TaxTMI 
TaxTMI 
2023 (3) TMI 1490
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....ndia by the Constitution (Forty-second Amendment) Act 1976. Part XIV-A consists of two Articles, Articles 323A and 323B. Article 323A empowers Parliament to provide for the adjudication of certain disputes by administrative tribunals. Disputes concerning the 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 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, may be adjudicated by administrative tribunals. Article 323B empowers the legislatures of states to provide for the adjudication of certain disputes (enumerated in Clause 2 of Article 323B) by tribunals. 4. In pursuance of the power conferred upon it by Article 323A(1), Parliament enacted the Administrative Tribunals Act 1985. "Administrative Tribunals Act" The Statements of Objects and Reasons of this legislation records that it was enacted in order to give effect to Article 323A, and also because: a large number of cases relating to service matters are pending before the various courts. It is expected tha....
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....ases pending before the High Court of the relevant state but excluding those pending before the Supreme Court) stand transferred to the SAT upon its establishment. Following the enactment of the Administrative Tribunals Act, various states including Andhra Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, and Maharashtra requested the Central Government to establish an SAT, and the Central Government issued notifications establishing them. Odisha was one amongst these states. Upon receiving a request from the State of Odisha, the Central Government established the OAT on 4 July 1986 by issuing Notification No. GSR 934(E), which was published in the Gazette of India. The OAT commenced functioning soon thereafter. 7. At this time, Section 28 of the Administrative Tribunals Act was still in force. Section 28 excluded the jurisdiction of all courts except the Supreme Court or the Industrial Tribunal or Labour Court in relation to matters over which the CAT and the SAT exercised jurisdiction. Section 28 was enacted pursuant to the enabling provision in Article 323-A of the Constitution, namely Clause 2(d) of Article 323-A. Clause 2(d) provided that Parliament may exclude the j....
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....handra Kumar case of 1997. As a result of this judgment, the very purpose of having a State Administrative Tribunal (SAT) for speedy redressal of the grievances of the State Government employees is not fulfilled as any way the aggrieved parties have to approach the Hon'ble High Court before approaching the Apex Court for a final verdict. A note annexed to the letter dated 16 September 2015 elaborated on the State Government's rationale for seeking to abolish the OAT: As a consequence of the landmark judgment of the Supreme Court [in L. Chandra Kumar], the objective of the establishment of the Tribunal to give quick justice to the government employees was defeated... The aggrieved parties are approaching the High Court against OAT orders and then the Supreme Court resulting in protracted litigation... Government is incurring a significant sum of expenditure on the OAT... The abolition of the Tribunal will reduce the burden of litigation for the Government and will also reduce the time for resolution of disputes/litigation. Evidently, the State of Odisha was of the opinion that the raison d'etre of the OAT was defeated - the fact that the OAT's decision....
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....issa High Court for quashing the notification dated 2 August 2019 (as well as the decision of the Cabinet of the State Government dated 9 September 2015 to abolish the OAT). After considering the rival submissions, the Orissa High Court dismissed the Writ Petitions by its common judgment dated 7 June 2021, for the following reasons: a. Article 323-A is an enabling provision. It does not make it mandatory for the Union Government to establish administrative tribunals or refrain from abolishing them once they are established; b. The decision to abolish the OAT is an administrative decision. There is therefore no bar to the Union Government invoking Section 21 of the General Clauses Act read with Section 4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT; c. The invocation of Section 21 of the General Clauses Act does not result in a denial of justice because the cases pending before the OAT will be heard by the Orissa High Court. Hence, litigants are not prejudiced by the invocation of Section 21; d. The proposition that what cannot be done directly cannot be done indirectly is not applicable because neither A....
