal Act, 1985.
 Constitutionality of Article 323A and 323B
• “We have already seen that judicial review by this Court is left wholly unaffected and thus there is a forum
where matters of importance and grave injustice can be brought for determination or rectification. Thus,
exclusion of the jurisdiction of the High Court does not totally bar judicial review……it is possible
to set up an alternative institution in place of the High Court for providing judicial review. The
debates and deliberations spread over almost two decades for exploring ways and means for relieving the
High Courts of the load of backlog of cases and for assuring quick settlement of service disputes in the
interest of the public servants as also the country cannot be lost sight of while considering this aspect. It has
not been disputed before us--and perhaps could not have been that the Tribunal under the scheme of the Act
would take over a part of the existing backlog and a share of the normal load of the High Courts. The
Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the
scheme of administration of justice. To provide the Tribunal as an additional forum from where
parties could go to the High Court would certainly have been a retrograde step considering the
situation and circumstances to meet which the innovation has been brought about. Thus, barring
of the jurisdiction of the High Court can indeed not be a valid ground of attack.”
• “What, however, has to be kept in view is that the Tribunal should be a real substitute of the
High Court not only in form and de jure but in content and de facto…..Under Sections 14 and 15 of
the Act all the powers of the Courts except those of this Court in regard to matters specified therein vest in
the Tribunal--either Central or State. Thus the Tribunal is the substitute of the 'High Court and is entitled to
exercise the powers thereof.”
Constitutionality of Article 323A and 323B -
Concurring Opinion – J. Bhagwati
”If this constitutional amendment were to permit a law made under clause (1) of Article
323A to exclude the jurisdiction of the High Court under Articles 226 and 227 without
setting up an effective alternative institutional mechanism or arrangement for
judicial review, it would be violative of the basic structure doctrine and hence
outside the constituent power of Parliament. It must, therefore, be read as implicit in
this constitutional amendment that the law excluding the jurisdiction of the High Court
under Articles 226 and 227 permissible under it must not leave a void but it must set up
another effective institutional mechanism or authority and vest the power of
judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the
High Court under Articles 226 and 227 in respect of service matters and vesting such
jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being
within the ambit and coverage of clause (2) (d) of Article 323A, only if it can be shown that
the Administrative Tribunal set up under the impugned Act is equally efficacious
as the High Court, so far as the power of judicial review over service matter is
concerned. ”
Was it true? Were
tribunals really
substitutes of High
Courts?
Arrears Committee –
“The overall picture regarding tribunalisation of
justice in our country is not satisfactory or
encouraging. There is a need for a fresh look and
review and serious consideration before this
experiment is extended to new areas of the field,
especially if constitutional jurisdiction of the HC
is to be simultaneously ousted.”\
• They lacked competence
• Objectivity
• Failed to inspire confidence in public mind and
were not successful in creating an “effective
alternate institutional mechanism”
• Serious complaints against such tribunals – did
not allow parties to argue properly, did not
permit oral submissions, didn’t allow SC
decisions to be cited, etc.
 decision rendered by a 5-judge bench in Sampath
needed to be “comprehensively reconsidered” and a
“fresh look by a larger bench over all issues adjudicated
in Sampath was necessary  issue was placed before a
larger bench of 7 judges.
• Held: Judicial Review is a basic and essential feature of
the Constitution and the jurisdiction conferred on the
HC and SC is part of the basic structure. For securing
independence of judiciary, the judges of superior have
L. Chandra been entrusted with the power of judicial review.
Though the Parliament is empowered to amend the
Kumar vs. Constitution, the power cannot be exercised to
damage the basic structure.
Union of • The Court also observed that the HC and SC have
been entrusted with the task of upholding the
India Constitution and with a view to achieving that end,
they have to interpret the Constitution. It is the power
and duty of judiciary to ensure that the legislature and
the executive do not, in discharge of their functions,
transgress constitutional limitations. The said power,
therefore cannot be ousted or excluded by an Act of
Parliament or even by affecting amendment in the
Constitution.
• Not only S. 28 was ultra vires but also clause 2(d) of
Art. 323 A and 3(d) of Art. 323  were ultra vires and
unconstitutional.
 supplemental role as opposed to a
substitutional role.
• In exercising such powers, the Tribunals cannot
act as substitute for HCs and SC. Their decisions
will be subject to scrutiny by the Divisional
Bench of the respective HC.
• “In view of the reasoning adopted by us, we hold
that Clause 2(d) of Article 323A and Clause 3(d)
L. Chandra of Article 323B, to the extent they exclude the
jurisdiction of the High Courts and the
Kumar vs. Supreme Court under Articles 226/227 and
Union of 32 of the Constitution, are
unconstitutional. Section 28 of the Act and the
India "exclusion of jurisdiction" clauses in all other
legislations enacted under the aegis of Articles
323A and 323B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon
the High Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the
Constitution is part of the inviolable basic
structure of our Constitution. While this
jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in
discharging the powers conferred by Articles
 • Power of judicial review over legislative action vested in the
High Courts and the Supreme Court under Articles 226 and
32 respectively is the basic structure of the Constitution.
• Power of judicial superintendence over decisions of
all courts and Tribunals within their jurisdiction is the
basic structure of the Constitution
• Judicial review of legislative action in exercise of power by
subordinate judiciary or Tribunals created under ordinary

