KRISHNA INSTITUTE OF LAW

(Approved by BCI affiliated to CCSU, Meerut)

NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

LL.B. – 3rd Sem

Public Administrative Law
Public Administration
Public Administration is a branch of the wider field of administration. Public
means government at or of the government and Administration means ‘ to
serve To administer is to mange or to direct .Therefore public administration
means management of the government affairs at all levels national state and
local Generally ,the attempts of public administration seem to identify public
administration with the following :
 The executive branch of government.
 The formulation and implementation of public policies.
 Procedures followed by administrative authorities
 Remedies available to the persons in case of violation of their rights by
them.
Sources of Administrative
1. Constitution of India
2. Acts and Statutes
3. Ordinance, administrative directions, notifications and circulars
4. Judicial decisions
Causes for the growth of Public Administration
1. Emphasis on public welfare activities of the State
2. Industrialisation and Urbanisation
3. Administrative interference in the public life
4. Speedy and simpler modes of adjudication

1
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

5. Decentralization of economic resources and to ensure economic and

social justice
6. Inadequacy of judicial system
7. Demand of the people
8. Change in the concept of government
9. Inadequacy of legislation process
10. Policing of prevention measures
The Scope of the Study of Public Administration
Friednmann, while dealing with the nature and scope of Administrative law
says that Administrative law includes the law relating to:
1. The legislative powers of the administrative, both at common law and
under statute.
2. The administrative powers of the administration, both at common law
and under a vast many of statute.
3. The judicial and quasi-judicial powers of administrative, all of them
statutory,
4. The legal liability of public authorities
5. The powers of the ordinary courts to supervise the administrative
authorities.
In other words we can say its scope includes following scope:
1. Rule-making power of Administrative Agencies
2. Judicial Functions of Administrative Agencies
3. Remedies
4. Procedural Guarantees
5. Government liability
2
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

6. Public Sector Corporation

7. The Subject matter View of Administration
The POSDCORB view of Administration
POSDCORB (word) is made up of initials and indicates the following activities:
P – stands for planning i.e. , working out in board outline the things to be
done and the methods to be adopted for accomplishing of the purpose in hand
O – Stands for organization, building up the structure of authority through
which the entire work to be done in arranged into well defined subdivisions.
D – Stands for directing, i.e making decisions and issuing orders and
instruction.
Co – Stands for Co-ordination i.e. interrelating the various parts of the work
and elimination of overlapping and conflict.
R – Stands for reporting i.e. keeping both the superiors and subordinates
informed of what is going on and arranging
B Stands for budgeting which in American stands for whole of financial
administration
Importance of public Administration
1. The study of public administration helps the students learn the basic
concepts ,principles and theories of public administration.
2. The study of public administration helps to explain the purposes ,functions
and constitution of government bureaucracy.

3
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

3. The study of public administration provides knowledge of public

organization and the context in which and the methods by which they
operate
4. The study of public administration promotes at superior understanding and
its government and its relation with the society
5. It is useful as training for citizenship and for preparing citizens for an active
participation.
6. Its study makes us learn how to promote the public interest more effectively
7. Its study is useful to make public policies which are more responsive to
public needs.
Rule of Law
Meaning of Rule of Law
The term 'Rule of Law' is derived from the French phrase "la principle de
legalite" (the principle of legality) which means a government based on
principle of law and not of man.
Modern concept of the rule of law
(1) Law and Order
(2) Fixed rules
(3) Elimination of discretion;
(4) Due process of law or fairness;
(5) Natural Law or observance of the principles of natural justice;
(6) Preference for judges and ordinary Courts of law of executive
(7) Judicial review of administrative action.

