Rojer Mathew VS South Indian Bank Ltd. & Ors:13-11-2019

SUPREME COURT OF INDIA JUDGMENTS

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

Civil Appeal No. 8588 of 2019

[Arising out of Special Leave Petition (Civil) No.15804 of 2017]

Rojer Mathew …Appellant(S)

VERSUS

South Indian Bank Ltd. & Ors. … Respondent(S)

WITH

W.P.(C) No.267/2012, W.P.(C) No. 279/2017, W.P.(C) No. 558/2017, W.P.(C) No. 561/2017, W.P.(C) No. 625/2017, W.P.(C) No. 640/2017, W.P.(C) No. 1016/2017, W.P.(C) No. 788/2017, W.P.(C) No. 925/2017, W.P.(C) No. 1098/2017, W.P.(C) No. 1129/2017, W.P.(C) No. 33/2018, W.P.(C) No. 205/2018, W.P.(C) No. 467/2018, T.C.(C) No. 49/2018, T.C.(C) No. 51/2018, T.P.(C) No. 2199/2018

JUDGMENT

RANJAN GOGOI, CJI

Leave granted.

BRIEF BACKGROUND:

In the present batch of cases, the constitutionality of Part XIV of the Finance Act, 2017 and of the rules framed in consonance has been assailed. While it would be repetitious to reproduce the pleadings of each case separately, a brief reference is being made, illustratively, to the prayers made in three matters to aid the formulation of core issues arising for adjudication.

The Madras Bar Association has preferred Writ Petition (Civil) No. 267 of

2012 for seeking the following reliefs:

“i. A writ of mandamus, directing the Union of India, to implement the directions of this Hon’ble Court in Union of India v. R. Gandhi [(2010) 11 SCC 1, para 96 at pg. 310] and L. Chandra Kumar v. Union of India [(1997) 3 SCC 261], paras 120 and 121 at page 65 to 67], where Ministry of Law and Justice, Govt. Of India was ordered to take over the administration of all tribunals created by Parliament and streamline the functioning of the same.

A writ of mandamus directing the Ministry of Law & Justice to promptly carry out a ‘Judicial Impact Assessment’ on all tribunals created by Parliament and submit a report on the same to this Hon’ble Court.”

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The Customs And Excise Revenues Appellate Tribunal Act 1986

The Customs And Excise Revenues Appellate Tribunal Act, 1986 [ACT NO. 62 OF 1986]

[23rd December, 1986]

An Act to provide for the adjudication, by an appellate tribunal, of disputes with respect to the determination of the rates of duties of customs and Central excise on goods and to the valuation of goods for the purposes of assessment of such duties, in pursuance of article 323B of the Constitution and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-

CHAPTER I

Preliminary

1. Short title, extent and commencement. (1) This Act may be called the Customs and Excise Revenues Appellate Tribunal Act, 1986.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. In this Act, unless the context otherwise requires,–
(a) “Appellate Tribunal” means the Customs and Excise Revenues Appellate Tribunal constituted under section 3;

(b) “appointed day” means the date with effect from which the Appellate Tribunal is established, by notification, under section 3;

(c) “Bench” means a Bench of the Appellate Tribunal;

(d) “Board” means the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963);

(e) “Central Excises Act” means the Central Excises and Salt Act, 1944 (1 of 1944);

(f) “Central Excise Tariff Act” means the Central Excise Tariff Act, 1985 (5 of 1986);

(g) “Customs Act” means the Customs Act, 1962 (52 of 1962);

(h) “Customs, Excise and Gold (Control) Appellate Tribunal” means the Customs, Excise and Gold (Control) Appellate Tribunal constituted under section 129 of the Customs Act;

(i) “Customs Tariff Act” means the Customs Tariff Act, 1975 (51 of 1975);

(j) “Judicial Member” means a Member of the Appellate Tribunal appointed as such under this Act, and includes the President who possesses any of the qualifications specified in sub-section (2) of section 5;

(k) “Member” means a Member (whether Judicial or Technical) of the Appellate Tribunal and includes the President;

(l) “notification” means a notification published in the Official Gazette;

(m) “President” means the President of the Appellate Tribunal;

(n) “prescribed” means prescribed by rules;

(o) “rules” means rules made under this Act;

(p) “Supreme Court” means the Supreme Court of India;

(q) “Technical Member” means a Member of the Appellate Tribunal who is not a Judicial Member within the meaning of clause (j);

(r) words and expressions used in this Act but not defined herein and defined in the Central Excises Act, Central Excise Tariff Act, Customs Act or Customs Tariff Act, or the rules made thereunder, shall have the meanings respectively assigned to them by such Act or the rules made thereunder.

CHAPTER II

Establishment Of The Appellate Tribunal And Benches Thereof

3. Establishment of the Appellate Tribunal. The Central Government shall by notification, establish an Appellate Tribunal, to be known as the Customs and Excise Revenues Appellate Tribunal, to exercise the jurisdiction, powers and authority conferred on such Appellate Tribunal by or under this Act.
4. Composition of the Appellate Tribunal and Benches thereof. (1) The Appellate Tribunal shall consist of a President and such number of Judicial and Technical Members as the Central Government may deem fit, and subject to the other provisions of this Act, the jurisdiction, powers and authority of the Appellate Tribunal may be exercised by Benches thereof.
(2) A Bench shall consist of one Judicial Member and one Technical Member.
(3) Notwithstanding anything contained in sub-section (1), the President–
(a) may, in addition to discharging the functions of the Judicial Member or the Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench;

(b) may transfer a Member from one Bench to another Bench; and

(c) may authorise the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member, as the case may be, of another Bench.

(4) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the President or any other Member authorised by the President in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Appellate Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the President may by general or special order specify:
Provided that if at any stage of the hearing of any such case or matter it appears to the President or Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the President or, as the case may be, referred to him for transfer, to such Bench as the President may deem fit.
(5) Subject to the other provisions of this Act, the Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the President may deem fit.

5. Qualifications for appointment as President or Member. (1) A person shall not be qualified for appointment as the President unless he–
(a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of a Judicial Member or a Technical Member.

(2) A person shall not be qualified for appointment as a Judicial Member unless he–
(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service or any equivalent or higher post for at least five years.

(3) A person shall not be qualified for appointment as a Technical Member unless he has been a member of the Indian Customs and Central Excise Service, Group ‘A’, for a period of at least thirty years, and has held during this period the post of Collector of Customs or Central Excise or any equivalent or higher post for at least ten years.

[Explanation.– For the purposes of sub-section (3), in computing the period during which a person has been a member of the Indian Customs and Central Excise Service, Group ‘A’ there shall be included any period during which the person has been a member of the Indian Customs Service Class I, or the Central Excise Service Class I, as the case may be, of the Indian Revenue Service immediately before the constitution of the Indian Customs and Central Excise Service, Group ‘A’.]

