ROJER MATHEWversusSOUTH INDIAN BANK LIMITED AND ORS

                         [2018] 4 S.C.R. 407                            407


                        ROJER MATHEW                                    A
                                 v.
          SOUTH INDIAN BANK LIMITED AND ORS
         (Special Leave Petition (Civil) No. 15804 of 2017)
                           MAY 07, 2018                                 B
  [ADARSH KUMAR GOEL AND INDU MALHOTRA, JJ.]
       Administration of Justice – Access to justice – Concept of
Tribunals – Restructuring of Tribunal system – Effective and
autonomous oversight body for all the Tribunals – Issues that require
                                                                        C
consideration are: (i) Creation of a regular cadres laying down
eligibility for recruitment for Tribunals – (ii) Setting up of an
autonomous oversight body for recruitment and overseeing the
performance and discipline of the members so recruited and other
issues relating thereto – (iii) Amending the scheme of direct appeals
to Supreme Court so that the orders of Tribunals are subject to         D
jurisdiction of the High Courts – (iv) Making benches of Tribunals
accessible to common man at convenient locations instead of having
only one location at Delhi or elsewhere – In the alternative,
conferring jurisdiction on existing courts as special courts or
Tribunals – These issues require urgent setting up of a Committee
                                                                        E
required, preferably of three members, one of whom must be retired
judge of Supreme Court who may be served in the Tribunal – Such
committee can have interaction with all stakeholders and suggest a
mechanism consistent with the constitutional scheme and also in
the light of recommendations of expert bodies – This exercise must
be taken in time bound manner – Matter listed on 10.5.2018.             F
      R..K.. Jain v. Union of India (1993) 4 SCC 119 : [1993]
      3 SCR 802 ; L. Chandra Kumar v. Union of India (1997)
      3 SCC 261 : [1997] 2 SCR 1186 ; Union of India v.
      R. Gandhi, President Madras Bar Association
      (2010) 11 SCC 1 : [2010] 6 SCR 857 ; Madras Bar                   G
      Association v. Union of India (2014) 10 SCC 1 :
      [2014] 10 SCR 1 ; Madras Bar Association v. Union of
      India (2015) 8 SCC 583 : [2015] 6 SCR 638 ; Gujarat
      Urja Vikas Nigam Limited v. Essar Power Limited
      (2016) 9 SCC 103 : [2016] 5 SCR 101 – relied on.
                                                                        H
                                407
408               SUPREME COURT REPORTS                        [2018] 4 S.C.R.


A                               Case Law Reference
               [1993] 3 SCR 802          relied on               Para 2
               [1997] 2 SCR 1186         relied on               Para 3
               [2010] 6 SCR 857          relied on               Para 4
B              [2014] 10 SCR 1           relied on               Para 5
               [2015] 6 SCR 638          relied on               Para 6
               [2016] 5 SCR 101          relied on               Para 7
             CIVIL APPELLATE JURISDICTION : Special Leave Petition
C     (Civil) No. 15804 of 2017.
            From the Judgment and Order dated 20.01.2017 of the High Court
      of Kerala at Ernakulam in W.A. No. 2349 of 2016 in W.P.(C) No. 26290
      of 2014.
             K. K. Venugopal, AG, Maninder Singh, ASG, Arvind P. Datar (AC),
D     Ms. V. Mohana, Suchindran B.N., Ms. Kanika Kalaiyarasan, Renjith B.
      Marar, Anubhav Anand Pandey, Krishnada Villadath, Ms. Lakshmi N.
      Kaimal, R. Balasubramnian, Ms. Shradha Deshmukh, Santosh Kr.
      Vishwokarma, Prabha Bajaj, Mrs. Anil Katiyar, Mukesh Kumar Maroria,
      P. I. Jose, Shashan K. Mishra, Ms. P. S. Chander Lekha, Ms. Preeti
E     Singh, Advs for the appearing parties.
               The following Order of the Court was passed :
                                      ORDER
             1. Restructuring of Tribunal System in the light of constitutional
F     scheme as interpreted in decisions of this Court and the Expert Studies
      is the issue for consideration. Concept of Tribunals was evolved to
      decongest the court system and to provide speedy and inexpensive justice.
      Separation of powers and independence of judiciary are the constitutional
      concepts which have to be followed in setting up of Tribunals. Functioning
      of Tribunals is required to be reviewed on the test of speedy and
G     inexpensive quality justice.
             2. In R.K. Jain versus Union of India1, a Bench of this Court
      called for taking stock of the situation of working of Tribunals2. It was
      observed that the personnel appointed to man the Tribunals discharge
      1
          (1993) 4 SCC 119
      2
H         Para 8
      ROJER MATHEW v. SOUTH INDIAN BANK LIMITED                                  409
                       AND ORS.