4
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Formal meaning of the term “Rule of Law”

The term ‘rule of law’ can be used in two senses:
(i) Formal sense
(ii) Ideological sense
Dicey’s concept of Rule of Law :
Dicey in his book "The Law of the Constitution" attributed the following
meanings to Rule of Law:—
i. Supremacy of Law,
ii. Equality before Law, and
iii. Predominance of Legal Spirit.
Criticism of Dicey's Concept
1. He ignored the privileges and immunities enjoyed by the crown under the
cover of the Constitutional maxim that the king cannot do wrong
2. He also ignored the growth of administrative tribunals, which had come into
existence by 1885.
3. Dicey propounded individual liberty and criticised administrative
discretion but he failed to distinguish between discretion given to public
officials by a statute and the arbitrary discretion claimed by the king.
4. Dicey created a false opposition between ordinary law and special law and
between ordinary Courts and special tribunals when he says, firstly, that the
rule law required the equal subjection of all classes to the ordinary law of
the Courts and secondly that the rule of law was inconsistent with
administrative law.

5
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

5. He misunderstood and miscomprehended the real nature of the French

droti administrative .i.e. he thought discretion is same as arbitrariness.
Separation of Power
There are three departments of the government ,namely the executives ,the
legislative and the judiciary.they have their own functions but are
interconnected with each other and have over lapping functions.
Some persons believe that there should be clear separation of powers. any
concentration of powers will be most dangerous and destructive. Each
department should act as a check open the activities of the other.
It is basically agreed that ‘ separation of powers’ is essential for promoting
civil liberties and ending despotism and tyranny .But Water –tight
compartments of various department is both undesirable and impracticable .
Basic principles of the theory of Separation of powers
1. No concentration of Powers
2. Diffusion of powers needed
3. System of checks and balances
Merit of separation of power
1. It aims at individual liberty. It is a safeguard against despotism.
2. Its basic principle that concentration of powers leads to dictatorship is
true for all times and ages.
3. The separation of powers is desirable for maintaining the efficiency in the
administration.
4. The separation of powers save the people from the arbitrary rule of the
executive.
6
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

5. Each organ acts as a check upon the other.

6. The three functions require distinct qualities in the men who conduct
them.
7. It helps us to understand the value of liberty.
8. The theory of separation of powers lays down the cardinal principle that
government should act according to certain well established rules or
laws.
Criticism
1. It is impracticable .The theory of separation of powers ,though very nice
to look at .It is impossible to divide the three departments into water-
tight Compartments.
2. The theory of separation of powers makes a mistake in assuming that the
three branches of government are equally powerful and, therefore can be
independent of one another.
3. The theory of separation of powers is not desirable because if there is
complete separation of powers, the different organs of government will
not be able to work in co-operation and harmony.
4. The theory of separation of powers throws the government into
alternating conditions of coma and confusion.
5. If all branches are made separate and independent of each other, each
branch will try to safeguard its powers and will not protect the powers of
other branches.
6. It may be pointed out that the legislative which controls the purse is
superior to the rest of the branches. Hence, the three branches of the
government cannot be equated as done by Montesquieu.

7
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

7. These departments of the government ,namely the executives ,the

legislative and the judiciary ,are interconnected with each other and have
over lapping functions.
Delegated Authority
A great of legislation takes place outside the legislature i.e. in Government
Department .there is no such general power granted to the executives to make
law. it only supplements the law under the authority of the legislature .This
type of activity namely ,the power to supplement legislation is known as
delegated legislation
Reason for delegated authority
1. Pressure upon Parliamentary time:
2. Technicality of Subject-matter:
3. Contingency Provision:
4. Experiment :
5. Emergency Measures :
CLASSIFICATION OR FORMS OF DELEGATED LEGISLATION
There are several ways for classifying delegated legislation:—
1. Title based classification- Under this head come rules, regulations,
orders, bye-laws, directions and scheme etc.
 Rule:
 Regulation:
 By-laws:
 Order:
 Direction:
8
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

 Scheme:
2. Discretion based classification
3. Purpose based classification-This classification involves consideration
of delegated legislation in accordance with different purposes, it is made
to serve. It includes:
a. Enabling Act:
b. Extension and application Act:
c. Dispensing and Suspending Act or Exclusion and Inclusion Act:
d. Alteration Act:
e. Taxing Act:
f. Supplementary Acts:
4. Authority based classification (sub delegation)
5. Nature base classification
 Positive Delegation
 Negative Delegation
6. Exception Delegation