6. Appointment of President and Members. (1) Subject to the provisions of sub-section (2), the President and every Member shall be appointed by the President of India.
(2) Appointment of a person as the President or a Member shall be made in consultation with a Selection Committee consisting of–
(a) a Chairman who shall be nominated by the Chief Justice of India; and

(b) such other members as may be nominated by the Central Government.

7. Member to act as President or to discharge his functions in certain circumstances. (1) In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or otherwise, such one of the Members as the Central Government may, by notification, authorise in this behalf, shall act as the President until the date on which a new President, appointed in accordance with the provisions of this Act to fill such vacancy enters upon his office.
(2) When the President is unable to discharge his functions owing to absence, illness or any other cause, such one of the Members as the Central Government may, by notification, authorise in this behalf, shall discharge the functions of the President until the date on which the President resumes his duties.

8. Term of office. The President or other Member shall hold office as such for a term of three years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier.

9. Resignation and removal. (1) The President or other Member may, by notice in writing under his hand addressed to the President of India, resign his office:
Provided that the President or other Member shall, unless he is permitted by the President of India to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) The President or any other Member shall not be removed from his office except by an order made by the President of India on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which such President or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the President or other Member referred to in sub-section (2).

10. Salaries and allowances and other terms and conditions of service of President and other Members. The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the President and other Members shall be such as may be prescribed by the Central Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the President or other Member shall be varied to his disadvantage after his appointment.

11. Provision as to the holding of offices by President and Members on ceasing to be such President or Member. On ceasing to hold office,–
(a) the President shall be ineligible for further employment either under the Government of India or under the Government of a State;

(b) a Member (other than the President) shall, subject to the other provisions of this Act, be eligible for appointment as the President, but not for any employment either under the Government of India or under the Government of a State;

(c) the President or other Member shall not appear, act or plead before the Appellate Tribunal or the Customs, Excise and Gold (Control) Appellate Tribunal.

Explanation.–For the purposes of this section, employment under the Government of India or under the Government of a State includes employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the Government.

12. Financial and adminitrative powers of President. The President shall exercise such financial and administrative powers over the Benches as may be vested in him under the rules:
Provided that the President shall have authority to delegate such of his financial and administrative powers as he may think fit to any Member or officer of the Appellate Tribunal, subject to the condition that the Member or such officer shall, while exercising such delegated powers, continue to act under the direction, control and supervision of the President.

13. Staff of the Appellate Tribunal. (1) The Central Government shall determine the nature and categories of the officers and other employees required to assist the Appellate Tribunal in the discharge of its functions and provide the Appellate Tribunal with such officers and other employees as it may think fit.
(2) The officers and other employees of the Appellate Tribunal shall discharge their functions under the general superintendence of the President.
(3) The salaries and allowances and conditions of service of the officers and other employees of the Appellate Tribunal shall be such as may be specified by rules.

CHAPTER III

Jurisdiction, Powers And Authority Of The Appellate Tribunal

14. Jurisdiction, powers and authority of the Appellate Tribunal. (1) Save as otherwise expressly provided in this Act, the Appellate Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable in relation to an appeal against–
(a) a decision or order passed by the Collector of Central Excise as an adjudicating authority;

(b) an order passed by the Collector (Appeals) under section 35A or section 35E of the Central Excises Act; 1*[(bb) a decision or order passed by the Board or the Collector of Central Excise under section 35EA of the Central Excises Act;] (c) a decision or order passed by the Collector of Customs as an adjudicating authority;

(d) an order passed by the Collector (Appeals) under section 128A or section 129D of the Customs Act;

[(e) a decision or order passed by the Board or the Collector of Customs under section 129DA of the Customs Act,] in which the determination of any question having a relation to–

(i) the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or

(ii) the rate of duty of customs for the time being in force, whether under the Customs Tariff Act or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or

(iii) the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or

(iv) the value of goods for the purposes of assessment of any duty of customs in cases where the assessment is made on or after the 28th day of February, 1986, is in issue or is one of the points in issue.

Explanation.–For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question–
(a) whether any goods are excisable goods or whether the rate of duty on any goods is nil;

(b) whether any goods fall under a particular heading or sub-heading of the Schedule to the Central Excise Tariff Act or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) or fall under the First Schedule or the Second Schedule to the Customs Tariff Act, as the case may be, or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, granting total or partial exemption from a duty of excise or customs, as the case may be;

(c) whether the value of any goods for the purposes of assessment of a duty of excise or customs shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in the Central Excises Act or the Customs Act.

(2) For the removal of doubts, it is hereby declared that nothing in sub-section (1) shall preclude the entertainment of an appeal in relation to any of the matters dealt with in sub-section (1) by the Customs, Excise and Gold (Control) Appellate Tribunal or the disposal thereof during the period commencing on and from the 28th day of February, 1986 and ending with the appointed day and any order passed by the said Tribunal on such appeal during that period shall, for all purposes, have effect as an order of the Appellate Tribunal constituted under this Act and all the provisions of this Act shall apply to such order.

15. Bar of jurisdiction of the Appellate Tribunal in certain cases. Notwithstanding anything contained in section 14, no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any decision or order referred to in section 14 if such decision or order relates only to–
(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty;

(d) any goods imported or exported as baggage or by post;

(e) any goods loaded, or deemed to have been loaded in accordance with an import manifest or import report, in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination or any goods which have been lost or destroyed after being unloaded at any such destination;

(f) payment of drawback as provided in Chapter X of the Customs Act and the rules made thereunder.

16. Power to punish for contempt. The Appellate Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise, and, for this purpose, the provisions of the Contempt of Courts Act, 1971 (70 of 1971), shall have effect subject to the modifications that–
(a) the references therein to a High Court shall be construed as including a reference to the Appellate Tribunal;

(b) the references to the Advocate-General in section 15 of the said Act shall be construed, in relation to the Appellate Tribunal, as a reference to the Attorney-General or the Solicitor-General or the Additional Solicitor-General.

17. Distribution of business amongst the Appellate Tribunal and its Benches. (1) Where any Benches of the Appellate Tribunal are constituted, the President may, from time to time, by order, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and specify the matters which may be dealt with by each Bench.
(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench of the Appellate Tribunal, the decision of the President thereon shall be final.

CHAPTER IV

Procedure

18. Appeals to Appellate Tribunal. (1) Subject to the other provisions of this Act, every appeal to the Appellate Tribunal under this Act shall be filed within three months from the date on which the decision or order sought to be appealed against is communicated to the person aggrieved by the decision or order or to the Collector of Central Excise or the Collector of Customs as the case may be.
(2) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such decision or order or any part thereof, file within forty-five days of the receipt of the notice a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (1).
(3) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (2), if it is satisfied that there was sufficient cause for not presenting it within that period.
(4) Every appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, except in the case of an appeal preferred by the proper officer or a memorandum of cross-objections referred to in sub-section (2), be accompanied by a fee of two hundred rupees.
19. Procedure and powers of the Appellate Tribunal. (1) The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Appellate Tribunal shall have power to regulate its own procedure, including the fixing of places and times of its hearing.
(2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:–
(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery, inspection and production of books of account and other documents;

(c) reviewing its decisions;

(d) dismissing an appeal for default or deciding it ex parte; and

(e) any other matter which may be prescribed.

20. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Act, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the central excise authorities or the customs authorities, as the case may be, or any penalty levied under the Central Excises Act or the Customs Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied:
Provided that where in any particular case, the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of revenue.
21. Right of applicant to take assistance of legal practitioner and Government to appoint representing officers. (1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Appellate Tribunal.
(2) The Central Government may authorise one or more legal practitioners or any of its officers to act as presenting officer and any person so authorised by it may present its case with respect to any appeal before the Appellate Tribunal.
22. Conditions as to making of interim orders. Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an appeal under this Act unless–
(a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is preferred; and

(b) opportunity is given to such party to be heard in the matter:

Provided that the Appellate Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the appellant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Appellate Tribunal has continued the operation of the interim order.
23. Power of President to transfer cases from one Bench to another. On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the President may transfer any case pending before one Bench, for disposal, to any other Bench.
24. Procedure for deciding the case where the Members of a Bench differ in opinion. If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
25. Orders of the Appellate Tribunal. (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Central Excise or the Collector of Customs, as the case may be, or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Central Excise or the Collector of Customs, as the case may be, and the other party to the appeal.

CHAPTER V

Miscellaneous

26. Exclusion of jurisdiction of courts, etc, except the Supreme Court. On and from the appointed day, no court (except the Supreme Court) or the Customs, Excise and Gold (Control) Appellate Tribunal shall have, or be entitled to exercise, any jurisdiction, powers or authority in relation to matters in respect of which appeals would lie to the Appellate Tribunal under section 14.

27. Transfer of pending cases. (1) Every suit, appeal or other proceeding pending before any court or other authority or the Customs, Excise and Gold (Control) Appellate Tribunal, immediately before the appointed day, being a suit, appeal or other proceeding which would have been within the jurisdiction of the Appellate Tribunal, if it had arisen after such day, shall stand transferred on that day to the Appellate Tribunal:
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
(2) Where any suit, appeal or other proceeding stands transferred from any court, tribunal or other authority to the Appellate Tribunal under sub-section (1),–
(a) the court or other authority or the Customs, Excise and Gold (Control) Appellate Tribunal shall, as soon as may be after such transfer, forward the records of such suit, appeal or other proceeding to the Appellate Tribunal; and

(b) the Appellate Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an appeal under section 18 from the stage which was reached before such transfer or from any earlier stage or de novo as the Appellate Tribunal may deem fit.

(3) Any person, who immediately before the appointed day, is an advocate or authorised representative entitled to practice in any court or other authority or the Customs, Excise and Gold (Control) Appellate Tribunal and was authorised to appear or to act in any prceedings transferred from the said court, other authority or Tribunal to the Appellate Tribunal under this section shall have the right to appear or to act, as the case may be, before the Appellate Tribunal in relation to the said suit, appeal or other proceeding.

28. Proceedings before the Appellate Tribunal to be judicial proceedings. All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860).

29. Members and staff of the Appellate Tribunal to be public servants. The president and other Members and the officers and other employees of the Appellate Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

30. Protection of action taken in good faith. No suit prosecution or other legal proceeding shall lie against the Central Government or against the President or other Member, or any other person authorised by such President or other Member for anything which is in good faith done or intended to be done in persuance of this Act or any rule or order made thereunder.

31. Act to have overriding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.

32. Power to make rules. (1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:–
(a) the salaries and allowances and other terms and conditions of service of the President and other Members under section 10;

(b) the financial and administrative powers which the President may exercise over the Benches under section 12;

(c) the salaries and allowances and conditions of service of the officers and other employees of the Appellate Tribunal under sub-section (3) of section 13;

(d) the form in which every appeal to the Appellate Tribunal shall be filed and the manner in which such appeal shall be verified under sub-section (4) of section 18;

(e) the rules subject to which the Appellate Tribunal shall have power to regulate its own procedure under sub-section (1) of section 19 and the additional matters in respect of which the Appellate Tribunal may exercise the powers of a civil court under clause (e) of sub-section (2) of that section; and

(f) any other matter which has to be, or may be, prescribed by rules under this Act.

(3) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

33. Power to remove difficulties. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of three years from the appointed day.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

34. Consequential amendments in the Central Excises Act and the Customs Act. On and from the appointed day, the following amendments (being amendments of a consequential nature) shall be made in the Central Excises Act and the Customs Act, namely:–
(a) in the Central Excises Act,– (i) for sub-section (2) of section 35B, the following sub-section shall be substituted, namely:–

“(2) The Collector of Central Excise may, if he is of opinion that an order passed by– , or

(a) the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day, or

(b) the Collector (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986, against such order”;

(ii) in section 35E,–
(a) after the words “Appellate Tribunal”, wherever they occur, the words and figures “or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986” shall be inserted;

(B) in sub-section (4), after the word, figures and letter “section 35B”, the words and figures “or, as the case may be, the provisions of the Customs and Excise Revenues Appellate Tribunal Act, 1986” shall be inserted;

(b) in the Customs Act,–

(i) for sub-section (2) of section 129A, the following sub-section shall be substituted, namely:–

“(2) The Collector of Customs may, if he is of opinion that an order passed by– , or
(a) the Appellate Collector of Customs under section 128, as it stood immediately before the appointed day, or

(b) the Collector (Appeals) under section 128A, is not legal or proper, direct the proper officer to appeal on his behalf to the Appellate Tribunal or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986, against such order.”;

(ii) in section 129D,–

(A) after the words “Appellate Tribunal”, wherever they occur, the words and figures “or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986” shall be inserted;

(B) in sub-section (4), after the word, figures and letter “section 129A”, the words and figures “or, as the case may be, the provisions of the Customs and Excise Revenues Appellate Tribunal Act, 1986” shall be inserted.


 

Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000.

Cyber Crime,Cyber Security,Cyber Law

Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000.

To,
The Manager
Govt. of India Press
Mayapuri
New Delhi

[To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i)]

Government of India
Ministry of Information Technology

New Delhi, the 17th October, 2000

NOTIFICATION

G.S.R 791 (E) In exercise of the powers conferred by section 87 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely:-

1. Short title and commencement.- (1) These rules may be called the Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000.
(2) They shall come into force on the date of publication in the Official Gazette.

