By Apurva Rathee, Advocate

INTRODUCTION:

  1. The Constitution (Forty-Second Amendment) Act, 1976

From the very outset it has been a see-saw game between the executive and the judiciary. By the 42nd Amendment of the Constitution the Executive sowed the seed of taking in its fold such executive powers which is unparalleled in the Indian Legal history. This Amendment, inter alia, brought about a major amendment in Article 311 of the Constitution, inasmuch as the second opportunity of hearing to a charged employee (for hearing on the quantum of penalty) was taken away. When this deprivation was challenged, the Supreme Court held, in Union of India v. Tulsiram Patel,[1] that a public servant who has been faced with wrongful dismissal has statutory remedies of appeal and that is not all, if he remains dissatisfied, he has still the remedy of ‘judicial review.’ Thus, the Supreme Court gave judicial review its due credit. By judicial review the Apex Court meant review by the Constitutional Judicial authorities, as well as, judicial review by the Tribunal which was on the anvil.[2]

The 42nd Amendment also inserted Part XIV-A of the Constitution which consists of Article 323-A and Article 323-B. These articles deal with the setting up of Administrative Tribunals for adjudication of disputes relating to various matters.

The object behind the insertion of Art. 323-A and Art. 323-B was to reduce the mounting arrears in the High Courts and to secure speedy disposal of service matters, revenue matters and certain other matters of special importance, in the context of the socio-economic development and progress.[3]

    2. Establishment of Administrative Tribunals for Service Matters: Art.323-A

The Administrative Tribunals were established for adjudication of disputes with respect to recruitment, matters concerning recruitment and conditions of service of persons appointed to civil services and posts in connection with the affairs of the Union or of any State or of any local or other authority under the control of the Government or of any corporation or society owned or controlled by the Government. This was done in pursuance of the provisions of Art.323-A[4] inserted in the Constitution by S. 46 of the 42nd Constitutional Amendment, 1976.

In the Statement of Objects and Reasons for introducing the Bill for the Administrative Tribunals Act 1985, it was mentioned that the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in dealing with these matters expeditiously. The provisions of the Administrative Tribunals Act 1985 do not apply to members of the military or any paramilitary force, officers or employees of the Supreme Court or any High Court or courts subordinate thereto, persons appointed to the secretarial staff of either House of Parliament or any State Legislature. A person who is, or has been, a Judge of a High Court heads an Administrative Tribunal as its Chairman.[5]

Art. 323B has a much wider coverage. It empowers the appropriate legislature to provide, by law, for adjudication or trial by tribunals of any disputes or offences with respect to the following matters: (i) taxation; (ii) foreign exchange; (iii) import and export; (iv) industrial and labour disputes; (v) land reforms; (vi) ceiling on urban property; (vii) election to Parliament or State Legislature; (viii) production, procurement, supply and distribution of food stuffs and other essential goods and control of prices of such goods; (ix) offences against the laws with respect to the matters specified above; and (x) any other incidental matter.[6] However, for the purpose of the present project only service matters (Art. 323-A) would be dealt with.

JUDICIAL REVIEW AND ADMINISTRATIVE TRIBUNALS:

  1. Judicial Review: Meaning

Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. It is a challenge to the way in which a decision has been made. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the law has been correctly applied and the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.[7]

Judicial review thus is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its own decision for that of some other body, the court on review is concerned only with the question whether the act or order under attack should be allowed to stand or not.[8]

The Supreme Court has explained in S. R. Bommai v. Union of India,[9] that in judicial review, the court is not concerned with the merits of the decision under review, but with the manner in which the decision has been taken or the order made. The duty of the court is to confine itself to the question of “legality, propriety or regularity” of the procedure adopted by the decision-making authority.[10]

