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ADMINISTRATIVE LAW PROJECT

ADMINISTRATIVE ADJUDICATION

SUBMITTED TO:
Dr. APARNA SINGH
(ASSISTANT PROFESSOR OF LAW)

PROJECT SUBMITTED BY:


RISHI SEHGAL
Semester V, Section B

ENROLL. NO. 150101112


ROLL NO. 115

DR. RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY.

LUCKNOW, UTTAR PRADESH


ACKNOWLEDGEMENT

I have made this project work, and on the way of completing it, I have learned a lot of things
for which I am thankful to Mrs. Aparna Singh, Assistant Professor, RMLNLU, Lucknow and
my guide, who gave me the opportunity to do this project work and guided me all the way. I
would also like to thank my friends, and colleagues, for their opinions, suggestions and
critical analysis, which has helped me to improve this project. I also thank the RMLNLU
library and the people working there. Their silent work is the reason behind the completion
of this project.

I thank God, He has been very generous on me, to have kept me in good health and make the
conditions favourable for me to complete this work in time.

Lastly, I thank my parents. Without their continuous support and belief in me, I would never
have been able to make this project.

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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION .............................................................................................. 3

CHAPTER 2: MEANING AND GENERAL CONCEPTS OF ADMINISTRATIVE


ADJUDICATION ...................................................................................................................... 4

CHAPTER 3: REASONS FOR GROWTH OF ADMINISTRATIVE ADJUDICATION


AND ITS NEED ........................................................................................................................ 5

CHAPTER 4: DISADVANTAGES OF ADMINISTRATIVE ADJUDICATION................... 7

CHAPTER 5: ADVANTAGES OF ADMINISTRATIVE ADJUDICATION ....................... 10

CHAPTER 6: ADMINISTRATIVE TRIBUNAL ................................................................... 11

DEFINTION......................................................................................................................... 11

MEANING OF THE TRIBUNAL UNDER THE INDIAN CONSTITUTION .................. 12

CONSTITUTIONAL RECOGNITION OF ADMINISTRATIVE TRIBUNALS .............. 13

CHARACTERISTICS OF ADMINISTRATIVE TRIBUNAL ........................................... 14

CHAPTER 7: MECHANISM FOR ADMINISTRATIVE ADJUDIACTION ....................... 15

CONCLUSION ........................................................................................................................ 18

BIBLIOGRAPHY .................................................................................................................... 19

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CHAPTER 1: INTRODUCTION

Today, over and above ministerial functions, the executive perform many quasi-legislative and
quasi-judicial functions as well. Governmental functions have increased and even though
according to the traditional theory, the function of adjudication of disputes is the exclusive
jurisdiction of the ordinary courts of law, in reality, many judicial functions have come to be
performed by the executive, e.g. imposition of fine, levy of penalty, confiscation of goods, etc.
The traditional theory of 'laissez faire' has been given up and the old Police State has now
become a Welfare State, and because of this radical change in the philosophy as to the role
to be played by the State, its functions have increased. Today it exercises not only sovereign
functions, but, as a progressive democratic State, it also seeks to ensure social security and
social welfare for the common masses. It regulates the industrial relations, exercises control
over production, and starts many enterprises. The issues arising there from are not purely legal
issues. It is not possible for the ordinary courts of law to deal with all these socio-economic
problems.

For example, industrial disputes between the workers and the management must be settled as
early as possible. It is not only in the interest of the parties to the disputes, but of the society at
large. It is, however, not possible for an ordinary court of law to decide these disputes
expeditiously, as it has to function, restrained by certain innate limitations. All the same, it is
necessary that such disputes should not be determined in an arbitrary or autocratic manner.
Administrative tribunals are, therefore, established to decide various quasi-judicial issues in
place of ordinary courts of law.