judicial/quasi judicial powers and thus, persons who adjudicate upon such        A
powers must have legal expertise, judicial experience and legal training3.
Independence of judiciary is a must for fair justice4.Institution of Tribunals
being a substitute for courts could not be less effective than the courts to
uphold faith of litigant public5. The Court expressed anguish over
ineffectivity of alternative mechanism for judicial review. It was observed
                                                                                 B
that dispensing of justice by Tribunals leaves much to be desired. Remedy
of appeal to this Court was costly and prohibitive and people in far flung
areas could ill afford to reach this Court. Members of the Bar should be
recruited to man the Tribunals and working of Tribunals may need fresh
look and regular monitoring6.
        3. In L. Chandra Kumar versus Union of India7, a Bench of                C
7-Judges referred to the reports of Expert Committees and Commissions
which dealt with the problem of arrears. 124th Report of the Law
Commission (1988) analyzed the situation existing in High Courts and
recommended specialized Tribunals. The Malimath Committee Report
(1989-1990) noted that not all the Tribunals inspired confidence in public       D
mind on account of lack of competence, objectivity and judicial approach.
Constitution, power and method of appointment needed to be reviewed8.
This Court noted that various Tribunals have not evolved up to the
expectations which is self evident and widely acknowledged. Drastic
measures were required to elevate the standards9. Exclusion of judicial
review by High Courts and direct appeals to this Court was too costly            E
and inaccessible and thus ineffective. The decisions of the Tribunals
should be amenable to scrutiny before a Division Bench of the High
Court10. Short tenure of members of Tribunal was not proper. Non judicial
members must have judicial experience11. There was need to review
the competence of persons manning the Tribunals and oversight                    F
mechanism. Wholly independent agency was required for administration
of all the Tribunals. A single umbrella organization could remove the ills
of the present system12.
3
  Para 67
4
  Para 68
5
  Para 70                                                                        G
6
  Para 76
7
  (1997) 3 SCC 261
8
  (paras 8.63 to 8.66 as quoted in para 88 of L. Chandra Kumar)
9
  Para 89
10
   Para 92 to 94
11
   Para 95
12
   Para 96                                                                       H
410             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A            4. In Union of India versus R. Gandhi, President Madras Bar
      Association13, the Constitution Bench observed that if Tribunals are to
      be given judicial power which was earlier exercised by courts, they must
      possess independence, security and capacity associated with courts.
      When the jurisdiction from courts is transferred to tribunals, members of
      judiciary should be the presiding officers/members such as Rent Tribunals,
B
      Motor Accident Claims Tribunals and Special Courts. Provision for
      technical members in addition to or substitution of judicial members would
      be a case of dilution of and encroachment upon independence of
      judiciary14. Technical members could be in addition to judicial members
      only when a specialized knowledge or expertise was a must. The
C     legislature could constitute Tribunals but there is limitation of power on
      the legislature to prescribe qualifications and such limitation has to be
      read into the competence of the legislature to provide such qualifications15.
      Standards expected from judicial members and standards applied for
      appointment should be as nearly as possible same as applied to
      appointment of judges who are sought to be substituted 16. Experience of
D
      administration may make a member of civil service a good administrator
      but not necessarily an able and impartial adjudicator17. There was gradual
      erosion of independence of judiciary and shrinking of the space occupied
      by the judiciary and increase in number of persons belonging to civil
      service discharging functions which were earlier exercised by courts
E     which was needed to be checked18.
             5. In Madras Bar Association versus Union of India (2014)19,
      it was observed that the newly constituted Tribunals will be invalidly
      constituted unless its members are appointed in same manner and are
      entitled to same conditions of service as were available to the judges of
F     the courts sought to be substituted20. Constitution Bench of this Court
      observed that setting up of a Tribunal with seat at Delhi may deprive the
      litigants convenience of access to justice. Litigants may have to face
      hardship of travelling long distance and incur heavy expenses21. It should
      13
         (2010) 11 SCC 1
      14
         Para 90
G     15
         Para 93
      16
         Para 108
      17
         Para 109
      18
         Para 112 and 120
      19
         (2014) 10 SCC 1
      20
         Para 113.2
      21
H        Para 122
     ROJER MATHEW v. SOUTH INDIAN BANK LIMITED                                411
                      AND ORS.

