TRIBUNALISATION – A boon or bane for the litigant public
1.
Even at the cost of being accused of being biased in favour of the quality
services rendered by the personnel at various heirchical levels of the Indian
Judicial dispensation, I would reiterate that our Judicial System is one of the
most perfect segments which have stood the test of times. By saying so, I
do not mean to demean the services being rendered by the other facets of
administration. There is, however, perceptible difference between the
roster of the judicial personnel and their executive counter parts. In
the adjudicatory exercise, the former segment is unaffected by the placement,
financial or in terms of any type of authority, of the parties. As
against it, their counterparts are ordained to execute the orders of the political
leadership in terms of the Rules of Business. I would not dilute further
on the roster.
2.
Tribunalisation of the adjudicatory functioning was preceded by a realization
that the dockets in the High Courts were unmanageably heavy, thanks to the
enlargement of ambit of commerce in an open world as also the opening of mental
horizons of individuals following the dissemination of educative and awakening
literature. It was rightly perceived that the judicial personnel just
would not be in a position to dispose those of at the pace expected of
them. So far so good. Intrinsically, the thought of entrustment of
an identified roster to Tribunals was noble and inspiring. In actuality,
however, things did not go the expected way. Not being exactly aware of
the goings on elsewhere, I would advisedly restrict the documentation to the Central
Administrative Tribunal.
3.
Appropriately announced at various fore as the brainchild of former Prime
Minister Rajiv Gandhi, the CAT was envisioned as the replacement of the High
Court to the extent it pertained to the services disputes as between the Central
Government employees and the Central Government as also the intra –
departmental controversies. In due course of time, a number of Central
instrumentalities and organizations came to be notified as being within the
jurisdictional contours of the CAT which was announced by the Apex Court to be
exercising the jurisdiction under Article 226 of the Constitution of
India.
4.
The composition of the Tribunal Bench, however, proved the actual impediment in
the execution of a noble object. The powers that be legislated to provide
that the members of bureaucracy would be a compulsive component of the
Tribunal, besides the members of Bar with the requisite experience. With
that initial provision, members of the various All-India services found acceptance
as Administrative members of the CAT. For whatever reasons, amendments
brought in the Administrative Tribunals Act provided that only officers having
occupied offices at a particular level (either in the State Government or the
Central Government) would qualify for consideration. Be that as it may,
it is a stark reality that presently only those officers who have been
Secretaries or Additional Secretaries in the Government of India or Chief
Secretaries of a State are eligible for appointment. The members of
Allied Central Services are out of eligibility. It might well be an
incidental fact that the Secretaries of the Department of Personnel and
Training have been consistently getting (more than) their slice of share in
appointments.
5.
We are in an era of expertise. Though it is undeniable that the
generalist members bring with them rich administrative experience, they cannot
claim to be possessors of expertise in judicial functioning. Though I had
the pleasure of sharing Bench with an Administrative Member (an Uttarakhand
native who had retired from the Madhya Pradesh Cadre) who displayed a sense of
even justice and with an independent mind, I also experienced members whose
minds were obsessed with their natal organization. Justice Mehta, the
erstwhile Lokayukta of Gujarat whose appointment by the Governor
stirred lot of litigation controversy, very correct remarked that the
functioning minds may not be classified into only two segments i.e. pro or anti
establishment because appointees charged with the responsibility to adjudicate
or perform a like function could have an independent mind as well.
Without, at all, sounding to comment upon the validity or otherwise of his
appointment which is not in issue, I am only indicating the correctness of a
particular statement of his which was quoted by the print media.
6.
Though all the Administrative Members, who were my Bench Partners at Chandigarh
Bench of the Tribunal, were people of proven competence and integrity, I could
discern a feeling of announced and unannounced uneasiness on the part of some
of them when any part of the judicial order was in favour of a public servant
and obviously against the establishment. In their view, the imposition of
costs of even three digit figure could ‘affect’ the finances of the Govt.
That the Govt. concerned had already availed of more than half a dozen number
of adjournments therefore did not seem to be their concern. I recollect
when I was, in a given case, told that the Administrative Member would ‘recues’
if the personal appearance of a senior officer and a batch-mate was to be
ordered but would agree if only a notice was to be issued. The apparent
invalidity of cause for ‘recuse’ did not seem to be acceptable as the Member
who did not want to take cognizance of the fact that a ‘difference of opinion’
in an interim direction would be totally unprecedented.
Twin member of instanced
occasions did see a reference to a third (judicial) member, who found herself
in agreement with me.
7.
Retiring at the age of 62 years, an appointee from my feeder Cadre would get a
functional tenure of at the most three years to reach the optimum permissible
age of functioning. An Administrative Member would, as against it, get an
assured five years tenure. The Judicial Members from the Bar feeder Cadre
would get one tenure of five years, with another tenure of five years. To
the best of information available, each Judicial Member from the Bar feeder
Cadre till date got functional tenure, in all, of ten years. It is
difficult, nay impossible, to find logic in the grant of minimum tenure period
to a native of justice delivery system who, in a member of communications
addressed, is expected to give a direction to the Tribunal functioning.