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CHAPTER 2: MEANING AND GENERAL CONCEPTS OF
ADMINISTRATIVE ADJUDICATION

Administrative adjudication is the process by which an administrative agency issues an


affirmative, negative, injunctive, or declaratory order. The formal proceedings before an
administrative agency adopt the process of rulemaking or adjudication. In rule making process,
the policies are formulated by setting rules for the future conduct of persons governed by that
agency. While in adjudication process, the agency's policies are applied to the past actions of
a particular party, and it results in an order for or against that party. Both these methods are
regulated by the law of administrative procedure1.

The term administrative adjudication has been used synonymously with administrative
justice2. In a socialist society, bulks of cases are not decided by the ordinary courts. When a
dispute arises between an administrative agency and a private person it is settled by the
administration, this is called administrative adjudication.

Jural postulates play a vital role in administrative adjudication. This is so because


administrative adjudication is based on the assumption that when liberty is subtracted, justice
has to be added. It is necessary to make the people conscious of the view that administrative
powers will be exercised according to their notion of good behavior and good administration.
When the government is given more and more powers, public opinion becomes more and
more sensitive of the abuse and misuse of such powers. The judiciary has established certain
legal standards in this respect. It has its own weaknesses, but has great strength as well.

Administrative adjudication has come into existence as a result of the philosophy of welfare
State and consequential socialization of law. Today the State exercises not only sovereign
functions, but as a progressive democratic State, it also seeks to ensure social security and
social welfare for the common masses. It regulates industrial relations, exercises control over
production and starts many enterprises. The issues arising there from are socio-economic
issues. It is not possible for the ordinary Courts of law to deal with all the issues of socio-
economic policies. As Wade and Philips rightly observe:

1
C.K. Thakkar , Administrative Law (Eastern Book Company, 1992).
2
Timothy Endicott, Administrative Law (Oxford University press 2008)

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Modern government gives rise to many disputes which cannot appropriately be solved by
applying objective legal principles or standards and depends ultimately on what is desirable
in the public interest as a matter of social policy.3 For example industrial relations between
the workers and the management must be settled as soon as possible. It is not in the interest
of the parties to the disputes but of the society at large. It is not possible for the ordinary Courts
to decide these disputes expeditiously. At the same time, it is necessary that such disputes
should not be determined in arbitrary or autocratic manner. Administrative Tribunals are,
therefore, established to decide various quasi- judicial issues in place of ordinary Courts of
law. Tribunals are recognized even by the Constitution of India.

CHAPTER 3: REASONS FOR GROWTH OF


ADMINISTRATIVE ADJUDICATION AND ITS NEED

According to Dicey's theory of rule of law, the ordinary law of the land must be administered
by ordinary law courts. He was opposed to the establishment of administrative tribunals.
According to the classical theory and the doctrine of separation of powers, the function of
deciding disputes between the parties belonged to ordinary courts of law. But the governmental
functions have increased and ordinary courts of law are not in a position to meet the situation
and solve the complex problems arising in the changed socio-economic context.

The complexities of intensive form of government and synthetic structure of present society
have given rise to new problems requiring new solutions. One aspect of post-independence
era is that the drive against poverty, illiteracy and disease has started. The government
embarked on massive plans of dispensation of benefits, public health, education, planning,
social security, transport, agriculture, industrialization and redistribution of nation's wealth.
In these circumstances, administrative tribunals are established for the following reasons4:

(i) Policy considerations


In the changed socio-economic context, while the Courts are accustomed to deal with cases
primarily according to law, the exigencies of modem government postulate that some types
of controversies be disposed of by applying not law, pure and simple, but considerations of
policy as well, that is, what is in public interest", what is expedient" or what is

3 Constitutional Law, 1965, p. 699; See also the Reports of the Franks Committee 1957, pp. 8-9.
4
I.P. Massey, Administrative law, 9th edition, EBC.

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reasonable". Such questions can be solved not only on basis of law and fact but also by
applying policy considerations. This cannot be accomplished by the Courts of law. Therefore
Tribunals were established to handle these complex problems.

