By Biswaraj Pattnaik, September 16, 2015 : The lawyer community all over the world is a saviour one; some of them having assumed proportions of Messiahs for rising against injustice meted out to the non vocal poor without knowledge, skill and backup of any kind.

But strangely in India, more so in Odisha, the saviour community is stepping down to the streets on the drop of a hat. On the smart city issue, the saviour community struck work without trying to know why Cuttack was not up to the mark. Smart cities, incidentally, don’t make life easier; smart facilities are more likely to spoil the youth than make them smarter or cleverer.

Then again, when the state decided to disband the virtually ineffective administrative tribunal, the highly respected saviour community stepped down again to agitate and strike work. Believably, no one wants to know why Administrative tribunals ever came up and what objectives were to be met through those institutions.

Historically, as part of the Justice system, the Tribunal sits ‘below’ the Magistrates Court in the court hierarchy. However the Tribunal itself is not a Court as it is a creature of statute and has no inherent jurisdiction or powers. It is primarily a forum for ‘litigants-in-person’ and the participation of lawyers or other legal representatives is not encouraged, substantially reducing the cost of litigation. However some of the legally critical areas would require parties to have some form or representation.

Interestingly, the Victorian administrative tribunal in Australia resolves about 90,000 disputes per year and provides citizens with a low-cost, accessible and independent dispute resolution service, which is deliberately informal and encourages self-representation. Its orders are enforceable by law once they have been registered with the Magistrates Court.

In the UK, the development of administrative tribunals developed in the second half of the 19th century, after facing several constitutional controversies in the first half of the 20th century. It got radically overhauled only in recent times during the process of reforming the entire machinery of justice. The UK story is one of a fairly steady movement towards an increasing judicialisation of the tribunal system.

The tribunals have become more and more like ordinary courts, adopting formal and increasingly adversarial procedures (thereby perhaps making life harder for unrepresented appellants, the traditional core-users of the system).

Administrative tribunals function on a non partisan mode at arm’s length from government. However, the precise relationship between administrative tribunals and government varies. In some developed countries, matters relating to the municipal, transportation, communications and energy sectors, provision exists for appeal from tribunal decisions to the cabinet, although this is not common and only resorted to rarely.

Most administrative tribunals function through a hearing process in order to determine conflicting rights and obligations or to confer entitlements as between competing parties. Wide powers to summon witnesses and records and to take evidence under oath are vested in administrative tribunals either directly in their enabling legislation, or indirectly by Inquiries Acts of general application.

In Canada, administrative tribunals engaged in an adjudicative process, function in a manner more closely analogous to the law courts with the holding of formal hearings. But procedure is less formal than in the courts and the rules of evidence do not apply, although decisions must be based only on cogent evidence.

The decisions of administrative tribunals are ordinarily final and not subject to appeal, although a right of appeal may be provided for either to the courts, another administrative tribunal or the cabinet. Even where no right of appeal is provided, it is a principle of the Canadian Constitution that the superior courts have jurisdiction to review the function of any administrative tribunal so as to ensure that it acts within the jurisdiction conferred on it by Parliament or the legislature, and that it has treated the battling parties fairly.

In the event of the administrative tribunal failing to do so, a superior court may quash its decision, remit the matter back for redetermination, and in some cases substitute the finding of the court on a matter of law or mixed fact and law for that of the administrative tribunal.

Among the many constitutional developments of the past century, one of the most significant has been the creation and proliferation of institutions that perform functions similar to those performed by courts but which are considered to be, and in some ways are, different and distinct from courts as traditionally conceived.

In much of the common law world, one such institutions is ‘ the administrative tribunal’ whose main function is to adjudicate disputes between citizens and the state by reviewing decisions of government agencies – a function also performed by courts in ‘judicial review’ proceedings and appeals. Although tribunals in aggregate adjudicate many more such disputes than courts, tribunals and their role as dispensers of ‘administrative justice’ receive relatively little scholarly attention. Hence the public confusion and agitation even by protectors of law.