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....n of the OAT was therefore without legal basis; c. The Administrative Tribunal (Amendment) Bill 2006 was introduced to provide an enabling provision for the abolition of SATs and for the transfer of pending cases from the abolished SAT to the relevant High Court. This bill was not enacted into law and therefore the Union Government and the State Governments do not have the power to abolish SATs; d. The State Government's interpretation of the decision in L. Chandra Kumar (supra) as reducing the efficiency of the adjudication process for service matters is incorrect and unreasonable; e. The OAT has two regular benches and two circuit benches but the High Court has a single bench in Cuttack. The abolition of the OAT makes the court system less accessible to litigants and violates the fundamental right of access to justice; f. The Union and State Governments have violated the principles of natural justice by failing to provide the OAT Bar Association and the litigants before the OAT with an opportunity to be heard before abolishing the OAT. This is also violative of Article 14 of the Constitution; g. The notification dated 2 August 2019....
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....before the Orissa High Court which led to the impugned judgment were not maintainable because the rights of the Petitioners were not affected by the abolition of the OAT. Litigants cannot claim a fundamental right to access the OAT; b. The State Government took a policy decision to abolish the OAT, in light of the low rate of disposal of cases by the OAT. The State Government is also of the view that the purpose of the OAT (to ensure speedy disposal of cases) is not served subsequent to the decision of this Court in L. Chandra Kumar (supra); c. The word "may" in Section 4 of the Administrative Tribunals Act is unambiguous and must be interpreted strictly. d. An intra-court appeal is different from an appeal to a separate forum and the former streamlines the process of adjudication. It cannot be said that there is no advantage to be had by abolishing the OAT; e. The principles of natural justice were not violated; The abolition of the OAT does not make the court system less accessible to litigants because they would have been required to travel to Cuttack in any event in order to participate in the writ proceedings before the Orissa High ....
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....T; j. Whether the failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT vitiates its decision to abolish the OAT; and k. Whether the Union Government became functus officio after establishing the OAT. D. Analysis i. An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal "MPAT" and the Tamil Nadu Administrative Tribunal "TNAT" 19. The parties to this appeal have advanced some arguments in relation to decisions arising from the abolition of certain other SATs. It is therefore necessary to understand the decisions of this Court in relation to the abolition of those SATs. To this end, the abolition of the MPAT and the TNAT as well as the legal proceedings arising from those decisions are briefly discussed. The effect of these proceedings on the decision in this case is also examined. a. The abolition of the MPAT 20. The State of Madhya Pradesh was reorganized into the State of Madhya Pradesh and the State of Chhattisgarh with the enactment of the Madhya Pradesh Reorganization Act 2000. Section 74(1)(ii) of this legislation vested the State Government....
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....refore not germane to the issue of whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. However, the issue whether the decision to abolish the MPAT was arbitrary, unreasonable and therefore violative of Article 14 of the Constitution was decided in that case. A similar issue is before us in the present case and this aspect of the decision in the MPAT Abolition Case (supra) may be instructive. b. The abolition of the TNAT Between 1994 and 2004, the Government of Tamil Nadu requested the Union Government to abolish the TNAT. Thereafter, it stopped appointing the Chairperson, the Vice Chairperson and the Members of the TNAT, which was rendered inoperative as a result. Approximately 30,000 cases were pending before it at this time. Various parties instituted writ petitions before the Madras High Court seeking directions to the State Government of Tamil Nadu to fill the vacancies in the TNAT to enable it to function until it was abolished. These writ petitions culminated in the decision of the Madras High Court in Tamil Nadu Government All Department Watchman and Basic Servants Association v. Union of India 20....
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....h the High Court Under Article 226 of the Constitution. 28. Both Appellants have also alleged that an existing legal right of theirs was violated. As held by this Court in Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33, the existence of a legal right of the Petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court Under Article 226: 38. There is no dispute regarding the legal proposition that the rights Under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general Rule is the filing of a writ petition in public interest. The existence of the legal right of the Petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox Rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the case....