8.
It brings into focus the aspect of want of uniformity in the age of retirement
of the personnel in the various Tribunals. In consumer dispensation, the
Head of the State Commission would retire at the age of 68 years. His
contemporaries in the Armed Forces Tribunal, the Income Tax Appellate Tribunal
as also the Appellate Tribunal of SEBI would retire at that age or even
thereafter. An appointee to the post of Lokayukta could be of any
age.
That would explain why
an HOD of the Bombay Bench of the CAT resigned midway and opted to head the
State Consumer Commission. That would further explain why a former Judge
of Punjab and Haryana High Court did not join the CAT appointment and opted to
be a part of a River Tribunal, before entering the state Assembly as a legislator.
In fact, a former Chairman of the CAT had, at various conferences of the
Tribunal, lamented the noticeably shorter tenure of Judicial Members (from the
High Court Judges feeder cadre) as one of the causes of desertion in favour of
placements having a longer tenure of functioning.
9.
In a Public Interest Litigation, the Apex Court is adjudicating upon the
validity or otherwise of the variation in the retirement age of Chairman/Member
of various Tribunals. As reported in the press, the Bench headed by
Justice G.S. Singhvi had rapped the Govt. for the variation and directed the
Law Officer to get the indefensible rectified at an expeditious pace. The
rap was reported by the press to have been repeated on the next date of
hearing. It was thereafter that the Govt. of India informed the Bench
that the matter had been referred to a Group of Ministries for
consideration. That information did not take cognizance of an observation
(reported by the press) during the course of hearing on an earlier occasion
that it (court) would consider issuance of a direction to the appointees from
my feeder cadre to withdraw (from the various Tribunals) if suitable steps were
not taken to ameliorate their lot in the context by the Government of
India.
10.
Justice Singhvi has concluded his tenure at the Apex Court. The pendency
status of the matter continues till date.
11.
There were numerous in the CAT corridors that the Government of India would
file the GoM finding – based counter only after certain ‘inconvenient’ Judicial
Members from my feeder cadre retired. It may be a sheer coincidence that
the events to follow have not falsified that rumor. Equally inexplicably
though, the Government of India decided upon the abolition of posts of Vice-Chairmen
of the CAT coinciding with the retirement of members from the Administrative
feeder source. The Apex Court judgment had, while invalidating the
assumption of supremacy in the nomination of Vice-Chairmen by the Government of
India as against the hitherto vesting thereof in the Chairman of the CAT,
indeed held that the abolition of those posts would be the prerogative of the
Government. The ‘abolition’ of that post (which did not involve any extra
perks otherwise and which only accorded a touch of nomenclatural ambience)
cannot be taken to be a coincidence because it came about at a time when
members of my feeder cadre were eligible for that appointment on account of
seniority.
12. On
point of fact, the want of availability of members of my feeder cadre has led
to the according of Head of Department status to member of other feeder
cadres. Hopefully, it was not envisioned to be like that. The headship of
a Bench by a local appointee is in particular beset with avoidable
embarrassment to the appointee, besides being accountable for many other
connected facets. When a clamour (not necessarily justified) for
percentage-wise shifting out of dignitaries at the higher level has been put
into practice from time to time, there is no justification for local placements
to the CAT bench, particularly when the CAT benches are a truncated
affair.
13.
The drawl of compassion between a High Court and the Tribunal would be
uncharitable as also inappropriate. The former has a sanctioned more than
six digits strength; while the Tribunal Benches (excluding the Principal Bench)
have at the most one or two division Benches. Even otherwise, the process
of appointments to the High Court is exceptionally rigorous and only the proven
competent and experienced make the grade; while the same is not seen to be true
of appointments to the CAT. On these two foundational premises, I do not
personally concur with the transferability of High Court appointees which
(policy of transfer) has been accountable for impeding the coming-in of many
highly competent members of bar to the
Bench.
14. My
experience (at whichever Bench I have been functioning as a Judicial Member) is
that the Administrative Member (with certain exceptions) feel openly uneasy
about accepting even the equivalence, much less administrative and
judicial seniority, of the members from the Bar feeder Cadre. The result
of the unease is for all to see in day-to-day functioning. Any
inquisitive mind would be able to find out the number and nature of
‘difference’ of opinion in the context. The documentation available would
include an instance when an Administration Member put in his papers when
seniority was accorded to a Bar appointee in extended tenure. Any further
instanced elaboration may not be appropriate.
15.
The Tribunals need performing personnel. Periodical appraisal of quantity
as also quality performance would be in order and in sync with the current view
(as reported by the print media) for the requirement of a similar exercise
while considering in – service judicial officers for elevation to the High
Court Bench. Though it may be uncharitable to singularly cast doubt over
the performance of the members from that feeder Cadre, there cannot be any
controversy about the acceptance of the need for appraisal in principle.
Justice (Retired) S.D.Anand
05.01.2014
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