(ii) Inadequacy of Judicial system


The traditional judicial system proved inadequate to decide and settle all disputes requiring
resolution. It is most complicated, expensive and dilatory. It was not possible to expect speedy
disposal of even very important matters e.g., disputes between employers and employees, lock-
outs and strikes etc. It was for these reasons that Industrial Tribunals and Labour Courts were
established, which possessed the technique and expertise to deal with such complex problems.

(iii) Merits of the System of Administrative Adjudication


The system of administrative adjudication is cheap, speedy and flexible. Judicial system is
slow, costly, complex and formalistic. According to the Franks Committe5:

Tribunals have certain characteristics which often give them advantages over the Courts.
These are cheapness, accessibility, freedom from technicality, expedition and expert
knowledge of their particular subject."

(iv) Functional approach to socio-economic problems


Administrative Tribunals can avoid technicalities. They adopt a functional rather than a
theoretical and legalistic approach. The traditional judicial system is conservative, rigid
and technical. Courts of law cannot decide cases without formality and technicality. On
the other hand Administrative Tribunals are not bound to follow strict rules or procedure
and evidence. It is, therefore, that they can take practical view of the matter to solve
complex problems.

(v) Need for expertise


Sometimes, disputes are technical in nature. The traditional judicial system cannot be
expected to appreciate and decide them. The reason is obvious because the judge is
generalist. On the other hand, Administrative Tribunals are usually manned by experts
who can deal with and solve these problems; e.g., problems relating to atomic energy, gas,
electricity etc.

(vi) Preventive measures

5
Paul Craig Administrative Law, 6th edition (Oxford University Press).

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Administrative authorities can resort to preventive measures: e.g., licensing, rate fixing
etc. Unlike ordinary Courts of law, they have not to wait for the parties to come before
them with disputes. In a number of cases, these preventive actions may be more effective
and useful than punishing a person after he has violated any legal provision.

(vii) Policing of preventive measures


Administrative authorities can take effective steps for policing of the aforesaid preventive
measures, e.g., suspension, revocation or cancellation of licences, destruction of
contaminated articles, etc. which are not feasible through the regular Court of law.

(viii) Functioning of Tribunals


Robson observes, Administrative Tribunals discharge their functions more rapidly, more
cheaply, more efficiently than ordinary Court possess greater technical knowledge and fewer
prejudices against government give greater heed to the social interests involved decide disputes
with conscious effort at furthering social policy in the legislation.6

CHAPTER 4: DISADVANTAGES OF ADMINISTRATIVE


ADJUDICATION
Even though administrative adjudication is essential and useful in modem day administration,
we should not be blind to the defects from which it suffers or the dangers it poses to a
democratic polity. Some of the main drawbacks are mentioned below.

(i) Administrative adjudication is a negation of Rule of Law. Rule of Law ensures


equality before law for everybody and the supremacy of ordinary law and due
procedure of law over governmental arbitrariness. But administrative tribunals,
with their separate laws and procedures often made by themselves, puts a serious
limitation upon the celebrated principles of Rule of Law.
(ii) (ii) Administrative tribunals have in most cases; no set procedures and sometimes
they violate even the principles of natural justice.
(iii) (iii) Administrative tribunals often hold summary trials and they do not follow any
precedents. As such it is not possible to predict the course of future decisions.
(iv)The civil and criminal courts have a uniform pattern of administering justice
and centuries of experience in the administration of civil and criminal laws have

6 Quoted by Kagzi: The Indian Administrative Law, 1973. p. 284.

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borne testimony to the advantages of uniform procedure. A uniform code of
procedure in administrative adjudication is not there.
(iv) (v) Administrative tribunals are manned by administrators and technical heads who
may not have the background of law or training of judicial work. Some of them
may not possess the independent outlook of a judge.

The Swaran Singh Committee has very commendably completed its recommendatory exercises
in the restructuration of the Constitution7. Though the Committee covered a wide spectrum
from the Preamble to Article 368 but for our limited purpose attention is focussed on those
recommendations only of the Committee which relate to administrative justice.

