Supreme Court: In an appeal against the judgment of the Orissa High Court, in a batch of writ petitions challenging the abolition of the Odisha Administrative Tribunal (‘OAT’), wherein the Court dismissed the writ petition, the division bench of Dr. DY Chandrachud*, CJ and Hima Kohli, J. held that the abolition of the OAT was constitutionally valid. Further, the Bench rejected the challenge to the constitutional validity of the impugned notification dated 2-08-2019 by which the OAT was abolished.
Background
In pursuance of the power conferred upon it by Article 323-A(1) of the Constitution of India, Parliament enacted the Administrative Tribunals Act 1985. Section 4(1) of the Administrative Tribunals Act provides that the Central Government shall establish an administrative tribunal known as the “Central Administrative Tribunal” to adjudicate disputes concerning the recruitment and conditions of service of persons in connection with posts under the Union or All-India Service, including disputes with respect to remuneration, pension, tenure, leave, and disciplinary matters.
In terms of Section 4(2) of the Administrative Tribunals Act, the Central Government may establish an administrative tribunal for a particular state, upon receiving a request in this regard from the concerned State Government. Once created, the State Administrative Tribunal is charged with exercising exclusive jurisdiction over disputes concerning the recruitment and conditions of service of persons in connection with posts under the concerned state or any civil service of that state. Upon receiving a request from the State of Odisha, the Central Government established the OAT on 4-07-1986 by issuing a Notification No. GSR 934(E).
The Court noted that Section 28 excluded the jurisdiction of all courts except the Supreme Court or the Industrial Tribunal or Labour Court in relation to matters over which the CAT and the SAT exercised jurisdiction. However, this changed with the decision in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, because of this decision, challenges under Article 226 of the Constitution to the decisions rendered by the SATs lay to Division Benches of the respective High Courts within whose jurisdiction the SATs operated. The Supreme Court’s jurisdiction could be invoked under Article 136 against the decisions of the High Courts.
The Court said that while Section 4(2) of the Administrative Tribunals Act governs the establishment of SATs, there is no corresponding provision which stipulates the procedure to be followed to discontinue or abolish them. The decision in L.Chandra Kumar (supra) seems to have influenced the State of Odisha to request the Union Government to abolish the OAT, as now the OAT’s decisions were subject to two tiers of challenge, which meant that speedy justice could not be delivered.
The Union Government took recourse to Section 21 of the General Clauses Act, 1897 and abolished the OAT by issuing Notification GSR 552(E) dated 02-08-2019. Aggrieved by this, the appellants filed a writ petition before the Orissa High Court, wherein the Court held that Article 323-A is an enabling provision. It does not make it mandatory for the Union Government to establish administrative tribunals or refrain from abolishing them once they are established. The decision to abolish the OAT is an administrative decision. There is therefore no bar to the Union Government invoking Section 21 of the General Clauses Act read with Section 4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT.
Issues and Analysis
1) Whether the Writ Petitions instituted by the appellants before the Orissa High Court were maintainable?
The appellants are the OAT Bar Association and the Odisha Retired Police Officers’ Welfare Association. Both associations are registered under the Societies Registration Act 1860 (‘SR Act). Section 6 of the SR Act, 1860 authorises registered societies to sue and be sued. Both the appellants are therefore organizations which are entitled to approach the High Court under Article 226 of the Constitution.
The Court relied on Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33, and said that as an existing legal right of the appellants was violated, thus it is the foundation for invoking the jurisdiction of the High Court under Article 226.
2) Whether Article 323-A of the Constitution makes it mandatory for the Union Government to establish SATs?
The Court took note of Article 323-A and said that Clauses (1) and (2) of Article 323-A use the expression “may,” indicating that Article 323-A does not compel Parliament to enact a law to give effect to it. Parliament is entrusted with the discretion to enact a law which provides for the adjudication of certain disputes by administrative tribunals. It is a permissive provision. The provision is facilitative and enabling. However, in certain cases, the power to do something may be coupled with a duty to exercise that power.
Further, the Court gave a non-exhaustive list of factors which will aid courts in interpreting whether a provision is directory or mandatory, and said that Article 323-A does not specify the conditions in which the power to enact laws providing for the adjudication of certain disputes by administrative tribunals must be exercised. It therefore cannot be said that Parliament was obligated to exercise this power upon the fulfilment of certain conditions.
Thus, the Court held that the word “may” in Article 323-A of the Constitution is not imparted with the character of the word “shall.” Article 323-A is a directory, enabling provision which confers the Union Government with the discretion to establish an administrative tribunal. The corollary of this is that Article 323-A does not act as a bar to the Union Government abolishing an administrative tribunal once it is created.
3) Whether Section 21 of the General Clauses Act can be invoked to rescind the notification establishing the OAT, thereby abolishing the OAT?
The Court said that Section 21 of the General Clauses Act can be invoked when its application is not repugnant to the subject-matter, context, and effect of the statute and when it is in harmony with its scheme and object. Thus, it referred to the provisions of the statute in question to determine whether Section 21 of the General Clauses Act will be applicable.
After anaysing the scheme of the Administrative Tribunals Act, the Court said that this Act does not contain a provision and a corresponding procedure for the abolition of an SAT once it is established. However, this does not mean that the abolition of an SAT, once it is set up, is impermissible. Therefore, it held that there was nothing in the Administrative Tribunals Act repugnant to the application of Section 21 of the General Clauses Act.
