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TMI Blog2023 (3) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the setting up of such Administrative Tribunals to deal e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding 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 jurisdiction of all courts, except of the Supreme Court Under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal (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 decisions were subject to two tiers of challenge (first before the High Court and then the Supreme Court) meant that speedy jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 323-A of the Constitution nor Section 4(2) of the Administrative Tribunals Act prohibits the Union or State Government from abolishing an SAT; e. The Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 by which the OAT was abolished is invalid because it is not expressed in the name of the President of India in terms of Article 77 of the Constitution; h. The Constitution does not envisage a transfer of cases from any court to a particular High Court e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Court. The number of cases transferred from the Circuit Benches of the OAT at Berhampur and Sambalpur to the Orissa High Court are 275 and 235 respectively. The Principal Bench at Bhubaneswar and the regular Bench at Cuttack, on the other hand, had 11,483 and 32,911 cases respectively, which were transferred to the Orissa High Court. Financial hardships faced by litigan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Governments of these two states with the power to abolish "every Commission, Authority, Tribunal, University, Board or any other body constituted under a Central Act, State Act or Provincial Act and having jurisdiction over the existing State of Madhya Pradesh." 21. The State of Madhya Pradesh issued a notification abolishing the MPAT pursuant to a decision taken by it along with the State of Chhattisgarh. This notification was challenged before the Madhya Pradesh High Court. The Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT 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 2005 SCC OnLine Mad 333- "TNAT Abolition Case". 24. In its decision in the above case, the Madras High Court held that the Union Government had the power to rescind a notification establishing an SAT, Under Section 21 of the General Clauses Act. It relied on the MPAT Abolition Case (supra) to hold that it was open to the State Government to take a "policy decision" to abolish the SAT and request the Union Government to abolish it. It further held that the latter would have no option but to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction of all courts, except the jurisdiction of the Supreme Court Under Article 136, with respect to the disputes or complaints referred to in Clause (1); (e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (f) repeal or amend any order made by the President Under Clause (3) of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 controversy has to be decided by ascertaining the intention of the legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue. 35. In order for the word "may" to acquire the character of the word "shall", the following aspects of the provision or legislation (or in this case, the Constitution) must be analysed: a. The legal and factua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 other adjudicatory mechanisms. The intention of Parliament could not have been to mandate the establishment and continuation of administrative tribunals. Besides the purpose of the provision discussed above, nothing in the scheme of Article 323-A indicates that it is a mandatory provision. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 approach the National Human Rights Commission, which this Court noted could prove inaccessible to people living in places far away from New Delhi where it is headquartered. Here, the absence of SATs does not leave litigants without an efficacious remedy. The High Courts or other forums already designated for the purpose of adjudicating service matters continue to be operational in each state and the absence of SATs does not inconvenience litigants any more than they otherwise would have been. 41. Hence, 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 trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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 the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and 80.2.(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. 81. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 must be realised that the distinction between quasi-judicial and administrative acts is not always well defined and its application is not always certain. Doctrine and practice are not necessarily happy partners. The instant case evidently does not involve a lis or two parties with competing claims appearing before an authority who will determine their respective rights. Further, the act of the Union Government establishing the OAT did not prejudicially affect the subject in any manner. Litigants or other citizens were not left without a forum. They could continue to pursue their remedies before the OAT when it was first established, instead of before the Orissa High Court. 50. The Union Government was not acting in a judicial capacity when it set up the OAT. On the establishment of the OAT, pending cases before the High Court were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 Appellant would not be entitled to invoke the assistance of the said section. We must, therefore, proceed to examine the relevant provisions of the Act itself. 