The Committee recommends:

1. Administrative tribunals may be set up both at the State level and at the Centre to decide
cases relating to service matters. These tribunals shall be constituted under a Central law.

2. Provision may be made for setting up an All-India Labour Appellate Tribunal to decide
appeals from Labour Courts and Industrial Courts.

3. Disputes relating to the following matters shall be decided by tribunals:

(i) Any matter concerning revenue or concerning any act ordered or done in the collection
thereof.

(ii) Any matter relating to land reforms, ceiling on urban property and procurement and
distribution of food grains and other essential commodities.

In regard to the matters specified above the writ jurisdiction of the Supreme Court under Article
32 and of the High Court under Article 226 shall be excluded. The relevant statutes governing
these matters will also make specific provisions excluding the jurisdiction of courts over such
matters. However the right to apply for special leave of the Supreme Court under Article 136
shall remain.

4. No writ shall lie in relation to election matters.

7
http://indiatoday.intoday.in/story/swaran-singh-committee-recommends-new-chapter-on-fundamental-duties-
in-the-constitution/1/436571.html.

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5. Reference to tribunals in Article 227 should be omitted.

6. The words 'and for any other purpose' may be deleted from Article 226.

Another problem of administrative adjudication is that apart from the statute there is no
obligation on administrative agencies exercising decision-making powers to give reasons for
their decisions. It is admitted on all hands that in order to avoid arbitrariness, to facilitate review
and to develop uniform principles of administrative law, 'reasons' are essential. It is gratifying
that the Supreme Court has insisted that the administrative agencies exercising adjudicatory
powers must give reasons though the question of sufficiency of reasons in a particular case
remains still uncertain.8 If the courts of law are to be replaced by administrative authorities and
tribunals as indeed, in some kinds of cases, with the proliferation of administrative laws, they
may have to be so replaced, it is essential that administrative authorities and tribunals should
accord fair and proper hearing and give sufficiently clear and explicit reasons in support of
their orders. Then alone administrative authorities and tribunals exercising quasi-judicial
functions will be able to justify their existence and carry credibility with the people by inspiring
confidence in the administrative adjudicatory process. It is true that all the persons manning
administrative agencies exercising adjudicatory powers are not judges, and therefore, are not
expected to write lengthy judgments9. However, it may be suggested that they must be brought
under some legal obligation to include a statement of findings and conclusions as well as the
reasons or basis thereof upon all material issues of fact, law and discretion presented on record
whenever any party demands it. Administrative agencies exercising adjudicatory powers must
also reinforce their findings with 'substantial evidences'. Substantial evidences here mean such
relevant evidences as a reasonable man might accept as adequate to support the conclusion.
The 'no evidence rule' presently followed is not only illusory but also unjust.

Leaving aside tribunals, administrative agencies exercising adjudicatory powers discharge


various other administrative and governmental functions. In many cases these agencies
combine the functions of prosecutor and judge in one. In the interest of justice and for regaining
the lost faith of the people in administrative justice some sort of separation of functions is
necessary. Therefore, the institution of 'Hearing Officers' of U.S.A. or the institution of
'Inspectors' of England is worth considering. This may also help eliminate problems like

8
Bhagat Raja v. Union of India, AIR 1967 SC 1606.
9
C.K. Thakkar , Administrative Law (Eastern Book Company, 1992)

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'departmental bias', 'plea bargaining', 'official perspective' and 'political interference' which are
eating into the very marrow of the administrative justice.

Un-foreseeability and unpredictability of decisions of administrative agencies exercising


adjudicatory powers is another reason why these agencies do not carry credibility with the
people. These agencies do not publish their decisions in the form of official reports and thereby
their actions go beyond the pale of public criticism10. This element of secrecy not only creates
suspicion but the agencies are deprived of the benefit which healthy public criticism can confer.
Administrative agencies also do not follow the theory of precedents, and therefore, their
decisions become unpredictable. This not only offends the common man's sense of justice but
is also against the concept of rule of law. No doubt individualization of justice demands
freedom from precedents, yet these agencies must be very slow in overruling their own
decisions. This will help in developing some sound principles of administrative law which are
significantly lacking in India.