    2. Judicial Review and Judicial Control

Judicial review is ‘supervisory’, rather than ‘corrective’ in nature. Judicial control includes judicial review within itself. Judicial control comprises of all methods through which a person can seek relief against the administration through the medium of the Courts, such as, appeal, writs, declaration, injunction, damages and statutory remedies against the administration.[11] Judicial review is denoted by the writ system which functions in India under Article 32 and Article 226 of the Constitution. In Wade’s Administrative Law, as to ‘Review, legality and discretion’ it is stated that the system of judicial review is radically different from the system of appeals. When hearing a appeal the court is concerned with the merits of a decision whereas when hearing a review Court is concerned with its legality. On appeal the question is ‘right or wrong’. On review the question is ‘lawful or unlawful’. Rights of appeal are always statutory. Judicial review on the other hand, is the exercise of the Court’s inherent power to determine whether action is lawful or not and to award suitable relief.[12]

     3. Sampath Kumar’s Case

The orders, determinations and decisions of various administrative tribunals and administrative bodies are very often made final, i.e. their decisions are given a statutory finality. This statutory finality means two things:

  1. It means that there is no provision for an appeal, revision or reference to any higher tribunal; and
  2. It means that jurisdiction of courts in respect of matters within the reach of the tribunal is barred.

But the doctrine of judicial review is a part of the basic structure of the Constitution and as such it cannot be excluded even by constitutional amendment.[13] The validity of the Administrative Tribunals Act, 1985 was challenged on the ground that it seeks to exclude the doctrine of judicial review.[14]

Originally the Act excluded the Supreme Court jurisdiction under Art.32 as well as that of the High Court under Art.226 and Art.227 in relation to service matters. This was challenged in the Supreme Court in the case of S.P. Sampath Kumar v. Union of India.[15] In this case the Supreme Court directed the carrying out of certain measures with a view to ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes were brought about in the Administrative Tribunals Act 1985 by an amending Act (Act 19 of 1986). Jurisdiction of the Supreme Court under Art. 32 of the Constitution was restored by making amendments to Art. 323-A (2) (d) of the Constitution and Sec. 28 of the Administrative Tribunals Act, 1985. But the question of exclusion of the High Courts’ jurisdiction under Art.226 and Art.227 still remained. In this connection the Supreme Court pointed out that in an earlier case, K.K. Dutta v. Union of India,[16] it had itself suggested the setting up of a system of service tribunals to decide controversies relating to conditions of service with a view to save the courts from an avalanche of writ petitions and appeals in service matters.[17] A five Judge Bench upheld the validity of the Act. The Court held that if a constitutional amendment takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, doctrine of basic structure would not be violated so long as the essential condition that the alternate authority is no less effective than the High Court is fulfilled. Under Section 28 of the Administrative Tribunals Act, 1985, the judicial review of the tribunals is vested in the Supreme Court. Hence, the exclusion of High Court’s jurisdiction does not totally bar judicial review as matters of importance and grave injustice can be brought to the Supreme Court for rectification. Thus the Administrative Tribunals became an effective and real substitute for the High Courts.

In Union of India v. Deep Chand Pandey,[18] the services of casual typists in Government were terminated. Employees claimed the right to continue in service with additional claim of temporary status. High Court entertained their claim and decided in their favour. The matter went in appeal to the Supreme Court. It was held by the Supreme Court that the High Courts have no jurisdiction to entertain their claim as it is covered by the Administrative Tribunals Act, 1985 and therefore only Central Administrative Tribunal has jurisdiction to entertain their claim.

    4. Chandra Kumar’s Case

On account of divergent opinions expressed by the Supreme Court in various cases after the Sampath Kumar’s Case, a fresh look by a larger Bench on all the issues decided by that case deemed to be necessary. The question therefore came under the scrutiny of a seven-judge Constitutional Bench of the Supreme Court in the case of L. Chandra Kumar v. Union of India.[19] The Supreme Court has partially overruled in its judgment given in Sampath Kumar case. In L. Chandra Kumar’s case the Supreme Court has unanimously held that clause 2(d) of Art.323A and clause 3(d) of Art.323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Courts are unconstitutional as they damage the power of judicial review which forms the basic structure of the Constitution. The power of judicial review over legislative action vested in the High Courts under Arts.226 and 227 and the Supreme Court under Art.32 of the Constitution is an essential and integral feature of the Constitution.

The Court held that while the jurisdiction of the Supreme Court and the High Court cannot be ousted, other courts and tribunals may perform a supplementary role in discharging the functions. However, the Court held that all decisions of the tribunals will be subject to the scrutiny before the Division Bench of the High Court which has jurisdiction over the tribunal concerned.

