Globus An International Journal of Management & IT
A Refereed Research Journal
Vol 9 / No 2 / Jan-Jun 2018
COMPETENCY OF ‘ADMINISTRATIVE’ TRIBUNALS - A COMPARATIVE
STUDY WITH INDIA AND UNITED KINGDOM
*
Neelanjana Ganguly Shukla
**
Dr. Vineeta Agrawal
Abstract
In India the core principles of an independent judiciary
and separation of power, a part of the basic structure of the
constitution is at stake. There is a tussle between judiciary
and the legislature on the “tribulisation” of courts. The
Supreme Court in his number of decisions articulated the
principles that a tribunal has to abide by in order to be
constitutionally valid.
The tribunals ir-regardless its intentions as an important
parallel structure for dispute resolution alongside regular
courts often replicated some of the problems which our
judiciary suffers, the constitution of tribunals often toes
the line of judicial independence by an overemphasized
role of the executive. The clear tests for constitutionality
lay down by the apex court but how the tribunals operate
is far from ideal in the reality. The courts have tried to
shed light on the issue of malfunctioning of tribunals in
the cases from R.K.Jain to L.Chandra Kumar and also
have offered a number of recommendations for the
reformation of the tribunal system. The above said
recommendations have been analyzed in times and the
highlights of those attempts are:
1. 74th parliamentary standing committee report on
“The tribunals, Appellate tribunals and other
authorities (conditions of service) Bill, 2014.”
2. Finance Act 2017.
3. 272nd Law Commission of India report on
“Assessment of Statutory Framework of Tribunals in
India.”
It also highlighted the problems that exist, i.e. Lack of
independence, Non-Uniformity in regulations and
jurisdiction of High Court. Therefore due to multiple
concerns the India’s tribunal system’s essence defeated.
In United Kingdom the tribunals form part of the civil
justice system alongside ordinary courts and is working in
parallel with other major reforms of the machinery of
justice. The jurisdiction of tribunals varies geographically
with some extending beyond England and Wales to
include and / or Northern Ireland as well; so, a reform of
the tribunal system is underway. It is slightly ambiguous
constitutionally and too closes to government departments
to be truly independent and too informal in their
procedures to bear comparison with real court of law. The
practices and procedure can vary significantly as tribunals
were created and developed independently of one another.
There is a right to appeal on a “question of law” from the
first tier to the upper tribunal and there is a limited
jurisdiction for judicial review. The wider picture of
administrative justice gone through many evolutionary
changes and the administrative systems to become fully
fledged professionally accredited body.
The United Kingdom is also suffered from similar issues of
tribunalisation in its justice system. The enactment of the
tribunals, courts and enforcement Act, 2007, started new
era of tribunals in U.K. which was heralded with the legatt
report. The tribunals of India and the United Kingdom
facing the issues in terms of constitutionality and
operations due alike administrative frameworks. Earlier
tribunals were regarded with deepest distrust in multi-
faceted administrative justice system but whether tribunal
is an important element in recent world or not.
Keywords: Administrative Tribunals, Rule of Law,
Separation of Power, Comparative Study.
*Research Scholar, SOS in Law, Pt. Ravi Shankar Shukla University. Raipur, C.G.
**Head of the Department, Govt. J. Yoganandam Chhattisgarh College, Raipur, C.G.
1
ISSN: 0975-721X
Introduction
Any study with a comparative perspective is very
complicated, the personnel’s of law compares the
topics on the basis of one understands and the field
they are working. The limitations compel us to take
a different line of approach and that shows the
meager importance so far as comparative study is
concerned, very few people show concerned about
the creativity and apt to adopt a new novel
argument. Comparative study is definitely
benefitted where parallel law provisions are
consulted & adopted the reasoning and also able to
understand the conditions of the countries varies
from each other or similar. If similar, then the
provisions effectively giving results may apply in
other countries too; otherwise apply with some
modifications as per the requirement in the country.
For example- the word ‘amendment’ being
accepted as meaning and which helps the judges in
Keshavanand Bharti case, where corresponding
provisions of America, British & Canadian
constitutions were exhaustively quoted. In
comparative study there is no limit on area or scope
and the area of comparative study is undefined.