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....er to assess whether it is mandatory for the Union Government to establish SATs, it is necessary to advert to Article 323-A of the Constitution of India: 323A. Administrative tribunals.--(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. (2) A law made Under Clause (1) may-- (a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (including provisions as to limitation and Rules of evidence) to be followed by the said tribunals; (d) exclude the jurisdi....
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.... obligation to its exercise but the legal and factual context of it. ... 10. The principle laid down above has been followed consistently by this Court whenever it has been contended that the word "may" carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. (emphasis supplied) 34. In Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC 338, this Court held that the intention of the legislature must be discerned while determining whether a provision is directory or mandatory: 36.... In our judgment, mere use of word "may" or "shall" is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general Rule of universal application. Such controvers....
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.... Statement of Objects and Reasons also sheds light on the purpose of the power to provide for administrative tribunals i.e., to reduce mounting arrears in the High Courts and to secure the speedy disposal of service matters. The purpose and the legal and factual context of the power conferred by Article 323-A do not have the effect of narrowing the scope of the discretion afforded to Parliament by the word "may." The purpose of reducing arrears in the High Courts or securing the speedy disposal of service cases is not of a nature as to cast an obligation upon Parliament to enact laws providing for administrative tribunals. This is because the same purpose can be achieved through other routes. Article 323-A merely provides for the enactment of legislation as of one of many routes. It is open to Parliament to choose any legally acceptable method to reduce arrears in the High Courts and secure the speedy disposal of service matters, including but not limited to creating administrative tribunals. Article 323-A does not deprive Parliament of the power to choose an alternate course of action to reduce arrears or ensure speedy justice, by any other modality, including by strengthening oth....
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....hat State Governments "may" constitute a State Human Rights Commission. The question was whether the word "may" ought to be read as the word "shall." This Court noted that the Protection of Human Rights Act 1993 enjoined the State Human Rights Commissions to promote human rights, prevent their violation, and provide redressal. It held that this legislative intent would be negated if State Human Rights Commissions were not established in every state. This Court reasoned that the consequence of this was that Section 21 of the Protection of Human Rights Act 1993 not only conferred State Governments with the power to set up State Human Rights Commissions but also imposed on them the duty to do so. In the present case, the intention of Parliament in enacting Article 323-A of the Constitution (i.e., to reduce arrears and provide speedy justice) would not necessarily be negated in the absence of SATs in each state, for the reasons discussed above. 40. We also note that in Dilip K. Basu (supra), the fact that victims or complainants would not have access to an efficacious remedy in the absence of State Human Rights Commissions weighed heavily with this Court. They would be required to a....
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....uses Act. The notification dated 2 August 2019 rescinded the notification dated 4 July 1986 by which the OAT was established. It is therefore the notification dated 4 July 1986 which established the OAT which must be analysed to determine whether it is a quasi-judicial notification, and not the notification dated 2 August 2019, the effect of which was to abolish the OAT. If the answer is that the decision to establish the OAT was indeed a quasi-judicial decision, Section 21 of the General Clauses Act cannot be relied on to reverse this decision. As a consequence, the notification dated 2 August 2019 will be invalid, being improperly issued. If, however, the decision to establish the OAT was administrative, there would be no bar to the invocation of Section 21 of the General Clauses Act to rescind the notification establishing the OAT. 45. This Court discussed the meaning and contours of a quasi-judicial act in Province of Bombay v. Khushaldas S. Advani (1950) SCC 551, where SR Das, J. in his concurring opinion held: 80.1.(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under....
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.... if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. 48. From the above decisions, it emerges that: a. The decision of an authority is prima facie, and in the absence of any other factor, a quasi-judicial act when there is a lis before it, with two parties with competing claims; b. When the authority has the power to do something which will prejudicially affect the subject, the decision it takes is a quasi-judicial act even in the absence of a lis and two parties with competing claims, when the authority is required by the statute in question to act judicially. The express provisions of the statute, the nature of the right affected, the manner of disposal, the objective criterion (if any) to be adopted while deciding one way or the other, the effect of the decision, and other signs in the statute may be considered when evaluating whether there is a duty to act judicially; and c. The decision of an authority is quasi-judicial when it is made in accordance with rules. The decision is administrative when it is dictated by policy and expediency. 49. Having laid down the above principles, it ....
