ADMINISTRATIVE LAW

E-mail this Comments Print Article

Role of the Central Administrative Tribunal
: Whether Confined to Judicial Review ?
A Critique of Union of India v. Parama Nanda
by Anupa v. Thapliyal *

Cite as : (1990) 1 SCC (Jour) 11

The recent judgment of the Supreme Court in Union of India v. Parma Nanda1 has an important bearing on the role or function of the Central Administrative Tribunal (the Tribunal) established under the Administrative Tribunals Act, 1985 (also referred to as "the Act"). In this case while exercising its power under Article 1362 the Court has held that the Tribunal could exercise only such powers which the civil court or the High Court could have exercised by way of judicial review, it is neither less nor more3 The well-known principle of administrative law relating to judicial review of administrative powers (hereinafter simply referred as "judicial review") by the High Courts is, that the courts do not go into the merit of exercise of discretion under these powers by administrative authorities. Control by courts operates purely on technical points of law, such as: whether the concerned authority has acted on relevant considerations; whether the decision of authority is based on no evidence; and whether the authority has followed the principles of natural justice, etc4 Thus while performing the function of judicial review of administrative power, courts role is merely peripheral. Courts do not act as an appellate forum i.e. they do not reappreciate the evidence or go into details of factual record and replace their decision for the decision of the administrative authority. The question arises : Whether the Tribunal is also bound by the same limit of judicial review as the High Courts? In Parma Nanda the Supreme Court answered this question in affirmative5; and thereby restricted the role or function of the Tribunal.

It is argued in this paper that the above restrictive interpretation of the role of the Tribunal has neither been envisaged by Article 323-A of the Constitution, nor by the Administrative Tribunals Act passed under it. Besides, such a restrictive interpretation of the function of the Tribunal is not supported by the administrative law understanding of the term Tribunal. For clarity of these arguments the discussion starts with a brief account of facts of the case.

The factual situation giving rise to above pronouncement of the Supreme Court in Parma Nanda was like this : Parma Nanda was a government servant who was in charge of preparing the pay bills and other bills of the work charged employees in Beas-Sutlej Link Project. It was alleged that he prepared the false pay roll, issued fictitious identity card and masterminded the plan of withdrawal of the pay for the month of May 1969 in the name of one Ashok Kumar though the said person was not working in the division.

Departmental inquiry was conducted against Parma Nanda and two others. After a detailed inquiry Parma Nanda was dismissed, while the other two persons were allowed to remain in service with minor penalties of withholding 2 or 3 increments imposed on them.

Parma Nanda moved the Himachal Pradesh High Court through a writ petition. This petition was transferred to Chandigarh Bench of the Tribunal after passing of the Administrative Tribunals Act. After consideration of the matter the Tribunal held :

"The findings regarding the applicant being the mastermind behind the attempt to defraud the project appears to have weighed with the disciplinary authority while dismissing the applicant from service. An appreciation of the evidence ... would show that the applicant had entered the name of Shri Ashok Kumar in the pay roll for May 1969 and so far as other evidence against him is concerned, it is mostly of circumstantial nature. There is no direct or expert-evidence that it was he who had marked the attendance of Shri Ashok Kumar in the pay roll for May or that it was he who had initialled the identity card... As such it is a case where the applicant should not be measured with a different yardstick than others who have been punished along with the applicant. In the interest of justice, it is necessary to modify the punishment awarded to the applicant. We, therefore, direct that the punishment of dismissal awarded to the applicant be reduced to that of stopping of his five increments which he had earned for a period of five years...."6              (emphasis supplied)

In a special leave to appeal the Supreme Court decided upon the question: Whether the Tribunal could interfere with the penalty awarded by the competent authority on the ground that it is excessive or disproportionate to the misconduct proved? While answering this question, K. Jagannatha Shetty, J., speaking for the Court (consisting of himself, A.M. Ahmadi and Kuldip Singh, JJ.) proceeded on the restrictive premise of "judicial review". He pointed out that this question could not be answered without reference to the scope of judicial review in pre-Tribunal period; and after referring to some cases on limits of judicial review, held that the Tribunal cannot reappreciate evidence; and act as an appellate forum.

For proceeding on the above restrictive premise, Shetty, J. referred to : (i) the purpose of establishment of the Tribunal; (ii) the fact that before coming up of the Tribunal courts were dealing with disputes in service matters through judicial review; (iii) the decision of the Supreme Court in Sampath Kumar7 was that the Tribunal is a substitute of High Courts.

