4.

ADMINISTRATIVE TRIBUNALS

In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the

adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically

in India, the judicial powers are vested in the Courts which aims to safeguard the rights of

the individuals and promotes justice. Therefore, to institute an effective system of the

judiciary with fewer complexities, the judicial powers are delegated to the administrative

authorities, thus, giving rise to administrative tribunals or administrative adjudicatory bodies

which holds quasi-judicial features.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by
any statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and
is bound to act judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative
interference in the discharge of judicial or quasi-judicial functions.
 6. In the procedural matters, an administrative tribunal possesses the powers of a
court to summon witnesses, to administer oaths and to compel the production of
documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.
9. The prerogative writs of certiorari and prohibition are available against the
decisions of administrative tribunals.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional judicial The administrative tribunal is an agency created by
system. endowed with judicial powers.

A Court of law is vested with general jurisdiction It deals with service matters and is vested with limit
over all the matters. jurisdiction to decide a particular issue.

It is not bound by the rules of the Evidence Act and

It is strictly bound by all the rules of evidence and
unless the statute which creates the tribunal impos
by the procedure of the Code of Civil Procedure.
obligation.

It is not mandatory in every case that the members

It is presided over by an officer expert in the law.
be trained and experts in law.

The decision of the court is objective in nature The decision is subjective i.e. at times it may decide
primarily based on the evidence and materials
 produced before the court. matters taking into account the policy and expedien

It is bound by precedents, the principle of res It is not obligatory to follow precedents and princip
judicata and the principle of natural justice. judicata but the principle of natural justice must be

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or inquisition

Many tribunals perform investigatory functions as w
functions rather it decides the case on the basis of
with its quasi-judicial functions
evidence.

Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages
over ordinary courts. Few of them are mentioned below-

 Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary
court which are stringent and inflexible, the administrative tribunals have a quite
informal and easy-going procedure.

 Speedy Justice: The core objective of the administrative tribunal is to deliver

quick and quality justice. Since the procedure here is not so complex, so, it is easy
to decide the matters quickly and efficiently.

 Less Expensive: The Administrative Tribunals take less time to solve the cases as
compared to the ordinary courts. As a result, the expenses are reduced. On the
other hand, the ordinary courts have cumbrous and slow-going, thus, making the
 litigation costly. Therefore, the administrative tribunals are cheaper than
ordinary courts.

 Quality Justice: If we consider the present scenario, the administrative tribunals

are the best and the most effective method of providing adequate and quality
justice in less time.
 Relief to Courts: The system of administrative adjudication has lowered down the
burden of the cases on the ordinary courts.

Conclusion

It can be concluded that in the present scenario, the administration has become an
important part of the government as well as the citizen’s life. Due to this increasing role, it is
important to establish a competent authority for the redressal of people’s grievances and
adjudication of the disputes. Therefore, the concept of administrative tribunals was
emerged and is dynamically flourishing in India holding certain flaws and strengths.
2. DELIGATED LEGISLATION

Delegation of powers means the powers passed on by the higher authority to the lower
authority to make laws. Delegated legislation means the powers given by the legislature to
the executive or administration to enact certain laws. The simple meaning of the expression
“delegated expression” may be:
When the function of the legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is known as delegated legislation.
According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise
by a subordinate agency of the legislative power delegated to it by the legislature, or (b) the
subsidiary rules themselves which are made by the subordinate authority in pursuance of
the power conferred on it by the legislature .

REASON GROWTH OF DELEGATED LEGISLATION

(a) Pressure upon parliamentary time: 

The horizons of state activities are expanding. The bulk of legislation is so great. It is not
possible for the legislature to devote sufficient time to discuss all the matters in detail.
Therefore, legislature formulates the general policy – the skeleton and empowers the
executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live-
by issuing necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to
relieve the parent of the strain of overwork and capable of attending to minor matters, while
the parent manages the main business. The Committee on Ministers’ powers has rightly
observed: “The truth is, that if parliament were not willing to delegate law making power,
parliament would be unable to pass the kind and quality and legislation which modern public
opinion requires.”
(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So,
assistance of experts is required. Members of parliament may be the best politicians but they
are not expert to deal with highly technical matters. These matters are required to be handled
by experts. Here, the legislative power may be conferred on experts to deal with the technical
problems. i.e. gas, atomic energy, drugs, electricity etc.