2. Definitions.—In these rules, unless the context otherwise requires.—

(a) “Act” means the Information Technology Act, 2000; (21 of 2000);
(b) “agent” means a person duly authorised by a party to present an application or reply on its behalf before the Tribunal;
(c) “application” means an application made to the Tribunal under section 57;
(d) “legal practitioner” shall have the same meaning as is assigned to it in the Advocates Act, 1961 (25 of 1971):
(e) “Presiding Officer” means the Presiding Officer of the Tribunal;
(f) “Registrar” means the Registrar of the Tribunal and includes any officer to whom the powers and functions of the Registrar may be delegated;
(g) “registry” means the Registry of the Tribunal;
(h) “section” means a section of the Act;
(i) “transferred application” means the suit or other proceeding which has been transferred to the Tribunal under sub-section (1) of section 29;
(j) “Tribunal” means the Cyber Regulations Appellate Tribunal established under section 48.

3. Procedure for filing applications.- (1) An application to the Tribunal shall be presented in Form-1 annexed to these rules by the applicant in person or by an agent or by a duly authorized legal practitioner, to the Registrar or sent by registered post addressed to the Registrar.
(2) The application under sub-rule (1) shall be presented in six complete sets in a paper-book form along with one empty file size envelope bearing full address of the respondent. Where the number of respondents is more than one, sufficient number of extra paper-books together with required number of empty file size envelo¬pes bearing the full address of each respondent shall be furnished by the applicant.
(3) The applicant may attach to and present with his application a receipt slips as in Form No. 1 which shall be signed by the Registrar or the officer receiving the applications on behalf of-the Re¬gistrar in acknowledgement of the receipt of the application.
(4) Notwithstanding anything contained in sub rules (1), (2) and (3), the Tribunal may permit:—

(a) more than one person to join together and file a single application if it is satisfied, hav¬ing regard to the cause of action and the nature of relief prayed for, that they have the same interest in the service matter; or

(b) an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the names of all the persons on whose behalf it has been filed.

4. Presentation and scrutiny of applications.— (1) The Registrar, or the officer authorised by the Registrar shall endorse on every application the date on which it is presented or deemed to have been presented under that rule and shall sign the endorsement.

(2) If, on scrutiny, the application is found to be in order, it shall be duly registered and given a serial number.

(3) If the application, on scrutiny, is found to be defective, and the defect noticed is formal in nature, the Registrar may allow the party to rectify the same in his presence, and if the said def¬ect is not formal in nature, the Registrar may allow the applicant such time to rectify the defect as he may deem fit.

(4) If the applicant fails to rectify the defect within the time allowed under sub rule (3), the Re¬gistrar may, by order and for reasons to be recorded in writing, decline to register the application.

(5) An appeal against the order of the Registrar under sub rule (4) shall be made within 15 days of the making of such order to the Tribunal whose decision thereon shall be final.

5. Place of filing application.—-The applicant shall file application with the Registrar.

6. Application fee.—Every application filed with the Registrar shall be accompanied by a fee of Rs. 2,000/- (rupees two thousand) only which shall be either in the form of a crossed demand draft or a pay order drawn on a Scheduled Bank in favour of the Registrar and payable at New Delhi.

7. Contents of application.—(1) Every application filed under rule 3 shall set forth concisely under distinct heads, the grounds for such application and such grounds shall be numbered consecu¬tively and typed in double space on one side of the paper.

(2) It shall not be necessary to present a separate application to seek an interim order or direction if the application contains a prayer seeking an interim order or direction pending final disposal of the application.

(3) An application may, subsequent to the filing of application under section 57 of the Act, apply for an interim order or direction . Such an application shall, as far as possible, be in the same form as is prescribed for on application under section 57 and shall be accompanied by a fee of Rs. 5/- (Rupees five only) which shall be payable in court fee stamps affixed on such applica¬tion.

8. Paper book, etc. to accompany the application.- (1) Every application shall be accompanied by a paper book containing:—

(i) a certified copy of the order against which the application has been filed;
(ii) copies of the documents relied upon by the applicant and referred to in the application; and
(iii) an index of documents.

(2) The documents referred to in sub rule (I) may be attested by an advocate or by a Gazetted Officer.

(3) Where an Application is filed by an agent, documents arthorising him to act as such agent shall also be appended to the application :

Provided that where an application is filed by an advocate it shall be accompanied by a duly executed ‘vakalatname’.

9. Plural remedies.—An application shall be based upon a single cause of action and may seek one or more reliefs provided they are consequential to one another.

10. Service of notice of application on the respondents.—(1) A copy of the application in the paper-book shall ordinarily be served on each of the respondents by the Registrar in one of the follow¬ing modes:—

(i) hand delivery (dasti) through the applicant or through a process server; or
(ii) through registered post with acknowledgement due.

(2) Notwithstanding anything contained in sub rule (1), the Registrar may, taking into ac¬count the number of respondents and their places of residence or work and other circumstances direct that notice of the application shall be served upon the respondents in any other manner including any manner of substituted service, as it appear to the Registrar just and convenient.

(3) Every applicant shall pay a fee for the service or execution of processes, in respect of an application where the number of respondents exceeds five, as under:—

(i) a sum of Rs. 50 (Rupees fifty) for each respondent in excess of five respondents; or

(ii) where the service is in such manner as the Registrar may direct under sub rule (2), a sum not exceeding the actual charges incurred in effecting the service as may be determined by the Registrar.

(4) The fee for the service or execution of processes under ‘sub rule (3) shall be remitted by the applicant either in the form of a crossed Demand Draft drawn on a Scheduled Bank in favour of the Registrar and payable at the station where Registrar’s office is situated or remitted through a crossed Indian Postal Order drawn in favour of the Registrar and payable in General Post Office of the station where the Tribunal is located.

(5) Notwithstanding anything contained in sub rules (1), (2), (3) and (4), if the Tribunal is satis¬fied that it is not reasonably practicable to serve notice of application upon all the respondents, if may for reasons to be recorded in writing, direct that the application shall be heard notwithstand¬ing that some of the respondents have not been served with notice of the application, provided that no application shall be heard unless:—

(i) notice of the application has been served on the Government, if Government is respon¬dent;

(ii) notice of the application has been served on the authority which passed the order against which the application has been filed; and

(iii) the Tribunal is satisfied that the interests of the respondents on whom notice of the application has not been served are adequately and sufficiently represented by the respondents on whom notice of the application has been served.

11. Filing of reply and other documents by the respondent.- (I) The respondent shall file six complete sets containing the reply to the application alongwith the documents in a paper-book form with the Registrar within one month of the date of service of the notice of the application on him.

(2) The respondent shall also serve a copy of the reply along with copies of documents as men¬tioned in sub rule (1) to the applicant or his advocate, if any, and file proof of such service with the Registrar. The Tribunal may, on application by the respondent, allow filing of the reply after the expiry of the period of one month.

12. Date and place of hearing to be notified.—The Tribunal shall notify to the parties the date and the place of hearing of the application.
13. Sittings of the Tribunal.—The Tribunal shall ordinarily hold its sittings at New Delhi :

Provided that, if at any time, the Presiding Officer of the Tribunal is satisfied that circumstances exist which render it necessary to have sittings of the Tribunal at any place other than New Delhi the Presiding Officer may direct to hold the sittings at any such appropriate place.

