Introduction

The State plays a major role in promoting socio-economic welfare of the citizens. In this principal role of promoting public welfare, the State has assumed more and more powers to regulate the society in order to improve physical, social and economic welfare of the people.  It makes policies, executes decisions and administers the law. Thus, we have come to live in an administrative age with its functions and powers have grown vastly over time.  While increased role of State meant increased responsibility for all the three organs i.e., legislature, judiciary and executive, yet the largest expansion in depth and range of functions and powers has taken place at the level of executive-cum-administrative organ.

The truth is that in democratic societies, the administration has acquired an immense accession of power and has come to discharge of functions which are varied and multifarious in scope, nature and ambit. Administrative adjudication has arisen largely because of the multitude of cases arising for adjudication under the modern legislation needs to be decided expeditiously with the least formality, technicality at less cost and by persons having specialized skills to handle such cases. As the courts are not in a position to fulfill these conditions, the Tribunals have come into vogue.

Judicial control plays a significant role in keeping the administration within due limits. But even this has its own lacunae.  Normally, the cases are filed before courts, whenever the administration fails to discharge its duties according to the provisions of Statute, Rules and Regulations made there under. There has been a sudden spurt of cases in the courts, as the citizens realized that the courts are the institutions for redressal. Apart from the citizens, the government employees also take recourse to the courts regarding service matters.  Whatever it may be, there are conflicting claims and frequent resorting to courts of law, thus resulting in the proliferation of litigation.

In the chronicles of judiciary reforms and legal justice to citizens, it is well documented that the judiciary should be able to dispose the legal cases efficiently within the apparatus of its functioning through some process innovations.  While adjudicating the legal cases in a fair manner assumed primacy of the legal systems, it is now increasingly recognized that the speedier disposal of legal cases is equally important in the legal system that laid down the principle that justice delayed is justice denied.  This brings to the fore the need for mechanisms (alternative institutional arrangements) not only for a faster process of adjudication but also for speedy and appropriate action by the concerned parties.  It is, therefore, increasingly argued that legal cases would require to be handled effectively by the concerned parties, which in most cases is the government i.e., departments of the government machinery. 

It needs to be well understood that speedy disposal of legal cases is an important element of not only the judicial system but also integral to the provision of services by concerned government department.  Speedier disposal of cases not only benefits the affidavit fining parties, which are typically private parties and citizens, but also the department, as it can demonstrate efficient functioning on one hand and it can implement the projects/ deliver the services without any hindrance to these functions that arise from the uncertainty of the outcomes of the legal cases.  It is increasingly now felt that this requires taking stock of the quantum of the legal cases handled by department and their status at various stages of legal process, then attempt to address delays and pendency of cases after identifying the important reasons for the delay.

Pendency of legal cases

Government departments have to face litigations filed by citizens, department officials, contractors and others from time to time during the regular course of working. Complying with the legal process, the Government is required to be in constant interaction with the Government Pleaders (GPs) who represent the Government in Courts. The concerned department is necessitated to give proper information concerning the matter before the Court, to keep the GP informed of all aspects of the matter involved, and to ensure that an informed effective representation is made on his/her part. Figure 1 shows the process/flow of legal cases and the various sub-processes. 

The government litigation process is very slow due to various factors, such as delay in the filing of replies, concerned documents etc. The lack of timely and appropriate response results in the cases disposed off ex parte; thereby, adversely affect the Government. The delay can be attributed to the lack of proper working interaction between the concerned departments and the government pleaders (GPs), which is resulting in the cases disposed off without the government availing its chance of effective representation before the Court. Sometimes the government departments are totally taken unaware until they get a contempt notice. So, the whole system is inefficient due to the lack of a systematic working pattern to deal with legal cases by the government. 

Administrative adjudication of legal cases is expected to be expeditiously executed with less formality/ technicality, at low cost and by the persons with specialized skills to handle them.  With rising number of conflicts and claims, frequent resorting to courts of law is increasingly resorted to by the citizens, resulting in the proliferation of litigation.  Although it is argued that addressing the pendency of legal cases can be better dealtwith at the initiation stage itself by (by ensuring effective dispensation of grievances and disputes and by using alternative dispute resolution methods), the remedial measures also assume importance when other institutions have failed in redressing the grievances/ disputes that lead to litigation. 

The Judicial sub-process is an important means of speedy redress of legal cases as the court/tribunal holds key to the trial and decision on the case within the provisions laid down under constitution and established under legal jurisprudence.  It also addresses the pendency of legal cases that courts/tribunals are inventing new means of quick dispensation e.g., special courts like family courts or terrorist courts for fast track justice in those cases, lok ayukta (public hearing) and the use of software systems with strong database applications.  It needs to be noted that the expeditious disposal of legal cases is an important element of not only the judiciary system but also integral to the provision of services by concerned Government Department. Therefore, addressing the pendency of legal cases at department level has become a necessary step.