If substantive law is important, the procedural law cannot be in any way less significant,
because unless the media is certain and trustworthy justice cannot be up to the mark and may
result in arbitrary actions. Therefore, it may be suggested that the Central Government must
appoint a Task Force Committee to go into various problems of administrative justice with
special reference to its procedure and to draft a minimum procedure on the pattern of
Administrative Procedure Code, 1946 and the Tribunals and Enquiries Act, 1958, laying down
the minimum procedure which all the administrative agencies exercising adjudicatory powers
must follow.

CHAPTER 5: ADVANTAGES OF ADMINISTRATIVE


ADJUDICATION
Administrative adjudication is a dynamic system of administration, which serves, more
adequately than any other method, the varied and complex needs of the modem society. The
main advantages of the administrative tribunals are:

1) Flexibility

10
M.P. Jain, Changing face of Administrative Law in India and abroad (1982).

10
Administrative adjudication has brought about flexibility and adaptability in the judicial as well
as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism
and inelasticity of outlook and approach. The justice they administer may become out of
harmony with the rapidly changing social conditions. Administrative adjudication, not
restrained by rigid rules of procedure and canons of evidence, can remain in tune with the
varying phases of social and economic life.

2) Adequate Justice

In the fast changing world of today, administrative tribunals are not only the most appropriated
means of administrative action, but also the most effective means of giving fair justice to the
individuals. Lawyers, who are more concerned about aspects of law, find it difficult to
adequately assess the needs of the modem welfare society and to locate the individuals place
in it.

3) Less Expensive

Administrative justice ensures cheap and quick justice. As against this, procedure in the law
courts is long and cumbersome and litigation is costly. It involves payment of huge court fees,
engagement of lawyers and meeting of other incidental charges. Administrative adjudication,
in most cases, requires no stamp fees. Its procedures are simple and can be easily understood
by a layman

4) Relief to Courts

The system also gives the much-needed relief to ordinary courts of law, which are already
overburdened with ordinary suits

CHAPTER 6: ADMINISTRATIVE TRIBUNAL


DEFINTION
Tribunal is an administrative body which exercises the power to adjudicate. In the Franks
Committee Report, Tribunals are not regarded as ordinary Courts But they are not
accepted even as appendages of Government Departments". The view of the Committee
is that tribunals should be regarded as machinery provided by parliament for adjudication
rather than as part of the machinery of administration. The essential point is that all these
cases, Parliament has deliberately provided for a decision outside and independent of the

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Department concerned and intention of Parliament to provide for independence of
Tribunals is clear and unmistakable.'11 According to Wade12 Tribunal are administrative
only because they are part of an administrative scheme for which a Minister is responsible
to Parliament, and because the reasons for preferring them to the ordinary Courts are
administrative reasons. Even in America the system of Administrative adjudication has
been developed. In this country administrative agencies discharge the functions of
Tribunals e.g., Commissions, Boards or Officers.13
According to the dictionary14 meaning, Tribunal' means seat or bench upon which a
judge or judges sit in a Court,' a Court of Justice'. If used in this sense, the expression is
very wide as it includes even ordinary Courts of law whereas in administrative law this
expression is limited to adjudicating bodies other than the ordinary Courts of law.

