The term Tribunal is derived from the word Tribunes, which
means Magistrates of the Classical Roman Republic. Tribunal is referred to as the
Office of the Tribunes i.e., a Roman Official under the Monarchy and the
Republic with the function of protecting the plebeian citizen from arbitrary
action by the Patrician Magistrates. A Tribunal, generally, is any person or
institution having an authority to judge, adjudicate on, or to determine claims
or disputes - whether or not it is called a Tribunal in its title.
'Tribunal' is an administrative body established for the purpose of discharging
quasi-judicial duties. An Administrative Tribunal is neither a Court nor an
executive body. It stands somewhere midway between a Court and an administrative
body. The exigencies of the situation proclaiming the enforcement of new rights
in the wake of escalating State activities and furtherance of the demands of
Justice have led to the establishment of Tribunals.
The delay in Justice administration, is one of the biggest obstacles which have
been tackled with the establishment of Tribunals. According to H.W.R Wade:
The social legislation of the Twentieth Century demanded Tribunals for purely
administrative reasons; they could offer speedier, cheaper and more accessible
justice, essential for the administration of Welfare Schemes involving large
number of small claims. The process of Courts of law is elaborate, slow and
costly....Commissioners of customs and excise were given Judicial powers more
than three centuries ago. Tax tribunals were in fact established as far back as
the 18th century.
In due course of time, a need for a system of adjudication has arisen which is
more suited to give response to the emerging requirements of the society which
may not be so elaborate and costly as provided by the Courts of Law. The primary
reason for the creation of Tribunals was to overcome the crisis of delays and
backlogs in the administration of justice. Therefore, the Administrative
Tribunals have been established to overcome the major lacuna present in the
Justice delivery system in the light of the legal maxim Lex dilationes semper
exhorret which means 'The law always abhors delays'.
The Law Commission of India in its 14th Report (1958) titled Reform of Judicial
Administration recommended the establishment of an Appellate Tribunal or
Tribunals at the Centre and in the States. Later, in its 58th Report (1974)
titled `Structure and Jurisdiction of the Higher Judiciary', the Law Commission
urged that separate high powered Tribunal or Commission should be set up to deal
with the service matters and that approaching the Courts should be the last
The High Court Arrears Committee set up under the Chairmanship of Justice J. C.
Shah (1969), recommended for setting up of an independent Tribunal to handle
service matters pending before the High Courts and the Supreme Court. Later on,
the Swaran Singh Committee which was appointed to study, 'the required changes
in fundamental laws', recommended in 1976 that the Administrative Tribunals may
be set up under a Central Law, both at the State level and at the Centre to
decide cases relating to service matters.
Based on the recommendations of the Swaran Singh Committee, Part XIV-A was added
by the Constitution (Forty-second Amendment) Act, 1976, titled as Tribunals which provided for the establishment of 'Administrative Tribunals' under Article
323-A and 'Tribunals for other matters' under Article 323-B of Constitution of
The main objective of establishing Tribunals as set out in the Statement
of Objects and Reasons of The Constitution (Forty-Second Amendment) Act, 1976 is
'To reduce the mounting arrears in High Courts and to secure the speedy disposal
of service matters, revenue matters and certain other matters of special
importance in the context of the socio-economic development and progress, it is
considered expedient to provide for administrative and other Tribunals for
dealing with such matters while preserving the jurisdiction of the Supreme Court
in regard to such matters under Article 136 of the Constitution.'
With the enactment of Administrative Tribunals Act, 1985, a large number of
cases relating to service matters pending before various Courts were brought
within the jurisdiction of the Tribunals. Administrative Tribunals created under
Article 323-A of Constitution of India have been freed from technical rules of
Indian Evidence Act, 1872 and procedural shackles of the Code of Civil
Procedure, 1908 but, at the same time, they have been vested with the powers of
Civil Court in respect of some matters including the review of their own
decisions and are bound by the principles of natural justice.
Bypassing The Jurisdiction of High Courts
Access to Justice is a fundamental right of the citizens. The questions arise as
to whether bypassing the jurisdiction of the High Courts' violates the right of
access to Justice or the Principle of Federalism, which is a basic feature of
the Constitution of India.
The framers of the Constitution of India deemed it
proper to adopt the Federal Structure in the Judicial hierarchy also. While the
Supreme Court is the Apex Court of the Country, the High Courts are the Highest
Courts in the States. In the Constitutional Scheme, the High Court is not stricto-senso subordinate
to the Supreme Court. They are assigned a broad Constitutional Role with
extensive Constitutional responsibilities. Their power to issue Writs is wider
than the Supreme Court. Besides, the power of Judicial review is also vested in
The rudimentary authority of the High Courts to examine the constitutional
validity of any Legislative Act is well acknowledged by various Judicial
pronouncements. An ordinary man can approach the High Court challenging any
legislation be it Central or State on the ground that it is arbitrary,
irrational, unreasonable or violative of the fundamental rights or otherwise
and, therefore, liable to be struck down.