Causes and consequences of pendency

Of the three processes mentioned above, the pendency of legal cases takes place due to a variety of reasons.  One of the important processes is the administration process of legal cases, which is often condoned but it has some important and serious implications. Understanding the reasons for/causes of pendency of the legal cases during administration process is very useful and the information of the same shall render the concerned government department to take an appropriate action for the redressal of legal cases.

Delays/pendency of legal cases during the administration process may arise from a number of factors, which we discuss here under.  A considerable time is taken by the departments to prepare para-wise remarks, counter affidavits in legal cases to defend the cases in various courts. In certain cases, para-wise remarks have to be obtained for the preparation of counter affidavits at Government level.  In this process, delays are occurring at Government level in the filing of counter affidavits in courts. Diagnostics reveal that the major reasons of pendency are:

• Late receipt of petitioner’s affidavit from the Court/Tribunal.
• Late submission of draft para-wise remarks by Section staff.
• Delays occurring due to the process followed in finalizing and sending para-wise remarks to the Government Pleader (GP).
• Section staff/officers not being able to devote enough time and attention
• Section staff not fully competent in preparing para-wise remarks
• Section staff not enclosing support documents and material papers with draft para-wise remarks
• Inadequate staffing of the Sections of department.
• Concerned Section in Department acting slow in making the copies of affidavit available to GP
• GPs not fully accountable in terms of returning affidavits within reasonable time frame
• GPs taking longer time in filing counter affidavit in courts

An importance consequence of pendency of legal cases in administration process is the escalation of time and increase in effort due to prolonged case hearing.  This hampers the department functioning on one hand and may even halt implementation of some of the important projects undertaken or decisions taken by it. It also increases the uncertainty of the case due to periodic changes in judges, prosecutors and administrative officers in their positions.

In high profile cases, when the department fails to file counter affidavits in time, interim orders are being passed in several cases and in some cases, personal appearance of higher officials may be ordered by the High Court /Administrative Tribunal.  One of the important reasons for the pendency of the legal cases is the fact that timelines are not known to and adhered to at various stages of legal case flow – particularly, in the case of GP.  There is also a lack of effective administration and monitoring system to deal with in a more effective manner.

Framework of Action Plan

The framework for addressing the pendency of legal cases at department level comprises the following actions for the speedier disposal:

• Streamlining/re-engineering the procedures currently followed
• Setting guidelines/checklists for various officers in charge
• Ensuring that the counter affidavits are filed
• Ensuring that the timelines are adhered to and met by each unit
• Preventing adverse responses from courts
• Improving the internal and external coordination and communication
• Improving the capacity, retraining and skill-building of staff
• Strengthening the administration system by establishing new structures
• Establishing the system of prioritization of court cases
• Establishing a monitoring system of legal cases.
• Utilizing computers and e-tools in handling legal cases                

Streamlining/re-engineering the procedures currently followed

The procedure followed in some of the sub-processes of legal cases administration is ridden with inherent delays due to the way the file movement and initiation takes place.  This provides an opportunity to streamline these sub-processes – either by re-organizing or reducing the steps involved.  The streamlining of sub-processes has to be done while keeping in mind the objective of speedier disposal of legal cases and while understanding that some of the structures are difficult to disturb in current settings.  For example, in the preparation of para-wise remarks, the procedure of junior staff preparing the draft and sending to the officer for approval/comments can be re-structured such that the officer prepares para-wise remarks with assistance from junior staff.  The process can also streamlined by using either communication tools such as e-mail/ file sharing in LAN environment or online tools such as web-based application accessible to the concerned heads of Department and the GP.

Re-engineering of the current administration process needs to be given a serious thinking.  Alternative structures such as creating a separate Legal Cell in each of the units within the department are an option.  This cell shall comprise of one legal advisor supported by few Section Officers/ Assistant Section Officers which could work exclusively on legal cases – both pending and upcoming cases – for speedier disposal.  However, this involves re-structuring some of the procedures currently followed in the department(s) with respect to file flow and origination, and the merits and demerits of the proposal need to be carefully evaluated before proceeding further.

Setting guidelines/checklist for various officers in charge

The legal case file has to pass through, before finalization, several officers in a hierarchy and all of them may end up in going through it. If certain guidelines are provided by the department in finalizing draft para-wise remarks, it would make the process easy to follow.  It is pertinent to mention that both accuracy in preparing parawise remarks and the filing of counter affidavits in court within time are crucial factors determining the outcome of the case. In many cases, the staff and officers may not respond in the appropriate manner due to the lack of understanding of the jurisdiction and powers of the court/ tribunal and the knowledge of appropriate action.