54. In Kamla Prasad Khetan v. Union of India 1957 SCR 1052, a Constitution Bench of this Court held that: 10.... Section 21 of the General Clauses Act embodies a Rule of construction, and that Rule must have reference to the context and subject-matter of the particular statute to which it is being applied 55. Section 21 of the General Clauses Act can be invoked when its application would not be repugnant to the subject-matter, context, and effect of the statute and when it is in harmony with its scheme and object. The court may refer to the provisions of the statute in question to determine whether Section 21 of the General Clauses Act will be applicable. 56. The scheme of the Administrative Tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Administrative Tribunals Act which is repugnant to the application of Section 21 of the General Clauses Act. The relevant State Government has the implied power to issue a request to abolish the SAT in its state to the Union Government. The Union Government in turn has the implied power to rescind the notification by which that SAT was established, thereby abolishing the SAT. 59. The Appellants have relied on decisions of this Court in Lt. Governor of H.P. v. Avinash Sharma (1970) 2 SCC 149 and State of M.P. v. Ajay Singh (1993) 1 SCC 302 to support their case. In Avinash Sharma (supra), this Court held that after the Government takes possession of land pursuant to a notification Under Section 17(1) of the Land Acquisition Act 1894, the land vests with the Government and the notification cannot be cancelled Under Section 21 of the General Clauses Act. Further, the notification could not be withdrawn in exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, supplementing SATs) towards achieving the same objective. Hence, the decision in Ajay Singh (supra) does not assist the Appellants' case. 62. The Appellants have also argued that the Union Government's power to abolish SATs must flow from the same legislation that vests it with the power to establish them. It is their contention that the Union Government does not have the power to abolish SATs because the Administrative Tribunals Act does not provide for it. This argument fails for the simple reason that the very purpose of Section 21 of the General Clauses Act is to provide for contingencies such as the instant case when the statute in question does not explicitly provide for the power to add to, amend, vary, or rescind a notification (or order, rule, or by-law) which has been issued. Of course, the application of Section 21 of the General Clauses Act is subject to the test laid down in D N Ganguly (supra) as disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lines. It is their case the Union Government's stance before the Madras High Court in the TNAT Abolition Case (supra) must influence this Court's decision on whether the Union Government has the power to rescind a notification establishing SATs. The Union Government's stance was recorded in paragraph 4 of the TNAT Abolition Case (supra): 4. On the other hand, the stand taken by the Central Government, the first Respondent herein, is that though the Government of Tamil Nadu has sent a proposal to the Central Government for abolition, this cannot be done through Notification. The appropriate legislation for this proposal has to be brought in the Parliament and the same is being contemplated by the Law Department which after due processing and approval will be brought before the Parliament. Mere Notification of the Central Government would not suffice in this case, since Section 74 of the Madhya Pradesh Reorganisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 not applicable to the facts of the present case. 71. 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, we hold that the Union Government's reliance on Section 21 of the General Clauses Act is in accordance with law. v. The notification dated 2 August 2019 is not violative of Article 14 of the Constitution a. The notification dated 2 August 2019 is not based on irrelevant or extraneous considerations 72. The Appellants have urged that the notification dated 2 August 2019 is based on an incorrect understanding of the decision in L. Chandra Kumar (supra) and is arbitrary, unreasonable and violative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 are recorded in a document titled 'A note indicating the rationale' with the subject 'Abolition of Odisha Administrative Tribunal.' This note was prepared by the General Administration Department, Government of Odisha and is dated 16 September 2015. The relevant parts of the note are extracted below: 1. Background Odisha Administrative Tribunal (OAT) was established on 14th July, 1986 under the Administrative Tribunal Act, 1985 by Government of India on the request of Government of Odisha. The Tribunal under the Act was to have similar jurisdiction as the High Court. The applicants were supposed to be freed from the requirement of having to approach the High Court for disposal of their grievances. In lieu of the High Court the aggrieved government employees could go to the Tribunal and from there on to the Supreme Court directly... 2. Supreme Court Landmark Judgment (18th March, 1997) However, with the decision of the Supreme Court in L Chandra Kumar (1997) the provision of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f litigation. However, the decision of this Court in L. Chandra Kumar (supra) held that the jurisdiction of High Courts could not be ousted. This resulted in the creation of three tiers of litigation under the Administrative Tribunals Act - first, before the OAT, followed by the High Court, and culminating with the Supreme Court. The State Government was consequently of the opinion that the "speedy redressal of grievances" was no longer possible in view of the additional rung of litigation. It was of the opinion that its reason for establishing the OAT no longer survived. 