14. Decision on applications.—(I) Tribunal shall draw up a calendar for the hearing of trans¬ferred cases and as far as possible hear and decide the cases according to the calendar.

(2) Every application shall be heard and decided, as far us possible, within six months of the date of its presentation.

(3) For purposes of sub-rule (1) and (2), the Tribunal shall have the power to decline an adjourn¬ment and to limit the time for oral arguments.

15. Action on application for applicant’s default.—(I) Where on the date fixed for hearing of the application or on any other date to which such hearing may be adjourned, the applicant does not appear when the application is called on for hearing, the Tribunal may, in its discretion, either dismiss the application for default or hear and decide it on merit.

(2) Where an application has been dismissed for default and the applicant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the applica¬tion was called on for hearing, the Tribunal shall make an order setting aside the order dismissing the application and restore the same.

16. Hearing on application ex-parte.— (1) Where on the date fixed for hearing the application or on any other date to which hearing is adjourned, the applicant appears and the respon¬dent does not appear when the application is called on for hearing, the Tribunal may, in its dis¬cretion, adjourn or hear and decide the application ex-parte.

(2) Where an application has been heard ex-parte against a respondent or respondents, such respondent or respondents may apply to the Tribunal for an order to set it aside and if such res¬pondent or respondents satisfy the Tribunal that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing when the application was called on for hearing, the Tribunal may make an order setting aside the ex-parte hearing as against him or them upon such terms as it thinks fit, and shall appoint a day for proceeding with the application:

Provided that where the ex-parte hearing of the application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respon¬dents also:

Provided further that Tribunal shall not set aside ex-parte hearing of an application merely on the ground that there has been an irregularity in the service of notice, if it is satisfied that the res¬pondent had notice of the date of hearing and had sufficient time to appear and answer the appli¬cant’s claim.

17. Adjournment of application.—The Tribunal may on such terms as it deems fit and at any stage of the proceedings adjourn the hearing of the application.

18. Order to be signed and dated—Every order of the Tribunal shall be in writing and shall be signed and dated by the Presiding Officer.

19. Publication of orders.—Such of the orders of the Tribunal as are deemed fit for publication in any report or the press may be released for such publication on such terms and conditions as the Tribunal may lay down.

20. Communication of orders to parties.—Every order passed on an application shall be com¬municated to the applicant and to the respondent either in person or by registered post free of cost.
21. No fee for inspection of records.— No fee shall be charged for inspecting the records of a pending application by a party thereto.
22. Orders and directions in certain cases.—The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.
23. Registration of legal practitioners clerks: —(1) A clerk employed by a legal practitioner and permitted as such to have access to the records and to obtain copies of the orders of the Tribunal in which the legal practitioner ordinarily practices shall be known as a “registered clerk”.

(2) A legal practitioner desirous of registering his clerk shall make an application to the Registrar in Form 2.

(3) A legal practitioner shall have at a time not more than two registered clerks unless the Registrar by general or special order otherwise permits.

(4) A register of all the registered clerks shall, be maintained in the office of the Registrar and after registration of the clerk, the Registrar sliall direct the issue of an identity card to him which shall be non transferable and shall be produced by the holder upon request by an officer or any other employee of the Tribunal.

(5) The identity card mentioned in sub-rule (4) shall be issued under the signatures of the Registrar of the Tribunal.

(6) whenever a legal practitioner ceases to employ a registered clerk, he shall notify the fact at once to the Registrar by means of a letter enclosing therewith the identity card issued to his clerk and on receipt of such letter the name of the said registered clerk shall be struck off from the register.

24. Working hoursof the Tribunal— Except on Saturday, Sundays and other holidays, the offices of the Tribunal shall, subject to any order made by the Presiding Officer, remain open daily from 10.00 a.m. to 5.00 p.m. but no work, unless it is of an urgent nature, shall be admitted after 4.30 p.m. on any working day.

25. Sitting hours of the Tribunal,—The sitting hours of the Tribunal shall ordinarily be from 10.30 a.m. to 1-00 p.m. and 2.00 p.m. to 5.00 p.m. subject to any order made by the Chairman.

26. Powers and functions of the Registrar: —(1) The Register shall have the custody of the records of the Tribunal and shall exercise such other functions as may be assigned to him under these rules or by the Presiding Officer.

(2) The Registrar may, with the approval of the Presiding Officer, delegate to another officer of the Tribunal any functions required by these rules to be exercised by the Registrar.

(3) In the absence of the Registrar, officer of the Tribunal authorised in writing by the Presiding Officer in his behalf may perform or exercise ail or any of tlie functions and powers of the Registrar.
(4) The Registrar shall keep in his custody the official seal of the Tribunal.

(5) The Registrar shall, subject to any general or special direction by the Presiding Officer, affix the official seal of the Tribunal on any order, notice or other process.

(6) The Registrar shall have the power to authorise in writing the affixing of the seal of the Tribunal on a certified copy of any order of the Tribunal.

27. Additional powers and duties of Regstrar.- In addition to the powers conferred elsewhere in these rules, the Registrar shall have the following powers and duties subject to any general or special order of the Presiding Officer namely:—

(i) to receive all applications and other documents including transferred applications;
(ii) to decide all questions arising out of the scrutiny of the applications before they are registered;
(iii) to require any application presented to the Tribunal to be amended in accordance with the Act and the rules;
(iv) subject to the directions of the Tribunal (o fix dates of hearing of the applications or other proceedings and issue notices thereof ;
(v) to direct any formal amendment of records;
(vi) to order grant of copies of documents to parties to the proceedings;
(vii) to dispose of all matters, relating to the service of notices of other processes, appli¬cations for the issue of fresh notices or for extending the time therefore;
(viii) to requisition records from the custody of any court or other authority;
(ix) to receive applications for the substitution of legal representatives of the deceased parties, during the pendency of the application;
(x) to receive and dispose of applications for substitution, except where the substitution would involve setting aside an order or abatement; and
(xi) to receive and dispose of application by parties for return of documents.

28. Seal and emblem—-The official seal and emblem of the Tribunal shall be such as the Government may specify.


FORM-1
(See rule 4)

APPLICATION UNDER SECTION 57 OF THE INFORMATION TECHNOLOGY ACT, 2000

For use in Tribunal’s Oflice
Date of Filing -——-———————————————————
OR
Date of Receipt By post ——————————————————–
Registration No. ——————————————————-

Signature of Registrar

IN THE CYBER REGULATIONS APPELLATE TRIBUNAL
———————————————-
———————————————-

BETWEEN
A B APPLICANT
AND
C D RESPONDENT

Details of Application :
1. Particulars of the applicant:—
(i) Name of the applicant
(ii) Name of Father/Husband
(iii) Designation and office in which employed
(iv) Office Address
(v) Address for service of all notice

2. Particulars of the respondent :
(i) Name and/or designation of the respondent
(ii) Office address of the respondent
(iii) Address for service of all notices

3. Particulars of the Order against which application is made :
The application is against the following order:
(i) Order No.
(ii) Date
(iii) Passed by
(iv) Subject in brief

4. Jurisdiction of the Tribunal:
The applicant declares that the subject matter of the order against wihch he wants re-dressal is within the jurisdiction of the Tribunal.