With the filing of large number of cases, there is huge pendency in the
subordinate Courts and in the High Courts' giving rise to a general public
perception that the Court proceedings are time-consuming and expensive, more so
at the High Court level. Whereas, the Tribunal adjudicate disputes quickly and
in a cost-effective manner, creating a favourable atmosphere for the
establishment of Tribunals. This lead to the amendment of the Constitution of
India and insertion of Articles 323-A and 323-B to the Constitution of India
providing for the establishment of Tribunals by Parliament and/or State.
The Central Administrative Tribunals are established under Article 323-A(2)(d)
of the Constitution of India. Jurisdiction of all Courts including the power of
superintendence of High Court except that of the Supreme Court under Article 136
of Constitution of India is excluded. In Gujarat Steel Tubes Ltd. Vs. Gujarat
Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 the Supreme Court held that the
jurisdiction of the High Court under Article 226 of the Constitution of India is
limited to holding the judicial or quasi-judicial Tribunals or administrative
bodies exercising the quasi-judicial powers within the leading strings or
legality and to see that they do not exceed their statutory jurisdiction and
correctly administer the law laid down by the statute under which they act. So
long as the hierarchy of Officers and appellate authorities created by the
Statute function within their ambit the manner in which they do so can be no
ground for interference.
In S. M. Pattanaik Vs. Secretary to Government of India, ILR 1986 KAR 3954 it
was held that all the disputes and complaints relating to service matters either
with respect to recruitment or condition of service fall within the ambit of the
Administrative Tribunals and the jurisdiction of High Court in respect of these
matters stands excluded by virtue of Section 28 of the Act, 1985.
In J. B. Chopra Vs. Union of India, AIR 1987 SC 357 it was held that the
Administrative Tribunal being a substitute of the High Court had the necessary
jurisdiction, power and authority to adjudicate upon all disputes relating to
service matters including the power to deal with all question pertaining to the
constitutional validity or otherwise of such laws as offending Article 14 and 16
(1) of the Constitution of India. In H. N. Patro Vs. Ministry of Information
and Broadcasting, 1993 (1) SCC (Supp) 550 it was reiterated that the provisions
contained in the Administrative Tribunals Act, 1985 bars the jurisdiction of the
High Court and the High Court should be careful to satisfy itself that it had
jurisdiction to deal with the matter and make an order nullifying the direction
of the Tribunal.
The Administrative Tribunals Act, 1985 excluded the jurisdiction of the High
Courts. It abolished the appellate and supervisory jurisdiction of High Courts
and provided for direct appeal to the Supreme Court. In S. P. Sampath Kumar Case
(Supra) the Court held that `the Tribunal should be a real substitute of the
High Court not only in form and de jure, but in content and de facto. As was
pointed out in Minerva Mills, the alternative arrangement has to be effective
and efficient as also capable of upholding the constitutional limitations....
and it must be a worthy successor of the High Court in all respects.'
while deciding Sampath Kumar Case (Supra), relied upon the decision in Minerva
Mills Case (Supra) wherein it was observed that:
'..it would be within the competence of Parliament to amend the Constitution so
as to substitute in place of the High Court, another alternative institutional
mechanism or arrangement for judicial review, provided it is no less efficacious
than the High Court. Then, instead of the High Court, it would be another
institutional mechanism or authority which would be exercising the power of
judicial review with a view to enforcing the constitutional limitations and
maintaining the rule of law.'
The Supreme Court applied the theory of 'effective alternative mechanism' and
held that though judicial review is a basic feature of the Constitution of
India, the vesting of the power of judicial review in an alternative
institutional mechanism, after taking it away from the High Courts, would not do
violence to the basic structure so long as it was ensured that the alternative
mechanism was an effective and real substitute for the High Court.
The High Courts' power of superintendence over all Courts and Tribunals within
their jurisdictions flows from Article 227 of the Constitution of India. The
power conferred on the High Courts to issue prerogative writs for enforcement of
the rights conferred by Part III and for any other purpose is wide enough not
only to enforce the fundamental rights, but also the legal rights. This power of
the High Courts, coupled with the power of superintendence has been defined in
Article 226 (4) of Constitution of India, which is not in derogation of the
power conferred under Article 32 (2) of the Constitution of India to issue
similar writs and runs parallel to the said provision.
The power to issue prerogative writs is exclusive and cannot be conferred on any
Tribunal unless the Constitution of India is amended. The Tribunal created under
a Statute cannot be conferred the power of judicial review which is in the
nature of sovereign function conferred on Judiciary. Therefore, in order to
strengthen democracy and allow it to grow so as to instil confidence and faith
in the people, there has to be a Judicial mechanism as has been envisioned by
the constitutional framers, to act as a check against legislative and executive
excesses. This lies in the root of assigning the role of superintendence by the
High Court over a Tribunal.