 Power to legislate on matters of principle

 Power to amend Acts f parliament
 Power to a make rules without being challenged in a court of law.
Essential of legislative function
(i) Skeleton Legislation
(ii) Power of inclusion and exclusion
(iii) Power of modification of the Statute
(iv) Abdication test:
(v) Power to impose tax
9
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

(vi) Retrospective Operation of Delegated Legislation

Control of Delegated Legislation
In order to ensure that the power of delegated legislation is not misused ,it has
been subjected to three-fold control . These modes of control may be classified
under the following heads :-
1. PARLIAMENTARY/LEGISLATIVE CONTROL- Legislative Control is a two
stage control:
A. Initial stage (At the stage of delegation power)
B. Second stage [When legislature exercises control in two parts] (direct and
indirect control)
 Direct Control: In this the important aspect is the laying requirement
which means that the rules have to be placed before the Parliament. It
assumes three major forms.
(a) Simple laying
(b) Negative laying or subject to annulment or modification:
(c) Affirmative laying .
2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL
3. Judicial Control
Natural justice
Natural justice is an idealistic principle which is used for humanizing
administrative action. Whenever the Courts insist on observance of the
principles of natural justice, it means that they take humanistic view of the
issue required to be considered. “Natural justice is another name of common-
sense justice. Rules of natural justice are not codified canons. Natural justice is

10
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

the administration of justice through common-sense and in a liberal way.

Justice is based substantially on natural ideals and human value..
The concept of natural Justice entails two principles:
1. Nemo judex in cause sua: - No man shall judge in his own case or the
deciding authority must be impartial and without bias- Rule against Bias.
2. Audi alteram partem : Hear the other side ,or both sides must be heard
,or no man should be condemned unheard or that there must be fairness
on the part of deciding authority –Rule of hearing or fair hearing .
1. Rule again bias (Nemo judex in cause sua)
The first principle of natural justice is rule against bias .it means that the
deciding authority must be impartial and neutral. That bias disqualifies an
individual from acting as Judge in his own case due to two principles-

 No one should be judge in his own cause; and

 Justice should not only be done but seen to be done. Proceedings before a
deciding authority may be vitiated if he is biased or has his own interest in
the case before him Bias appears in various forms which may affect the
decisions in variety of ways. The various types of bias are:
(a) Pecuniary bias;
(b) Personal bias;
(c) Subject –matter bias;
(d) Department bias; and
(e) Judicial obstinancy
Exception to the rule against Bias:
1. Doctrine of necessity
11
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

2. Waiver
2. Rule of Hearing (Audi alteram partem)
The audi alteram partem rule means that no one should be condemned
unheard .In a civilized society it is assumed that a person against whom any
action is sought to be taken or whose right to interest is being affected shall be
given a reasonable opportunity to defend himself.
Component of fair hearing

 Right to Notice
 Right to know the evidence against
 Right to present case and evidence
 Disclosure of all evidence /Materials
 Right to rebut adverse evidence
 Right to enquiry report
 Right to hearing.
Exception to natural justice
1. Statutory exclusion
2. Legislative function
3. Emergency
4. Impracticability
5. Academic evaluation
6. Interim disciplinary action
7. Contractual Transaction
8. “Useless formality” theory

12
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Public Interest Litigation

The true nature of PIL is that if a selfless citizen or an organization having no
personal motive of any kind except either compassion of the weak and
disabled or deep concern for stopping serious public injury approaches the
court either for:
1. Enforcement of fundamental rights of those who genuinely do not have
adequate means of access to the judicial system ,or
2. Extending benefit of the statutory provisions incorporating the directive
principles of State policy to those who are denied of the same Preventing or
annulling executives acts and omissions violative of Constitution or law
resulting in substantial injury to public interest.
Characteristics of PIL
1. Petitions in PIL are filed on behalf of such group or class or persons,
2. Petitions are on behalf of such group or class of persons, who on account of
their social, economic or other constraints cannot approach for the court for
any legal remedy.
3. Action is initiated in PIL against irresponsible ,illegal acts of Government
4. It is a new concept of jurisprudence which is developing its own mechanism
for justice.
5. It is a law proposed and propounded by judges.
6. It gives rise to such causes of action where legal damage has been caused to
the public at large or a section of it .
7. Any public spirited person or member of an organization ,who initiates
public interest litigation must have bona fide interest in social welfare his