Purpose or role or function of the Tribunal has been clearly stated (i) in Article 323-A of the Constitution; (ii) in the Preamble and Statement of Objects and Reasons of the Administrative Tribunals Act. Article 323-A empowers the Parliament to pass an Act setting up Administrative Tribunals for adjudication or trial of disputes in service matters8 The preamble of the Act passed under Article 323-A states, inter alia, that this is an Act to provide for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union. Also, the Statement of Objects and Reasons for the Act clearly mention that the purpose or role of the Tribunal is adjudication or trial of disputes in service matters9. The term adjudication or trial used in Article 323-A(l), preamble and the Statement of Objects and Reasons of the Act are broader than the term judicial review. The meaning of the term trial or adjudication includes examination or determination of factual issues10. Therefore, by using these terms expressly in the Constitution as well as in the Act, the law makers intended that function of the Tribunal should not be limited only to the peripheral control through judicial review. The same intention is also evident from the following observation of Sardar Swaran Singh who was the author of the Forty-Second Amendment including the important provision of Article 323-A of the Constitution. Thus speaking during the Lok Sabha debates on establishment of Administrative Tribunals for giving relief to persons aggrieved, he observed:

"... they (i.e. the persons aggrieved) should not only be left to go to the High Courts on a very limited jurisdiction ..., but there should be a regular full fledged tribunal to deal with these matters.... The whole object is to do justice to them, not to close the doors of justice...."11              (emphasis supplied)

It is submitted that while referring to Article 323-A and the Administrative Tribunals Act, Shetty, J. overlooked the expressly mentioned purpose for establishing the Tribunal - that the Tribunal is being set up for adjudication or trial of disputes in service matters; and thus his finding that the Tribunal has been set up only for performing the role of function of judicial review in these matters is not supported by the Act and the Constitution.

Going into the finer aspects, it may be pointed out that the real question in Parma Nanda was about the role or function of the Tribunal and not about its jurisdiction power and authority. Meaning of these words is not the same. Role or function means appropriate activity, assignment, purpose, task, work, undertaking character, job, mission etc.12; while jurisdiction, power and authority means capacity to decide, capacity to hear, command, control, domain, sphere, range, territorial range etc.13 For example, jurisdiction, power and authority of High Courts may be explained by giving category of persons on whom it has command or control, area within which it has control, also, the types of orders, directions, writs etc. which it may issue, whereas the role or function of High Court with respect to administrative power, may be explained by saying that the courts perform the role or function of judicial review of administrative power by ensuring that the administration acts legally, and while doing so they do not go into the merit or exercise of power by administrative authorities like an appellate court. It is submitted that though the jurisdiction, power or authority of the Tribunal may be same as that of courts for which it was substituted14, its role is not the same; and to determine the question of role or function Shetty, J. should not have overlooked the fact that Section 14 of the Act, on which he heavily relied, deals only with jurisdiction, power and authority and not with overall role of the Tribunal; and this section is subject to other express provisions of the Act which read with Preamble and Statement of Objects and Reasons clearly envisage broader role for the Tribunal. For example, Section 22 of the Act which provides that the Tribunal shall decide every application on perusal of documents and written representation and after hearing of oral arguments (if advanced) shows that the Tribunal can act as independent expert appellate forum. In addition, the provision relating to composition of the benches of the Tribunal,15 also ensures that the Tribunal acts as an expert forum to give justice to government servant. Finality given to the decision of the Tribunal,16 and exclusion of jurisdiction of all courts except the Supreme Court,17 also indicates that Tribunal is to act as specialised expert adjudicatory forum.

Besides, when the Tribunal has power to decide, it also has the power to work out details of procedure in matters before it. In Parma Nanda, when the Tribunal insisted that the severe punishment of dismissal could not be awarded to a government servant merely on circumstantial evidence without establishing thorough expert evidence that fraudulent entries were in his handwriting18, it was properly performing its role and function within the limits of its power; and the Supreme Court should not have interfered in the decision of the Tribunal on the question relating to the quality of evidence which should be insisted in the matters before the Tribunal.

