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ADMINISTRATIVE ADJUDICATION
Administrative Adjudication means the determination of questions of a judicial or quasi-judicial nature by an administrative department or agency. Like a regular court, administrative bodies hear the parties, sift evidence, and pronounce a decision in cases where legal rights or duties are involved.
In the words of Prof White, āā¦administrative adjudication means the investigation and settling of a dispute involving a private party on the basis of a law and fact by an administrative agency.
The main point of difference between administrative adjudication and administration of justice by the courts is that administrative justice is administered by administrative agencies instead of regular courts. The administrative courts follow the principles of natural justice and common good whereas the courts of law follow the settled principles of law and evidence.
The administrative courts are manned by officers belonging to the executive branch whereas the judges are the members of the judiciary independent of executive control.
Administrative adjudication may take the following forms: (i) Advisory administrative adjudication which means that the power of final decision is vested in the head of the department or other authority.
(ii) Administrative Adjudication may constitute a part of the regular functions of an administrative officer.
(iii) Administrative Adjudication may be combined with a legislative administrative process.
(iv) Regular suits may be filed against administrative decision.
(v) Administrative Adjudication sometimes applies to licensing activities.
(vi) Administrative Adjudication may be adopted for the settlement of claims.
(vii) Administrative Adjudication may sometimes serve as a condition precedent to the perform- ance of an administrative act.
Causes of the growth of administrative adjudication:
The following causes have led to the growth of administrative adjudication:
1. A By-Product of the Welfare State: The Administrative Tribunals rendering Administrative justice constitute a by-product of the welfare state. In the 18th and 19th century when ālaissezā faire theory held sway, law courts emerged out as the custodian of the rights and liberties of the individual citizens.
At times they protected the rights of the citizens at the cost of State authority. With the emergence of welfare state, social interest began to be given precedence over the individual rights. The existing judiciary failed to uphold the new system.
2. Ordinary Law Courts not Competent: i. Law courts, on account of their elaborate procedures, legalistic forms and attitudes can hardly render justice to the parties concerned in technical cases. Ordinary judges brought up in the traditions of law and jurisprudence are not capable enough to understand technical problems which crop up in the wake of modern complex economic and social processes.
ii. Only administrators having expert knowledge can tackle such problems judiciously.
iii. The expedient adopted by the courts is to examine the experts of the subject. The expert witnesses are only too often hired assassins of the truth; and even if they were just men made perfect the assimilation of technical facts at short notice, through the testimony of another individual, is a different thing from a first-hand knowledge of the groundwork based on personal experience or training.
In the recent past in a decision given by Madras High Court, it frankly admitted that it knew nothing of the subject. That clearly reflects the handicaps of regular judiciary.
iv. The court procedures when tested by times are found wanting. Litigants have to face exasperating delay because of crowded dockets of these courts and an excessive right of appeal to the higher courts.
(e) Useful in Developing Democracies: In developing democracies which experiment with new social and economic programme, ordinary courts would be completely misfit. All the disputes arising out of such programmes will get struck, thus giving a setback to the programme itself unless we switch over to the Administrative Courts.
(f) Fixing of Standards: The disputes which come for adjudication before the Administrative Tribunals arc not concerned with the proprietary or other claims of the disputants but the fixation of public standards of performance. Such standards of performance can be determined only by these administrative and not ordinary courts.
For example, a dispute concerning an injured employeeās claim for compensation from the employer is more a problem of enforcing standards of safety in the factory than a mere dispute of rights between the employer and the employees. Obviously ordinary courts are not capable of undertaking such work.
(g) Flexibility: Such tribunals are not bound by precedents. They are free to go against the existing precedents. This makes administrative law flexible and enables administrative tribunals to further a policy of social amelioration unhampered by legal rigidities.
TO SUM UP:
Frederick and Miriam are also of the same view, āAdministrative courts not only relieve the ordinary courts of a great bulk of work, but also serve purposes foreign to the latterā¦The informal and inexpensive procedure before most administrative courts and the possibility of specialization either in separate courts or in chambers are generally considered very desirableā¦ The weight of expert opinion considers the continental system more satisfactory than the separate administrative courts practically always subject in certain respects to the judicial courts which are found in England and the United States. There IS no doubt that the administrative courts of some kind are a necessary and increasingly important part of modern governmental machinery.ā
Disadvantages of Administrative Adjudication:
(a) Violation of Rule of Law: It violates the rule of law-the cornerstone of democracy. Rule of Law stands for equality before law, supremacy of law and due procedure of law over governmental arbitrariness. The administrative tribunals, with their separate law and procedure often made by themselves, seriously circumvent the celebrated principles of Rule of Law.
(b) Principle of Natural Justice Undermined: Administrative Adjudication violates the principles of natural justice, viz., no man should be a judge in his own case; no party ought to be condemned unheard; party should know the reason for the decision. The Administrative courts do not often give the reasons for decision.
The quality of investigation is also poor. Free from the trammels of judicial procedure, administrative courts depend on unsworn written statements, unsupported by verbal testimony given on oath and subjected to cross-examination. Neither the documents are sent for nor witnesses are compelled to attend. Thus justice remains at stake.