13
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

intentions must be free from a malice and he should not start the action
under the influence of extraneous considerations.
Reasons for the growth of PIL
1. Article 38 of the Constitutional ensures social, political and economic
justice and Article 39 embodies the jurisprudential doctrine of
distributive justice.
2. PIL was pleaded for the relaxation and liberalization of locus standi rule.
Since then judicial process has been revolutionized to promote PIL in
India.
3. This necessitated the filling of petitions by public spirited persons or
organization for protecting public interest.PIL has been accepted as a
reality.
4. In every social order the right to get an effective justice is a guaranteed
legal right.
5. Ours is a poor Country where nearly forty per cent of the population lives
below poverty line and next forty per cent just on poverty line.
6. In modern times judicial process takes a long time to finally dispose of the
matter.
7. The practice of taking suo motu cognizance of the complaints and
grievances of the people and cases of excesses and injustices published in
the newspapers, has given new dimension to the jurisdiction of the court
which paved the way for pil.
8. The concept of PIL emerged from ill consequences of such acts The
concept of PIL emerged out of these considerations.

14
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Ombudsman
Ombudsman means “the grievance man” or “a Commissioner of the
Administration “he is” an Officer of parliament having as his primary function,
the duty of acting as an agent for parliament, for the purpose of safeguarding
citizens against abuse or misuse of administrative power by the executive”
The term ‘Ombudsman’ refers only to institutions which have three basic and
unique characteristic:
I. Ombudsman is an independent and non-partisan officer of the legislature
who supervises the administration;
II. He deals with specific complaints from the public against administrative
injustice and mal-administrative,
III. He has the power to investigate ,criticize and report back to the legislature
,but not to reverse administrative action,
Importance
1. Ombudsman means ‘Watchdog of the administrative’ or ‘the protector of
the little men
2. Ombudsman inquires and investigates all complaints made by citizens
against the abuse of discretionary power, mal-administrative or
administrative inefficiency and takes appropriate actions.
3. Very wide powers are given to him .He has access to departmental files
.The complainant is not required to lead my evidence before the
Ombudsman to prove his case.
4. He is empowered to grant relief to the aggrieved person.

15
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

5. His function is to satisfy himself whether his complaint was justified or

unjustified .He can act even suo motu His powers are not limited like the
powers of a Civil Court
Position
Ombudsman is ‘Public safety valve ‘against mal-administrative .A good system
of administration, in the ultimate analysis has to be responsible and responsive
to the people .An Ombudsman has become a standard part of the machinery of
any democratic government in the modern world
Lokpal
Inspired by the idea that there is an effective procedure or mechanism to
redress individual’s grievances against administrative evils, through the
institution of Ombudsman ,the administrative Reforms Commission
recommended for the establishment of an office in India Known as Lokpal .In
its interim Report it gave the following reason inter alia:
1. Since a democratic Government, is a Government of the people ,by the
people and for the people ,it has an obligation to satisfy the citizens about
its functioning and to offer them adequate means for the ventilation and
redress of their grievances.
2. The existing institutions of judicial review and parliamentary control are
inadequate in view of ever expanding range of Government activities
most of which are discretionary.
Following principles which should be borne in mind in setting up such
institution in India.
a. He should be demonstrably independent and impartial.
16
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