(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment.
To satisfy these demands of unforeseen situation some provisions are required to be made.
A legislative amendment is a slow and cumbersome process. But by the device of delegated
legislation the executive can meet the situation expeditiously, e.g. bank rate, police
regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a
‘removal of difficulty’ clause has been added empowering the administration to overcome
such difficulties by exercising delegated power. This Henry VIII clause confers very wide
powers on the Government.
(d) Experiment: The practice of delegated legislation enables the executive to experiment.
This method permits rapid utilization of experience and implementation of necessary changes
in application of the provisions in the light of such experience. As for example, in road traffic
matters, an experiment may be conducted and in the light of its application necessary changes
could be made. The advantage of such a course is that it enables the delegate authority to
consult interests likely to be affected by a particular law, make actual experiments when
necessary and utilize the result of his investigation and experiments in the best possible way.
If the rules and regulations are found to be satisfactory, they can be implemented
successfully. On the other hand, if they are found to be defective, the defects can be cured
immediately.
(e) Emergency: In times of emergency, quick action is required to be taken. The legislative
process is not equipped to provide for urgent solution to meet the situation. Delegated
legislation is the only convenient- indeed the only possible remedy. Therefore, in times of
war and other national emergencies, the executive is vested with extremely wide powers to
deal with the situation. There was substantial growth of delegated legislation during the two
world wars similarly in cases of epidemics, floods, inflation, economic depression etc.
immediate remedial actions are necessary which may not be possible by lengthy legislative
process and delegated legislation is the only convenient remedy.
(f) Complexity of modern administration: The complexity of modern administration and
the expansion of the functions of the state to the economic and social sphere have rendered it
is necessary to resort to new forms of legislation and to give wide powers to various
authorities on suitable occasions. In a country like Bangladesh, where control and regulation
over private trade, business or property may be required to be imposed, it is necessary that the
administration should be given ample power to implement such policy so that immediate
action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries and it becomes
indispensable in modern administrative era.

LEGISLATIVE CONTROLL OVER DELIGATED LEGISLATION

In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to

delegate its legislative power to the executive because of some reasons, it is not only
the right of the Legislature, but also its obligation, as principal, to see how its agent i.e.
the Executive carries out the agency entrusted to it. Since it is the legislature which
grants legislative power to the administration, it is primarily its responsibility to ensure
the proper exercise of delegated legislative power, to supervise and control the actual
exercise of this power, and ensure the danger of its objectionable, abusive and
unwarranted use by the administration.

In U.S.A., the control of the Congress over delegated legislation is highly limited
because neither is the technique of “laying” extensively used nor is there any
Congressional Committee to scrutinise it. This is due to the constitutional structurization
in that country in which it is considered only the duty of courts to review the legality of
administrative rule-making.

In England, due to the concept of Parliamentary sovereignty, the control exercised by

Parliament over administrative rule-making is very broad and effective. Parliamentary
control mechanism operates through “laying” techniques because under the provisions
of the Statutory Instruments Act, 1946, all administrative rule-making is subject to the
control of Parliament through the Select Committee on Statutory Instruments.
Parliamentary control in England is most effective because it is done in a non-political
atmosphere and the three-line whip does not come into operation.

In India parliamentary control of administrative rule-making is implicit as a normal

constitutional function because the executive is responsible to the Parliament. There are
three types of control exercised

Direct General Control

Direct but general control over delegated legislation is exercised:
(a) Through the debate on the act which contains delegation. Members may discuss
anything about delegation including necessity, extent, type of delegation and the
authority to which power is delegated.
(b) Through questions and notices. Any member can ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under
Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules.
(c) Through moving resolutions and notices in the house. Any member may move a
resolution on motion, if the matter regarding delegation of power is urgent and
immediate, and reply of the government is unsatisfactory.

Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the
House rules and regulations framed by the administrative authority. The notable use of
this technique was made in the Reorganization Acts of 1939 to 1969, which authorised
the President to reorganise the executive government by administrative rule-making. In
England the technique of laying is very extensively used because all the administrative
rule-making is subject to the supervision of Parliament under the Statutory Instruments
Act, 1946 which prescribes timetable. The most common form of provision provides that
the delegated legislation comes into immediate effect but is subject to annulment by an
adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is

required to be laid before Parliament after being made, a copy shall be laid before each
House before the legislation comes into operation. However, if it is essential that it
should come into operation before the copies are laid, it may so operate but notification
shall be sent to the Lord Chancellor and the Speaker of the House of Commons
explaining why the copies were not laid beforehand. Under Section 6 of the Statutory
Instruments Act, 1946, the draft of any statutory instrument should be laid before the
parliament.

Laying on Table
In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the
Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature
as to what all rules have been made by the executive authorities in exercise of delegated
legislation, secondly, it provides a forum to the legislators to question or challenge the
rules made or proposed to be made.
8.

PRINCIPLE OF NATURAL JUSTICE

Natural justice simply means to make a sensible and reasonable
decision making procedure on a particular issue. Sometimes, it doesn’t
matter what is the reasonable decision but in the end, what matters is
the procedure and who all are engaged in taking the reasonable
decision. It is not restricted within the concept of ‘fairness’ it has
different colours and shades which vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule”  which states that the person or party
who is affected by the decision made by the panel of expert members
should be given a fair opportunity to express his point of view to
defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should

be biased free while taking the decision. The decision should be given
in a free and fair manner which can fulfil the rule of natural justice.

And thirdly, “Reasoned Decision” which states that order, decision

or judgement of the court given by the Presiding authorities with a
valid and reasonable ground
Rules of Natural Justice

 NEMO JUDEX IN CAUSA SUA

 AUDI ALTERAM PARTEM
 REASONED DECISION

1. NEMO JUDEX IN CASUA SUA

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an
act which leads to unfair activity whether in a conscious or unconscious stage in relation to
the party or a particular case. Therefore, the necessity of this rule is to make the judge
impartial and given judgement on the basis of evidence recorded as per the case.

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

PERSONAL BIAS

Personal bias arises from a relation between the party and deciding authority. Which lead
the deciding authority in a doubtful situation to make an unfair activity and give judgement
in favour of his person. Such equations arise due to various forms of personal and
professional relations.

In order to challenge the administrative action successfully on the ground of personal bias, it
is necessary to give a reasonable reason for bias.
Supreme court held that one of the members of the panel of selection committee his
brother was a candidate in the competition but due to this, the whole procedure of
selection cannot be quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member
connected with the candidate can be requested to go out from the panel of the selection
committee. So, a fair and reasonable decision can be made. Ramanand Prasad Singh vs.
UOI.

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will
lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a
particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on
the ground that the chairman’s wife was a member of Congress party whom the petitioner
defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process
and it is not checked effectively and on every small interval period it will lead to negative
concept of fairness will get vanished in the proceeding.
Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience
sitting over there does not expect judges to sit with a blank sheet of paper and give a fair
trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition.
This new category emerged from a case where a judge of Calcutta High Court upheld his
own judgement in appeal. A direct violation of the rules of bias is done because no judge
can sit in appeal against in his own case.

2. AUDI ALTERM PARTEM

It simply includes 3 Latin word which basically means that no person can be condemned or
punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of
being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone
without any valid and reasonable ground. Prior notice should be given to a person so he can
prepare to know what all charges are framed against him. It is also known as a rule of fair
hearing. The components of fair hearing are not fixed or rigid in nature. It varies from case
to case and authority to authority.

RIGHT TO FEAR HEARING

It has been suggested that the rule requiring a fair hearing is broad enough to include
the rule against bias since a fair hearing must be an unbiased hearing. However, the
rules are often treated separately. It is fundamental to fair procedure that both sides
should be heard.[33]:402 The right to a fair hearing requires that individuals are not
penalized by decisions affecting their rights or legitimate expectations unless they have
been given prior notice of the cases against them, a fair opportunity to answer them, and
the opportunity to present their own cases.