MEANING OF THE TRIBUNAL UNDER THE INDIAN CONSTITUTION

As regards the Indian context, the term Tribunal has been used under the Constitution
but has not been defined. From the functional point of view, the position of Tribunal is
somewhere between a Court and the government department exercising adjudicatory
powers. Although in strict sense Tribunals are not Courts of law, yet they are invested
with powers to adjudicate upon the issues affecting the rights of the citizens
According to S.N. Jain15, the term Tribunal' has been used under the Indian Constitution
in three different senses
1) All administrative bodies exercising quasi/-judicial functions, whether as a part or
parcel of the department or otherwise, may be termed as Tribunals. The only
distinguishing feature of these bodies as against other bodies exercising
administrative powers that these bodies are required to follow the rules of natural
justice in rendering decisions.
2) All those administrative adjudicatory bodies may be regarded as Tribunals which
are not under the control of the department involved in the dispute and therefore
decide disputes as a Judge free from any departmental bias. The Income-Tax
Appellate Tribunal may fall in this category as it is under the control of the Ministry

11 Report of the Committee on Administrative Tribunals and Enquires, 9 (1957).


12 Wade, Administrative Law, 1988, p. 900.
13 William A. Robson, Justice and Administrative Law, 1951, p. 315.
14 Webster's New World Dictionary, 1972, p. 1517.
15 Administrative Tribunal in India, 1977, pp. 6-7.

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of Law and not Ministry of Finance and is free to decide matters impartially.
Similarly another Tribunal free from departmental control is Railway Rates
Tribunal.
3) The term Tribunal as used in Article 136 has a special meaning in the sense that the
authority must exercise inherent judicial powers of the State.16 Accordingly the test
to identify a Tribunal is not its control, composition or procedure but its function. As
a result of this functional test, even departmental bodies may be classified as
Tribunal, e.g., Custodian General of Evacuee Property, the Central Government
exercising powers under section 111 (3) of the Companies Act, 1956, the Central Board
of Revenue exercising appellate powers under section 190 of the Sea Customs Act,
1878 and the Central Government exercising powers under section 191 of the Sea
Customs Act 1878.17

In Durga Shanker Mehta v. Raghuraj Singh18 the Supreme Court has defined Tribunal in the
following words : The expression Tribunal as used in Article 136 does not mean the same
thing as Court but includes, within its ambit, all adjudicating bodies, provided they are
constituted by the state and are invested with judicial as distinguished from administrative or
executive functions.

The proper test to identify a Tribunal within the meaning of Article 136 or for that purpose
Article 227 is that it is an adjudicating authority outside the Court which is vested with the
judicial powers of the State. However, an authority other than a Court may be vested by statute
with judicial power in widely different circumstances, which it would be impossible and
indeed inadvisable to attempt to define exhaustively. The test of the Tribunal is not meant to
be exhaustive, and it may be that other bodies not satisfying the test are also Tribunals.

CONSTITUTIONAL RECOGNITION OF ADMINISTRATIVE TRIBUNALS

There are provisions under the Constitution of India which recognize the existence and
importance of Tribunals. Articles 136 and 227 express mention the word Tribunal. As
provided under Article 136, the Supreme Court has discretionary power to grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any Court or Tribunal in the territory of India. Under Article 227, it is

16 Associated Cement Companies Ltd. v. P.N. Sharma, AIR 1965 SC 1595, 1606.
9 S.N. Jain, Administrative Tribunals in India, 1977, pp. 6-7.
10. ' AIR. 1954 SC 520.

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provided that every High Court has supervisory power over all Courts and Tribunals
throughout the territories in relation to which it exercises jurisdiction.

The use of Administrative Tribunals as a mode of deciding disputes is on the increase because
it has all the benefits of a Court without suffering from its limitations. It is for this advantage
that Part XIV-A has been inserted in the Constitution by the Forty Second Amendment Act,
1976 which confers power on the Parliament and the State Legislatures to establish Tribunals
to deal with specified subjects. There are two articles in part XIV which provides for the
establishment of tribunals. Article323- 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 conditions of service of a person appointed to public services and posts in
connection with the affairs of union or of any state or of any local or other authority within
the territory of India or under the control of the government of India or of any corporation
owned or controlled by the government. Article 323-B lays down that the appropriate
legislature may, by law, provide for the adjudication or trial by Tribunals of any disputes,
complaints or other offences with respect to all or any of the matters enumerated therein with
respect to which such legislature has power to make law.