4) Whether the transfer of cases from the OAT to the Orissa High Court has the effect of enlarging the jurisdiction of the latter?
Considering the question relating to the transfer of cases from the abolished OAT to the Orissa High Court, said that Orissa High Court’s jurisdiction in relation to matters pending before the OAT is not being created or enlarged by the abolition of the OAT. It previously exercised such jurisdiction and is merely resuming its jurisdiction over the same subject matter. Thus, the A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, is not applicable to the facts of the present case.
5) Whether the abolition of the OAT is arbitrary and therefore violative of Article 14 of the Constitution?
The Court said that the State Government’s decision to abolish the OAT will have to be scrutinised with a view to understanding whether any extraneous or irrelevant considerations intruded into the decision.
The Court noted that the State Government was not only concerned with the additional tier of litigation at the Orissa High Court but also with the expenditure incurred to operate the OAT as well as the rate at which the OAT disposed of cases. It was persuaded to abolish the OAT due to a combination of all these factors. These reasons were not irrelevant to the decision as to whether a tribunal ought to be continued. Further, the State Government’s act of consulting the Orissa High Court (upon receiving a request to this effect from the Union Government) before deciding to abolish the OAT was not irrelevant or extraneous. Thus, it held that the decision to abolish the OAT was not one which was so absurd that no reasonable person or authority would ever have taken it.
Placing reliance on M.P. High Court Bar Assn. v. Union of India, (2004) 11 SCC 766 the Court held that the abolition of the OAT is not arbitrary or unreasonable. It does not violate Article 14 of the Constitution. Further, the notification dated 2-08-2019 is not based on irrelevant or extraneous consideration.
6) Whether the abolition of the OAT is violative of the fundamental right of access to justice?
The Court said that the fundamental right of access to justice is no doubt a crucial and indispensable right under the Constitution of India .The High Court of Orissa has creatively utilised technology to bridge the time taken to travel from other parts of Odisha to Cuttack. Indeed, other High Courts must replicate the use of technology to ensure that access to justice is provided to widely dispersed areas.
Further, it said that the abolition of the OAT does not leave litigants without a remedy or without a forum to adjudicate the dispute in question. The litigants must approach the Orissa High Court for the resolution of disputes. Th It is therefore not violative of the fundamental right of access to justice.
7) Whether the Union and State Governments have violated the principles of natural justice by failing to provide the OAT Bar Association and the litigants before the OAT with an opportunity to be heard before arriving at a decision to abolish the OAT?
The Court said that the absence of a right to be heard before the formulation or implementation of a policy does not mean that affected parties are precluded from challenging the policy in a court of law. What it means is that a policy decision cannot be struck down on the grounds that it was arrived at without offering the members of the public at large an opportunity to be heard. The challenge to a policy may be sustainable if it is found to vitiate constitutional rights or is otherwise in breach of a mandate of law. Thus, it was held that the principles of natural justice have not been violated
8) Whether the notification dated 2-08-2019 is invalid because it is not expressed in the name of the President of India?
The Court said that the notification was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification was issued by the President. Hence, it held that the said notification is not invalid and unconstitutional.
Further, the Court noted that the notification dated 4-08-1986, by which the OAT was established was also not issued in the name of the President. Thus, if the arguments of the appellants were to be accepted, the notification dated 4 -08-1986 would be invalid.
The Court said that the notifications were published in the Gazette of India in accordance with law and there is nothing on record to support the suggestion that an authority which is not empowered to issue the notification has issued it.
Thus, the Court held that issuance of both notifications was an exercise of the Union Government’s statutory power under the Administrative Tribunals Act.
9) Whether the State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT?
Considering the contention that the State Government tried to take advantage of its own wrong by failing to fill the vacancies in the OAT and creating the conditions for the abolition of the OAT., the Court held that the State Government did not take advantage of its own wrong as the State Government found the OAT’s usual performance i.e., rate of disposal of cases to be unsatisfactory. This aspect of the OAT’s functioning played a role in the State Government’s decision to abolish the OAT.
10) Whether the failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT vitiates its decision to abolish the OAT?
The Court took note of Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 and said that the direction to conduct a judicial impact assessment was of a general nature. It was not geared towards proposals to abolish specific tribunals such as the OAT.
Theus, the Court held that failure to conduct a judicial impact assessment does not vitiate its decision to abolish the OAT. Nothing in the judgment in Rojer Mathew (supra) also indicates the need for the Union Government to obtain the permission of this Court before abolishing the OAT
11) Whether the Union Government became functus officio after establishing the OAT
The Court said that the decision to establish the OAT was administrative and based on policy considerations. If the doctrine of functus officio were to be applied to the sphere of administrative decision-making by the state, its executive power would be crippled. The state would find itself unable to change or reverse any policy or policy-based decision and its functioning would grind to a halt. All policies would attain finality and any change would be close to impossible to effectuate.
Further it said that the State and Union Governments’ authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. Thus, it held that the Union Government did not become functus officio after establishing the OAT.
[Orissa Administrative Tribunal Bar Association v Union of India, 2023 SCC OnLine SC 309, decided on 21-03-2023]]
*Judgment authored by: Chief Justice Dr. DY Chandrachud