A vast new complex has been arisen between the
administration and the citizens along with the
growth of administrative process according to the
recent judgments given by administrative
authorities.
According to Davis
The administrative process is a governmental tool.
It is no more conservative or liberal than the
elevator in the senate office building although it is
politically colorless in that it has no distinctive
color of its own, it does have a peculiar
chameleonic quality of taking the color of the
substantive programme to which it is attached, & it
is always attached to a substantive programme.[1]
For the formal character of administrative process
not properly defined anywhere, it exists to deal
with the modern problems. The speed and the way
of its development have varied from country to
country.[2] Developments of the functions of the
administration are beyond traditional boundaries.
Various systems have involved beyond the formal
constitutional arrangements, is a law making and
law deciding powers, which are exercised by the
organs of government i.e. executive and not by the
legislature or the traditional courts.
As per the observation of Davis the administrative
process is a tool for positive government, not a tool
for laissez faire, although it has a wide range of
flexibility and adaptability and also having its own
independent characteristic.
The Characteristics of administrative process is an
instrument of political & economic reform and
showing the operation of social power. During
twentieth century, the power & functions of the
state grown phenomenally and society became very
complex therefore the government functions
multiplied tremendously, which resulted in the
concentration of considerable power in the hands of
the government, specifically to the executive
branch. It change the character of the government
from negative to positive.[3]
The governmental functions in twentieth century
exceed tremendously and that is, multiplying day
by day and became complex resulted in power
concentration to executives. So, the growth shows
intolerable encroachment on the separation of
powers & rules of law, but in the situation of
inadequacy of the traditional type of courts added
to the growth of administrative tribunals. It evolves
new techniques and acquires expertise to handle
new complex problem and showing its essentiality.
The flexibility in approach is not available in the
judicial process. The administrative tribunals’
capacity to affect the rights and liberties of people
is tremendous, which raised the perennial question
of abuse or misuse of power. [4] The powers must
control and regulated by adequate procedural safe
guards otherwise, the public at large would be
prejudicially affected.
The Rule of Law projected as the great opposition
of the arbitrary government as arbitrary
government is an enemy of individual liberty,
which has traditionally conceived.
Rule of Law explained through three aspects
according to Dicey.[5]
1. No man is punishable for ‘a distinct breach of
Law’ established in the ordinary legal manner
before the ordinary courts of the land.
Therefore the ‘rule of law’ is contrasted with
every government based system on the
exercise of persons in authority of
discretionary, wide or arbitrary powers, which
further means absolute supremacy of regular
laws as opposed to the influence of arbitrary
power.
2. The meaning of rule of law is equal subjection
of all classes of persons to the ordinary law of
2
the land as administered by the ordinary law
courts, which simply explain that the rule of
law excludes the idea of any exemption of
officials or others from the jurisdiction of the
ordinary tribunals. It further shows the
complete negation of administrative justice
applied by special tribunals.
Dicey believed that the constitution is pervaded by
the rule of law on the basis of general principles of
the constitution, which was resulted because of
judicial decisions determining the right of private
persons in particular cases brought before the
ordinary courts of the land. Therefore, the essence
of the rule of law is historic generalization
The ultimate aim is to preserve the basis rights of
the individual by having control over the
administration process. As per Dicey there is a
clear violation of his concept of ‘rule of law’ due to
the growth of administrative process specifically
administrative adjudication because it confers wide
discretion along with that taking away the
jurisdiction of the ordinary courts of the land.
Dicey believed all men are equal in the eyes of law
can be proceeded against in the ordinary courts and
in accordance with the ordinary law. He never
recognized the contrast distinction between regular
and arbitrary power, which was criticized by the
French system of ‘droit administrative’ where all
types of questions involving the administration fall
within the purview of a special hierarchy of
administrative courts head by council d’ et. at.[6] It
shows the Dicey’s disliking this feature of the
French law contending that the administrative court
were a direct threat to the liberty of the individual.