The tribunals would continue as the courts of first instance in respect of areas of the law for which they had been constituted. It will not, therefore, be open to litigants to directly approach the High Courts even in cases where they question the vires of statutory litigation by overlooking the jurisdiction of the concerned tribunal except where the legislation which created the particular tribunal is being challenged. This, the Apex Court said, would serve two purposes. Firstly, while saving the power of judicial review of legislative actions vested in the High Courts under Art. 226 and 227, it would ensure that frivolous claims are filtered out through the process of adjudication in the tribunals. Secondly, the High Courts would have a benefit of a reasoned decision on merits, which would be of use to it in finally deciding the matter.

The result of this decision is that the tribunals lost their status, but not jurisdiction. The High Courts have not regained their jurisdiction fully in as much as they cannot entertain any writ petition in the first instance. Earlier after losing in a tribunal the aggrieved person could immediately approach the Supreme Court under Art. 136 Special Leave Petition. Now, before approaching the Supreme Court, the person aggrieved has to first move the High Court. Persons who are subject to the jurisdiction of the tribunals have gained another remedy by way of a writ petition before the High Court concerned.

In T. K. Rangarajan v. Government of Tamil Nadu,[20] the action of the Tamil Nadu government terminating the services of about 2 lakh employees who had resorted to strike for their demands was challenged before the Madras High Court by filing writ petitions under Art. 226/ Art. 227 of the Constitution. A Division Bench of the High Court set aside the interim order granting relief passed by a learned Single Judge of the High Court, holding that the petitioners should have exhausted their remedy of approaching the Administrative Tribunal. Since the circumstances presented in the case were very exceptional, there was no justifiable reason for the High Court to not entertain the petition. The Apex Court, however, ruled that extraordinary powers were required to be used sparingly.[21]

NEED AND SCOPE OF JUDICIAL REVIEW:

The administrative functions are manifestations of discretion of administrative authorities. As long as these discretionary powers are exercised within the framework of the Constitution, and various governmental policies, it remains free from any vitiating factors. However the exercise of discretion is not always flawless. They are often challenged before courts of law on grounds that they are tainted with arbitrariness, or with bias and mala fides or they are vitiated on account of lack of natural justice.[22]

The bulk of law suits between the States and its employees necessitated the development of a new branch of law named “service jurisprudence”. This thrusts upon the courts and tribunals to test the vires of administrative function on the principle of judicial review. In O.P. Gupta v. Union of India,[23] the Apex Court has observed, “There is no presumption that government always acts in a manner which is just and fair.”

In Central Inland Water Transport Corporation v. Brojonath Ganguly,[24] the question was if State could terminate services of permanent employees with three months notice, but without showing reasons taking advantage of a term in employment rules providing such termination. The Court held the term as unconscionable, as well as contradictory to public policy. The Court observed that if provisions do not enjoin the officers to observe principles of natural justice while taking adverse actions, there is no presumption in favour of high officers that they would not act arbitrarily.[25]

Besides, there are occasions when the Court gives directions in the manner of recommendations or suggestions for drawing up schemes for amelioration of the plight of persons engaged in public service.

The scope of judicial review, however, is very limited. Not only that, the principle of judicial review has to be strictly applied. Court while making judicial review of State action will first see if the discretion was fairly exercised by the concerned authority. In this inquiry the Court follows the principle of “substantial compliance” with the rules and procedure. If the result of the enquiry goes in favour of the administrations, the Court lacks authority to go further.[26]

In Union of India v. Sardar Bahadur,[27] the Supreme Court held that if there are some relevant materials on the basis of which the authority has come to the reasonable conclusion that the officer is guilty then, it is not the function of the High Court in exercise of its powers under Art. 226 to review the material and arrive at its own conclusion. If the enquiry has been properly held, the question f adequacy or reliability of evidence cannot be canvassed before the High Court. The Supreme Court also held that if the order of the punishing authority can be supported on any findings as to substantial misdemeanour for which the particular punishment can be imposed, it is not for the Court to consider whether the charge proved along would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed was just and proper, provided it is justified by the rules and is considered to be appropriate having regard to the misdemeanour established. Only if the Court finds that the punishment is such that it shocks the conscience of the court can it interfere.