b. His investigations and proceeding should be conducted in private and

should be informal in character.
c. His appointment should, as far, as possible, be non –political.
d. His status should compare with the highest judicial functionary in the
country.
e. He should deal with matters in the discretionary field involving acts of
injustice, corruption or favoritism.
f. His proceeding should not be subject to judicial interference and he
should have the maximum latitude and powers in obtaining information
relevant to his duties.
g. He should not look forward to any benefit or pecuniary advantages from
the executive Government.
Service conditions and appointment of LokPal:-
1. As mentioned in the Draft Bill appended to the interim report of the
commission ,the Lok Pal is to be appointed by the President ,on the advice
of the Prime –Minister in consultation with the Chief Justice of India and
the Leader of opposition in Lok Sabah
2. The person who is to be appointed as Lok pal must have served his
connection ,if any with any political party, his membership in parliament
or the Legislature of State or any office of profit
3. He can hold office for five years with eligibility for re-appointment .He
shall not be removed except by procedure of impeachment as in the case
of Supreme Court Judges. His status and salary shall be the same as that of
the chief –Justice of India

17
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Jurisdiction of LokPal
The Lok Pal is empowered to investigate into any administrative action taken
by or with the approval of a Minister or Secretary of Union or State
Government either on receiving a written complaint by an aggrieved person or
on suo-motu, relating to mal-administrative,
Exception of Jurisdiction (Matters excluded)
There are certain matters excluded from the jurisdiction of Lok Pal.
a. Exercise of power to determine whether a matter shall go to court or not.
b. A discretionary action, except where there has been no exercise of
discretion at all.
c. Action relating to foreign Government.
d. Action taken under Foreigner’s Act and the Extradition Act.
e. Action relating to commercial relations governed by contract.
f. Action taken for the investigation of crime
g. Action taken relating to appointments and removals etc.
Procedure:-
The Lok Pal can entertain a complaint from any person’s other than a public
servant .The bill empowered the Lok Pal to require a public servant or any
other person to give such information as may be desired or to produce such
documents which are relevant for the purpose of investigation .The LokPal
shall have the power of a Civil Court under the C.P.C ., 1908 for the purpose of
summoning witness etc. for securing evidence.

18
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Lokayukta
Lokayukta in States
Lokayukta shall be appointed by the Governor with the consultataion of the
Chief Justice of the High Court and Leader of the opposition in the Legislation
Assembly .The Up Lokayukta shall be appointed by the Governor after
consultation with Lokayukta . The Up Lokayukta shall be subject ot
administrative control of Lokayaukta .The Lokayukta shall be a person who is
or has been a judge of the Supreme Court of High Court . The Lokayukta and Up
Lokayukta should not be a member of any Legislature and should not be
connected with any political party and should not hold any office of profit nor
should carry his business or any profession
Functions of Lokayukta

 Investigation into the citizens “grievances” of injustice and hardship

caused by maladministration.
 Inquiry into” allegation “of abuse of office, corruption or lack of integrity
against public servant .
a. Supervision over an investigation of anti corruption agencies,
authorities and officers.
b. Investigation in any action not mentioned in the Act
“notwithstanding” anything contained therein, if required by the
Governor, by an order.
Administrative Tribunal
There are a large number of laws which charge the Executives with
adjudicatory functions and the authority so charged are in the strict sense

19
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

administrative tribunal .Administrative tribunals are agencies created by

specific enactments to adjudicate upon controversies that may rise in the
course of the implementation of the substantive provisions of the relative
enactments.
Characteristic of Administrative tribunals
(i) Tribunals are established by the executives under the provisions of
Statue.
(ii) Although they are required to act judicially, they perform quasi-judicial
functions.
(iii) Tribunals are independent and impartial and work without being
influenced by the Government.
(iv) They have the powers of Civil Courts in certain matters and their
proceedings are considered to the judicial proceedings.
(v) Tribunals are required to follow the technical rules of the procedure
and evidence prescribed by the civil procedure Code and Evidence Act.
But they adopted the procedure which may be prescribed in the statue
or may prescribed by the rules made under the statue or may be
adopted by the tribunals itself.
(vi) Tribunals are not courts in the proper sense of term
Administrative tribunals are established for the following reasons:
(i) Policy consideration
(ii) Inadequacy of Judicial System
(iii) Merits of the System of Administrative Adjudication
(iv) Need for expertise
(v) Preventive measures