77. The Appellants contend that the State Government has misinterpreted the decision in L. Chandra Kumar (supra). It is their submission that the number of tiers of litigation remains the same even if the OAT is abolished and that there is therefore no advantage to be obtained by abolishing the OAT. Instead of parties instituting a case before the OAT at the first instance and preferring a petition Under Article 226 before a Division Bench of the High Court and a Special Leave Petition Under Article 136 before the Supreme Court, they will institute a case directly before the High Court. This will be heard by a si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 1: Plan and Non-Plan Provision for OAT (Rs. in Lakhs) Head of Expenditure 2014-15 2015-16 Plan 205.59 200 Non-Plan 616.24 697.69 Total 821.83 897.69 The following table represents the institution and disposal of OA and MP cases in OAT month wise from January 2014 to December 2014: Table 2 shows that there were 47,619 cases pending at the beginning of 2014. During the calendar year 2014, 7417 cases were disposed whereas 13,823 fresh cases were instituted. At the end of the year 2014, the number of pending cases went up to 54,334... As an institutional mechanism it seems the Tribunal has not been able to provide speedy decisions... (emphasis in original) The State Government was therefore concerned not only with the additional tier of litigation at the Orissa High Court but also with the expenditure incurred to operate the OAT as well as the rate at which the OAT disposed of cases. It was persuaded to abolish the OAT due to a combination of all these factors. 81. From the above discussion, the following conclusions emerge: a. While arriving at the decision to abolish the OAT, the State Government considered relevant reasons. It considered whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondence between the State of Madhya Pradesh and the Central Government as well as from the affidavit-in-reply, it is clear that the decision of this Court in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] had been considered by the State of Madhya Pradesh in arriving at a decision to abolish State Administrative Tribunal. Such a consideration, in our opinion, was relevant, germane and valid. The decision to abolish the MPAT was based on similar considerations as the decision to abolish the OAT. For these reasons, the abolition of the OAT is not arbitrary or unreasonable. It does not violate Article 14 of the Constitution. 83. Our choice of the test articulated in Wednesbury Corporation (supra) must not be understood to mean that no other yardstick may be utilized to test the constitutional legitimacy of executive action, Under Article 14. This Court has previously approved of the use of the proportionality test to evaluate the validity of certain kinds of executive action, including in Om Kumar v. Union of India AIR (2000) SC 3689 and Teri Oat Estates (P) Ltd. v. UT, Chandigarh (2004) 2 SCC 130. The proportionality test may well be applicable to ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative order. In case of the policy decision, however, it is impracticable, and at times against the public interest, to do so, but this does not mean that a policy decision which is contrary to law cannot be challenged.... If the decision is otherwise illegal as being contrary to law or any constitutional provision, the persons affected like the workmen, can impugn the same, but not giving a pre-decisional hearing cannot be a ground for quashing the decision. (emphasis supplied) Although the decision in BALCO Employees' Union (Regd.) (supra) was rendered in the context of a policy decision with economic implications, it would be applicable in the present case. The principle enunciated in that case is equally applicable to other categories of policy decisions. This is because it is impractical to hear every member of the class impacted by a policy decision. 87. 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 membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. 93. 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. 94. Turning to the present case, the Appellants' argument that the Union Government was rendered functus officio after establishing the OAT does not stand scrutiny. The decision to establish the OAT was administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in Rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make Rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business Article 166 corresponds to Article 77. It states: Conduct of Business of the Government of a State.-- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in Rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make Rules for the more convenient transaction of the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 166 and the same principles must govern the interpretation of that provision. (emphasis supplied) 100. Similar principles govern the interpretation of Article 166 and Article 77. A notification which is not in compliance with Clause (1) of Article 77 is not invalid, unconstitutional or non-est for that reason alone. Rather, the irrebuttable presumption that the notification was issued by the President of India (acting for the Union Government) is no longer available to the Union Government. The notification continues to be valid and it is open to the Union Government to prove that the order was indeed issued by the appropriate authority. 101. 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. 102. Here, it is appropriate to note that the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. 