CHARACTERISTICS OF ADMINISTRATIVE TRIBUNAL

In Bharat Bank Ltd v. Employees,19 the Supreme Court has observed that though tribunals are
clad in many of the trappings of a Court and though they exercise quasi- judicial functions,
they are not full-fledged Courts. Thus a tribunal is a adjudicating body which decides
controversies between the parties and exercises judicial powers as distinguished from purely
administrative functions and thus possesses some of the trappings of a Court, but not all. In
this case while dealing with the issue whether an Industrial Tribunal established under the
Industrial Disputes Act, 1947 is Tribunal or not within the meaning of Article 136, the
Supreme Court laid down that a tribunal must have the following characteristics:
i. The proceedings before it must commence on an application which is in the nature of
a plaint.
ii. It has the same powers as regards discovery, inspection, taking evidence, as are
possessed by a Civil Court.

19
AIR 1950 SC 188.

14
iii. Witnesses are examined and cross-examined as in a Court of law.
iv. A party may be represented by a legal practitioner.
v. The tribunal is required to decide on the basis of evidence adduced and according to
the provision of the statutes.
vi. Members of the tribunal are persons qualified to be Judges.
A few more characteristics were added to this list by the Supreme Court in later decisions:
(i) It is required to sit in public.
(ii) It must be capable of giving determinative judgment or award affecting the
rights and obligations of parties.
(ix) It must be endowed with State's inherent judicial power, meaning thereby
that it has statutory origin.

CHAPTER 7: MECHANISM FOR ADMINISTRATIVE


ADJUDIACTION
Tribunals are largely classified into two categories i.e. domestic tribunal and statutory tribunal.
This classification is based on the nature of the subject matter they adjudicate.

1) Domestic Tribunals.

2) Statutory Tribunal

Domestic Tribunals:
Domestic tribunal is a private body, not-statutory body set up by the agreement either express
or implied between the parties and designed as tribunal is really not a tribunal. It exercises
jurisdiction over the internal affairs and its decisions are subject to judicial control under the
doctrine of ultra vires20. For examples- Tribunals of Bangladesh Bar Council, Bangladesh
Medical Association etc.

1. The domestic tribunal deals with the private matters rather than public matters.
2. The domestic tribunal does not follow procedures of the trial.
3. It deals with the internal affairs of a particular profession or association.
4. No court fee is required in domestic tribunal.

Statutory Tribunal:

20
S.N. Jain, Administrative Tribunals in India, 1977 JILI 322.

15
Statutory tribunal is a statutory body. When any tribunals are created by the provisions of
statutes or under the authority of a statute they should strictly be called statutory tribunal. The
jurisdictions of the statutory tribunals are rest upon the statutes. For examples- Bangladesh
Labour Appellate Tribunal.

1. Statutory tribunals adjudicate matters of public concern.


2. It deals with the disputes between a govt. employee and the govt. in service matter.

Distinction between Domestic Tribunal and Statutory Tribunal

The following distinguishing features between domestic tribunals and statutory tribunals
Should be kept in mind:
1. Whereas the jurisdiction of a domestic tribunal is founded on an agreement or contract
between its members, (express or implied) jurisdiction of a statutory tribunal rests on
the statute or rules framed thereunder.

2. In case of a domestic tribunal, even if the action is not lawful, normally, a writ
jurisdiction under Article 32 or 226 or supervisory jurisdiction under Article 227or
under Article 136 of the Constitution is not available though other remedies such as
declaration, injunction, damages, etc. can be sought in appropriate cases.

In case of statutory tribunal, however, the orders passed or actions taken are subject to
the jurisdiction of the Supreme Court or High Courts under the Constitution of India.

3. It is open to a domestic tribunal to adopt its own procedure consistent with the principles
of natural justice and fair play. Statutory tribunal, on the other hand, derive power and
authority from a statute which creates it, and has to follow procedure laid down in the
Act under which it has been established

DIFFERENCE BETWEEN COURT AND A TRIBUNAL

Some differences between a Courts and a Tribunal are:

1. Tribunals are set up to be less formal, less expensive, and a faster way to resolve disputes
than by using the traditional court system.