Takeaways legislation cannot be to the exclusion of the High Courts and

the Supreme Court. However, they can perform
supplemental – as opposed to substitutional – role in
from L this respect.
• Tribunals constituted under Articles 323A and 323B have the

Chandra power to test vires of subordinate legislation except vires of

their parent statutes. All its decisions would be subject to
scrutiny before Division Bench of their respective High
Courts under Articles 226/227. No appeal would lie directly
to the Supreme Court under Article 136. The said direction
would operative prospectively.
• Appointment of Administrative members need not be
stopped.
• Till a wholly independent body is set for the purpose of
overseeing the working of the Tribunals, all such Tribunals
will be under single nodal ministry whose members would be
appropriately be a Ministry of Law.
 • Expression according to Wade is a
misnomer, implies that it isn’t truly
independent.
• Every tribunal is constituted by an
Act of Parliament and not the
Misnomer – government.
Administrat • Decision of such tribunals are judicial
rather than administrative.
ive • Tribunals are independent.
Tribunals • Hence, the word administrative
should be discarded and must just be
called “Tribunal”

But are all tribunals truly independent?

 • With the constitutionality of tribunals entrenched, the focus has
shifted to the efficient and effective functioning of tribunals.
• Being recognized as a parallel system of adjudication has
ensured that the tribunals enjoy same level of independence as
courts  These two themes have recurred in all litigation post L.
Chandra Kumar.
• Two cases are particularly relevant, i.e. Union of India v R.

Madras Bar Gandhi (“NCLT Case”) in 2010 and the NTT Case in 2015.
• In the NCLT Case, a constitution bench of the Supreme Court

Association
had to deal with the constitutional validity of the NCLT and the
NCLAT.
The constitutionality of the National Company Law Tribunal (NCLT)
Cases and National Company Law Appellate Tribunal (NCLAT) on the
following grounds-

(2010) • Parliament does not have authority to vest the judicial functions
in any tribunal that have been traditionally performed by the
High Courts since so long.
• Transferring the entire company jurisdiction of the High
Court to the tribunal are violative of the doctrine of Rule
of Law, Separation of Powers and Independence of the
Judiciary.
• The various provisions of Part 1B and 1C of the
Companies Act are defective and unconstitutional, being
in breach of constitutional principles of Rule of Law,
Separation of Powers and Independence of the Judiciary.
 • The court acknowledged and upheld the constitutional power of the
Parliament to constitute tribunals for adjudication of disputes. The
legislative competence of Parliament to provide for the creation of courts
and tribunals can be traced to Article 245, 246 and 247 of the Constitution
read with various entries in the Union List and the Concurrent List which is in
no way affected or controlled by Article 323A or 323B of the Constitution.
• The court further added that it cannot be assumed that constitution of
tribunals and transferring judicial powers per se infringe the rule of law,
separation of powers and independence of the judiciary because the
Constitution enables both courts and tribunals to exercise judicial powers.