The common Law systems had given great respect
for the application of the rule of law as concept.
The function of government as the Dicey
unconsciously assumed, was to protect the
individual against internal and external
aggression.[7]
The fallacy behind the Dicey’s assumption, the
concept of rule of law, demands equality as a
whole in every respect between government and
the subjects. Citizens as correctly observed and
pointed out by the friedmann. The government has
to have powers to interfere without legal sanctions
in the lives and interests of citizens, which is
inherent in the very notion of government that it
cannot in all respects be equal to the governed, for
it has to govern.
The inequalities between the government &
citizens are inherent in the very nature of political
society.[8]
In local Government board V. Arlidge [9], The
House of Lords said that what Dicey convinced
that the qualifications which had been forced to
place upon his 1885 views was now corroborated;
and he likened the ‘novel’ happening in England to
prevailing conditions in France. [10]
The Lord chief justice of England stigmatized the
term administrative law as continental Jargon.[11]
The existence of effective government with the
capacity to maintain law and order and to have
provision of adequate safe guards against abuse of
power by executive can only ensure the adequate
social and economic condition of life for the
society In India, the founding fathers of the
constitution gave due recognition to the concept of
‘rule of law’ in the basic law but as such the ‘rule
of law’ was not expressly mentioned in the
constitution. Although the preamble of the
constitution create a spirit of the ‘rule of law’ to
persuade all institutions and instrumentalities of the
government with a thought to make, justice and
equality based society.
In Suman Gupta V. State of Jammu and
Kashmir, [12] the Supreme Court observed that it
must be remembered that our entire constitutional
system is founded on the rule of law, and in any
system so, designed it is impossible to conceive of
legitimate power which is arbitrary in character and
travels beyond the bounds of reasons [13]. The
court in India is functioning as a custodian and
guardians of the values of ‘rule of law’. The
Judicial review power which is an essential part of
the rule of law has been expressly entrusted to
judiciary as ‘Sentinel in qui vive’ and also the
judicial activism controlling undue administrative
powers, which firmly showing the establishment of
the concepts of rule of law in India.
In England judicial powers are not separated from
the legislative and the executive which gave
parliament the legislative supremacy. The doctrine
of separation of power is not in reality exists as
there is no complete sharing out of the government
power under the British constitution the department
of legislative, executive and judiciary are not
totally distinct and separate from each other.
Therefore in strict sense the doctrine of separation
of powers exists in England.
In India, also constitution did not recognized the
doctrine of separation of power with absolute
rigidity and also has not been accorded a
constitutional statues even any formalistic division
of powers does not embodies in constitutional
scheme. In fact, the doctrine of ‘check and balance’
is appreciated for bifurcation of the concentration
3
of powers in any one organ and make a balance
between three organs and this is what requires in
democratic government.
Aim of the Study
To bring the uniformity in procedures, and review
as well as appeal of the decisions f tribunals and
further it will show the competency of
administrative tribunals in India, so that the benefit
of tribunalisation becomes available.
Hypothesis
1. There is no uniformity in the procedural
system, which is supposed to be followed by
tribunals.
The appellate tribunal does not have the power of
final decision making, although there is an
existence of appellate administrative tribunals.
Methodology
The doctrinal methodology is adopted by the
researcher and undertaken the research library
based, trying to find the one right answer to the set
of legal question. The research paper prepared after
going through many books, journals and reports,
which has reviewed the contents including the
substance, the form and the depth and also
incorporates the idea by comparing the India
tribunal system with UK’s tribunal system.
Significance
Intention of legislature behind the insertion of part
XIV-A in the Indian Constitution, 1950:
The political and legislative scenario of the 42nd
constitutional Amendment act, 1976 and through
that, pat-XIV-A inserted in the constitution of India
to relieve the courts i.e. High Court and the
Supreme Court from the service matter pending
litigation.
The concept of tribunals took a peak under the
welfare state, different tribunals decide the disputes
from different sections of the society, for example-
Local tribunals, Employment tribunals, tribunals
for taxation, immigration etc.