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....is otherwise applicable to the Administrative Tribunals Act 53. Having decided that there is no threshold bar to the applicability of Section 21 of the General Clauses Act, we now consider whether it applies in the present case. The locus classicus on this subject is State of Bihar v. D.N. Ganguly 1959 SCR 1191, where this Court held: 9.... It is well settled that this Section embodies a Rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and, the effect, of the relevant provisions of the said statute. In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the Rule of construction enunciated by Section 21, the Appellant's contention is justified that the power to cancel the reference made Under Section 10(1) can be said to vest in the appropriate government by necessary implication. If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said Rule of construction, the Appellan....
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.... the contrary, if the concerned State Government is of the considered view that the SAT is failing to meet the objectives of the Administrative Tribunals Act or that an alternate route for meeting the same objectives is preferable to that of operating an SAT, it is free to act upon its view and request the Union Government to abolish the SAT. An amendment to the Administrative Tribunals Act is not a prerequisite for the State Government to make a request to the Union Government. 58. As noticed above, the object of the Administrative Tribunals Act is to reduce arrears and enable the provision of speedy justice to litigants. Abolishing an SAT would not frustrate this objective because SATs are not the only method by which the object is capable of being achieved. Further, the effect of such an abolition would not be to deprive litigants of a remedy because the cases before the SAT would stand revived in the forum in which they were pending prior to the establishment of that SAT. The subject matter and the context of the Administrative Tribunals Act, too, do not militate against the application of Section 21 of the General Clauses Act. There is therefore nothing in the Administrativ....
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....rst instance. 61. This Court answered in the negative because Section 3 of the Commissions of Inquiry Act 1952 provided for the power to fill any vacancies whereas Section 7 provided for the only situation in which a Commission which was already constituted would cease to exist. This Court observed that the Commissions of Inquiry Act 1952 did not provide for the power to reconstitute a Commission or replace its members. The scheme of the enactment and its context indicated that Section 21 of the General Clauses Act could not be invoked. Further, the object of the Commissions of Inquiry Act 1952 would be frustrated if the appropriate government were permitted to reconstitute a Commission midway through the task that it was charged with completing because it made it possible for an independent agency to exist, free from governmental control. In the present case, there is no such impediment to the application of Section 21 of the General Clauses Act. The object of the Administrative Tribunals Act would not stand frustrated if an SAT is created and then abolished. The Union and State Governments may take alternate routes (some of which may have already been in operation, supplementi....
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....n Parliament to provide an enabling provision for the abolition of SATs and for the transfer of pending cases from the abolished SAT to the relevant High Court. This bill was referred to the Rajya Sabha Standing Committee on Personnel, Public Grievances, Law and Justice, which submitted its report on 5 December 2006. The report recommended that the power to abolish an SAT should not be granted to the executive. It is argued that the Union Government does not have the power to abolish SATs because this Bill was not enacted into law because of the recommendations contained in the report of the Standing Committee. 66. The Appellants seem to be implying that Parliament was of the opinion that the Union Government did not have the power to abolish SATs in the absence of an enabling provision. It may also be the case that Parliament introduced the Administrative Tribunal (Amendment) Bill 2006 in order to clarify the power of the Union Government to abolish SATs rather than to confer it with that power. This Court cannot possibly enter into a discussion or analysis of all the potential reasons for a proposed amendment. 67. The Appellants have put forth another argument on similar li....
