Orissa High Court Upholds Centre's Notification Abolishing Odisha Administrative Tribunal

The Orissa High Court on Monday upheld the notification issued by the Department of Personnel and Training of the Central Government dated 2nd August 2019 which abolished the Odisha Administrative Tribunal (OAT). In an elaborative order, a division bench comprising of Chief Justice S. Muralidhar and Justice B.P. Routray observed that there was sufficient material to support the view of the State Government that OAT did not serve the purpose of delivery of speedy justice to the litigants. The development came in a bunch of petitions, challenging the impugned notification, filed by the Bar Associations of the OAT in Cuttack and Bhubaneswar, Odisha Retired Police Officers' Welfare Association and other individuals. "It appears that with passage of time in the experimental phase of ATs (Administrative Tribunals), a call had to be taken by many of the State Governments about the efficacy of continuing with the SATs based on their performance and the outcomes. They have tried the experiment for over three decades and feel the need for a change. It may not be proper for the High Court to decide to overturn that decision only because a different view is possible. Again from the point of view of the litigant unless the 'bypass' of a Tribunal is as good as the 'highway' of a High Court, the assurance of equal and fair justice may be rendered illusory." The Court observed. Art. 323A was inserted in the Constitution of India by way of 42nd Amendment Act, 1976 providing for the provisions concerning Tribunals. In terms of the aforesaid amendment, the Parliament enacted Administrative Tribunals Act, 1985 envisaging the creation of a Tribunal, both for the Centre and the States, which was expected to supplant/substitute the jurisdiction of the High Court under Article 226 of the Constitution. The Central Government established the OAT by a notification dated 4th July, 1986 published in the Gazette of India. The OAT began functioning as such with effect from 14th July, 1986. However, in the decision in L. Chandra Kumar v. Union of India AIR 1997 SC 1125, a 7 judge Constitution bench of the Supreme Court held that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. In furtherance of this, various State Administrative Tribunals were abolished. The State of Odisha Cabinet had on 9th September 2015 approved the proposal of abolition of OAT after observing that the decision would reduce the burden of the litigation of the Government and also reduce the time for resolution of the disputes. The Government of Odisha stated that it would take appropriate action to further strengthen the High Court including increase of judgeship to deal with the additional workload at the level of the High Court after abolition of the OAT. It was then on 2nd August 2019 that the DoPT published the impugned notification rescinding the earlier notification dated 4th July 1986 establishing the OAT. Issues Before the Court and Its Observations Issue 1: Under Article 323-A (1) of the Constitution, is it mandatory for an SAT to be established? "Art. 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." Answering the first issue, the Court after analyzing the provision and relevant decisions, observed that merely because the High Courts are overburdened with pending cases, cannot be said that the word 'may' should be read as 'shall'. "While the burden on the High Courts or the Supreme Court may be one factor informing the decision of the Central Government or the State Government to establish a Tribunal, it cannot be the only factor. As pointed out by the Supreme Court in the above decision there are ―many more considerations relevant to the issue.‖ These would include examining the data of institutions and disposal of cases by the Tribunal, the rate of such disposal, the quality of the decisions being rendered, how often they are overturned on appeal or review by a superior judicial forum and so on." The Court observed. In view of this, the Court concluded that it cannot be said that Article 323A (1) was intended to make it mandatory for either the Central Government or the State Government to establish an SAT irrespective of the actual need for such a tribunal and for it to be effective in achieving the object of securing fair and speedy justice. "Further, considering that there are SATs still functioning only in three or four States in the country, the government...

Orissa High Court Upholds Centre's Notification Abolishing Odisha Administrative Tribunal

Nupur Thapliyal

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