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 employees in a majority of the States have to approach the concerned High Court in the first instance for redressal of their grievances. It cannot therefore be argued that the abolition of the OAT, resulting in either the transfer of the pending petitions to the High Court, or institution of fresh petitions there as a Court of first instance, undermines access to justice as was sought to be contended. In other words, a parallel cannot be drawn between pursuing a writ petition in the High Court before a Single Judge with pursuing an original application in the OAT. The former remedy would any day be the preferred one for a litigant. Therefore, the contention that by abolition of the OAT there will be denial of access to justice to the litigant is not an acceptable proposition." The Court held.

Issue 2: Can the abolition of an SAT be brought about by a notification issued by the Government of India under Section 4 (2) of the AT Act read with Section 21 of the GC Act or does it require a specific provision in that regard both in Article 323A of the Constitution and in the AT Act?

Issue 3: In the context of (ii) above is the impugned notification in a nature of a quasi-judicial decision? Inasmuch as it has been made without affording the stakeholders a hearing, is it violative of the principles of natural justice?

Noting that the pending disputes before OAT stand transferred to the High Court for adjudication, the Court observed that far from bringing the case to an end, an even more efficacious forum i.e. the High Court will deal with the case.

"While the SAT by itself performs a judicial function, the decision of the State and Central Governments to ether establish it under Article 323-A (1) read with Section 4 (2) of the AT Act, or to abolish it, cannot be said to be anything but an administrative one. The Court would hasten to add that this distinction becomes important only for the purpose of answering the question whether such a decision can be rescinded by invoking Section 21 of the GC Act." the Court observed.

Furthermore, the Court was of the view that the impugned decision to abolish the OAT not being a quasi judicial one but an administrative decision, there is no bar on the State and Central Governments invoking Section 21 of the GC Act read with Section 4 (2) of the AT act to rescind the notification earlier issued establishing the OAT.

Issue 4: Is the impugned notification abolishing the OAT arbitrary, irrational and unreasonable, inasmuch as, it is based on an incorrect understanding of the ratio of the decision of the Constitution Bench of the Supreme Court of India in L. Chandra Kumar and in any event not based on relevant material but extraneous considerations? In other words, is it violative of Article 14 of the Constitution?

"With its abolition, the litigants waiting before the OAT for adjudication of their cases cannot obviously be left in the lurch. If there was no OAT, they would have filed their petitions in the High Court. It is that very position that is sought to be achieved by the move to transfer all pending cases to the High Court." The Court observed.

Further, opining that it was a necessary step furthering the ends of justice with a view to ensuring that the litigants before the OAT were not left high and dry, the Court observed that the executive and judicial branches of the State have through active consultation ensured that the litigants before the OAT are not denied justice and that the pending cases stand transferred to the High Court to be heard by it.

"The above observations are a complete answer to similar contentions advanced by the Petitioners before this Court. With there being sufficient materials on record to support the decision of the State of Odisha to seek the abolition of the OAT, it cannot be said that the said decision is arbitrary, irrational or violative of Articles 14, 19 and 21 of the Constitution. The submissions in this regard by the Petitioners are rejected." The Court held.

While dismissing the petitions, the Court ordered thus:

"For all of the aforementioned reasons, the Court is of the view that no ground has been made out for the Court to interfere with the impugned notification dated 2nd August 2019. Accordingly, all the writ petitions are dismissed. But in the circumstances, there shall be no order as to costs."

Title: O.A.T. Bar Association, Cuttack represented by its Secretary Sri Prakash Kumar Rout v. Union of India and Others

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