20
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

(vi) Policy of preventive measures

Demerits of the System of administrative Tribunals
1. The tribunals are not generally governed by the provisions of the
procedural laws and law of evidence .the proceedings are not generally
required to be conducted in public.
2. There is no provision of appeal against the decisions of tribunals .it has
been found that great power is vested in the hands of few men.
3. The persons sitting in the tribunals need not be legal experts, nor do they
require legal qualification in general.
4. Hence there are no specific provisions for evidence on oath, there can be
no proper cross- examination ‘as in court of law’, and so it becomes too
difficult a task to get truth.
Constitutional Recognition of administrative Tribunals
There are provisions under the Constitution of India which recognize the
existence and importance of Tribunals .Article 136 and 227 expressly mention
the word ‘Tribunal’
1. As provided under Article 136, the Supreme Court has discretionary power
to grant special leave to appeal from the judgment, decree, determination,
sentence or order in any case or matter passed or made by any Court or
Tribunal in the territory of India.
2. Under Article 227, it is provided that every High Court has supervisory
power over all Courts and Tribunals throughout the territories in relation to
which it exercise jurisdiction.

21
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

3. The use of Administrative Tribunals as a mode of deciding disputes is on the

increase because it has all the benefit of a Court without suffering from its
limitations.
4. There are two Article in Part XIV which provide for establishment of
Tribunals. Article 323-A lays down that parliament may, by law provide for
the adjudication or trial by administrative Tribunals of disputes and
complaints with respect to recruitment and condition of services and posts
in connection with the affairs of Union or of Any State or any local or other
authority within territory of India under the Control of the Government of
India or of any Corporation owned or controlled by the Government
Industrial Tribunals
It is set up under the industrial Disputes Act, 1947 .its jurisdiction is invoked
by the Central Government where an industrial dispute concern a Government
of India undertaking, a controlled industry, a banking company or an insurance
company and oil exploration concern posts etc. in cases where Government of
India has no direct concern, the tribunals may be constituted by appropriate
Government .An industrial dispute means any dispute or difference between :
(1) Employers and employees or
(2) Employers and workmen, or
(3) Workmen or workmen
This is connected with;

 The employment or non-employment

 The terms of employment; or
 The condition of labour

22
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Section 7-A of the industrial Disputes Act, 1947, provide as follow:

1. The appropriate Government may, by notification in the Official Gazette
,constitute one or more industrial Tribunals for the adjudication of
industrial disputes relating to any matter ,whether specified in the 2nd
Schedule or in the 3rd Schedule
2. A tribunal shall consist of one person only to be appointed by the
appropriate Government.
3. A person shall not be qualified for appointment as the presiding Officer of a
tribunal unless :
 He is or has been ,judge of a High Court; or
 He has held the office of the Chairman or any other member of the
labour appellate tribunal constituted under the industrial Disputes
(Apellate Tribunal) Act 1950 or of any tribunal for a period or not less
than two years.
4. The appropriate Government, if it so thinks fit ,shall appoint two persons as
assessors to advise the tribunal in the proceeding before it .
Difference between Administrative Tribunals and Courts.

Court Administrative Tribunal

A court of law is a part of the The administrative tribunal is an

traditional judicial system. agency created by a statute
endowed with judicial powers.

A court of law is vested with It deals with service matters and is

general jurisdiction over all vested with limited jurisdiction to

23
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

matters. decide a particular issue.

The courts follow a uniform, fixed There is no uniform procedure that

statutory procedure. the administrative tribunals are
required to follow to exercise
adjudicatory powers.

The court exercises only judicial Administrative tribunals undertake

functions. various other administrative
functions.

All courts are tribunals, but all Tribunal is wider than court.
tribunals are not courts.

It can decide the validity of It cannot decide the validity of

legislation. legislation.

The courts do not follow Many tribunals perform

investigatory or inquisition investigatory functions as well,
functions, rather it decides the along with their quasi-judicial
case on the basis of evidence. functions.

The decision of the court The decision is subjective, i.e. at

is objective in nature, primarily times, it may decide the matters
based on the evidence and taking into account the policy and
materials produced before the expediency.
court.