It is further submitted that the administrative law understanding of the term tribunal also do no support the view that the functions of Tribunal be limited to that of judicial review. Foulks while speaking on role of Tribunal in classic sense points out that the role of the Tribunal is to hear appeals from decisions taken initially by a department.19 Franks Committee points out that Tribunals are not ordinary courts, but neither are they appendages of Government Departments. Tribunals should properly be regarded as machinery provided by Parliament for adjudication.20 Thus confining the function of the Tribunal exactly to that of courts is not proper. The mere fact, that before a special expert adjudicatory forum was set up, the function was performed by courts, cannot lead to conclusion that the new expert forum should also be confined by limits of control by court. Such a restrictive view on the role of the Tribunal goes against the spirit of Article 323-A and the Administrative Tribunals Act.

It may be interesting to note that the ratio in the leading case of Sampath Kumar21 did not lay down that function of Tribunal should exactly be of judicial review neither less nor more. In Sampath Kumar the question was mainly relating to composition of the Tribunal; and the Court thereby directed certain amendments in the Administrative Tribunals Act, to ensure that composition-wise the Tribunal becomes an equally efficacious and effective machinery, as the High Courts so that the people will have same confidence in the Tribunal as they have in the High Courts. It is only in this context that the Supreme Court in Sampath Kumar talked about judicial review. Thus the holding in Sampath Kumar cannot be invoked to restrict the scope or role or function of the Tribunal.

Perhaps the decision of the Court in Parma Nanda was influenced by the policy approach that any sympathy or charitable view of the official who was a party to the fraudulent act will not be conducive to keep streams of administration pure.22 It is submitted that the matters of policy relating to approach of the Tribunal should better be left for the Tribunal on which the discretion has been conferred by the Act. The Tribunal is to try or adjudicate the disputes relating to recruitment and other service matters of the central government servants by going into the facts and documents in each case; and this may sometimes properly require going into the merit of exercise of discretion by the departmental authority; and also correcting its decision, if necessary.

In view of the above arguments it may be said that the term judicial review, to describe the role or function of the Tribunal is a misnomer; and by using this term restriction should not be imposed on the role of the Tribunal which is an expert adjudicatory (quasi-judicial) body specially created under the Constitution.23

* LL.M., Ph.D (Law), Research Associate, Department of Law, University of Poona Return to Text

1. (1989) 10 ATC (SC) 30: (1989) 2 SCC 177 Return to Text
2. Constitution of India, Article 136 Return to Text
3. Supra, n. 1, p. 38 Return to Text
4. For the limits of judicial review of administrative power by courts, see M.P. Jain & S.N. Jain, Principles of Administrative Law, 219-314; pp. 550-611 (N.M. Tripathi Pvt. Ltd., Bombay, 4th Edn. 1986) Return to Text
5. Supra, n. 1, p. 42 Return to Text
6. Ibid., pp. 34-35 Return to Text
7. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124: (1987) 2 ATC (SC) 82. For a critique of this case see, Aman Preet Dhingra, Administrative or Judicial Tribunal, 30 JILI 103 (1988) Return to Text
8. See Constitution of India, Article 323-A(l) Return to Text
9. See the Administrative Tribunals Act Return to Text
10. William C. Burton, Legal Thesaurus, pp. 11 & 494 (Macmillan Publishing Co. Inc., New York, Deluxe Edn. 1980) Return to Text
11. Lok Sabha Debates, 5th Series, Vol. LXV, No. 2, Oct. 26, 1976, Col. 37-38 Return to Text
12. See, supra, n. 10, pp. 237, 457 Return to Text
13. Ibid. pp. 39, 303, 392 Return to Text
14. Even, on jurisdiction, it cannot be probably said that it is exactly same. Whether theTribunal should have the jurisdiction to issue writs, seems to be a controversial question. On this point see K.I. Vibhute, "Administrative Tribunals and the High Courts : A Plea for Judicial Review", 29 JILI (1987) 524, 538-39; No Supreme Court decision on this point has been noted so far Return to Text
15. See Administrative Tribunals Act, 1985, proviso to Section 5(4) Return to Text
16. Ibid. Section 27 Return to Text
17. Ibid. Section 28 Return to Text
18. See, supra, n. 6 Return to Text
19. David Foulks, Administrative Law, p. 128 (Butterworths, London, 5th Edn. 1982) Return to Text
20. Report of the Committee on Administrative Tribunals and Enquiries, p. 9 (1957) Return to Text
21. Supra, n. 7 Return to Text
22. See supra, n. 1, p. 45 Return to Text
23. The fact that the constitutional provisions on Tribunals are not included under Part V or Part VI dealing with the judiciary, but are given separately under Part XIV-A of the Constitution, also indicates that the Tribunal is not to function exactly as a court Return to Text