The principles that guide the Supreme Court in exercising judicial review of State action has been stated in Ranjit Thakur v. Union of India.[28] There the Court laid stress on irrationality and perversity of the decision and said that they are the recognized grounds for judicial review. The Apex Court noted three heads or grounds on which administrative action is subject to control by judicial review. They are:

  • Illegality
  • Irrationality
  • Procedural impropriety.
  • Proportionality (the Court agreed that proportionality could be the forth potential ground)

In Tata Cellular v. Union of India,[29] Supreme Court reviewed the scope of judicial review of administrative actions and laid down certain basic guidelines for the same. These are:

  • While reviewing administrative actions judges must maintain judicial restraint. But where the administrative authorities abuse their discretionary powers the Court cannot be a silent spectator.
  • Judges should bear in mind that they do not sit in appeal but merely doing review of the decision making process,
  • Court is not an expert to correct administrative decisions and to substitute its own,
  • Matters for contractual negotiations are outside the purview,
  • The freedom of executive not to be interfered except on Wednesbury principles of reasonableness and fairness and not affected by bias and mala fides, and
  • Quashing decisions may impose heavy administrative costs.[30]

Courts can exercise their power of judicial review in the following cases, i.e., on account of lack of natural justice, on account of malice, mala fide or bias:

  1. On account of Lack of Natural Justice

Natural justice is a form of justice in its abstract moral sense as distinct from legislation or statute or a decision by a court of law. Even then its absence gives one a feeling of injustice.

There is a violation of principle of natural justice:

  • Where defence witnesses are not allowed to be produced;
  • Where the essential documents for the defence are not allowed to be proved or the prosecution witnesses are not allowed to be cross-examined;
  • Where the enquiry officer acts upon certain material not disclosed to the guilty officer, or the time given for answering the charges is not sufficient;
  • Where the enquiry officer has a personal bias against the delinquent officer.

The principle of natural justice is based on two pillars:

  • Nobody shall be condemned without hearing; and
  • Nobody shall be a judge in his own cause.

But the principles of natural justice can be excluded by a statute. These can also be waived. In a case where doctrine of necessity is applicable compliance with the principles of natural justice would be excluded.[31]

The principles of natural justice have come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by the Supreme Court of India to the concept of equality. In the case of Central Inland Water Transport Corporation v. Brojonath Ganguly,[32] the Supreme Court has held that the violation of a rule of natural justice results in arbitrariness which is the same as discrimination. Where discrimination is the result of State action, it is violation of Art. 14, therefore the violation of a principle of natural justice by State action is a violation of Art. 14. However, Art. 14 is not the sole repository of the principle of natural justice. This principle applies not only to legislation and State action but also where any tribunal, authority or body of men are charged with the duty of deciding a matter.[33]

  • The first principle of natural justice

First principle of the rule of natural justice is that one should not be the judge in his own cause (nemo debet esse judex in causa propria sua). Thus, in a case where an aspirant to the selection to the cadre of All India Forest Service took part in selection of candidates, including his rival candidates for the post, it was held that there has been a violation of natural justice and the selection was tainted.[34]

The Doctrine of Necessity controls the application of this principle. Thus, where by necessity of circumstances, a person has to decide a matter with which he may be connected as having interest, participation of such person to decide the issue cannot be considered to have violated the first principle of natural justice.[35]

The Supreme Court explained this exception in J. Mahapatra & Co. v. State of Orissa[36] by holding that an adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person competent or authorized to adjudicate or if quorum cannot be formed without him or if no other competent Tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter.

  • The second principle of natural justice

The most used principle of natural justice is its second principle, which says “audi alteram partem” i.e. hear the other party. The ingredients of a fair hearing are:

  • Prior notice,
  • Right to make representation, and
  • Right to be heard.