Ensuring that the Counter Affidavits are filed before High Court/ APAT

According to Court/Tribunal rules, every respondent should file counter affidavit in any event within a stipulated time period from the date of service of notice in the Writ Petition or the service of Rule Nisi on the said respondent along with authorized copies documents on which the party relies. In this connection, it is pertinent to mention that it is mandatory to file counter affidavits by all the respondents impleaded in WP/OA irrespective of the fact, whether a particular respondent is concerned with the averments made by the petitioner in WP/OA.

In a majority of cases pending before courts/Tribunals, non-filing of counter affidavits as prescribed in rules is an important reason.  Where the respondent does not file counter affidavit, it shall be treated that there is no opposition to the petition and the return of the respondents need not be taken into consideration.  Yet, Counter Affidavits are not filed in time for which the situation results of the case being held up from disposal and, as a matter of fact, Counter-Affidavits are not filed in first instance and are filed only after successive adjournments.  Therefore, it is important to file counter affidavit within stipulated time laid down by Court/Tribunal along with the support documents.

Ensuring that the timelines are adhered to and met by each unit

One of the important reasons for the pendency is that timelines are not known to and adhered to at various stages of legal case flow – particularly, in the case of GP.  The government department may request the Law Department, which is administratively the concerned department which deals with the appointments of law officers, to issue suitable instructions to all the GPs and Standing Counsels appearing before Court/Tribunals with directions to follow the instructions scrupulously. 

Timelines for these major activities may be followed and the section officers need to ensure that the timelines are maintained in the preparation of parawise remarks, sending para-wise remarks, obtaining the orders of higher officers, getting them typed and, finally, sending them to the GP.  If there is more than one respondent and it is necessary to prepare common draft para-wise remarks, and the entire process starting para-wise remarks to GP should be completed as per the timelines.

Preventing adverse responses from courts

The concerned higher officer should take responsibility for getting the stay order vacated as and when necessary. It has to be ensured that the arrangements do not dilute the responsibility of the officers and the heads of departments for ensuring implementation of the orders of the court. It should be the responsibility of concerned officers of the department to see that conditional orders if any passed by the court should be implemented(for example, promotion being given subject to outcome of the case).

On the receipt of a judgment, the administrative department shall examine the facts and circumstances of the case, the likely effects of the judgment as also its implications in future and take a view as to whether it would be appropriate to file a review against the order made against the government from the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced by the departmental officers at the time when the order was made on account of some mistake or error on the face of the record or for any other sufficient reason to obtain a review of the order made against the government.

In the absence of grounds for filing review petition, the department needs to examine the possibilities of filing Special Leave Petitions (SLPs) in the Supreme Court. If the decision of court or tribunal is found to be unacceptable to the authorities, then an appeal can be made to upper courts sufficiently before expiry of the period of limitation period and by following necessary statutory procedure to seek suspension of the orders appealed against or to file special leave petition.

If the High Court suspends the operation of the judgement or order appeal against, it is clear that the authorities in the State are under no legal obligation to follow the suspended judgments till the matter is decided by the Supreme Court.  Most of the authorities are not implementing the judgments of the court or tribunal without filing petitions in the High Court. Condoning the decisions of Court or Tribunal on the pretext that an appeal or judicial review is filed in the High Court which is pending, or in the pretext that steps are being taken to file an appeal/Judicial review may leave it to be guilty of committing contempt and liable to be proceeded against.

Improving the coordination and communication

Coordination and communication within department and between the GP’s office, Court/Tribunal and department are very vital for smooth functioning of a legal case. Legal cases disposal is also suffering from the lack of coordination and communication within the department and outside of it.  If the current communication channels – mailing, hand delivery and personal interaction – are not effective, the effective use of ICT tools such as internet, e-mail and mobile phone can resorted to.  For appropriate communication, there has to be a good definition of the responsibilities.  Regular and periodic reviews by the department heads are useful in organizing the internal coordination.

Besides communication, coordination – both internal as well as external - is much more important and which appears to be lacking to a great extent.  A strong team work with mutual co-operation and coordination is required between the department and GP’s office.  The department staff has to follow-up and update the status on the case at various stages with both GP’s office as well as Court/ Tribunal e.g., approval of para-wise remarks, filing of counter affidavits, interim order / court judgment etc.  The department has to provide all the material support to the GP and ensure that the case is going in the right direction, in which the department would like to.  It has to establish some kind of standard co-ordination system between the two, so that expedient disposal takes place at department level.  This may be done through creating new structures or by using e-tools and applications that minimize personal interface.

Improving the capacity, retraining and skill-building of staff

The department staff – which is involved in all stages starting from the preparation of para-wise remarks to the implementation of judgment - is an important and integral part of effective and efficient action on disposal of legal cases. Therefore, right staffing structures are important and so do their capacity in delivery of goods.  The staff members who are supposed to attend to the court cases should have sufficient knowledge in understanding the laws, rules, byelaws, notifications etc. connected with the subject dealt by them, so that they are in a position to dispose their work effectively.  This calls for appropriate changes in the procedures and guidelines for staff induction on one hand and improving their knowledge and capacity on the other.  The staff may be actively encouraged to acquire the knowledge of formal legal systems and procedures by enrolling for part time or distance based learning programmes.