The concept of ‘administrative adjudication’ in the UK, USA and Australia, traces its historical development from the earliest periods of the common law mainly to indicate and raise finger at government’s error of judgement while giving justice to citizens. Government accountability is brought in place by these tribunals.

The common man in India has no scope of knowing the design of tribunals, systems, what tribunals do, and how they interact with their users. The popular belief in India is that government servants stir tribunals only when transfer, promotion or pension issues bother them.

The ordinary public has no stakes at all because in India, the enactment of Administrative Tribunals Act in 1985 came in place only to administer justice to the aggrieved government servants, by invoking Article 323-A of the Constitution which empowers Central Government to set-up Administrative Tribunals for adjudication of disputes and complaints with respect to recruitment and service conditions of persons appointed in the public domain and posts in connection with the affairs of the Union and the States.

The Administrative Tribunals can exercise original jurisdiction in respect of service matters of employees. The procedural simplicity can be appreciated from the fact that the aggrieved person can appear before it personally. The Government can present its case through its departmental officers or legal practitioners. Thus, the objective of the Tribunal is to provide speedy and inexpensive justice to the litigants.

The Central Administrative Tribunal (CAT) was set-up on 1 November 1985. Today, it has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High Courts. In brief, the tribunal consists of a Chairman, Vice-Chairman and Members. The Members are drawn, both from judicial as well as administrative streams so as to give the Tribunal the benefit of expertise both in legal and administrative spheres. It was designed initially to be treated at par with High Courts and the appeals against decisions can be made at the Supreme Court.

However, as a result of the judgment of 18 March 1997 of the Supreme Court in the case of L Chandrakumar, the appeals against the orders of an Administrative Tribunal shall lie before the Division Bench of the concerned High Court.

The provision of the Act that aggrieved parties could appeal to the Supreme Court against order of the Tribunal was held unconstitutional, as it was deemed to be inconsistent with the basic structure of the Constitution. Thus the objective of getting quick justice and keeping the High Courts off the ‘service matters burden’ could not be met. So many states in India disbanded the tribunals as they turned redundant and ‘white-elephantish’ !
Odisha state tribunal had 31,820 cases pending for disposal by December, 2014, which has shot up to 54000 by now.

Most legally sound experts believe the tribunals must be disbanded for the simple reason of redundancy and that the ‘quick redressal thing’ never happened. On the contrary, the members tended to be pro-employee without sense and provoked the government to go for appeal. The solo judicial officer kept succumbing to the whims of the majority non judicial ‘former administrators’ and instant ‘stay orders’ without timely adjudication kept cases piling up without disposal.

Several states have abolished the dysfunctional system and disbanded the tribunals and circuit benches. Odisha State tribunal has its principal seat in Bhubaneswar and three circuit benches at Cuttack, Berhampur and Sambalpur.

So the lawyers who have remained exclusively stuck to service matters only now find it frightening that the ‘bread n butter’ giving institution would vanish with all prospects of productive engagement. But the fact that cases shall never vanish is probably not easily realized by the learned community. The circuit bench lawyers may lose some business temporarily, but they will most certainly make up as number of litigation is rising alarmingly everywhere to ensure lawyers comfortable professional engagement anyway. They must appreciate the fact that huge amount of wasted public money can be saved to give the society a great deal of financial relief.

Eminent former DG Police and honourable member of Central Administrative Tribunal Shri Bipin Bihari Mishra strongly recommends disbanding of the wasteful tribunals as he has experienced absolutely futile engagement which could never meet the objectives due to worthless cases being admitted indiscriminately and horribly untenable ‘stay orders’ granted- thereby pushing up pending cases illimitably.

Superbly conscious and marvelouslly efficient Odisha Lawyers do of course know that SAT is not the end of the world. There is so much the more to enjoy as battlers at abundantly available courts of law offering more amusing and lucrative professional engagement.