Madras Bar
• What matters the most is whether the constituted tribunals respect and
maintain the principles of separation of powers, rule of law and
independence of the judiciary. The constitution of NCLT and NCLAT must
be subject to judicial review so that the court in the exercise of judicial

Association review look into the matter to check if these principles are compromised by
such tribunalisation and may interfere in between to preserve the same.

Cases.
• The court observed that the independence of the tribunals was
compromised by the inclusion of the secretary of the ‘sponsoring
department’ in the selection committee. Additionally, tribunals were
dependent on these departments for funding, infrastructure,
working space, etc., which created a scope for interference by the
department. Civil servants who became members of tribunals often
retained lien with their parent cadre, leading to further executive
interference.
• In order to maintain the independence of the tribunals, the court suggested
a four-member selection committee chaired by the Chief Justice of India or
his/her nominee, a senior judge of the Supreme Court or Chief Justice of
High Court, Secretary in the Ministry of Finance and Company Affairs, and
Secretary in the Ministry of Law and Justice as members. Furthermore, for
the removal/suspension of the President/Chairperson of tribunals, the
concurrence of the Chief Justice of India was mandated to ensure the
independence of tribunals.
 Association (hereinafter referred to as the '2010 judgment'). In
the earlier round of litigation, the petitioner had challenged the
constitutional validity of creation of National Company Law
Tribunal ('NCLT' for short) and National Company Law Appellate
Tribunal ('NCLAT' for short), along with certain other provisions
pertaining thereto which were incorporated by the Legislature
in Parts 1B and 1C of the Companies Act, 1956 (hereinafter
referred to as the 'Act, 1956') by Companies (Second
Amendment) Act, 2002.

Madras Bar
• This petition was regarding the Constitutionality of the National
Tax Tribunal Act, 2002 (NTT). The National Tax Tribunal (“NTT”)
was set up to take over the existing jurisdiction of High Courts

Association in India to hear and decide appeals pertaining to ‘questions of

law’ relating to Income Tax, Customs, Central Excise and
Service Tax matters, arising from the Income Tax Appellate
Cases Tribunal and the Customs, Excise and Service Tax Appellate
Tribunal.

(2015) • Court held struck down the provision empowering the central
government to decide the location, jurisdiction and constitution
of benches, transfer of members, etc. as excessive executive
interference. As the government was itself a stakeholder before
the tribunal, such powers were seen to be compromising the
independence of the tribunal.
• The composition of the selection committee for
Chairpersons/Members of the NTT, was also struck down as it
consisted of more executive members than judicial members. A
majority of executive members in the selection committee
would, in the opinion of the court, compromise the
independence of the tribunal.
 • The courts have tried to shed light on the issue of
malfunctioning of tribunals and have offered
recommendations. A consistent recommendation has been to
entrust the Ministry of Law and Justice with the duty to
administer tribunals.

Efficiency of • This suggestion was reiterated in the NCLT Case, where the
court additionally suggested that no facilities should be

Tribunals – Halting
provided from the respective sponsoring or concerned
departments or parent ministries.

Tribunalisation • NTT case, laid down certain parameters for examining the
independence of the NTT – the definition of a tribunal can be
split in to six criterions.

– Vidhi Center for (1) EFFICACY - Permanency  seat  that redress should be
available, with the same convenience and expediency, as it was
Legal Policy prior to the introduction of the newly created court/tribunal
(2) INDEPENCE - Independence from the Executive - 
Involvement of the Government in determining constitution and
jurisdiction of Benches of the Tribunal.
(3) Set up by or under law made by Parliament
(4) To solely decide a lis between parties;
(5) Specific jurisdiction vested by statute;
(6) Not part of the regular judiciary