Legislation of twentieth century demanded
tribunals with an offer of speedier, cheaper and
more accessible justice because the process of the
courts of law is elaborated, slow and costly. The
object behind the establishment of Administrative
tribunals was to provide highest standard of justice
and this is what peoples wants and for the
consistent efficient administration disputes must be
disposed of quickly and cheaply, which is equally
benefitted for the public as well as for the claimant.
For the special classes of cases, specialized
tribunals can deal more rapidly with the experts but
in ordinary courts, the judges need to make them
understand by the counsel about the designed
statutory scheme to operate which can take a day or
more. This cause unnecessary delay to the case and
we all know that “Justice delayed is Justice
denied.”
The Swaran Singh committee recommended for
establishment of service tribunals, which was also
favored by S.C. of India in K.K. Dutta V. Union
of India [14] advocated for setting up of service
tribunals to save the courts from avalanche of writ
petitions and appeals in service matters. During
that period many states established their own
service tribunals, against this the parliament passed
constitution (forty second Amendment) Act, 1976
and added part XIV-A in the constitution under
which 323-A and 323-B enabled. Article 323-A
provide for adjudication or trial by administrative
tribunals and complaints related to recruitment and
conditions of service of persons.
Reasons for the growth of Administrative
tribunals
Dicey opposed the establishment of administrative
tribunal, according to him the ordinary law of the
land must be administered by the ordinary law
courts based on rule of law. Over a period of time,
the traditional judicial system proved inadequate to
decide and settle all the disputes within the
reasonable time.
The establishment of the administrative tribunals
and the conferment of the adjudicatory functions in
spite of courts of law is a result of the modern
growth which even increases the complexity of the
problem. Now the state is concerned about the
individuals. So, taken the decisions for them along
with that undertaken the welfare functions of the
state.
The most important reason for the growth of the
administrative tribunals was the overburden
responsibility on the traditional judicial system and
due to that unable to decide and settle all the
disputes requiring resolution. The other nature of
the traditional judicial system was very slow,
costly, inexpert, complex and formalistic and due
to these many reasons it was not possible to expect
speedy disposal of much more important matters,
along with those various other factors, which were
not accomplished by the courts of law.
Therefore the tribunals for special fields
established with technique and expertise to handle
the complex problems.
4
The formality and technicality is very much need
for the traditional judiciary without that courts of
law cannot decide the cases, it shows the
conservative, rigid and technical nature whereas
the administrative tribunals are not bound by the
rules of evidence and procedural laws and can also
avoid technicalities, there way to decide any
complex matters is very practical.
The regular courts of law cannot take any
preventive measures alias have to wait for the
parties to come before the court with disputes
whereas the administrative authorities can take
preventive measures and in many cases, these
preventive actions proved to be more effective and
useful than punishing a person after committing a
breach of any legal provision.
In many cases, it was found that the decisions took
on the basis of conferred wide discretion is more
appropriate due to having departmental policy and
other relevant factors.
The Constitutional validity of the
Administrative tribunals Act, 1985
The legitimacy of the application of administrative
sanctions controls the judicial process. It is a
procedure for public accountability of the
administrative process and in this connection, is an
extension of the public control [15]. Judicial
control holds the balance of power between
individuals and the government [16].
The Supreme court and the High Court of India the
power of Judicial review had been infused by the
farmers of the Indian constitution by specifically
enacting Article 32 (Remedies for enforcement of
rights conferred by part III of the constitution of
India), A-136 ( special leave to appeal by the
Supreme court A-226 (Power of High Courts to
issue certain writ) and A-227 (Power of
superintendence over all courts by the High court)
with the enactment of Article-12 (Definition of the
state), A-14 (Equality before law), A-15
(Prohibition of discrimination on grounds of
religion race, caste, sex or place of birth), A-16
(Equality of opportunity in matters of public
employment), A-309 (Recruitment and conditions
of service of persons serving the union or a state)
and A-311 (Dismissal, removal or reduction in
rank of persons employed in civil capacities under
the union or a state). Due to these many articles
related to service matters, number of employees
approached High courts with manifold problems
arising in the context of their recruitment and
conditions, of Service, which lid to gradual
increase in the institutions and pendency of service
matters in High Courts, Therefore, found an
effective alternative that much specialized matters.