5. Limitation.—
The applicant further declares that the application is within the limitation prescribed in section 57 of the Information Technology Act, 2000.

6. Fact of the case:—
The facts of the case are given below:—
(Give here a concise statement of facts in a choronological order, each paragaph con-taining as nearly as possible a separate issue, fact or otherwise).

7. Relief(s) sought :—
In view of the facts mentioned in para 6 above, the applicant prays for the following relief(s) :—
[Specify below the relief(s) sought explaining the ground for the relief(s) and the legal provisions (if any) relied upon].

8. Interim order, if prayed for :
Pending final decision on the application, the applicant seeks issue of the following interim order :—
(Give here the nature of the interim order prayed for with reasons).

9. Details of the remedies exhausted :—
The applicant declares that he has availed of all the remedies available to him under the relevant service rules, etc.
(Give here chronologically the details of representations made and the outcome of such representation).

10. Matter not pending with any other court, etc.—
The applicant further declares that the matter regarding which this application has been made is not pending before any court of law or any other authority or has not been rejected by any court of law or other authority.

11. Details of Index :—
An index in duplicate containing the details of the documents to be relied upon is en¬closed.

12. List of enclosures :—

Verification :
I, ________________________________________ (name of the applicant), S/o, D/o, W/o _______________________________ age ——————— working as _____________________ resident of _______________________
hereby verify that the contents from 1 to 13 are true to my personal knowledge and belief and that I have not suppressed any material facts.

Place :
Date :
Signature of applicant

To
The Registrar,
Cyber Regulation Appellate Tribunal
New Delhi

RECEIPT SLIP

Receipt of the application filed in the Cyber Regulation Appellate Tribunal by Shri/Smt. ____________________________ working as ______________________ in the Office of _______________________________________________ residing ______________________________________ acknowledged.

FORM – 2

(See Rule 24)

APPLICATION FOR THE REGISTRATION OF A CLERK

1. Name of legal practitioner on whose behalf the clerk is to be registered.
2. Particulars of the clerk to be registered.
(i) Full Name (in capitals)
(ii) Father’s name
(iii) Age and date of birth
(iv) Place of birth
(v) Nationality
(vi) Educational qualifications
(vii) Particulars of previous employment, if any.

I, ______________ (clerk above named) do hereby affirm that that the particulars relating to me are true.

3. Whether the legal practitioner has a clerk already registered in his employ and whether the clerk sought to be registered is in lieu of or in addition to the clerk already registered.

4. Whether the clerk sought to be registered is already registered as a clerk of any other legal practitioner and if so, the name of such practitioner.
I, __________________________________ (legal practitioner) certify that the particulars given above are true to the best of my information and belief and that I am not aware of any facts which would render undesirable the registration of the said ____________________________ (name) as a clerk.

Date:
Signature of legal practitioner
To
The Registrar of the Tribunal
_______________________
_______________________
_______________________

[ No. 1(20)/97-IID(NII)/F6]

(P.M.Singh)
Joint Secretary


READ : Information Technology Glossary

STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

Article 1

General provisions

  1. The International Tribunal for the Law of the Sea is constituted and shall function in accordance with the provisions of this Convention and this Statute.
  2. The seat of the Tribunal shall be in the Free and Hanseatic City of Hamburg in the Federal Republic of Germany.
  3. The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable.
  4. A reference of a dispute to the Tribunal shall be governed by the provisions of

Parts XI and XV.

 

SECTION 1. ORGANIZATION OF THE TRIBUNAL

Article 2

Composition

 

  1. The Tribunal shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.
  2. In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.

 

Article 3

Membership

 

  1. No two members of the Tribunal may be nationals of the same State. A person who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.
  2. There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations.

 

Article 4

Nominations and elections

 

  1. Each State Party may nominate not more than two persons having the qualifications prescribed in article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated.

 

  1. At least three months before the date of the election, the Secretary-General of the United Nations in the case of the first election and the Registrar of the Tribunal in the case of subsequent elections shall address a written invitation to the States Parties to submit their nominations for members of the Tribunal within two months. He shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties before the seventh day of the last month before the date of each election.

 

  1. The first election shall be held within six months of the date of entry into force of this Convention.

 

  1. The members of the Tribunal shall be elected by secret ballot. Elections shall be held at a meeting of the States Parties convened by the Secretary-General of the United Nations in the case of the first election and by a procedure agreed to by the States Parties in the case of subsequent elections. Two thirds of the States Parties shall constitute a quorum at that meeting. The persons elected to the Tribunal shall be those nominees who obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties.

 

Article 5

Term of office

 

  1. The members of the Tribunal shall be elected for nine years and may be re-elected; provided, however, that of the members elected at the first election, the terms of seven members shall expire at the end of three years and the terms of seven more members shall expire at the end of six years.

 

  1. The members of the Tribunal whose terms are to expire at the end of the

above-mentioned initial periods of three and six years shall be chosen by lot to be drawn by the Secretary-General of the United Nations immediately after the first election.

 

  1. The members of the Tribunal shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings which they may have begun before the date of their replacement.

 

  1. In the case of the resignation of a member of the Tribunal, the letter of resignation shall be addressed to the President of the Tribunal. The place becomes vacant on the receipt of that letter.

 

Article 6

Vacancies

 

  1. Vacancies shall be filled by the same method as that laid down for the first election, subject to the following provision: the Registrar shall, within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in article 4 of this Annex, and the date of the election shall be fixed by the President of the Tribunal after consultation with the States Parties.

 

  1. A member of the Tribunal elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term.

 

Article 7

Incompatible activities

 

  1. No member of the Tribunal may exercise any political or administrative function, or associate actively with or be financially interested in any of the operations of any enterprise concerned with the exploration for or exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed.

 

  1. No member of the Tribunal may act as agent, counsel or advocate in any case.

 

  1. Any doubt on these points shall be resolved by decision of the majority of the other members of the Tribunal present.

 

Article 8

Conditions relating to participation of members in a particular case

 

  1. No member of the Tribunal may participate in the decision of any case in which he has previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court or tribunal, or in any other capacity.

 

  1. If, for some special reason, a member of the Tribunal considers that he should not take part in the decision of a particular case, he shall so inform the President of the Tribunal.

 

  1. If the President considers that for some special reason one of the members of the Tribunal should not sit in a particular case, he shall give him notice accordingly.

 

  1. Any doubt on these points shall be resolved by decision of the majority of the other members of the Tribunal present.

 

Article 9

Consequence of ceasing to fulfil required conditions

 

If, in the unanimous opinion of the other members of the Tribunal, a member has ceased to fulfil the required conditions, the President of the Tribunal shall declare the seat vacant.