When any of these essentials are wanting, the decision is tainted with arbitrariness. The first Indian case on arbitrariness is State of Orissa v. (Dr.) Binapani Dei.[37] In this case there was a dispute about respondent’s correct date of birth. The State made a preliminary enquiry and on that basis decided that out of the four dates given by the employee, the date 16th April 1907 be determined as her date of birth. After so determining, the State compulsorily retired her on ground that she had superannuated but without giving her an opportunity of hearing. The respondent successfully challenged the order before the High Court. When the State approached the Supreme Court, the Supreme Court agreed with the contention of the State that the order was administrative in character, but the court said that even an administrative order, which involves civil consequences, must be made consistently with the rules of natural justice. The court therefore did not approve of the State action and dismissed its appeal.

  • Fairness

Fairness in administrative actions is the next most important criterion of natural justice. Need for fairness in service jurisprudence cannot be over emphasised. Fairness involves reasonableness. This principle permeates all activities of the State be they administrative or quasi-judicial. Where this is wanting, the Supreme Court enforces that the State revises its decision after observing the rules of justice and fair play.[38]

In Som Raj v. State of Haryana[39] it was held that mere absence of fairness by itself would not be sufficient, unless that amounts to illegality. In this case it was alleged that in 1973 the Director unfairly picked up five candidates from the select list in an arbitrary manner and created a separate cadre for Head Office when all the employees working at head office and subordinate officers had the same qualifications, same pay scale and same coordination of service. The Supreme Court agreed to the contention however on consideration of other factors, held that although the Director had done irregularities by pick and choose process but there is no irregularity in having separate cadres as the rules themselves provide for such separation. The Court therefore concluded that there was no illegality in having two separate cadres with two seniority groups between the Head Office and the Subordinate Offices.

  • Wednesbury Rule

The Wednesbury Rule is the product of the English decision in Associated Provincial Picture House Ltd. v. Wednesbury Corporation.[40] According to this rule, while examining reasonableness of an administrative decision, the court has to find out:

  • If the administrator has left out relevant factors or taken into account irrelevant factors and
  • If the decision is not such as sensible person would have reasonably arrived at.
  • It is not the business of the Court to see if out of several options, the administrator has taken one and left others, although the one taken by the administrator may not appeal to the court.[41]

The Court will uphold administrative orders, if the orders are reasonable and they meet the several tests of fairness as indicated by Wednesbury principles. In Union of India v. G. Ganayutham,[42] the Supreme Court was examining whether the action of the disciplinary authority was reasonable and fair, where it inflicted punishment upon the delinquent official by 50% cut in pension as well as withholding 50% of gratuity. The Supreme Court held that it was the discretion of the administrative authority to fix the quantum of punishment and unless it is shown to be outrageous to conscience, Court or Tribunal should not interfere with the administrative decision.

  • Proof of injustice

There has been certain shift in the application of the principles of natural justice in recent times. While earlier it was held that non-observance of the principle of natural justice is itself a prejudice and no separate proof of prejudice was needed. But subsequent decisions insisted for separate proof of prejudice.

In K.L. Tripathi v. State Bank of India,[43] Sabyasachi Mukherjee, J., as he was then held that de-facto prejudice must also be proved. The Apex Court insisted that there must be some real prejudice caused to the petitioner before he could invoke judicial review on ground of violation of natural justice. Thus, later decisions have shifted from the Ridge v. Baldwin[44] principles that non-observance of natural justice is sufficient for quashing the order and that there was no need of proof of prejudice independently. The present trend is to look for such additional proof of prejudice and mere non-observance of natural justice would no longer be sufficient for judicial interference.[45]

    2. On account of Malice

In common parlance malice means ill-will, spite or malevolence. However, in law the term has a wider meaning; it means wrongful intention or recklessness; it also means bad motive. Exercise of discretion without just cause is also malice.[46]

An order is vitiated if it is passed by the authority:

  • Without applying its mind, either as to the guilt of the person charged or the penality to be imposed; or
  • Upon extraneous considerations, as passed or the directions issued by a superior administrative authority which were not disclosed to the delinquent; or
  • It was made for a purpose or upon a ground other than that is mentioned of the face of the order.[47]

