Challenges in Filing Appeals Under the Food Safety and Standards Act Without a Functional Tribunal

The Food Safety and Standards Act (FSS Act), 2006, establishes a rigid administrative framework for regulating food safety in India. At the heart of this framework is a specific pathway for adjudication and appellate review. However, a significant legal complication arises when the state machinery fails to keep pace with the statutory requirements—specifically, when an Adjudicating Officer passes an order, but the Food Safety Appellate Tribunal, intended to be the primary appellate forum, has not been constituted by the State Government. This leaves aggrieved parties in a state of limbo, forcing them to consider whether a writ petition before the High Court is a maintainable remedy when the statutory appellate forum is non-existent.

The Statutory Adjudicatory Mechanism

To understand the scope of the problem, one must first look at the mechanism prescribed by the FSS Act. Section 68 of the Act vests adjudicatory power in an Adjudicating Officer. The law requires that this officer be at least of the rank of an Additional District Magistrate. As noted in the statutory scheme, the State Government notifies these officers to conduct inquiries and impose penalties for various contraventions of the Act 2022 0 Supreme(Bom) 1589.

Once an Adjudicating Officer issues an order, the FSS Act prescribes a clear appellate path. Section 70 provides for the establishment of Food Safety Appellate Tribunals to hear appeals against the decisions of the Adjudicating Officer. According to the legislative scheme, the Presiding Officer of such a tribunal is typically required to be, or have been, a District Judge

Sudhir Kapoor VS State of Uttarakhand - Crimes (2012)

The Tribunal Gap and Writ Jurisdiction

The legal friction occurs when the State fails to notify or establish this Tribunal. In several jurisdictions, petitioners have found themselves in a position where they wish to challenge an order of an Adjudicating Officer, but the designated forum—the Section 70 Tribunal—is not functional.

In such scenarios, legal practitioners have frequently approached the High Court under Article 226 or 227 of the Constitution of India. The argument presented is often that because the statutory remedy (the appeal to the Tribunal) is unavailable, the petitioner has no option but to approach this Court for relief

Sudhir Kapoor VS State of Uttarakhand - Crimes (2012)

Courts have generally recognized that when the legislature creates a right to appeal but fails to provide the forum for it, the aggrieved party should not be left without a remedy. While the FSS Act creates a specific statutory appeal process, the absence of the Tribunal does not necessarily act as an absolute bar to judicial review. In various instances, High Courts have entertained writ petitions directly challenging the orders of the Adjudicating Officer when it was established that the Tribunal was not yet constituted 2016 0 Supreme(Chh) 106 and 2022 Supreme(Online)(Kar) 44381.

Distinguishing the Nature of the Appeal

It is vital for legal practitioners to distinguish the nature of these proceedings. The law surrounding the FSS Act distinguishes between the adjudicatory/civil nature of penalties and the criminal nature of prosecutions.

1. Civil vs. Criminal: Proceedings before the Adjudicating Officer are generally adjudicatory, concerning civil penalties. Consequently, the appellate process under Section 71(6) has been characterized as a civil appeal, rather than a criminal appeal.
2. Section 71(6) Mechanism: Any person aggrieved by the decision of the Tribunal may file an appeal to the High Court within sixty days, which the courts have interpreted as a civil appeal from an order 2015 0 Supreme(All) 592 and 2022 Supreme(Online)(BOM) 2930.

The confusion often arises because some petitioners attempt to file for relief in Special Courts or criminal forums, which may not have jurisdiction over matters involving mere civil penalties under Section 68. As clarified by judicial precedents, the Court of ordinary jurisdiction or a Special Court constituted under Section 74 typically lacks jurisdiction to try contraventions where only a penalty is prescribed, as those are the sole domain of the Adjudicating Officer and the Appellate Tribunal 2021 0 Supreme(Chh) 129.

Judicial Approach When the Tribunal is Absent

When a writ petition is filed directly against an Adjudicating Officer's order due to the absence of the Tribunal, the High Court’s response is often dual-faceted:

• Entertaining the Writ: In cases where the state has failed to constitute the Tribunal, courts have allowed the writ petition to proceed to ensure the petitioner is not denied the right to challenge an unfavorable order. For example, in specific instances, High Courts have quashed orders passed by Adjudicating Officers where it was found that the officer failed to conduct a proper inquiry, while acknowledging that the petitioner had to approach the High Court only because the Tribunal was not functional 2016 0 Supreme(Chh) 106

  Ramakant Gupta VS State of Chhattisgarh

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• Encouraging Expediency: Courts often express their expectation that the State Government will establish the Food Safety Appellate Tribunal expeditiously to avoid forcing litigants into the writ jurisdiction of the High Court for matters that should have been resolved at the Tribunal level 2016 0 Supreme(Chh) 106.

Conversely, where a Tribunal is actively constituted and functioning, High Courts are generally strict. In such cases, they have repeatedly dismissed writ petitions, holding them not maintainable precisely because the availability of a statutory remedy of appeal before the Food Safety Appellate Tribunal rendered the writ petition not maintainable 2018 0 Supreme(P&H) 4623.

Practical Considerations for Practitioners

If you are a practitioner representing a client facing an order under Section 68, the following steps are generally prudent:

• Verify Tribunal Status: Before filing a writ, conduct a thorough check to confirm that the Tribunal is indeed not established in your jurisdiction. Reliance on the absence of a Tribunal argument is only effective if it is factually accurate.
• Analyze the Order: Examine the Adjudicating Officer's order for procedural flaws. High Courts have sometimes quashed orders not just because of the Tribunal's absence, but because the officer failed to make an inquiry, which is a sine qua non for arriving at a conclusion of contravention

  Ramakant Gupta VS State of Chhattisgarh

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• Consider Jurisdiction: Ensure that you are not attempting to bypass the Adjudicator in a way that suggests you are seeking criminal relief when only civil penalties are at stake.

While filing a writ petition under Article 226 remains a potential pathway in the absence of a tribunal, it should be viewed as an extraordinary measure required by the state's failure to provide the statutory appellate forum, rather than the intended primary remedy. Practitioners should carefully document the non-existence of the Tribunal to support the maintainability of the writ petition before the High Court.

Disclaimer: This information is for educational purposes and reflects common judicial approaches. Laws and procedural rules vary by jurisdiction and the specific facts of each case. Always verify the current status of administrative tribunals in your state and consult with a qualified legal professional regarding the best course of action for your specific legal matter.