Cooper v. Wandsworth oard o! Wor"s

A builder who had erected a house without giving the 0oard of *orks the re)uired

statutory noticeof his intention to do so was held to be entitled to damages for trespass
when the 0oard, withoutgiving him an opportunity to be heard, eercised its
statutory power to demolish any building erected in default of the re)uired statutory
notice. &n criminal cases this elementary principle
of  justice is epressed in the saying that no one ought to be condemned unheard

where the ourt of Bing’s 0ench declared a decision of the Cniversity of cambridge to be a
nullity, because in depriving 4r. 0entley of his degrees, theyhad fi rst not given him an
opportunity of appearing before them and stati ng his case, although4r. 0entley
had fi rst contemptuously put aside originati ng process and then accused the
Dice-hancellor of the Cniversity of foolish behavior. &t was )uaintly stated in
the above case byEortescue, 1, when he said: +
The laws of !od and man both give the party an opportunityto ma"e  his  defense,
if  he  has any.  #  remember to have  heard it  observed by  a  verylearned
man upon such an occasion, that even !od himself did not pass sentence upon $dam,
before he was called upon to ma"e his defense

RIGHT TO KNOW THE EVIDENCE AGAINST HIM
=very person before an administrative authority, eercising adjudicatory powers has right
toknow the evidence to be used against him.
Issuance of notice– Valid and proper notice should be given to the required parties
of the matter to further proceed with the procedure of fair trial method. Even if the statute
does not include the provision of issue of notice then it will be given prior to making
decisions. This was held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya,   the court held that notice must directly
and clearly specify on the matter of bias, facts and circumstances against which needs to be
taken. It’s one of the rights of the individual to defend himself so he should be familiar with
the relevant matter so he may contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and
proceeding to be held. He can only be punished on the charges which are mentioned in the
notice, not for any other charges.

Right to present the case and evidence– After receiving the notice he
must be given a reasonable time period to prepare and present his case in a real and
effective manner. The refusal should not be done on the unreasonable ground or due to
arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-
examination the statement made by the parties. If tribunals denied the right to cross-
examination then it will violate the principles of natural justice. And all the necessary copies
of documents should be given and failure of that will also encroach the principle. The
department should make available officers who are involved in the procedure of
investigating and do cross-examination. Cross-examination is defined under Section 137 of
the Indian Evidence Act, 1872  (amended).

In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari

Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off
some indecent behaviour towards a female student. So, here the right to cross-examination
was denied for the male student as it will lead to embracement for the female student and
it will not also lead to violation of natural justice

Right of Legal representative– In the process of enquiry, every party has the right
to have a legal representative. Each party will be presented by the legally trained person
and no one can deny (A.K.Roy). Similarly, the department has the same right to direct its
officer even though there are investigating officer in conducting an adjudicating proceeding
(Sanghi textile processor vs. Commissioner).

Conclusion
The principles of natural justice have been adopted and followed by the judiciary to protect
public rights against the arbitrary decision by the administrative authority. One can easily
see that the rule of natural justice include the concept of fairness: they stay alive and
support to safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not
purely accepted but the main motive of the principal is to prevent the miscarriage of justice.
It is supreme to note that any decision or order which violates the natural justice will be
declared as null and void in nature, hence one must carry in mind that the principles of
natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the
principle but depends upon the characteristics of jurisdiction, grant to the administrative
authority and upon the nature of rights affected of the individual.
TOPIC-- DISCRIMINATIVE POWER OF
ADMINSTRATIVE AUTHORITY