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....ept in terms of Article 228 of the Constitution; b. While Section 29 of the Administrative Tribunals Act provides for the transfer of cases from the High Courts (or other courts and authorities) to the relevant SATs, there is no provision which enables the transfer of cases from the abolished SATs back to the forum in which they would have been heard if not for the establishment of SATs; and c. The abolition of the OAT has the effect of enlarging the jurisdiction of the Orissa High Court but Parliament alone has the power to create or enlarge jurisdiction. Reliance is placed on A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602. 70. The response to the three arguments is that the transfer of cases from the OAT to the Orissa High Court is, properly characterized, a revival of the latter's jurisdiction. We agree with the impugned judgment that the Orissa High Court's jurisdiction in relation to matters pending before the OAT is not being created or enlarged by the abolition of the OAT. It previously exercised such jurisdiction and is merely resuming its jurisdiction over the same subject matter. It is for this reason that the decision in A.R. Antulay (supra) is ....
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....mulated by the Court of Appeal in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 K.B. 223: It is true the discretion must be exercised reasonably. Now what does that mean?... For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. This Court has consistently assessed the validity of executive action on the anvil of the test laid down in Wednesbury Corporation (supra), including in G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91, Tata Cellular v. Union of India (1994) 6 SCC 651, Punjab Communications Ltd. v. Union of India (1999) 4 SCC 727 and Union of India v. International Trading Co. (2003) 5 SCC 437. 75. The reasons for the State Government's decision to abolish the OAT ....
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....on'ble High Court before approaching the Apex Court for a final verdict. Government of Odisha, after taking into account this, have decided to recommend to the Government of India to abolish the Odisha Administrative Tribunal. A note indicating the rationale adopted by the State Government in arriving at this decision is enclosed herewith for your ready reference. (emphasis supplied) 76. Similar reasons have been recorded in various other documents of the State Government which relate to the abolition of the OAT. The State Government requested the Union Government to establish the OAT with a view to creating an alternate forum to the Orissa High Court. The State Government envisioned a structure of litigation whereby appeals from the OAT would lie directly to the Supreme Court, and would exclude the High Court both as the court of first instance as well as a forum of appeal. In the State Government's view, the structure of litigation under the Administrative Tribunals Act would ensure that the dispute achieved quietus in a maximum of two tiers of litigation. However, the decision of this Court in L. Chandra Kumar (supra) held that the jurisdiction of High Cou....
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....ieve speedy justice. A crucial factor (to its mind) was the elimination of a tier of litigation. The State Government was of the opinion that the creation of the OAT would not fulfil the purpose of a speedy redressal of grievances because there was no improvement to the justice delivery system through the elimination of a tier of litigation. 79. As for the submission that the Orissa High Court's pendency will increase if the cases pending before the OAT are transferred to it, the State Government is entitled to structure its justice delivery systems within the parameters defined by law. Its decision may be set aside only if it is unconstitutional or without the authority of law. 80. In addition to the impact of the decision in L. Chandra Kumar (supra), the State Government considered other factors related to the functioning of the OAT. In the note dated 16 September 2015, the State Government furnished other reasons for its decision to abolish the OAT: Government is incurring a significant sum of expenditure on the OAT as is exhibited in the table given below: Table 1: Plan and Non-Plan Provision for OAT (Rs. in Lakhs) Head of Expenditure 2014-15 ....
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....d that the decision to abolish the MPAT was arbitrary, unreasonable, and violative of Article 14 of the Constitution. This Court rejected their argument in the following terms: 57.... The notification was issued by the Central Government in 1988 and the State Administrative Tribunal was established for the State of Madhya Pradesh. At that time, as per well-settled legal position, decisions rendered by the Administrative Tribunals constituted under the Act of 1985 were "final" subject to jurisdiction of this Court Under Article 136 of the Constitution.... If, in view of subsequent development of law in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] the State of Madhya Pradesh felt that continuation of State Administrative Tribunal would be "one more tier" in the administration of justice inasmuch as after a decision is rendered by the State Administrative Tribunal, an aggrieved party could approach the High Court Under Articles 226/227 of the Constitution and, hence, it felt that such Tribunal should not be continued further, in our opinion, it cannot be said that such a decision is arbitrary, irrational or unreasonable. From the correspondence ....
