Summary
At Odisha's request, the Union Government abolished the Odisha Administrative Tribunal in August 2019 by rescinding the 1986 notification establishing it under Section 21 of the General Clauses Act, 1897 read with Section 4(2) of the Administrative Tribunals Act, 1985, transferring pending cases to the Orissa High Court, which upheld the abolition. A three-Judge Bench dismissed the appeals: Article 323A is enabling, not mandatory; establishing a tribunal is an administrative decision that Section 21 permits to be rescinded; the decision rested on relevant factors and was not arbitrary; no hearing was due before a policy decision; the Government was not functus officio; non-compliance with Article 77 does not invalidate the notification; and access to justice was not infringed.
Issues
- Whether Article 323A of the Constitution makes it mandatory for the Union Government to establish State Administrative Tribunals and bars their abolition once established.
- Whether Section 21 of the General Clauses Act, 1897 can be invoked with Section 4(2) of the Administrative Tribunals Act, 1985 to rescind the notification establishing a State Administrative Tribunal.
- Whether the abolition of the Odisha Administrative Tribunal was arbitrary under Article 14, violated natural justice or the right of access to justice, was vitiated by the doctrine of functus officio, by the notification not being expressed in the name of the President, or by the absence of a judicial impact assessment.
Provisions considered
- Article 323A, Constitution of IndiaUses the permissive 'may'; its purpose of reducing arrears and securing speedy disposal can be achieved by other means, so applying the tests in Dharti Dhan and Dhampur Sugar Mills it is directory and enabling and does not bar abolition of a tribunal once created. (¶¶ 33, 36, 37, 38, 39, 42)
- Section 21, General Clauses Act, 1897A rule of construction allowing a power to issue notifications to include a power to rescind them; it does not apply to quasi-judicial orders, but the establishment of the tribunal was an administrative, policy-based decision, and nothing in the subject matter, context or scheme of the Administrative Tribunals Act is repugnant to its application under the D.N. Ganguly test. (¶¶ 43, 45, 49, 51, 56, 58, 59, 63, 64, 72)
- Sections 4(2) and 29, Administrative Tribunals Act, 1985The Union may establish a State tribunal on the State's request; though the Act is silent on abolition, the State has an implied power to request it and the Union to rescind the notification; transfer of pending cases to the High Court is a revival, not an enlargement, of its jurisdiction. (¶¶ 5, 6, 57, 58, 59, 71, 72)
- Article 14, Constitution of IndiaTested on the Wednesbury standard, the State considered relevant factors, namely the additional tier of litigation after L. Chandra Kumar, the expenditure on the tribunal and its low disposal rate, and consulted the High Court; the decision was not absurd, as held similarly in the Madhya Pradesh Administrative Tribunal abolition case. (¶¶ 74, 75, 79, 81, 82, 83)
- Article 77, Constitution of IndiaA directory provision; a notification not expressed in the name of the President is not invalid but merely loses the irrebuttable presumption under clause (2), and both the 1986 and 2019 notifications were in substance issued by the Union Government under statutory power. (¶¶ 100, 101, 102, 104, 107, 110)
Held
- The writ petitions were maintainable because the registered associations alleged violation of their rights under Article 14 and of access to justice. Article 323A is an enabling provision; reading it as mandatory would prevent governments from evaluating whether tribunals actually reduce arrears or deliver speedy justice, and Dilip K. Basu is distinguishable since litigants here are not left without an efficacious remedy. (¶¶ 28, 31, 39, 40, 41, 42)
- The decision to establish the tribunal was administrative, not quasi-judicial, so Section 21 of the General Clauses Act was available to rescind it; the Act's silence on abolition is precisely the contingency Section 21 addresses, the 2006 Amendment Bill and the Union's earlier stance before the Madras High Court do not alter the legal position, and the doctrine of functus officio cannot apply to policy decisions lest governance be frozen. (¶¶ 51, 58, 59, 63, 64, 67, 69, 95, 96, 97)
- The State relied on relevant considerations and no extraneous ones, so the abolition is not arbitrary; following BALCO Employees' Union, the public has no right to be heard before a policy decision; the High Court's virtual benches make it at least as accessible as the tribunal, so the right of access to justice under Anita Kushwaha is not infringed; the State stopped filling vacancies only after deciding on abolition; and the Rojer Mathew direction on judicial impact assessment was general and did not bar abolition, though the Ministry of Law and Justice is directed to conduct that assessment at the earliest. (¶¶ 82, 86, 87, 88, 113, 114, 115, 118, 122, 124, 127)
Result
Appeals dismissed; challenge to the notification dated 2 August 2019 abolishing the Odisha Administrative Tribunal rejected and the Orissa High Court judgment dated 7 June 2021 affirmed; Ministry of Law and Justice directed to conduct the judicial impact assessment mandated in Rojer Mathew at the earliest; intervention application allowed; pending applications disposed of.