SREEKANTAN T Vs. STATE OF KERALA

JUDGEMENT

(1.) All these Writ Petitions are filed in public interest challenging the decision of the State Government to constitute State Administrative Tribunal under the Administrative Tribunals Act, 1985 (hereinafter called "the Act") to handle service cases of State Government employees. Challenge made in the Writ Petitions include constitutional validity of the provisions of the Act, Notifications and other Orders issued constituting the Tribunal and appointing the Chairman and also the establishment of two permanent Benches at Trivandrum while only one Bench, that too without filing facility, at Ernakulam, which is the seat of the High Court of the State. Grave procedural irregularities including lack of prior consultation with the Chief Justice of India and the Governor as required under Section 6(3) and (4) of the Act affecting the validity of appointment of the Chairman of the Tribunal are also raised.

(2.) Of the five Writ Petitions, two are filed by individual lawyers, the third by a Government employee and the 4th by a voluntary organisation, the Samata Law Society and the last by the Kerala High Court Advocates Association. While all the Petitioners except the Kerala High Court Advocates Association are strongly opposed, to the constitution of the Tribunal as thoroughly unnecessary and challenge the decision taken based on incorrect data and irrelevant considerations as arbitrary and unconstitutional, the Kerala High Court Advocates Association treats the Tribunal as a fait accompli and, therefore, prays for only a direction for establishment of the principal Bench of the Tribunal at Ernakulam, the seat of the High Court or atleast to have filing facility in the permanent Bench proposed there. We have heard various counsel appearing for the Petitioners, Assistant Solicitor General for Government of India, Government Pleader for the State and counsel appearing for the additional Respondents impleaded.