With 42nd Constitutional Amendment Act 1976,
parliament which was authorized to provide by law
for setting up of Administrative Tribunal for the
adjudication of disputes and complaints with
respect to recruitment and conditions of service
under Article 323-A.
At last, the Administrative Tribunals act, enacted
by the parliament in the year, 1985. It exercise
original jurisdiction in respect of service matters of
employees. Administrative Tribunal and the state
Administrative Tribunals provide into the Act, with
these establishments opened a new era in the
sphere of administering justice to the aggrieved
government servant matters. For dispensing speedy
and efficient justice, the trained administrators with
judicial experience would be better to equipped.
In England number of Administrative tribunals
multiplied and the system of Administrative
tribunals violates the principle of equality before
the law in the Dicean sense. The court of law use to
follow the procedures but the administrative
tribunals is not bound to follow any type of
procedures. The administrative authority is to free
to follow the procedures enables by authority itself
to act effectively. Therefore, in the absence of
statutory requirements, an administrative tribunal is
not bound to disclose to a party the report of an
official, [17] or to hear a part orally, it is not
fettered by any rules of evidence for obtaining
information, [18] nor it is bound to produce
evidence for preferring one course to the other, [19]
nor to furnish to the parties the reasons for its
decision. [20]
The committees on many issues recommended
certain points, which were further adopted by the
enactment of the Tribunals and Inquiries Act, 1958.
Those three recommendations are as follows:-
1. The tribunals shall function as machinery for
adjudication and not as a part of the machinery
of administration on the questions left by the
parliament to administrative tribunals, rather
than to the ordinary courts for the decisions.
2. On the basis of working of the tribunals, on
Advisory council should be established,
appointed by the Lord Chancellor.
3. The decision given by the tribunals are
allowed to appeal to the courts on point of law
but not of fact.
Thus, there is a provision in England for a control
over having by the ordinary courts on the
administrative tribunals, with this provision,
England is maintaining the traditional Rule of Law
5
without abolishing the administrative tribunals and
also provides a special procedure for the system of
administrative court on droit administratif.
So, Rule of Law existing with the control over the
administrative tribunals by the ordinary courts
through an appeal procedure and also ensures the
observance of rules of ‘Nature Justice.’
The important role of principle of ‘Natural
Justice’ in the adjudication of disputes by
Administrative Tribunals
The principles of ‘Natural Justice’ believed to set
the limits to procedural diversities of tribunals.
In England, the Frank’s committee’s report
proclaimed the essential components of the
principles of natural Justice and its fundamental
objectives are openness, fairness and impartiality.
According to the committee’s observation in the
field of tribunals, openness appears to us to require
the publicity of proceedings and knowledge of the
essential reasoning underlying the decisions,
fairness to require the adaptation of a clear
procedure which enables parties to know their case
fully and to know the case which they have to meet;
and impartiality to require the freedom of tribunals
from influence. [21]
As per Indian Context, observance of the principles
of natural justice was insisted from the very
beginning of the commencement of the constitution
by judiciary as minimal procedural requirements.
The observation by, Venkatarama, J. in the case
Union of India V.T.R. Verma, [22] speaking for
the supreme court-
The law requires that such tribunals should observe
rules of natural justice in the conduct of the enquiry
and if they do so, their decision is not liable to be
impeached on the round that the procedure
followed was not in accordance with that which
obtains in a court of law stating it broadly and
without intending to be exhaustive, it may be
observed that rules of natural justice require that a
party should have the opportunity of addressing all
relevant evidence on which he relies; that the
evidence of the opponent should be taken in his
presence; and that he should be given the
opportunity of cross examining the witnesses
examined by the party and that no materials should
be retried on against him without his being given
opportunity of explaining them [23].