be inappropriate for the Central Government to have any administrative        A
dealings with the persons or its members to uphold their independence
and fairness.22 Appointment of non judicial members may constitute
dilution and encroachment upon independence of judiciary and rule of
law. The accountant members or technical members could not handle
complicated questions of law. The judicial members are to handle
                                                                              B
substantial questions of law. Mere technical knowledge or knowledge
of accounts was not enough23. Manner of appointment of members of
Tribunals should be by same procedure as appointment of judges who
are substituted. Only a person possessing professional qualification of
law with substantial experience in law may be able to handle such issues.
Manning of Tribunals which are substitute for court of first instance was     C
different from those who are not subservient to the High Courts24.
A party to the litigant should not participate in the selection process of
members of the adjudicating body25.
      6. In Madras Bar Association versus Union of India (2015)26
observations with regard to safeguarding dilution of standards in             D
appointments of tribunals were reiterated27.
        7. In Gujarat Urja Vikas Nigam Limited versus Essar Power
Limited28, the observations in earlier judgments in L. Chandra Kumar
and Madras Bar Association (supra) were reiterated to the effect that
remedy of appeal to this Court was too costly and inaccessible. Further,      E
overcrowding of docket of this Court obstructed key constitutional role
of this Court. Composition of the appellate Tribunal dealing with questions
of law being manned by non judicial members was not desirable which
called for a review of composition of such Tribunals29. Accordingly, this
Court framed certain questions to be examined by the Law Commission.
The Law Commission has submitted its 272 nd Report inter alia                 F
recommending restructuring of Tribunals so as not to provide direct
appeal to this Court. It was also observed that the manner of appointment,
eligibility, tenure and other privileges of persons manning Tribunals must
22
   Para 124
23
   Paras 126-127
                                                                              G
24
   Para 130
25
   Para 131
26
   (2015) 8 SCC 583
27
   Paras 27 and 28
28
   (2016) 9 SCC 103
29
   Paras 30-40                                                                H
412            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A     be at par with the persons manning courts sought to be substituted. The
      selection procedure must ensure independence of judiciary. All Tribunals
      should be placed under a single umbrella for proper monitoring.
             8. 74 th Report of the Parliamentary Standing Committee
      considered a draft Bill for Uniform Service Conditions of members of
B     the Tribunals.
             9. In the above background, when the present matter came up
      for hearing on 24th October, 2017 it was pointed out that appointment,
      norms and functioning of Debt Recovery Tribunals was not consistent
      with the observations of this Court in various judgments. Accordingly,
C     the court requested Shri Arvind P. Datar learned senior counsel to assist
      the court as amicus. On 6th December, 2017, the Court had an interaction
      with the Attorney General on the issue of restructuring of Tribunals
      specially creation of a regular cadre to man the Tribunals.
             10. On 15th March, 2018, learned amicus gave a Concept Note.
D     It was also submitted that short term appointments out of retired persons
      was not conducive to the justice delivery by the Tribunals. The Tribunals
      must be manned by a regular cadre. Selection should be by a national
      competition by an expert autonomous body. Oversight mechanism must
      be vested with an autonomous body. There should be no statutory appeal
      directly to this Court as it hampered access to justice, litigation in this
E     Court being costly and difficult for a litigant located at far off places.
             11. Accordingly, this Court recorded that revisit of the structure
      of tribunals was necessary to uphold the rule of law and independence
      of judiciary. The Central Government was directed to file its response.
      12. Again on 4th April, 2018, following further issues were noted :
F
            “i) How to remedy the handicap in access to justice when a
            Tribunal has only one seat for its working to the exclusion of
            jurisdiction of all other courts in the country as noted in
            Gujarat Urja Vikas Nigam Limited versus Essar Power
            Limited,(2016) 9 SCC 103 para 34. In such cases, question is
G           whether jurisdiction of the Tribunal can be conferred on a
            specified court nominated by the High Court in each of the
            State or, where work of such nature may be insignificant in
            some States, on one officer in more than one States.