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....e decision of the Union of India to disinvest and transfer 51% shares of Bharat Aluminium Company Limited. The Petitioner in that case (the union of the company's employees) inter alia submitted that it had a right to be heard before and during the process of disinvestment. This Court rejected this argument, observing that: 57.... As a matter of good governance and administration whenever such policy decisions are taken, it is desirable that there should be wide range of consultations including considering any representations which may have been filed, but there is no provision in law which would require a hearing to be granted before taking a policy decision. In exercise of executive powers, policy decisions have to be taken from time to time. It will be impossible and impracticable to give a formal hearing to those who may be affected whenever a policy decision is taken. One of the objects of giving a hearing in application of the principles of natural justice is to see that an illegal action or decision does not take place. Any wrong order may adversely affect a person and it is essentially for this reason that a reasonable opportunity may have to be granted before ....
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.... creation, and is therefore of no further virtue or effect. 91. The doctrine of functus officio gives effect to the principle of finality. Once a judge or a quasi-judicial authority has rendered a decision, it is not open to her to revisit the decision and amend, correct, clarify, or reverse it (except in the exercise of the power of review, conferred by law). Once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate court. 92. For instance, Section 362 of the Code of Criminal Procedure 1973 provides that a court of law is not to alter its judgment once it is signed: 362. Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. In Hari Singh Mann v. Harbhajan Singh Bajwa (2001) 1 SCC 169, this Court recognized that Section 362 was based on the doctrine of functus officio: 10.... The Section is based on an acknowledged principle of law that once a matter is finally dispo....
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....change depending on the circumstances prevailing in society at any given time. The doctrine of functus officio cannot ordinarily be applied in cases where the government is formulating and implementing a policy. 96. In the present case, the State and Union Governments' authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. For these reasons, the Union Government was not rendered functus officio after establishing the OAT. vii. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India 97. The Appellants challenge the notification dated 2 August 2019 on the ground that it does not comply with the requirements of Clause (1) of Article 77 because it was not issued in the name of the President of India. 98. Article 77 of the Constitution of India indicates: Conduct of business of the Government of India.-- (1) All executive action of the Gover....
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....nt from challenge on the ground that it is not an order or instrument made or executed by President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Article 77 does not provide that it would, therefore, be rendered void or invalid.... In Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195, a two-judge bench of this Court held: 25.... Shortly stated, the legal position is this: Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in Rule (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any non-compliance with the provisions of the said Rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made....
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.... previously, the attendant power to rescind a notification so issued is also available to the Union Government. The issuance of both notifications was an exercise of the Union Government's statutory power under the Administrative Tribunals Act. 104. The Appellants place reliance on the decision of a Constitution Bench of this Court in Dattatraya Moreshwar Pangarkar v. State of Bombay (1952) 1 SCC 372 and specifically on the sentence in paragraph 24, which states: 24....when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166(1) i.e. in the name of the Governor. 105. The Appellants have failed to notice the very next sentence in paragraph 24, by which this Court accepts the argument that Article 166 is a directory provision: 24.... The learned Attorney General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that article, like their counterpart in the Government of India Act, are merely dir....
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....he Appellants because it, too, holds that the consequence of non-compliance with Article 77(1) is that it deprives the Union Government of the immunity conferred by Article 77(2). It also notices that executive action exercised pursuant to powers conferred under a statute stands on a different footing from executive action taken independent of a statute: 19. Article 77 of the Constitution provides the form in which the Executive must make and authenticate its orders and decisions. Clause (1) of Article 77 provides that all executive action of the Government must be expressed to be taken in the name of the President. The celebrated author H.M. Seervai in Constitutional Law of India, 4th Edn., Vol. 2, 1999 describes the consequences of government orders or instructions not being in accordance with Clauses (1) or (2) of Article 77 by opining that the same would deprive the orders of the immunity conferred by the aforesaid clauses and they may be open to challenge on the ground that they have not been made by or under the authority of the President in which case the burden would be on the Government to show that they were, in fact, so made. In the present case, the said burden....