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2. Tribunals may not allow people to be represented by a lawyer, may not allow cross-
examination of witnesses where as the court always allows this.
3. Tribunals often specialise in resolving disputes in a particular area where as the courts
generally have the power to hear a much broader range of cases.
4. The nature of tribunal is ad hoc, and the court is a permanent body.
5. The tribunal will be governed by chairmen that will have a special knowledge about the issue
or level of legal training but, a judge in courts has general knowledge about many areas of law.
6. Courts follow well defined procedures detailed in their Rules, whereas tribunal procedures
are more flexible.
7. The doctrine of precedents applied in particular superior courts whereas tribunals will not
follow the strict rule of precedent.

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CONCLUSION

In practice there are a number of tribunals functioning in the country. Very few of them,
however, have been able to inspire confidence in the public. The tribunals have shown a
singular lack of competence and objectivity in determining disputes. Another reason for their
failure is the constitution of the tribunals and the method of appointment of the personnel.
Persons with expertise and the right qualifications do not want to sit on these tribunals thus
leading to the unsatisfactory functioning of these tribunals. The uncertainty of tenure,
unsatisfactory service conditions, interference by the executive and political interference have
further impeded the proper development of tribunals in India. Tribunals are supposed to
provide specialised adjudicatory services but the type of people appointed lack the requisite
expertise and are on the tribunals merely because of political pressure and executive
interference.

Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they
must therefore be able to inspire public confidence by proving themselves to be a competent
and expert mechanism with a judicial and objective approach. In order to achieve this it is
essential that members of the tribunal are equipped with adequate judicial acumen and
expertise. These judicial officers need to be balanced with experts in the particular field. Only
a judicious blend of the two will be able to provide an effective and result oriented tribunal
system. Another important measure which needs to be taken are steps to maintain the
independence of the members of these tribunals from political or executive interference. Just
as the ordinary judiciary are protected from political control through security of tenure and
through institutionalized methods of appointment (through a selection committee comprising
of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on the
high courts the high courts must be divested of the supervisory jurisdiction over the tribunals.
It is essential therefore that a single centralised nodal agency be established to oversee the
functioning of the tribunals. Such a centralised umbrella organisation will ensure the
independence of the tribunals in matters of tenure and funds.

Thus the overall picture regarding tribunalisation of justice in the country is far from
satisfactory. A fresh look at the system of tribunals in India is required so as to ensure speedy
justice and quick disposal of disputes arising out of administrative disputes which are essential
for the development of the nation.

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BIBLIOGRAPHY
WEBSITES:-

1) http://www.preservearticles.com/2011111216927/short-essay-on-the-administrative-
tribunals-of-india.html
2) http://lawcommissionofindia.nic.in/101-169/report162.pdf
3) http://lawcare87.blogspot.in/2014/02/concept-of-tribunals.html
4) http://indiatoday.intoday.in/story/swaran-singh-committee-recommends-new-chapter-
on-fundamental-duties-in-the-constitution/1/436571.html
5) http://www.ebc-india.com/lawyer/articles/76v2a4.htm

BOOKS & ARTICLES:-

1) Dr. J.J.R. Upadhyaya, Administrative law, 7th edition, central law agency.
2) I.P. Massey, Administrative law, 9th edition, EBC
3) Philip Elman, A Note on Administrative Adjudication Vol, 74, No. 4 (Mar., 1965) The
Yale Law Journal.
4) William A. Robson, Justice and Administrative Law
5) Upendra Baxi, Development in Indian Administrative law, Public law in India.
6) M.P. Jain, Changing face of Administrative Law in India and abroad (1982).
7) S.N. Jain, Administrative Tribunals in India, 1977 JILI 322.
8) Timothy Endicott, Administrative Law (Oxford University press, 2008).
9) C.K. Thakkar , Administrative Law (Eastern Book Company, 1992).

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