H
     ROJER MATHEW v. SOUTH INDIAN BANK LIMITED                              413
                      AND ORS.

      ii) Whether ‘Access to Justice Facilitation Centres’ (AJFCs),         A
      with or without private participation, can be set up at
      convenient locations in the country from where a party can
      access a Court or Tribunal located at long distance with or
      without payment of such specified charges. Such centres may
      also have facilities for e-filing and such other services as
                                                                            B
      may facilitate a party for participation in proceedings. This
      may enhance access to justice and obviate need for travelling
      long distances, particularly if such parties are in remote areas.

      iii) Whether in absence of availability of suitable persons of
      statutorily prescribed qualifications to man Tribunals/               C
      Commissions, pending filling up of vacancies, such Tribunals/
      Commissions can be manned by existing courts 3 in
      consultation with the High Courts. Needless to say that
      servicing officers are duly selected and accountable in the
      matter of performance and discipline.
                                                                            D
      iv) Whether power of Commissions/Tribunals having
      overlapping jurisdiction such as Human Rights Commissions,
      having only one seat in a State, can be conferred on specified
      courts in one or more districts, in addition to or in substitution
      of such Commission, so as to make access to justice available
      at the grass root.”                                                   E

      13. Accordingly, an affidavit has been filed by the Union of India.
The affidavit inter alia refers to Finance Act, 2017 dealing with the
appointment procedure for the Tribunals and a petition challenging the
same in this Court. It is submitted that the matter being sub judice this   F
was not a stage to revisit the issue of manning of Tribunals.

      14. The affidavit does not deal with working of all the Tribunals
and is confined to the Debt Recovery Tribunals. It is presumed that
system of Debt Recovery Tribunal was far more efficient than the system
of courts. It is stated that as on 30.09.1990 more than 15 lakh bank        G
cases were pending in courts but as on 31.03.2017 only 78,961 cases
were pending before 39 Debt Recovery Tribunals. It is however
concluded that Union of India was not averse to revisit the issue of
access to justice.

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414             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A            15. Learned amicus pointed out that the affidavit of Union of
      India does not deal with the issues raised in these proceedings. The
      assumption in the affidavit in comparing the working of courts and
      Tribunals was not based on entire relevant data. Reference to 15 lakh
      cases appears to be reference to all the cases, while reference to
      pendency before Tribunals is only in cases involving more than 10 lakhs.
B
      Moreover, the data of yearly institution and disposal has not been furnished
      to compare the rate of disposal. Longest period of pendency before
      different Tribunals is also not indicated.
             16. Learned amicus referred to the concept note to the effect
C     that there was need for an independent oversight body in the light of
      observations in L. Chandra Kumar (supra) which have been reiterated
      in NCLT case (Madras Bar Association) (2015) (supra) to the effect
      that the Tribunals or their members should not be required to seek facilities
      from the sponsoring or parent ministries or concerned departments. 74th
      Report of the Parliamentary Standing Committee also recommended
D     creation of a National Tribunal Commission to oversee all the Tribunals
      in the country. Accordingly, it has been suggested that an independent
      body called National Tribunal Commission (NTC) should be constituted
      as follows :
             A. Two retired Supreme Court Judges (with the senior-most
E     amongst them to be Chairman)
              B. Two retired High Court Judges (Members)
              C. Three members representing the Executive.