Training plays an important role in improvement of efficiency, constant updation of knowledge, capacity and skill of Government servants. Special orientation programmes need to be held on preparation of parawise remarks and allied matters by inviting the Senior or retired staff of Law Department.  Continuous training of the staff at various levels needs to be undertaken.  Those officials at higher level in the department who are impleaded in important cases as respondents either in WP or OA by private parties or by the staff members may seek appropriate legal advice from Advocate General, Government Pleader, and Standing Counsel.

Strengthening the administration system by establishing new structures

The administration of legal cases is now handled by Section Officers/ Superintendent with a somewhat weak structure.  Apart from the inputs from section staff on the para-wise remarks, they hardly receive any other support from department quarters. Also, there is no proper communication and coordination both internally and externally with GP.  The department needs to think about creating some new structures which fill in the functional gap present in the department.  One such innovation with structures, for example, may be deployment of legal advisors and liaison officers in each department and reconstitution of their roles and responsibilities. 

Establishing the system of prioritization of court cases

At present, there is no system of prioritization followed by the departments in the case of legal cases, which resulted in the departments going ahead with the court cases without any importance attached to them.  It needs to be understood that some of the legal cases shall have high stakes and some of them require immediate attention for example, implementation of Interim Orders or filing of vacate petition implementation of judgments or filing appeals, contempt cases etc.  Currently all cases are treated under one mode with no priority to in pending cases.  Some kind of prioritization system needs to be developed and practiced in the department.  The parameters of such system are:

• Stakes of department in the case e.g., high, medium and low
• Importance of the case to department e.g., high, medium and low
• Subject matter of the case e.g., land/asset related, contract, service matters

Establishing a monitoring system of legal cases

An important aspect of legal case flow management is the monitoring of the progress/status of legal cases at various stages by responsible officers.  Currently, monitoring is substituted by some procedures of accountability and reporting, and, therefore, it does not provide a good idea of where the case is stuck or where there has been some extraordinary delay.  Extraordinary delays may happen regularly with all departments.  The long pendency of legal cases at various stages itself is indicative of the lack of monitoring systems for legal cases in department.

The department may also issue necessary strict instructions to all the sections and HoDs under its administrative control to maintain register exclusively for legal cases pertaining to Court and Tribunal.  The administrative system for handling legal cases needs to be complemented by an independent monitoring system, such as the one that uses computers and information technology (IT) tools. 

Given the fact that the departments and their offices are spread out across the State, web based tools provide an advantage of covering all the locations by accessing the systems through web browsers.  E-Tools such as Online Legal Caseload Management System (OLCMS) integrate these needs and offers a monitoring solution to various personnel, which will be discussed in detail in the monitoring mechanism of the subsequent work being planned. 

Utilizing computers and e-tools in handling legal cases

The current system of legal case handling is mostly manual, with most of the work done using type-writing instruments, copiers and stationery.  The logs of the legal cases are maintained in muster rolls/ registers within respective offices without following any standardized codification structure. Likewise, maintenance of records is another major issue. Much of the communication and correspondence i.e. para-wise remarks, counter affidavits, judgment orders etc, is made through mailing systems (or, tapal), personal delivery and over telephone. However, these methods of material development and communication are outmoded in the contemporary world, and they would require more sophistication.  Even the limited use of computers is made for typing and printing purposes only.

Computer penetration has to increase in the department offices and its use has to expand to all other uses like legal cases data base generation, monitoring and management, communication through e-mail, scanning of records (including WPs/OAs) and editing of the documents sent as attachments.  Also, there are several firms providing the supporting software such as Management Information Systems (MIS) that provide more customized tools for this purpose and that are widely used by commercial banks now.  Such e-tools may be adopted in the medium run.  The offices of departments and GPs offices need to be equipped with personal computers that can be brought under a Local Area Network (LAN)/Wide Area Network (WAN) system so that they can exchange documents and interact more frequently.

Conclusion

Although the administration is carried out by experienced bureaucrats who are well conversant with the provisions of the Acts and Rules, the citizens, contractors and Government employees are increasingly approaching the court of law.  There are various reasons for this trend and the chief among them is delay in settling the disputes before the Government, whether between the citizen and Government, contractor and Government or between Government and its employees or between two Government employees.  All aggrieved parties are compelled to seek judicial intervention by filing cases in High Court/ Administrative Tribunals’ as a last resort when their grievances are not addressed with promptitude and fairness.  The litigation starts from the date of filing petition before the courts.