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....a. However, it cannot be interpreted to mean that every village, town, or city must house every forum of adjudication created by statute or the Constitution. It is an undeniable fact that some courts and forums will be located in some towns and cities and not others. Some or the other litigants will be required to travel some distance to access a particular forum or court. 112. To reiterate the ruling in Anita Kushwaha (supra), adjudicatory mechanisms must be reasonably accessible in terms of distance. The High Court of Orissa has creatively utilised technology to bridge the time taken to travel from other parts of Odisha to Cuttack. Indeed, other High Courts must replicate the use of technology to ensure that access to justice is provided to widely dispersed areas. This will ensure that citizens have true access to justice by observing and participating in the proceedings before the High Courts in cases of concern to them. The submission made on behalf of the State of Odisha that compensation schemes may be used to alleviate financial hardships must also be taken into account. Further, legal aid programs sponsored by the state are also useful in addressing any financial hardshi....
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....cancies in the OAT. This led to the OAT Bar Association, Cuttack filing W.P.(C) No. 15693 of 2017 in this Court seeking a mandamus to the Government of Odisha to fill up the vacancies in the OAT. (emphasis supplied) Therefore, the State Government discontinued appointments to the OAT as a result of its decision to abolish the OAT and not vice versa. The Appellants' averment confuses the sequence of events on which their argument is based. The State Government based its decision on an evaluation of the OAT's functioning in the year 2014, which was prior to its decision to abolish the OAT. Hence, there is no "wrong" which the State Government took advantage of. Similarly, we do not agree with the argument of the Appellants that the Union of India had systematically made the OAT non-functional. 118. A related argument put forth by the Appellants is that the State Government's failure to fill the vacancies in the OAT is a breach of Article 256 of the Constitution. Article 256 inter alia stipulates that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament. It is not necessary for us to address ourselves to....
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....n authored by Ranjan Gogoi, C.J.I. nor the opinions of Dr. D.Y. Chandrachud, J. or Deepak Gupta, J. contain a direction to the effect that a tribunal shall not be abolished in the absence of a judicial impact assessment. In the present case, the Union Government issued the notification dated 2 August 2019 in a valid exercise of its powers Under Section 21 of the General Clauses Act. The failure to conduct a judicial impact assessment does not vitiate its decision to abolish the OAT. Nothing in the judgment in Rojer Mathew (supra) also indicates the need for the Union Government to obtain the permission of this Court before abolishing the OAT. 122. However, this is not to say that the Union Government and more specifically, the Ministry of Law and Justice may dispense with the directions of this Court in Rojer Mathew (supra). The judgment was delivered on 13 November 2019. More than three years have since passed and the Ministry of Law and Justice is yet to conduct a judicial impact assessment. 123. An assessment such as the one directed to be conducted would only shed light on the impediments faced in the delivery of justice. The lack of an assessment precludes any well-infor....
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....d factual context of the power to establish administrative tribunals, the purpose of this power and the intention of the legislature establish that there is no duty to exercise the power conferred by the Administrative Tribunals Act, such that the enabling provision becomes a mandatory provision; c. The Union Government acted in valid exercise of its powers when it invoked Section 21 of the General Clauses Act read with Section 4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT because the decision to establish the OAT was an administrative decision and not a quasi-judicial decision. Moreover, Section 21 of the General Clauses Act is not repugnant to the subject-matter, context and effect of the Administrative Tribunals Act and is in harmony with its scheme and object; d. The notification dated 2 August 2019 by which the OAT was abolished is not violative of Article 14 of the Constitution. The State Government did not consider any irrelevant or extraneous factors while arriving at the decision to request the Union Government to abolish the OAT. The decision to abolish the OAT is itself not absurd or so unreasonable that no re....