Administrative discretion means to give a decision on a matter with various alternative

available but
the judgment should be with reference to rules of reason and justice. The administrative dis
cretionshould not be based on personal notions and fancies. Article 14 of the Constitution of
India provides for the clause of equality before law and with this it protects the citizens from
unreasonableness, unjust and arbitrary action of government. When we speak of
administrative discretion, we meant that a discrimination may be reached upon the basis of
consideration not entirely subject of proof or disproof. It may be practically suitable to say
that discretion includes the case in which the ascertainment of fact is legitimately left to
administrative determination. Dicey says "whenever there is discretion, there is room for
arbitrariness and that in a republic no less than under a dominion discretionary authority on
the part of the government must mean insecurity for legal freedom on the part of its subject

Judicial behaviour and administrative discretion in India

Though courts in India have developed a few effective parameters for the proper
exercise of discretion, the conspectus of judicial behaviour still remains halting,
variegated and residual, and lacks the activism of the American courts. Judicial control
mechanism of administrative discretion is exercised at two stages:

(1) Control at the stage of delegation of discretion;

(2) Control at the stage of the exercise of discretion.

(1) Control at the stage of delegation of discretion.– The court exercises control over
delegation of discretionary powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are delegated with reference to the
fundamental rights enunciated in Part III of the Indian Constitution. Therefore, if the law
confers vague and wide discretionary power on any administrative authority, it may be
declared ultra vires Article 14, Article 19 and other provisions of the Constitution. In case
of delegated legislation, courts have after been satisfied with vague or broad statements
of policy, but usually it has not been so in cases of application of fundamental rights to
statutes conferring administrative discretion. The reason is that delegated legislation
being a power to make an order of general applicability presents less chance of
administrative arbitrariness than administrative discretion which applies from case to
case.

(2) Control at the stage of the exercise of discretion.– In India, unlike the USA, there is
no Administrative Procedure Act providing for judicial review on the exercise of
administrative discretion. Therefore, the power of judicial review arises from the
constitutional configuration of courts. Courts in India have always held the view that
judge-proof discretion is a negation of the rule of law. Therefore, they have developed
various formulations to control the exercise of administrative discretion. These
formulations may be conveniently grouped into two broad generalizations:
CENTRAL VIGILANCE COMMISSON

Central Vigilance Commission is the apex vigilance institution, free of control from any
executive authority, monitoring all vigilance activity under the Central Government and
advising various authorities in Central Government organizations in planning, executing,
reviewing and reforming their vigilance work.

Vigilance means to ensure clean and prompt administrative action towards achieving

efficiency and effectiveness of the employees in particular and

the organization in general, as lack of Vigilance leans to waste, losses and economic decline.

The CVC was set up by the Government in February, 1964 on the recommendations of
the Committee on Prevention of Corruption, headed by Shri K. Santhanam. In 2003, the
Parliament enacted CVC Act conferring statutory status on the CVC.

The CVC is not controlled by any Ministry/Department. It is an independent body

which is only responsible to the Parliament.

The CVC is not an investigating agency: the only investigation carried out by the CVC is that
of examining Civil Works of the Government.
Corruption investigations against government officials can proceed only after the
government permits them. The CVC publishes a list of cases where permissions are pending,
some of which may be more than a year old.

Functions
 The CVC receives complaints on corruption or misuse of office and to recommend
appropriate action. Following institutions, bodies, or a person can approach to CVC:

o Central government
o Lokpal
o Whistle blowers

 A whistleblower is a person, who could be an employee of a company,

or a government agency, or an outsider (like media, higher government officials, or
police) disclosing information to the public or some higher authority about any
wrongdoing, which could be in the form of fraud, corruption, etc.
 It is not an investigating agency. The CVC either gets the investigation
done through the CBI or through chief vigilance officers (CVO) in government offices.
 It is empowered to inquire into offences alleged to have been committed under
the Prevention of Corruption Act, 1988 by certain categories of public servants.
 Its annual report gives the details of the work done by the commission and points to
systemic failures which lead to corruption in government departments.

o Improvements and preventive measures are also suggested in report.

Limitations of CVC
 CVC is often considered a powerless agency as it is treated as an advisory body only
with no power to register criminal case against government officials or direct CBI to
initiate inquiries against any officer of the level of Joint Secretary and above.
 Although CVC is “relatively independent” in its functioning, it neither has the
resources nor the power to take action on complaints of corruption.