   3. On account of Mala fide

While in law, malice means a wrongful act intentionally performed but without just cause, the term mala fide includes malice and also an ulterior motive to cause injury to someone. The difference lies in degree only. In State of Bihar v. P.P. Sharma,[48] the apex Court has defined mala fide as: “Mala fide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.” A question of mala fide maybe looked into from two different angles. One relates to the mindset of the authority and the other to the actual manner of exercise of the power.[49]

Where a clause of the second proviso to Art. 311 (2) or an analogous Service rule is applied on an extraneous ground having no relation to the situation envisaged in such clause or rule, the action of the disciplinary authority in applying that clause or rule would be mala fide and therefore bad in law and the court in exercise of its power of judicial review could strike down both the order dispensing with the enquiry and the order of penalty following thereupon.[50]

If the reasons for dispensing with the enquiry are not communicated to the concerned civil servant and the matter comes to court, the Court can direct the reasons to be produced and furnished to the civil servant and if still not produced, a presumption shall be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can however, be rebutted by a satisfactory explanation of the non-production of the written reasons.[51]

In Pratap Singh v. State of Punjab,[52] the petitioner was a civil servant who had been granted leave preparatory to retirement and subsequently the leave was revoked and Government recalled him on duty and simultaneously placed him under suspension pending the result of an inquiry into certain charges of misconduct. The petitioner challenged the action in the High Court but the same was dismissed. The appellant went in appeal to the Supreme Court. His case was that the Government action was mala fide and it was harassing him as he had brought out the malpractices of the Chief Minister. On these facts, a Constitution Bench of the Supreme Court, by majority, upheld the contention of the petitioner that the exercise of power was mala fide and said, “…In the circumstances we are satisfied that the dominant motive which induced the Government to take action against the appellant was not to take disciplinary proceeding against him for misconduct which it bona fide believed he had committed, but to wreck vengeance on him for the discredit that he had brought on the Chief Minister by the allegations that he had made in an article.”[53]

     4. On account of Bias

Any administrative decisions tainted with bias would not be sustained by courts. Bias affects not only the decision but also the decision making process inhibiting the very power to decide. The principles governing the doctrine of bias are:

  • No man shall be a judge in his own cause;
  • Justice should not only be done but manifestly and undoubtedly seem to be done;
  • Any direct pecuniary interest, however small, in the subject matter of the enquiry will disqualify a judge, and any interest, though not pecuniary will have the same effect if it be sufficiently substantial to create a reasonable suspicion of bias.[54]

GENERAL FEATURES OF JUDICIAL REVIEW:

  • Judicial Review is part of the Basic Structure of the Constitution

Judicial review has been placed on a very high pedestal as it has been declared by the Apex Court to be one of the fundamental features of the Indian Constitution. This means that even by passing a constitutional amendment, judicial review cannot be extinguished, abrogated or diluted. The Supreme Court has taken the view that protection of fundamental rights is crucially inter-connected with the protection of judicial review. This position has been re-asserted in L. Chandra Kumar v. Union of India[55] in the following words: “The jurisdiction conferred upon the High Courts under Arts. 226/227 and upon the Supreme Court under Art. 32 of the Constitution is part of the inviolable basic structure of our Constitution.”[56]

  • Court must not usurp the discretion of the Public Authority

The doctrine that powers have to be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority. The Court must strive to apply an objective standard which leaves to the deciding authority the full range of choice which legislature is presumed to have intended.

  • High Court cannot suo moto decide constitutionality of a Statutory Rule

A High Court cannot suo moto decide constitutionality of a Statutory Rule where there are no averments in the writ petition as regards its unconstitutionality.[57]

  • Limits of Judicial Review of Service Rules

Rules laying the condition of service can be made by the Executive, under Art. 309 of the Constitution of India. In the absence of such rule instructions in exercise of its executive power can be issued. This is subject, of course, to law, made by the appropriate Legislature. The Supreme Court and Administrative Tribunal can enforce:

  • Fundamental rights, statutory provisions and rules and instructions
  • The Court has also to see that the executive authorities give a fair deal to its employees.
  • The State should not exploit its employees nor should it take advantage of the helplessness of either the employees or the employed persons.
  • The State should act as a model employer and give equal pay for equal work
  • It should not keep a person in temporary or ad hoc status for long. It should take steps for regularization.[58]

 

  • Judicial Review is concerned with the legality of the decision and not its merits

In judicial review the court is only concerned with the manner in which the decision has been taken or the order made. Where a civil servant is dismissed and he prefers an appeal under Art. 226, the High Court is not concerned with the correctness or otherwise of the order. The High Court is only concerned with the question whether the rules and the law has been complied with or not.