 

Article 10

Privileges and immunities

 

The members of the Tribunal, when engaged on the business of the Tribunal, shall enjoy diplomatic privileges and immunities.

 

Article 11

Solemn declaration by members

 

Every member of the Tribunal shall, before taking up his duties, make a solemn declaration in open session that he will exercise his powers impartially and conscientiously.

 

Article 12

President, Vice-President and Registrar

 

  1. The Tribunal shall elect its President and Vice-President for three years; they may be re-elected.
  2. The Tribunal shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary.
  3. The President and the Registrar shall reside at the seat of the Tribunal.

 

Article 13

Quorum

 

  1. All available members of the Tribunal shall sit; a quorum of 11 elected members shall be required to constitute the Tribunal.

 

  1. Subject to article 17 of this Annex, the Tribunal shall determine which members are available to constitute the Tribunal for the consideration of a particular dispute, having regard to the effective functioning of the chambers as provided for in articles 14 and 15 of this Annex.

 

  1. All disputes and applications submitted to the Tribunal shall be heard and determined by the Tribunal, unless article 14 of this Annex applies, or the parties request that it shall be dealt with in accordance with article 15 of this Annex.

 

Article 14

Seabed Disputes Chamber

A Seabed Disputes Chamber shall be established in accordance with the provisions of section 4 of this Annex. Its jurisdiction, powers and functions shall be as provided for in Part XI, section 5.

 

Article 15

Special chambers

 

  1. The Tribunal may form such chambers, composed of three or more of its elected members, as it considers necessary for dealing with particular categories of disputes.

 

  1. The Tribunal shall form a chamber for dealing with a particular dispute submitted to it if the parties so request. The composition of such a chamber shall be determined by the Tribunal with the approval of the parties.

 

  1. With a view to the speedy dispatch of business, the Tribunal shall form annually a chamber composed of five of its elected members which may hear and determine disputes by summary procedure. Two alternative members shall be selected for the purpose of replacing members who are unable to participate in a particular proceeding.

 

  1. Disputes shall be heard and determined by the chambers provided for in this article if the parties so request.

 

  1. A judgment given by any of the chambers provided for in this article and in

article 14 of this Annex shall be considered as rendered by the Tribunal.

 

Article 16

Rules of the Tribunal

 

The Tribunal shall frame rules for carrying out its functions. In particular it shall lay down rules of procedure.

 

Article 17

Nationality of members

 

  1. Members of the Tribunal of the nationality of any of the parties to a dispute shall retain their right to participate as members of the Tribunal.

 

  1. If the Tribunal, when hearing a dispute, includes upon the bench a member of the nationality of one of the parties, any other party may choose a person to participate as a member of the Tribunal.

 

  1. If the Tribunal, when hearing a dispute, does not include upon the bench a member of the nationality of the parties, each of those parties may choose a person to participate as a member of the Tribunal.

 

  1. This article applies to the chambers referred to in articles 14 and 15 of this Annex. In such cases, the President, in consultation with the parties, shall request specified members of the Tribunal forming the chamber, as many as necessary, to give place to the members of the Tribunal of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the members specially chosen by the parties.

 

  1. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be considered as one party only. Any doubt on this point shall be settled by the decision of the Tribunal.

 

  1. Members chosen in accordance with paragraphs 2, 3 and 4 shall fulfil the conditions required by articles 2, 8 and 11 of this Annex. They shall participate in the decision on terms of complete equality with their colleagues.

 

Article 18

Remuneration of members

 

  1. Each elected member of the Tribunal shall receive an annual allowance and, for each day on which he exercises his functions, a special allowance, provided that in any year the total sum payable to any member as special allowance shall not exceed the amount of the annual allowance.

 

  1. The President shall receive a special annual allowance.

 

  1. The Vice-President shall receive a special allowance for each day on which he acts as President.

 

  1. The members chosen under article 17 of this Annex, other than elected members of the Tribunal, shall receive compensation for each day on which they exercise their functions.

 

  1. The salaries, allowances and compensation shall be determined from time to time at meetings of the States Parties, taking into account the workload of the Tribunal. They may not be decreased during the term of office.

 

  1. The salary of the Registrar shall be determined at meetings of the States Parties, on the proposal of the Tribunal.

 

  1. Regulations adopted at meetings of the States Parties shall determine the conditions under which retirement pensions may be given to members of the Tribunal and to the Registrar, and the conditions under which members of the Tribunal and Registrar shall have their travelling expenses refunded.

 

  1. The salaries, allowances, and compensation shall be free of all taxation.

 

Article 19

Expenses of the Tribunal

 

  1. The expenses of the Tribunal shall be borne by the States Parties and by the Authority on such terms and in such a manner as shall be decided at meetings of the States Parties.
  2. When an entity other than a State Party or the Authority is a party to a case submitted to it, the Tribunal shall fix the amount which that party is to contribute towards the expenses of the Tribunal.

 

SECTION 2. COMPETENCE

 

Article 20

Access to the Tribunal

 

  1. The Tribunal shall be open to States Parties.
  2. The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.

 

Article 21

Jurisdiction

 

The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.

 

Article 22

Reference of disputes subject to other agreements

 

If all the parties to a treaty or convention already in force and concerning the subject-matter covered by this Convention so agree, any disputes concerning the interpretation or application of such treaty or convention may, in accordance with such agreement, be submitted to the Tribunal.

 

Article 23

Applicable law

 

The Tribunal shall decide all disputes and applications in accordance with article 293.

 

SECTION 3. PROCEDURE

 

Article 24

Institution of proceedings

 

  1. Disputes are submitted to the Tribunal, as the case may be, either by notification of a special agreement or by written application, addressed to the Registrar. In either case, the subject of the dispute and the parties shall be indicated.
  2. The Registrar shall forthwith notify the special agreement or the application to all concerned.
  3. The Registrar shall also notify all States Parties.

 

Article 25

Provisional measures

 

  1. In accordance with article 290, the Tribunal and its Seabed Disputes Chamber shall have the power to prescribe provisional measures.
  2. If the Tribunal is not in session or a sufficient number of members is not available to constitute a quorum, the provisional measures shall be prescribed by the chamber of summary procedure formed under article 15, paragraph 3, of this Annex. Notwithstanding article 15, paragraph 4, of this Annex, such provisional measures may be adopted at the request of any party to the dispute. They shall be subject to review and revision by the Tribunal.

 

Article 26

Hearing

 

  1. The hearing shall be under the control of the President or, if he is unable to preside, of the Vice-President. If neither is able to preside, the senior judge present of the Tribunal shall preside.

 

  1. The hearing shall be public, unless the Tribunal decides otherwise or unless the parties demand that the public be not admitted.

 

Article 27

Conduct of case

 

The Tribunal shall make orders for the conduct of the case, decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.