F            The appointment of members of the NTC should be by following
      Selection Committee :
              Chief Justice of India (as Chairperson of the Committee who
              exercises a casting vote);
              Two senior most judges of the Supreme Court after the Chief
G
              Justice of India ;
              Current Law Minister; and
              Leader of the Opposition.

H
     ROJER MATHEW v. SOUTH INDIAN BANK LIMITED                                   415
                      AND ORS.

       17. The NTC should oversee functioning of central Tribunals and           A
similar body may be constituted for State tribunals. The NTC should
deal with appointment and removal of members of the Tribunals by
constituting sub committees. The concept note also deals with further
details on the subject. Further suggestion is that the member of the
Tribunals should be recruited by national competition. Once recruited
                                                                                 B
they should continue till the age of 62/65 years subject to their efficiency
and satisfactory working. The Tribunals should not be heaven for retired
persons and appointment process should not result in decisions being
influenced if the Government itself is a litigant and the appointing authority
at the same time. There should be restriction on acceptance of any
employment after retirement. There is also suggestion that bypassing of          C
High Court jurisdiction under Article 226/227 needs to be remedied by
statutory amendment excluding direct appeals to this Court. There should
be proper mechanism for removal of members.
        18. We broadly approve the concept of having an effective and
autonomous oversight body for all the Tribunals with such exceptions as          D
may be inevitable. Such body should be responsible for recruitments
and oversight of functioning of members of the Tribunals. Regular cadre
for Tribunals may be necessary. Learned amicus suggests setting up of
all India Tribunal service on the pattern of U.K. The members can be
drawn either from the serving officers in Higher Judicial Service or
directly recruited with appropriate qualifications by national competition.      E
Their performance and functioning must be reviewed by an independent
body in the same was as superintendence by the High Court under Article
235 of the Constitution. Direct appeals must be checked. Members of
the Tribunals should not only be eligible for appointment to the High
Courts but a mechanism should be considered whereby due consideration            F
is given to them on the same pattern on which it is given to the members
of Higher Judicial Service. This may help the High Courts to have
requisite talent to deal with issues which arise from decisions of Tribunals.
A regular cadre for the Tribunals can be on the pattern of cadres for the
judiciary. The objective of setting up of Tribunals to have speedy and
inexpensive justice will not in any manner be hampered in doing so.              G
Wherever there is only one seat of the Tribunal, its Benches should be
available either in all states or at least in all regions wherever there is
litigation instead of only one place.

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416              SUPREME COURT REPORTS                         [2018] 4 S.C.R.


A           19. To sum up, the issues requiring consideration may be as
      under :
             (i) Creation of a regular cadres laying down eligibility for
                 recruitment for Tribunals;
             (ii) Setting up of an autonomous oversight body for recruitment
B                and overseeing the performance and discipline of the members
                 so recruited and other issues relating thereto;
             (iii) Amending the scheme of direct appeals to this Court so that
                 the orders of Tribunals are subject to jurisdiction of the High
                 Courts;
C
             (iv) Making Benches of Tribunals accessible to common man at
                convenient locations instead of having only one location at Delhi
                or elsewhere. In the alternative, conferring jurisdiction on
                existing courts as special Courts or Tribunals.

D            20. The above issues may require urgent setting up of a committee,
      preferably of three members, one of whom must be retired judge of this
      Court who may be served in a Tribunal. Such Committee can have inter
      action with all stakeholders and suggest a mechanism consistent with
      the constitutional scheme as interpreted by this Court in several decisions
      referred to above and also in the light of recommendations of expert
E     bodies. This exercise must be undertaken in a time bound manner
            To consider the matter for further, list on Thursday i.e. 10th May,
      2018 as prayed by learned Attorney General.


F     Devika Gujral                                               Directions issued.




G




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