The Supreme Court in the case of M. B. Majumdar Vs. Union of India, AIR (1990)
SC 2263 rejected the contention that the Tribunals were the equals of the High
Courts in respect of their service conditions. The Court clarified that in Sampath Kumar's case (supra), the Tribunals under the Act had been equated with
High Courts only to the extent that the former were to act as substitutes for
the latter in adjudicating service matters; the Tribunals could not, therefore,
seek parity for all purposes.
The question whether the Tribunals can be said to be effective substitutes for
the High Courts in discharging the power of judicial review again came up for
consideration in L Chandra Kumar Vs. Union of India (supra). The Court held
that the power vested in the High Courts to exercise Judicial superintendence
over the decisions of all Courts and Tribunals within their respective
jurisdictions is also part of the basic structure of the Constitution of India.
It was observed:
'The constitutional safeguards which ensure the independence of the Judges of
the superior judiciary are not available to the Judges of the subordinate
judiciary or to those who man Tribunals created by ordinary legislations.
Consequently, Judges of the latter category can never be considered full and
effective substitutes for the superior judiciary in discharging the function of
constitutional interpretation. We, therefore, hold that the power of judicial
review over legislative action vested in the High Courts' under Articles 226 and
in this Court under Article 32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to test
the constitutional validity of legislations can never be ousted or excluded.
If the power under Article 32 of the Constitution, which has been described as
the heart and soul of the Constitution, can be additionally conferred upon
any other court, there is no reason why the same situation cannot subsist in
respect of the jurisdiction conferred upon the High Courts under Article 226 of
the Constitution. So long as the jurisdiction of the High Courts under Articles
226/227 and that of this Court under Article 32 is retained, there is no reason
why the power to test the validity of legislations against the provisions of the
Constitution cannot be conferred upon Administrative Tribunals created under the
Act or upon Tribunals created under Article 323B of the Constitution. It is to
be remembered that, apart from the authorisation that flows from Articles 323A
and 323B, both Parliament and the State Legislatures possess legislative
competence to effect changes in the original jurisdiction of the Supreme Court
and the High Courts.
The Law Commission of India in its 79th Report titled as 'Delay and Arrears in
High Courts and Other Appellate Courts' expressed its concern over the situation
with regard to arrears in relation to various proceedings filed and pending in
the High Courts. It was observed that the growing needs of the society demands
speedy Justice and it is in the interest of State and its citizens, that the
disputes should be decided as early as possible. The Commission did consider the
recommendations of various Committees on the question of delay, and also took
note of its 58th Report on `Structure and Jurisdiction of the Higher
Judiciary' wherein it was observed that there is an imperative need to reduce
arrears in the Higher Courts.
The Law Commission of India, in its 162nd Report recommended for providing an
appeal to the High Court, necessarily to be heard by a Division Bench. In the
alternative the Commission recommended for the constitution of National
Appellate Administrative Tribunal headed by a former Chief Justice of High Court
or a former Judge of the Supreme Court. The Commission also recommended that the
other members shall be either retired judges of the Supreme Court or retired
Chief Justices of the High Courts. It was further observed that the remedy
provided against the decision of administrative Tribunal by way of judicial
review by the High Court and under Article 136 by way of an appeal to the
Supreme Court is time consuming as well as expensive.
Similarly, in its 215th Report, the Commission recommended for the
reconsideration of L Chandrakumar Case (Supra) by a larger Bench of the Supreme
Court and suggested for the suitable amendments to provide for the appellate
Tribunal. It was observed that the High Court being the highest Court of the
State there is a need for proliferating appellate and wide original jurisdiction
which should be controlled or curtailed without impairing the quality of
On analysis of the provisions of the Constitution of India and the
observations made in the case of L Chandra Kumar (Supra) the Commission opined
that the appellate tribunal would in practical terms have a status higher than
that of the High Court but lower than the Supreme Court.
In Kendriya Vidyalaya Sangathan Vs. Subash Sharma, (2002) 4 SCC 145 it was
held that in order to challenge the decision of Tribunal, Complainants cannot
directly go to the Supreme Court nor they can bypass the High Court. The High
Court has supervisory powers over the Administrative Tribunals. But the
situation leads to increasing the burden of High Court on one hand and helps
reducing Apex Court's dockets in service matters and facilitates a remedy at
close quarters without huge expenses.
The legislative intent to exclude the jurisdiction of High Courts along with all
the Civil Courts from adjudicating disputes or entertaining any Complaints' in
service matters is explicit from relevant provisions of the Administrative
Tribunals Act, 1985 including Section 28. As a Rule of Prudence, a right of
appeal is a creation of Statute and it cannot be claimed as a matter of right.