On the principles of Natural justice, the law
commission has also recommended in its 14th
report, 1958, that the tribunals should conform to
the principles of natural justice and should act with
openness, fairness and impartially. The application
of natural justice principles depends on the nature
and constitution of the concerned adjudicatory
body under which statute it is acting. The judicial
approach towards the application of principles of
natural justice is flexible and variable and that
there is no fixed standard of fair hearing applicable
in all cases.
The Administrative Tribunals do not apply the
rules of evidence technically to their proceedings
they use their discretionary powers and can rely on
hearsay evidence to decide the questions of onus
of proof or admissibility of documents. [24]
Although the administrative tribunals are invested
with inherent powers of summoning of witnesses
and enforcement of attendance, discovery and
inspection, production of documents etc. conferred
on civil procedure code, 1908, and the proceedings
are deemed to be judicial proceedings under Indian
penal code, 1860 for the purpose of section
193,195 and 238 and under criminal procedure
code ,1973 sections 345 and 346. But they observe
principles of natural justice and ‘fair play’ and not
bound by strict rules of procedure and evidence.
The Supreme Court observed in State of Mysore
V. Shivabarappa. [25]
Tribunals exercising quasi-Judicial functions are
not courts and therefore they are not bound to
follow the procedure did not prescribe for trial of
actions in courts nor are they bound by strict rules
of evidence. They can, unlike courts, obtain all
information materials for the points under enquiry
from all sources, and through all channels, without
being fettered by rules and procedure which govern
proceedings in court.
The only obligation which the law casts on them is
that they should not act on any information which
they may receive unless they put it to the party
against whom it is to be used and give him a fair
opportunity explain it.
What is fair opportunity must depend on the facts
and circumstances of each case but where such an
opportunity had been given, the proceedings are
not open to attack on the ground that the enquiry
was not conducted in accordance with the
procedure followed in courts.
The tribunals are under the control of the ordinary
courts in England has attracted the jurists attentions
from India because in India the decisions of
tribunals grievously affecting valuable rights of the
citizens and impose onerous obligations upon
parties, as per the observations by the Law
6
Commission of India. According to the report of
the study team on Administrative tribunals, 1967,
“the constitutional protection is of a restricted
nature and deserves to be supplemented by
tribunals of wide powers which can decide a case
on for well as law. “The constitutional validity of
such provisions in the wake of the establishment of
the Central Administrative Tribunals under the
Administrative Tribunals act, 1985 was upheld by
the Supreme court in S.P. Sampath Kumar V.
Union of India. [26]
However, later in L. Chandra Kumar V. Union of
India, [27] clauses 2 (d) of article-323-A was held
Ultra virus and violative of the basic structure of
the constitution to the extent they exclude the
jurisdiction of High Courts under Articles 226 &
227. The basic problem of strengthening judicial
control over tribunals remains unattended.” Above
all, for the consistency in the decisions of the
tribunals there must be general right of appeal on
the points of law to keep them within the bounds of
their authority apart from the supervisory
jurisdiction of the Supreme court and the High
Court.
The basis of applying procedural laws and
evidence in the adjudication of disputes by
Administrative Tribunals
In India, there is no uniformity in the procedures
established to maintain in the minimum standards,
there is no such prescribed statutory procedure for
the tribunals and they are conceded the power to
regulate their own procedure subject to the statuary
requirements. The civil procedure code in the
matter of Civil court power for certain specific
matters regarding enforcing the attendance,
examining on oath and the production of
documents and Sections 482 and 484 of criminal
procedure code, 1973 and that of under Indian
penal code, 1860, Section 193 and 228, if any
person intentionally gives false evidence at any
stage of proceedings before a tribunal would be
guilty of an offence under section 193.
For, the subject to the statutory requirements a free
hand given to the regulate their own procedures to
the tribunals
The idea prevailed before is that they should not be
tied down any rigid procedure and strict rules of
evidence. It does not mean that they are free to rely
on any evidence irrespective of its probity and
quality although they do enjoy a good deal of
flexibility. The Supreme Court stated in Bareilley
electric supply Co. V. The workman. [28]
“Even in all technicalities of the evidence act are
not strictly applicable………….. it is inconceivable
that the tribunals can act on what is not evidence
such as hearsay, nor it justify the tribunals in
basing its award on copies of documents when the
originals which are in existence are not produced
and proved by affidavit or by witness who have
executed them.”
