2023 (3) TMI 1490 - SC - Indian Laws

Maintainability of Writ Petitions instituted by the Appellants before the Orissa High Court - Constitutional validity of abolition of the OAT - Article 323-A of the Constitution makes it mandatory for the Union Government to establish SATs or not - invocation of Section 21 of the General Clauses Act to rescind the notification establishing the OAT, thereby abolishing the OAT - abolition of the OAT, violative of Article 14 of the Constitution and violative of the fundamental right of access to justice - violation of 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 arriving at a decision to abolish the OAT - validity of notification dated 2 August 2019 - transfer of cases from the OAT to the Orissa High Court has the effect of enlarging the jurisdiction of the latter or not - State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT or not - failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT - Union Government became functus officio after establishing the OAT. An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal (MPAT) and the Tamil Nadu Administrative Tribunal (TNAT) - HELD THAT - The MPAT Abolition Case 2004 (9) TMI 665 - SUPREME COURT concerned the powers of the State of Madhya Pradesh under the Madhya Pradesh Reorganization Act 2000 as well as the constitutional validity of certain provisions of that enactment. This Court was not called upon to adjudicate whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. A decision on the abolition of an SAT by the exercise of special powers under a legislation enacted for the reorganization of a state does not have any bearing on whether an SAT may be abolished in exercise of powers under the Administrative Tribunals Act. The MPAT Abolition Case is therefore 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 - The proceedings arising from the TNAT Abolition Case (supra) in appeal before this Court, too, do not have a bearing on the approach to be adopted while deciding the merits of the issues because the question of law was expressly kept open. The Writ Petitions instituted before the Orissa High Court were maintainable - HELD THAT - In State of Orissa v. Ram Chandra Dev 1963 (11) TMI 82 - SUPREME COURT , a Constitution Bench of this Court held that the existence of a right is the foundation of a petition Under Article 226 - In this case, the Odisha Retired Police Officers' Welfare Association alleged that its right to speedy redressal of grievances (a facet of the fundamental right of access to justice) was violated. The OAT Bar Association joined the Odisha Retired Police Officers' Welfare Association in alleging that the state's action of abolishing the OAT violated its right Under Article 14 of the Constitution. Having alleged that these rights were violated by the abolition of the OAT, they were entitled to invoke the High Court's jurisdiction Under Article 226 of the Constitution. Whether there is substance in the grievance is a separate matter which has to be analysed. Article 323-A does not preclude the Union Government from abolishing SATs - HELD THAT - Article 323-A does not specify the conditions in which the power to enact laws providing for the adjudication of certain disputes by administrative tribunals must be exercised. It therefore cannot be said that Parliament was obligated to exercise this power upon the fulfilment of certain conditions - The consequences of reading Article 323-A as mandating the creation of administrative tribunals, would be to foreclose the possibility of the adoption of an alternate course of action to achieve the desired objective of reducing arrears and ensuring speedy justice. This, too, indicates that it could not have been the intention of Parliament to mandate the establishment of administrative tribunals as the only remedy to mounting arrears or as the only manner in which speedy justice could be secured. The word may in Article 323-A of the Constitution is not imparted with the character of the word shall. Article 323-A is a directory, enabling provision which confers the Union Government with the discretion to establish an administrative tribunal. The corollary of this is that Article 323-A does not act as a bar to the Union Government abolishing an administrative tribunal once it is created. Applicability of Section 21 of the General Clauses Act - HELD THAT - 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 natural consequence of the Union Government rescinding the notification establishing the OAT would be to restore the status quo ante. Nothing in either Article 323-A of the Constitution or the Administrative Tribunals Act prevents such a revival. Further, the absence of a provision in the Constitution which explicitly permits a revival does not act as a barrier to such a revival. For the reasons discussed above, the Union Government's reliance on Section 21 of the General Clauses Act is in accordance with law. The notification dated 2 August 2019 is not violative of Article 14 of the Constitution - HELD THAT - The absence of a right to be heard before the formulation or implementation of a policy does not mean that affected parties are precluded from challenging the policy in a court of law. What it means is that a policy decision cannot be struck down on the ground that it was arrived at without offering the members of the public at large (or some Section of it) an opportunity to be heard. The challenge to a policy may be sustainable if it is found to vitiate constitutional rights or is otherwise in breach of a mandate of law - the decision to abolish the OAT cannot be assailed on the ground that there was a violation of the principles of natural justice. Article 14 of the Constitution has not been violated. The Union Government did not become functus officio after establishing the OAT - HELD THAT - 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 - The doctrine of functus officio exists to provide a clear point where the adjudicative process ends and to bring quietus to the dispute. Without it, decision-making bodies such as courts could endlessly revisit their decisions. With a definitive endpoint to a case before a court or quasi-judicial authority, parties are free to seek judicial review or to prefer an appeal. Alternatively, their rights are determined with finality. Similar considerations do not apply to decisions by the state which are based entirely on policy or expediency. 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. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India - HELD THAT - In the present case, the notification dated 2 August 2019 was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification dated 2 August 2019 was issued by the President. Hence, the Appellants' argument that the notification dated 2 August 2019 is invalid and unconstitutional is specious - In the present case, the notification dated 2 August 2019 was issued in exercise of the statutory powers under the Administrative Tribunals Act - the notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India. The abolition of the OAT is not violative of the fundamental right of access to justice - HELD THAT - The fundamental right of access to justice is no doubt a crucial and indispensable right under the Constitution of India. 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 - the Orissa High Court has established benches which will operate virtually in multiple cities and towns across the state. This negates the Appellants' argument that the Orissa High Court is less accessible than the OAT. In fact, the number of virtual benches of the High Court is greater than the number of benches of the OAT. Litigants from across the state can access the High Court with greater ease than they could access the OAT - Litigants may therefore approach the Orissa High Court for the resolution of disputes. The abolition of the OAT does not leave litigants without a remedy or without a forum to adjudicate the dispute in question. It is therefore not violative of the fundamental right of access to justice. The State Government did not take advantage of its own wrong - HELD THAT - 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 - The lis before the Orissa High Court was limited to the validity of the decision to abolish the OAT. The failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision to abolish the OAT - HELD THAT - 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-informed, intelligent action concerning tribunals in the country (as a whole). This, in turn, has cascading effects for the citizenry, which is deprived of a well-oiled machinery by which it can access justice. We therefore reiterate the directions of this Court in Rojer Mathew 2019 (11) TMI 716 - SUPREME COURT and direct the Ministry of Law and Justice to conduct a judicial impact assessment at the earliest. Thus, the abolition of the OAT was constitutionally valid - The challenge to the constitutional validity of the impugned notification dated 2 August 2019 by which the OAT was abolished is rejected. The judgment of the High Court shall stand affirmed. Appeal dismissed.