(3.) The orders and documents referred to in this judgment are those produced in W.P. (C) No. 27871/2010 which is filed by an Advocate of this Court. Petitioners have heavily relied on the decision of the Supreme Court in the case of L. Chandrakumar v. Union of India, 1997 2 KerLT 11 (C. No. 11) SC: AIR 1997 SC 1125) and submitted that Kerala is the only State which has taken the unwise decision to set up a State Administrative Tribunal after the Supreme Court held that the constitution of the Administrative Tribunals will lead to two tier litigation as against the present litigation that starts and ends in the High Court. They have cited the action of very many State Governments like Tamil Nadu, Madhya Pradesh, Chattisgarh and Himachal Pradesh, abolishing the State. Tribunals as there was no justification for their continued existence and also decisions of several States including Karnataka not to start Tribunal, though once proposed. Petitioners have referred to the decision of the Supreme Court in M.P. High Court Bar Association v. Union of India, 2005 AIR(SC) 4114) and contended what is upheld by the Supreme Court is abolition of Administrative Tribunal already set up by the State on the ground that the State rightly felt that the Tribunal serves no useful purpose. Besides challenging the wisdom of the State in deciding to set up the State Administrative Tribunal, the Petitioners have specifically contended by relying on Ext.P5 report of the Expert Committee constituted by the Government with Chief Secretary to Government as the Chairman, that the decision taken is based on irrelevant considerations and incorrect facts and data furnished by the Committee. An alternate contention raised by the Petitioners is that the Government could have achieved the purpose of setting up a Service Tribunal for the State by requesting the Central Government to notify the Cochin Bench of the Central Administrative Tribunal to function as the State Administrative Tribunal as well in terms of Section 4(5)(b) of the Act. The case of the Petitioners is that the Cochin Bench of the Central Administrative Tribunal has four members and they do not have sufficient work with the result there is no sittings in the afternoon. Therefore, according to the Petitioners, if the CAT Bench at Cochin is notified by the Central Government under Section 4(5)(b) of the Act, it could have served as a State Administrative Tribunal as well without the requirement of State Government constituting a separate Tribunal at massive initial and recurring cost. Even though we do not think it is within our jurisdiction to consider the propriety of a policy decision taken by the State Government to set up a separate Tribunal for itself, we are constrained to observe that the arguments/advanced are very relevant and reasons for establishment of the Tribunal as explained in the report of the Expert Committee are neither relevant nor factually correct. In the first place, the assumption of the Committee and the State Government that the Tribunal will relieve the High Court of it's work is rather absurd because after Chandrakumar's case above referred every order of the Tribunal can be challenged before this Court. From our experience of handling cases which arise from the orders of the Central Administrative Tribunal, Cochin Bench, we notice that invariably every order of the C.A.T. including their interim orders are challenged in the High Court. The only advantage is that there is no intra court appeal because all matters from the C.A.T. are heard by Division Benches. The assumption of the State Government that the setting up of the State Administrative Tribunal will relieve the High Court of it's work pertaining to service matters of the State Government employees is thoroughly wrong. On enquiry with the Registry, we find that the pendency of State Government employees' service cases in the High Court is not even 10% of the total cases pending here i.e., less than 10,000 cases pending before Single Judges. Substantial number of cases are infructuous and do not call for any decision on merits. Even when the cases are transferred to the Tribunal, the same will be only temporary relief for the High Court because we are sure the same case bundles will come back with one more annexure i.e., order of the Tribunal, challenging that order as well. In other words, the reduction of work in the High Court will only be at one level, i.e., that of the Single Judges whose job will be virtually taken over by the Tribunal. After decision of the Supreme Court in Chandrakumar's case orders of the Tribunal could be subject to judicial review by the High Court and therefore the Tribunal cannot substitute the High Court which was the fundamental basis on which Tribunals are set up in the country and the same was visualised in Supreme Court's decision in S.P. Sampath Kumar v. Union of India, 1987 AIR(SC) 386. However, the declaration of subordination of the Administrative Tribunals to the High Courts under Article 227 of the Constitution by the Supreme Court in Chandrakumar's case has rendered the Tribunals redundant and incapable of achieving it's objectives i.e., to relieve the pressure of work in High Courts. Of course few orders of the Tribunal may achieve finality, which are orders in favour of the parties, if accepted by the State Government. In our view, the best way, to find out the usefulness or worth of the Tribunal was to find out the impact of the CAT Bench at Cochin on the work load of the Kerala High Court in regard to service cases of Central Government employees, Railways etc., handled by them. The Expert Committee could have just verified what percentage of litigation in Cochin Bench of the CAT has achieved finality without reaching the High Court. From our experience in the Division Bench in hearing matters arising from orders of the CAT, we do not think any sizeable number of cases end up with the orders of the Tribunal and our feeling is that invariably every order of the C.A.T. including interim orders are challenged in this Court. So far as the quality of the Tribunal's orders are concerned also, we felt that interference by High Court are not infrequent. Besides the reduction in work load in the High Court assumed by the Government about which we are not convinced, the State Government has stated another ground justifying the Tribunal which is the massive expenditure being incurred now by way of travel allowances given to employees going from Trivandrum to Ernakulam for filing affidavits, counter affidavits etc., in the High Court. We are surprised to note the massive expenditure claimed to be spent by the Government for the above stated exercise. In these days of advanced communication and connectivity only the State Government can allow people travel up and down carrying files which in our view is avoidable. Further, we do not know how Government can save this expenditure by establishing the Service Tribunal because in the second round of litigation in the High Court the same exercise will have to be repeated. Apart from this, since the Tribunal has a permanent Bench in Ernakulam, the traditional travel of Government employees will continue first to the Tribunal and later to the High Court leading to increase in expenditure. So much so, in our view, the saving of cost presently incurred by the Government for support given to Advocate General's office for handling Government cases in the High Court is not going to materialise by setting up the Tribunal. The Petitioners' case is that the grounds stated in the report are either irrelevant or incorrect and, therefore, the decision taken to set up the Tribunal based on the said report should be declared arbitrary and violative of Article 14 of the Constitution of India. Government Pleader on the other hand submitted that the wisdom of the Government in setting up of the Tribunal should not be permitted to be questioned in court as the same cannot be subject to judicial review. Counsel for the Petitioners have relied on decision of the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain, 2007 4 SCC 737) and contended that legality of the policy, though not wisdom of it, can be questioned before the court and if the court is satisfied that irrelevant considerations weighed with the Government in taking the decision, even such policy decision could be interfered with by the High Court is their argument. We notice from the counter affidavit filed by the State Government that once the Tribunal is set up, State proposes to notify and confer jurisdiction on the Tribunal for settling service disputes of employees engaged in Statutory Corporations and Public Sector Companies under the control of the State Government. Even though we are convinced that the objectives, the State expects to achieve with the establishment of the Tribunal i.e., reduction of work load in the High Court, cannot be achieved, we do not want to interfere with the policy decision of the Government to set up the Tribunal because atleast it will serve the purpose of avoiding two tier litigation in the High Court and petitions to High Court will be limited only to Division Benches. We have to also take note of the fact that the Central Government inspite of being aware of the failure of CAT to achieve the objectives with which it is formed atleast after Chandrakumar's case, still the Tribunal is allowed to continue unmindful or unconcerned about the worth of it's existence. As held by the Supreme Court in M.P. High Court Bar Association v. Union of India, 2010 11 SCC 1) most Tribunals provide berths to several retired civil servants, Judges and Judicial Officers and no one has bothered to assess their worth with reference to performance and finality. While upholding the abolition of the Tribunal by the States of Madhya Pradesh and Chattisgarh, the Supreme Court in M.P. High Court Bar Association v. Union of India, 2005 AIR(SC) 4114 held that abolition of Tribunal is a policy decision beyond judicial review. If that be so, then we have to hold that setting up of Tribunal is also a policy decision. What we notice the three decisions of the Supreme Court above referred is that inspite of being convinced that Tribunal is no substitute for High Courts, the Honourable Supreme Court has not interdicted Governments from continuing with the Tribunals or establishing new Tribunals. Therefore, we reject the prayer of the Petitioners for declaration that there is no scope for establishment of Service Tribunal after Chandrakumar's case decided by the Supreme Court.