In England, it is fundamental that the procedure
before a tribunal, like that in a court of law, should
be adversary and not inquisitiorial [29] simplicity,
intelligibility and consistency are three main
factors with particular attention to matters of
publicity of hearings, the right of representation
and the right of cross examination promoted by the
council in scrutinizing the procedural rules.
There is a concept of Model rules prepared is
intended to provide a store of useful rules primarily
for appellants and applicants who will not be used
to reading statuary instruments. So, this is guidance
for applicants designed until further guidance
provides by the tribunals. The legal rules of
Evidence are not normally bounded on the statuary
tribunals because the statuary tribunal has inherent
power to control its own procedure. The general
rule is that a tribunal, like a court of law, may
decide by a majority of its members and need to
unanimous [30], but it had been held that the
decision of pension appeal tribunals must be
unanimous. [31] although the above said decisions
were treated as special case but that must be
doubted on the part of their correctness. In the
matter of reopening of any case, there is a general
rule, that no power reconsiders or reopens the case,
once a tribunal has announced its decision. [32]
The right to a reasoned decision rule is one of the
most important achievements of the Franks
committee in the sphere of tribunal procedure.
“Reasoned decisions are not only vital for the
purpose of showing the citizen that he is receiving
justice they are also a valuable discipline for the
tribunal itself.” It is a warrant to quash the
decisions of tribunals for error on the face of the
record given with the parliament’s approval for the
court’s jurisdiction, provided in the tribunals and
Inquiries Act, 1992. Any decisions in connection
with a scheme or order of a legislative and not of
an executive character comes under exception,
therefore it does not apply. In opine of Lord
Chancellor if the giving of reasons is ‘unnecessary
or impracticable’ is a Subject to the consultation
with the council on from the duty to give reasons.
The questions of aw are concerned exclusively for
appellate courts and the questions of law must be
distinguished from questions of fact. “An appeal on
7
a point of law should be available on every
question of legal interpretation arising after the
primary facts have been established.
It has already observed that in England as well as
in India, The Administrative Tribunals are free to
follow any procedure in the absence of statutory
requirements, which is acknowledged too and on
the question of application of the law of evidence
in Administrative Tribunal. In England
administrative tribunals are not bound by the rules
relating to the admissibility of evidence, even not
bound to act upon the evidence duly admitted, if it
goes against their own expert knowledge [33].
Expert Knowledge is playing an important role and
that is not bound in any procedural limitations.
In India, there must be some evidence to support
the findings of the tribunal [34]. The court cannot
interfere on the ground that the evidence was
inadequate [35], and also evidence not disclosed to
the party and which he had no opportunity of
rebutting would be ‘no evidence’ [36].
Role of Appellate Authority in The Decisions
of Administrative Tribunals
To show reasonable consistency, there shall be
always the provisions for appeal. In early days in
England there was no provisions for appeal
therefore, there was no opportunity to make a
bridge between the main land court system along
with the tribunals and also having no scope of
guidance on different points, especially in the
interpretation of statutes and regulations.
Somewhere the confidence of public was
undermined in the working of tribunals. so, the
committees stressed for the desirability of some
form of appeal from tribunals on the basis
suggestions made by thee Frank’s Committee that
all chairman of tribunals exercising appellate
functions should have legal qualifications finally
adopted in the Act of 1971.
For reasonable consistency showing in the
decisions, provisions for appeal are very much
important and the existence of a right of appeal
makes the right adjudication. A statutory rigt of
appeal on points of law or by the tribunals stated
cases, to the High court was substantially accepted
by the Tribunals and Inquires Act, 1958 under
section 13. A party is granted a right of appeal,
who is dissatisfied in point of law by the tribunals
decision and finding of facts based on no evidence
is treated as an error of Law. Now, the finding of
facts by tribunals became challenged by way of
appeal on point of law.