The right to appeal has to exist within the Constitutional framework.
It cannot be created by acquiescence of the parties or by the order of the
Court. It is neither a natural nor an inherent right attached to the litigant
being a substantive, statutory right. [United Commercial Bank Ltd. Vs. Their Workmen,
AIR 1951 SC 230]. Jurisdiction cannot be conferred by mere acceptance,
acquiescence, consent or by any other means as it can be conferred only by the
legislature as conferring jurisdiction upon a Court or Authority, is a
legislative function. [Union of India Vs. Deoki Nandan Aggarwal, AIR 1992
SC 96]. The right of appeal can be circumscribed by conditions. [Vijay Prakash D.
Mehta & Jawahar D Mehta Vs. Collector of Customs (Preventive) Bombay, AIR 1988
Bypassing the High Court or debarring it from entertaining a dispute involving
the question of constitutional validity of any law would be directly hitting the
Basic Structure of Constitution of India. It would amount to denying a
constitutional remedy to the aggrieved party. The power of Judicial review
vested in the High Courts' assumes greater significance when the matters
involving State as one of the litigant are large in number.
The High Courts have unquestionable power of superintendence and control over
the Tribunals under the Constitution of India. However, the overriding effect in
Articles 323-A and 323-B under Part IXV-A of Constitution of India cannot in any
case denude the High Court of its power of superintendence under Article 227 of
the Constitution of India. 'The exclusion of jurisdiction of all the Courts
except the Supreme Court' cannot be construed to mean that, the power of
judicial review vested in the High Court is also excluded.
In L. Chandra Kumar (Supra), the Supreme Court declared clause 2 (d) of Article
323-A and clause 3 (d) of Article 323-B of Constitution of India, which excluded
the jurisdiction of the High Courts' under Articles 226, 227 and of the Supreme
Court under Article 32 of the Constitution of India as unconstitutional.
Court explicitly observed:
99... Section 28 of the Act and the exclusion of jurisdiction clauses in all
other legislations enacted under the aegis of Articles 323A and 323B would, to
the same extent, be unconstitutional. The jurisdiction conferred upon the High
Courts' under Articles 226/227 and upon the Supreme Court under Article 32 of
the Constitution is part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and Tribunals may perform
a supplemental role in discharging the powers conferred by Articles 226/227 and
32 of the Constitution. The Tribunals created under Article 323A and Article
323B of the Constitution are possessed of the competence to test the
constitutional validity of statutory provisions and rules. All decisions of
these Tribunals will, however, be subject to scrutiny before a Division Bench of
the High Court within whose jurisdiction the concerned Tribunal falls.
In Harbanslal Sahnia Vs. Indian Oil Corporation Ltd., AIR 2003 SC 2120 &
Whirlpool Corporation Vs Registrar of Trade Marks, Mumbai, AIR 1999 SC 22, the
Supreme Court held that the Rule of Exclusion of writ jurisdiction by
availability of alternative remedy is a Rule of Discretion and not one of
compulsion. The Court must consider the pros and cons of the case and then may
interfere if it comes to the conclusion that the writ seeks enforcement of any
of the fundamental rights; where there is failure of principle of natural
justice or where the orders or proceedings are wholly without jurisdiction or
the vires of an Act is challenged or the order is totally erroneous or of
infringement of fundamental rights of the Petitioner.
One of the compelling reasons for establishing the Tribunals had been pendency
of large number of cases and delay in disposal of cases in the High Courts. As a
remedy thereof, quasi-judicial institutions in the name of Administrative
Tribunals were established so as to work as an independent and specialised
Forum. The Tribunals would provide speedy justice in cost-effective manner.
The Judicial functions discharged by the Tribunals can be distinguished from
purely administrative or executive functions in view of the doctrine of separation of
powers which forms part of the Basic Structure of the Constitution of India.
The Administrative Tribunals Act, 1985, was enacted to give effect to the Swaran
Singh Committee Report (1976) which provided that against the order of the
Tribunal, a party may approach the Supreme Court under Article 136 of
Constitution of India and excluded the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution of India.
The Power of Judicial review conferred on the High Courts' is same as that of
the Supreme Court which is a basic feature of the Constitution of India and
tinkered with only by amending of the Constitution of India. The jurisdiction of
High Court should not generally be bypassed merely by making a provision to
approach the Supreme Court against an order of a Tribunal under Article 136 of
Constitution of India for the reason that the said Article does not provide for
an appeal but confers discretion on the Supreme Court to grant leave or not.
Special Leave Petitions are considered on certain fixed parameters laid down by
the Supreme Court from time to time. More so, providing for approaching the
Supreme Court directly and excluding the jurisdiction of High Court, tantamount
to violation of the fundamental right of the citizens of access to justice.
Written By: Damini Singh Chauhan, Semester 10th, The Law School,
University of Jammu.