Summary

Issues Involved:
1. Maintainability of Writ Petitions.
2. Whether Article 323-A mandates the establishment of SATs.
3. Applicability of Section 21 of the General Clauses Act to rescind the notification establishing the OAT.
4. Whether the abolition of the OAT is arbitrary and violates Article 14.
5. Whether the abolition of the OAT violates the fundamental right of access to justice.
6. Violation of principles of natural justice by not providing a hearing before abolishing the OAT.
7. Validity of the notification dated 2 August 2019 not being expressed in the name of the President of India.
8. Whether the transfer of cases from OAT to the Orissa High Court enlarges the jurisdiction of the latter.
9. Whether the State Government took advantage of its own wrong by not filling vacancies in the OAT.
10. Effect of the failure to conduct a judicial impact assessment before abolishing the OAT.
11. Whether the Union Government became functus officio after establishing the OAT.

Summary:

1. Maintainability of Writ Petitions:
The Writ Petitions instituted by the Appellants before the Orissa High Court were maintainable. The Appellants, being registered associations, alleged that their constitutional rights were violated, thus entitling them to invoke the jurisdiction of the High Court under Article 226 of the Constitution.

2. Whether Article 323-A mandates the establishment of SATs:
Article 323-A is a directory, enabling provision that confers the Union Government with the discretion to establish an administrative tribunal. It does not make it mandatory for the Union Government to establish SATs and does not preclude the Union Government from abolishing them once established.

3. Applicability of Section 21 of the General Clauses Act:
The Union Government acted within its powers by 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. The decision to establish the OAT was an administrative decision, and Section 21 of the General Clauses Act is not repugnant to the subject-matter, context, and effect of the Administrative Tribunals Act.

4. Whether the abolition of the OAT is arbitrary and violates Article 14:
The abolition of the OAT is not arbitrary or unreasonable. The State Government considered relevant factors such as the impact of the decision in L. Chandra Kumar, the expenditure incurred, and the rate of disposal of cases. The decision was not based on irrelevant or extraneous considerations and does not violate Article 14 of the Constitution.

5. Whether the abolition of the OAT violates the fundamental right of access to justice:
The abolition of the OAT does not violate the fundamental right of access to justice. Litigants can approach the Orissa High Court, which has established virtual benches across the state, making the adjudicatory mechanism reasonably accessible in terms of distance and affordability.

6. Violation of principles of natural justice by not providing a hearing before abolishing the OAT:
The principles of natural justice were not violated as the class of people affected by the decision to abolish the OAT did not have a right to be heard before the policy decision was taken. The public at large or some sections of it did not have a right to be heard before such policy decisions.

7. Validity of the notification dated 2 August 2019 not being expressed in the name of the President of India:
The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India. Article 77 is a directory provision, and non-compliance does not invalidate the notification or render it unconstitutional.

8. Whether the transfer of cases from OAT to the Orissa High Court enlarges the jurisdiction of the latter:
The transfer of cases from the OAT to the Orissa High Court is a revival of the latter's jurisdiction and does not enlarge its jurisdiction. The Orissa High Court is merely resuming its jurisdiction over the same subject matter.

9. Whether the State Government took advantage of its own wrong by not filling vacancies in the OAT:
The State Government did not take advantage of its own wrong. It stopped filling vacancies in the OAT only after deciding to abolish it and did not rely on the vacancies created by its inaction to abolish the OAT.

10. Effect of the failure to conduct a judicial impact assessment before abolishing the OAT:
The failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision. The directions in Rojer Mathew were of a general nature and did not prohibit the abolition of specific tribunals in the absence of a judicial impact assessment.

11. Whether the Union Government became functus officio after establishing the OAT:
The Union Government did not become functus officio after establishing the OAT. The doctrine of functus officio cannot ordinarily be applied in cases where the government is formulating and implementing a policy.

Conclusion:
The challenge to the constitutional validity of the notification dated 2 August 2019 abolishing the OAT is rejected, and the judgment of the High Court is affirmed. The appeals are dismissed.