The tribunals and Inquiries Act,1971 (replacing the
Act of 1958) consists of a council, an advisory and
consultative body having no adjudicatory or
executive powers nor a court of appeal from other
tribunals, it is only the duty set out as to-
a) The constitution and working of the Tribunals
specified in the schedule and will keep under
review.
b) Consider and report the particular matters
referred to council under the Act with respect
to tribunals, Specified or not specified in the
schedule.
c) The council may determine to be of special
importance with respect to procedures
involving statuary inquiry.
Therefore the role of council emerged as an
advisory against the executive body. It shows that
the advisory role is to keep an eye on the
constitution and working of the tribunals and
brought that within the ambit of the legislation.
After the council report publishes, it emerged as a
‘watch dog’ for the public.
As per the position of appellate jurisdiction in India,
it recognized the judicial supervision over such
bodies through the Articles 136, 227, 32 & 226 of
Indian Constitution.
“The tribunals in India are creations of the statues,
the modes of appointment of members constituting
the tribunals and their tenure and removal is down
in the statues, even in most of the tribunals the
appointment generally is in the hands of the
Government.
The members of the tribunals are appointed as
accordance to the discretion of the government for
a limited period and that to renewable at the option
of appointing authority, it is an opportunity for the
retired officers having no equal attractive job
awaiting for them, may affect the independence and
impartiality of members.
In Dhakeshwari Cotton mills Ltd. V. Cit, AIR
1955, S.C. 154; the Supreme court stated that “ The
power of judicial review of the High Court’s under
articles 226 & 227 and of the Supreme Court under
Articles 32 & 36 is recognized by the constitution
and the same cannot be taken away by any statute,
and if the tribunals has acted without jurisdiction,
or if the order passed by tribunals is arbitrary,
perverse or malafide, or if it has not observed the
principles of natural justice, or the order is ultra-
virus the Act, or grave injustice is perpetuated by
the order of the tribunals the same can be set aside
by the High court or by the Supreme court [37]. So,
the Supervisory role played by the apex court.
8
The Role of Administrative Tribunal is
different from a court and also distinct from
Executive Authority
There was an abrupt growth of civil service
litigation in India, so the rules framed under
provision to article 309 of the constitution were not
sufficient because, differently interpreted the rules
for individual cases were inconsistent to the
standard taken by State before the courts and
various decisions of the courts reveals that
uncertainly in the matters relating to orders or rule
regulating recruitment, enforcement of discipline
fixation of quota and seniority etc, there was a land
waited pending cases in the particular area.
The government in 1976 implements the
recommendations of the Swaran Singh Committee
report and wit the amendment in Constitution of
India added a new part providing for the
establishment of tribunals. Mr. Indrajit Gupta
opined that if the proposed tribunals functional in a
particular way, there may rally give quicker and
perhaps more effective remedies than courts he
believed that it is of great importance particularly
in the case of service tribunals that they must be of
nature which command the confidence of the
employee.
Mr. C.M. Stphens believed that a new provision
establishing under -323(A) gives power to the
government to constituted a tribunal through
ordinary legislation. Mr. K. Narayan Rao pleaded
for a right of appeal and the establishment of an
Administrative appellate tribunal to deal with
service matters.
Further in the decision of L.Chandra Kumar “High
court quashed contempt proceedings for disobeying
its orders, holding that the Tribunal having been
held to be subordinate to the High court for the
purpose of Articles 226 and 227 and its decisions
having been subjected to judicial review
jurisdiction of the High court, the rights to file
appeal to the Supreme court against an order
passed by the tribunal under section-17 of the Act
was defeated and the section had became
unworkable and unconstitutional.” “In the above
said case, the court observed that the orders of a
tribunal holding content on as guilty should also be
subjected to judicial scrutiny of a High court
Articles 226 and 227 of the constitution.”
Therefore, the administrative tribunal is same to a
court in many aspects as the constitution of both is
done by the state, having permanent existence and
judicial power. Both are adjudicating bodies and
deal with disputes between the parties affected by
the rights of subjects, and also they discharge
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