It is presided over by an officer It is not mandatory in every case

expert in the law. that the members need to be trained
and experts in the law.

24
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

WRITS–TYPES AND SCOPE

The Supreme Court (under Article 32) and the high courts (under Article 226)
can issue the writs of habeas corpus, mandamus, prohibition, certiorari
and quo-warranto. Further, the Parliament (under Article 32) can empower
any other court to issue these writs. Since no such provision has been made so
far, only the Supreme Court and the high courts can issue the writs and not any
other court.
1. Habeas Corpus
It is a Latin term which literally means ‘to have the body. It is an order issued
by the court to a person who has detained another person, to produce the body
of the latter before it. The court then examines the cause and legality of
detention. It would set the detained person free, if the detention is found to be
illegal. Thus, this writ is a bulwark of individual liberty against arbitrary
detention.
The writ of habeas corpus can be issued against both public authorities as well
as private individuals.
The writ, on the other hand, is not issued where the-
(a) detention is lawful,
(b) the proceeding is for contempt of a legislature or a court,
(c) detention is by a competent court, and
(d) detention is outside the jurisdiction of the court.
2. Mandamus
It literally means ‘we command’. It is a command issued by the court to a
public official asking him to perform his official duties that he has failed or
refused to perform. It can also be issued against any public body, a corporation,
an inferior court, a tribunal or government for the same purpose.

25
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

The writ of mandamus cannot be issued-

(a) Against a private individual or body;
(b) To enforce departmental instruction that does not possess statutory
force;
(c) When the duty is discretionary and not mandatory;
(d) To enforce a contractual obligation;
(e) Against the president of India or the state governors; and
(f) Against the chief justice of a high court acting in judicial capacity.
3. Prohibition
Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or
tribunal to prevent the latter from exceeding its jurisdiction or usurping a
jurisdiction that it does not possess. Thus, unlike mandamus that directs
activity, the prohibition directs inactivity. The writ of prohibition can be issued
only against judicial and quasijudicial authorities. It is not available against
administrative authorities, legislative bodies, and private individuals or bodies.
Facts about Prohibition in India:

 Writ of Prohibition can only be issued against judicial and quasi-judicial

authorities.
 It can’t be issued against administrative authorities, legislative bodies and
private individuals or bodies.
4. Certiorari
In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a
higher court to a lower court or tribunal either to transfer a case pending with
the latter to itself or to squash the order of the latter in a case. It is issued on
the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
Thus, unlike prohibition, which is only preventive, certiorari is both preventive
as well as curative. Previously, the writ of certiorari could be issued only
against judicial and quasi-judicial authorities and not against administrative
26
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

authorities. However, in 1991, the Supreme Court ruled that the certiorari can
be issued even against administrative authorities affecting rights of
individuals. Like prohibition, certiorari is also not available against legislative
bodies and private individuals or bodies.
Facts about Certiorari in India:

 Pre-1991: The writ of Certiorari used to be issued only against judicial

and quasi-judicial authorities and not against administrative
authorities
 Post-1991: The Supreme Court ruled that the certiorari can be issued
even against administrative authorities affecting the rights of
individuals
 It cannot be issued against legislative bodies and private individuals or
bodies.
5. Quo-Warranto
In the literal sense, it means ‘by what authority or warrant’. It is issued by the
court to enquire into the legality of claim of a person to a public office. Hence, it
prevents illegal usurpation of public office by a person.
The writ can be issued only in case of a substantive public office of a
permanent character created by a statute or by the Constitution. It cannot be
issued in cases of ministerial office or private office. Unlike the other four
writs, this can be sought by any interested person and not necessarily by the
aggrieved person.
Facts about Quo-Warranto in India:

 Quo-Warranto can be issued only when the substantive public office of a

permanent character created by a statute or by the Constitution is
involved
 It can’t be issued against private or ministerial office
27
 KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)
NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427

Note: This writ gives the right to seek redressal to any individual other than the
aggrieved person.

28