106. Article 77 is a directory provision. Article 77(1) refers to the form in which the decision taken by the executive is to be expressed. This is evident from the phrase "expressed to be taken" in Clause (1) of Article 77. It does not have any bearing on the process of decision-making itself. The public or the citizenry would stand to suffer most from the consequences of declaring an order that is not expressed in the name of the President null and void. Hence, the Appellants' reliance on Dattatraya Moreshwar Pangarkar (supra) is misplaced. 107. The Appellants also seek to rely on State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can, perhaps, be explained by the fact that in the said case the impugned directions contained in the government letter (not expressed in the name of the President) was in exercise of the statutory power Under Section 34 of the Air Corporations Act, 1953. In the present case, the impugned guidelines have not been issued under any existing statute. (emphasis supplied) In the present case, the notification dated 2 August 2019 was issued in exercise of the statutory powers under the Administrative Tribunals Act. 109. For the reasons discussed in this segment, the notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India. viii. The abolition of the OAT is not violative of the fundamental right of access to justice 110. The Appellants have urged that the abolition of the OAT has made the court system less accessible to litigants and that it is therefore violative of the fundamental right of access to justice. They have relied on the decision in Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, where a Constitution Bench of this Court discussed the components of access to justice: 33. Four main facets that, in our opinion, constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing the much needed support to the poorer Sections of the society in accessing justice in courts. 113. Significantly, 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. 114. 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. ix. The State Government did not take advantage of its own wrong 115. The Appellants have argued that the State Government tried to take advantage of its own wrong by failing to fill the vacancies in the OAT and creating the conditions for the abolition of the OAT. 116. In paragraph 85 of this judgment, a portion of the note prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment on appeal to the same issue. x. 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 119. The Appellants contend that the Union Government ought to have mandatorily complied with the directions of a Constitution Bench of this Court (of which one of us, Dr. D.Y. Chandrachud, J. was a part) in Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 prior to abolishing the OAT. The intervenor in this matter has also advanced the argument that the Union Government ought to have taken the permission of this Court before abolishing the OAT. 120. In Rojer Mathew (supra), this Court directed the Union Government to conduct a judicial impact assessment of certain tribunals. The operative part of this judgment (from the majority opinion of Ranjan Gogoi, C.J.I.) in relation to judicial impact assessments is extracted below: 223.7. There is a need-based requirement to conduct "judicial impact assessment" of all the Tribunals referable to the Finance Act, 2017 so as to analyse the ramifications of the changes in the framework of tribunals as provided under the Finance Act, 2017. Thus, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and Justice to conduct a judicial impact assessment at the earliest. xi. Miscellaneous contentions 124. A miscellaneous contention remains to be considered. 125. The Appellants have submitted that the so-called real reason for the abolition of the OAT is that many top-ranking officials faced charges of contempt before the OAT, for the reason that they had failed to implement its orders. It is averred that these officials influenced the State Government to abolish the OAT. The Appellants argue that the State and Union Governments did not deny this allegation in their counter affidavits before the Orissa High Court and that this allegation is true because of 'non-traverse.' 126. There is nothing on record which indicates the truth of the Appellants' allegations or even points to a possibility of the truth of such an allegation. It is entirely unsubstantiated and appears to be a last-ditch attempt to sustain their challenge to the abolition of the OAT. In any event, the averment belies logic. All cases pending before the OAT would be transferred to the Orissa High Court, without exception. This includes contempt petitions. Hence, it would not be possible for officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not become functus officio after establishing the OAT because the doctrine cannot ordinarily be applied in cases where the government is formulating and implementing a policy; g. The notification dated 2 August 2019 is valid though it is not expressed in the name of the President of India because non-compliance with Article 77 of the Constitution does not invalidate a notification or render it unconstitutional; h. The abolition of the OAT is not violative of the fundamental right of access to justice because the Orissa High Court will hear cases which were pending before the OAT prior to its abolition; i. The State Government did not take advantage of its own wrong because it stopped filling the vacancies of the OAT only after deciding to abolish it. It did not rely on the vacancies (and the consequent increase in pendency) created by its inaction to abolish the OAT; and j. 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 because the directions in Rojer Mathew (supra) were of a general nature and did not prohibit the abolition of specific tribunals such as the OAT in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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