  • Judicial scrutiny is not excluded altogether

While the High Court or the Supreme Court of India would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed:

  • Mala fide, or
  • That it is based on no evidence, or
  • That it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, or
  • It is found to be perverse order.[59]

 

Image source: isrj.org/ArticleImage/4016.jpg

[1] AIR 1985 SC 1416

[2] Ranadhir Kumar De, Cases & Materials on Service Disputes: Practical hints relating to Public Service, 241(2007)

[3] Prof. Narender Kumar, Service Law: Law relating to Government Servants and Management of Disciplinary Proceedings, 3rd Ed., 271 (2011)

[4] The Constitution of India, Article 323A. (1) 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 persons appointed to public services and posts in connection with the affairs of the 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.

[5]  Law Commission of India, 215th Report on L. Chandra Kumar be revisited by Larger Bench of Supreme Court 11 (December, 2008)

[6] M.P. Jain & S.N. Jain, Principles of Administrative Law, 6th Ed., Vol.1, 661 (2007)

[7] http://www.publiclawproject.org.uk/downloads/GuideToJRProc.pdf 

[8] M.P. Jain & S.N. Jain, Principles of Administrative Law, 6th Ed., Vol.2, 1779 (2007)

[9] AIR 1994 SC 1918

[10] Jain, supra note 8, pp. 1789-90

[11] Doabia & Doabia, The Law of Services & Dismissal, 4th Ed., Vol. 2, 3091 (2011)

[12] Jain, Supra note 8, p. 1779

[13] Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461

[14] Dr. J.J.R. Upadhyaya, Administrative Law, 7th Ed., 153 (2009)

[15] AIR 1987 SC 386

[16] AIR 1980 SC 2056

[17] Jain, supra note 6, p. 663

[18] AIR 1993 SC 382

[19] AIR 1997 SC 1125

[20] AIR 2003 SC 3032

[21] Narender Kumar, supra note 3, p. 291

[22] De, supra note 2, p. 245

[23] AIR 1987 SC 2257

[24] (1986) 3 SCC 156

[25] De, supra note 2, p. 244

[26] Id., p. 245

[27] (1972) 4 SCC 618

[28] (1987) 4 SCC 611

[29] (1994) 6 SCC 651

[30] De, supra note 2, p. 247

[31] Doabia & Doabia, supra note 11, p. 3140

[32] AIR 1986 SC 1571

[33] Doabia & Doabia, supra note 11, p. 3140

[34] De, supra note 2, p. 252

[35] Id., p. 262

[36] (1984) 4 SCC 103

[37] AIR 1967 SC 1269

[38] De, supra note 2, p. 256

[39] AIR 1990 SC 1176

[40] [1948] 1 KB 223

[41] De, supra note 2, p. 258

[42] (1997) 7 SCC 463

[43] (1984) 1 SCC 43

[44] [1963] 2 All ER 66

[45] De, supra note 2, p. 259

[46] Id., p. 274

[47] Doabia & Doabia, supra note 11, p. 3164

[48] AIR 1991 SC 1260

[49] De, supra note 2, p. 277

[50] P.K. Majumdar & O.P. Tiwari, Service Laws in India, 3rd Ed., 94 (2007)

[51] Id., p. 95

[52] AIR 1964 SC 72

[53] De, supra note 2, p. 279

[54] Doabia & Doabia, supra note 11, p. 3170

[55] AIR 1997 SC 1125

[56] Jain, supra note 8, pp. 1794-95

[57] Doabia & Doabia, supra note 11, p. 3092

[58] State of Haryana v. Piara Singh, AIR 1992 SC 2130

[59] Doabia & Doabia, supra note 11, p. 3097

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