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Monday, December 09, 2019

Explained: Why lawyers have objected to setting up of Haryana Administrative Tribunal

Official data reveals that nearly 11,000 cases will be transferred from the High Court to Tribunal once it starts functioning.

Written by Sofi Ahsan , Edited by Explained Desk | Published: August 12, 2019 7:01:59 pm

 

haryana administrative tribunal, hat, haryana government, punjab and haryana high court, high court of punjab and haryana, haryana high court, punjab high court, express explained, Indian Express A full bench of the High Court has deferred the implementation of the Tribunal.

In what can be termed as one of the longest suspension of work ever, the Punjab and Haryana High Court Bar Association has suspended work indefinitely since a notification came out on July 24 for setting-up the Haryana Administrative Tribunal. The Tribunal is meant to adjudicate over the service matters of the state employees that earlier would be directly heard by the High Court.

Official data reveals that nearly 11,000 cases will be transferred from the High Court to Tribunal once it starts functioning.

Though a full bench of the High Court has deferred the implementation of the Tribunal in view of the stalemate, for “the time being” and till further orders, it has been ordered that the High Court will continue to hear the service matters. However, the lawyers have turned the struggle into a battle against the idea of the Tribunal system and vowed to only stop at the revocation of the state decision.

The Indian Express explains the government’s decision and the concerns of lawyers regarding the decision.

What is Haryana Administrative Tribunal?

The tribunal is a quasi-judicial body on the lines of Central Administrative Tribunal for redressal of the grievance of state employees concerning their employment. In the absence of the Tribunal, the employees have no other option but to directly approach the High Court. The government’s decision to establish the Tribunal had been pending since 2015 and is aimed at reducing a large number of pending cases before the High Court and quick disposal of the grievances of employees, as per the state. Tribunal orders can be challenged before the High Court.

Following a recommendation from the Haryana government, the Ministry of Personnel, Public Grievances and Pensions on July 24 issued a notification for establishing the Haryana Administrative Tribunal. The next day judges at the High Court stopped hearing the service matters from Haryana with the reasoning that the court no more had the power in view of the notification.

What has been the reaction since issuance of the notification?

As per the National Judicial Data Grid, the High Court has a pendency of 4,67,271 cases. The lawyers since July 26 have been on an indefinite protest. They have abstained from attending the courts which has resulted in adjournments in most of the cases including civil and criminal litigations. The Bar Association has been adamant on its demand for revocation of the notification saying the decision encroaches upon the jurisdiction of the Court and is also aimed at circumventing the judicial independence. They argue that Tribunal members do not enjoy powers like judges who hold constitutional posts. The Centre has already notified the appointment of Justice (retd.) Sneh Prashar as the Chairperson of the Tribunal for the period of five years and she has been given a temporary office. The Bar has also raised questions over the decision to appoint her on the post. The state government last year approved the Haryana State Administrative Tribunal (Procedure) Rules, 2017.

Why have the lawyers shown the resentment against the government’s decision?

President of the Bar Association Daya Pratap Singh Randhawa has said the tribunals are a means to encroach upon the jurisdiction and judicial independence of the High Court. The concerns of the lawyers at the High Court, however, are multifold and not just restricted to the question of independence of decision making in matters to be heard by the Tribunal and with regard to the appointment of its members.

The government’s original decision is to establish the Tribunal at Karnal but is willing to consider establishing the Principal Bench at Panchkula. A formal notification is yet to be issued by the government regarding the place. In case the government decides to establish the Tribunal at Karnal, it would mean the lawyers based in Chandigarh, Panchkula or in cities of Punjab will face a difficult time in handling the cases of their clients as they also have cases of other nature at the High Court to attend. Senior Advocate Ram Kumar Malik said the stakeholders were not consulted by the Haryana government before issuance of the notification, adding the Tribunal will not have the same independence as enjoyed by the High Court judges when it comes to proceeding against the government’s adverse orders in service matters.

The issuance of notification has also led to a unique predicament. No other members have been appointed yet for the Tribunal – a ground which led the High Court to order deferment of the implementation of the notification of July 24. “Under the provisions of the Act it is clear that a single member can neither decide the matter finally nor take up such cases where the vires of any Service Rules are challenged. In the absence of constitution of the Principal Bench of the Tribunal and the notification with respect to the seat of the Principal Bench of the Tribunal the litigating public would be left without any remedy which would result into total failure of justice delivery system,’ the bench headed by the Chief Justice Krishna Murari said after hearing the Advocate General, a few days ago.

Under which law are the Tribunals setup?

Article 323-A, which came by way of 42nd constitutional amendment in 1976, enabled the Centre to enact The Administrative Tribunals Act, 1985 for setting-up the Tribunals for adjudication over “disputes and complaints with respect to recruitment and conditions of service of persons”. The Centre under the Act can establish the Tribunal for its own employees and also has the power to establish one for a state after receiving a request from the state government. Two or more states can also agree for a single tribunal. The Tribunal is to be headed by a Chairman or Chairperson – a retired High Court Judge, and a number of Judicial and Administrative Members. The Chairperson can be removed only by the President of India. The Tribunal can also have benches at different locations.

What has been the High Court’s stand on the judicial side?

A full bench of the High Court earlier deferred the implementation of the Tribunal. However, the lawyers state the order is tricky and does not address the concerns of the lawyers. Senior Advocate Anupam Gupta while addressing the Bar members last week said, “No one has read it in any other way but that the full bench has deferred notification only to allow the government to complete the formalities of the establishment of the Tribunal. While echoing the stand of the state government alone, this order does not reflect at all the Bar’s principled opposition to Tribunalisation in view of the latest judgements of the Supreme Court in the Madras Bar Association and NJAC cases.” The Chief Justice has himself nominated Justice (retd.) Sneh Prashar as Chairperson of the Tribunal and he ought to have therefore recused himself from the full bench on Friday.

Do any other states have the Tribunal?

The Union Government last month also issued another notification – the one abolishing the Himachal Pradesh Administrative Tribunal which had been in existence since 2015. The request for it came from the state cabinet. Established first in 1986, the Himachal Tribunal was earlier also abolished in 2008 but re-established in 2015. When Haryana government took the decision to establish its own Administrative Tribunal, it had also cited the “encouraging” results of the Himachal Tribunal. Kerala, Karnataka, West Bengal and Maharashtra with their own tribunals for service matters. On August 2, Odisha also got abolished its Administrative Tribunal through a notification issued by the Centre.

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