(c) Limited Right to Appeal: The right to appeal from the decisions of these courts is either very limited or is non-existent. The opportunity for judicial review is restricted. This is apt to lead to miscarriage of justice.
(d) Lack of Publicity: The rules of procedure of administrative courts do not provide for the publicity of proceedings. Provision of oral hearing may not be there or if it is there it may not be open to the public and the press. Reports of the cases so decided may not be publicized.
Even the statement of reasons on which they are based, may not be given. In the absence of proper publicity, it is not easy to predict the trend of future decisions. In the words of Robson, āwithout publicity, it is impossible to predict the trend of future decisions and an atmosphere of autocratic bureaucracy is introduced by the maintenance of secrecy which in the ordinary course of events is quite unnecessaryā¦ā
(e) Tribunals do not Act Judicially: Tribunals are not maimed by judicial luminaries. As such, they do not have the impartial outlook. They become the limbs of the executive, and dance to its tune and cease to act judicially.
And thirdly, āReasoned Decisionā which states that order, decision or judgement of the court given by the Presiding authorities with a valid and reasonable ground.
āNatural justice is a sense of what is wrong and what is right.ā
In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election Commissioner , the court held that the concept of fairness should be in every action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work.
Purpose of the principle
ļ· To provide equal opportunity of being heard. ļ· Concept of Fairness. ļ· To fulfil the gaps and loopholes of the law. ļ· To protect the Fundamental Rights. ļ· Basic features of the Constitution. ļ· No miscarriage of Justice.
The principles of natural justice should be free from bias and parties should be given fair opportunity to be heard and all the reasons and decision taken by the court should be informed by the court to the respective parties.
Rules of Natural Justice
ļ· NEMO JUDEX IN CAUSA SUA
ļ· AUDI ALTERAM PARTEM
ļ· REASONED DECISION
Nemo Judex In Causa Sua
āNo one should be a judge in his own caseā because it leads to rule of biases. Bias means an act which leads to unfair activity whether in a conscious or unconscious stage in relation to
the party or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given judgement on the basis of evidence recorded as per the case.
Type of Bias
- Personal Bias.
- Pecuniary Bias.
- Subject matter Bias.
- Departmental Bias.
- Policy notion Bias.
- Bias on the account of obstinacy.
Personal bias
Personal bias arises from a relation between the party and deciding authority. Which lead the deciding authority in a doubtful situation to make an unfair activity and give judgement in favour of his person. Such equations arise due to various forms of personal and professional relations.
In order to challenge the administrative action successfully on the ground of personal bias, it is necessary to give a reasonable reason for bias.
Supreme court held that one of the members of the panel of selection committee his brother was a candidate in the competition but due to this, the whole procedure of selection cannot be quashed.
Pecuniary bias
If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to administrative authority to biases.
Components
Issuance of notice ā Valid and proper notice should be given to the required parties of the matter to further proceed with the procedure of fair trial method. Even if the statute does not include the provision of issue of notice then it will be given prior to making decisions. This was held in the case of Fazalbhai vs. custodian.
In the case of Kanda vs. Government of Malaya, the court held that notice must directly and clearly specify on the matter of bias, facts and circumstances against which needs to be taken. Itās one of the rights of the individual to defend himself so he should be familiar with the relevant matter so he may contradict the statement and safeguard himself.
The notice should be with regard to the charges framed against the accused person and proceeding to be held. He can only be punished on the charges which are mentioned in the notice, not for any other charges.
Right to present the case and evidence ā After receiving the notice he must be given a reasonable time period to prepare and present his case in a real and effective manner. The refusal should not be done on the unreasonable ground or due to arbitrary.
Right to Cross Examination ā Right of fair hearing includes the right to cross-examination the statement made by the parties. If tribunals denied the right to cross-examination then it will violate the principles of natural justice. And all the necessary copies of documents should be given and failure of that will also encroach the principle. The department should make available officers who are involved in the procedure of investigating and do cross-examination. Cross- examination is defined under Section 137 of the Indian Evidence Act, 1872 (amended).
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off some indecent behaviour towards a female student. So, here the right to cross-examination was denied for the male student as it will lead to embracement for the female student and it will not also lead to violation of natural justice.
Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and property. And the same situation was faced in the case Gurubachan Singh vs. the State of Bombay.
Letās take an illustration, In the matter where lawyer and client are involved so, nobody can force a lawyer to reveal what all information is given by the client to the lawyer in relation to the case.
In the case of Ludhiana food product , the court held that If the party itself refuse to cross- examine the witness then it will not fall under miscarriage of natural justice.
Right of Legal representative
In the process of enquiry, every party has the right to have a legal representative. Each party will be presented by the legally trained person and no one can deny ( A.K.Roy ). Similarly, the department has the same right to direct its officer even though there are investigating officer in conducting an adjudicating proceeding ( Sanghi textile processor vs. Commissioner ).
Exceptions:
- During the Emergency period
- Public interest
- Express statutory provision
- Nature of the case is not of a serious kind
- If it doesnāt affect the status of the individual
OMBUDSMAN
What Is an Ombudsman? An ombudsman is an official, usually appointed by the government, who investigates complaints (usually lodged by private citizens) against businesses, financial institutions, or government departments or other public entities, and attempts to resolve the conflicts or concerns raised, either by mediation or by making recommendations.