 

Article 28

Default

 

When one of the parties does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and make its decision. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its decision, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well founded in fact and law.

 

Article 29

Majority for decision

 

  1. All questions shall be decided by a majority of the members of the Tribunal who are

present.

  1. In the event of an equality of votes, the President or the member of the Tribunal who acts in his place shall have a casting vote.

 

Article 30

Judgment

 

  1. The judgment shall state the reasons on which it is based.

 

  1. It shall contain the names of the members of the Tribunal who have taken part in the decision.

 

  1. If the judgment does not represent in whole or in part the unanimous opinion of the members of the Tribunal, any member shall be entitled to deliver a separate opinion.

 

  1. The judgment shall be signed by the President and by the Registrar. It shall be read in open court, due notice having been given to the parties to the dispute.

 

Article 3l

Request to intervene

 

  1. Should a State Party consider that it has an interest of a legal nature which may be affected by the decision in any dispute, it may submit a request to the Tribunal to be permitted to intervene.
  2. It shall be for the Tribunal to decide upon this request.
  3. If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect of which that State Party intervened.

 

Article 32

Right to intervene in cases of interpretation or application

 

  1. Whenever the interpretation or application of this Convention is in question, the Registrar shall notify all States Parties forthwith.

 

  1. Whenever pursuant to article 21 or 22 of this Annex the interpretation or application of an international agreement is in question, the Registrar shall notify all the parties to the agreement.

 

  1. Every party referred to in paragraphs 1 and 2 has the right to intervene in the proceedings; if it uses this right, the interpretation given by the judgment will be equally binding upon it.

 

Article 33

Finality and binding force of decisions

 

  1. The decision of the Tribunal is final and shall be complied with by all the parties to the dispute.
  2. The decision shall have no binding force except between the parties in respect of that particular dispute.
  3. In the event of dispute as to the meaning or scope of the decision, the Tribunal shall construe it upon the request of any party.

 

Article 34

Costs

 

Unless otherwise decided by the Tribunal, each party shall bear its own costs.

 

SECTION 4. SEABED DISPUTES CHAMBER

 

Article 35

Composition

 

  1. The Seabed Disputes Chamber referred to in article 14 of this Annex shall be composed of 11 members, selected by a majority of the elected members of the Tribunal from among them.
  2. In the selection of the members of the Chamber, the representation of the principal legal systems of the world and equitable geographical distribution shall be assured. The Assembly of the Authority may adopt recommendations of a general nature relating to such representation and distribution.
  3. The members of the Chamber shall be selected every three years and may be selected for a second term.
  4. The Chamber shall elect its President from among its members, who shall serve for the term for which the Chamber has been selected.
  5. If any proceedings are still pending at the end of any three-year period for which the Chamber has been selected, the Chamber shall complete the proceedings in its original composition.
  6. If a vacancy occurs in the Chamber, the Tribunal shall select a successor from among its elected members, who shall hold office for the remainder of his predecessor’s term.

 

  1. A quorum of seven of the members selected by the Tribunal shall be required to constitute the Chamber.

 

Article 36

Ad hoc chambers

 

  1. The Seabed Disputes Chamber shall form an ad hoc chamber, composed of three of its members, for dealing with a particular dispute submitted to it in accordance with article 188, paragraph 1(b). The composition of such a chamber shall be determined by the Seabed Disputes Chamber with the approval of the parties.

 

  1. If the parties do not agree on the composition of an ad hoc chamber, each party to the dispute shall appoint one member, and the third member shall be appointed by them in agreement. If they disagree, or if any party fails to make an appointment, the President of the Seabed Disputes Chamber shall promptly make the appointment or appointments from among its members, after consultation with the parties.
  2. Members of the ad hoc chamber must not be in the service of, or nationals of, any of the parties to the dispute.

 

Article 37

Access

 

The Chamber shall be open to the States Parties, the Authority and the other entities referred to in Part XI, section 5.

 

Article 38

Applicable law

 

In addition to the provisions of article 293, the Chamber shall apply:

(a) the rules, regulations and procedures of the Authority adopted in accordance with this Convention; and

(b) the terms of contracts concerning activities in the Area in matters relating to those contracts.

 

Article 39

Enforcement of decisions of the Chamber

 

The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought.

 

Article 40

Applicability of other sections of this Annex

 

  1. The other sections of this Annex which are not incompatible with this section apply to the Chamber.
  2. In the exercise of its functions relating to advisory opinions, the Chamber shall be guided by the provisions of this Annex relating to procedure before the Tribunal to the extent to which it recognizes them to be applicable.

 

SECTION 5. AMENDMENTS

 

Article 4l

Amendments

 

  1. Amendments to this Annex, other than amendments to section 4, may be adopted only in accordance with article 313 or by consensus at a conference convened in accordance with this Convention.
  2. Amendments to section 4 may be adopted only in accordance with article 314.
  3. The Tribunal may propose such amendments to this Statute as it may consider necessary, by written communications to the States Parties for their consideration in conformity with paragraphs 1 and 2.

Notification regarding Constitution of Unlawful Activities (Prevention) Tribunal in the matter of declaration of the Liberation Tigers of Tamil Eelam (LTTE) as an unlawful association under UA(P)A, 1967

w.e.f. 14.05.2019

Notification regarding Constitution of Unlawful Activities (Prevention) Tribunal in the matter of declaration of the Liberation Tigers of Tamil Eelam (LTTE) as an unlawful association under UA(P)A, 1967 w.e.f. 14.05.2019

Procedure for filing an appeal to the Appellate Tribunal for Petroleum and Natural Gas

Appellate Tribunal for Petroleum and Natural Gas (Procedure, Form, Fee and Record of Proceedings) Rules, 2009

Procedure for filing appeal, petition, application, etc—(1) Every appeal or petition or application or caveat petition or objection or counter presented to the Appellate Tribunal shall be in English and in case it is in some other Indian language, it shall be accompanied by a copy of translation in English and shall be fairly and legibly type written, lithographed or printed in double spacing on one side of standard petition paper with an inner margin of about four centimetres width on top and with a right margin of 2.5 centimetres, and left margin of 5 centimetres, duly paginated, indexed and stitched together in paper book form;Continue Reading

What distinguishes a Court from a quasiJudicial tribunal

What distinguishes a Court from a quasi Judicial tribunal is that it is charged with a duty to decide disputes in a Judicial manner and declare the rights of parties in a definitive judgment. To decide in a Judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi Judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.Continue Reading

The Railway Claims Tribunal Act, 1987

LAW LIBRARY

parliament

The Railway Claims Tribunal Act, 1987

(54 OF 1987)

[23th December, 1987]

An Act to provide for the establishment of a Railway Claims Tribunal for inquiring into and determining claims against a railway administration for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to it to be carried by railway or for the refund of fares or freight or for compensation for death or injury to passengers occurring as a result of railway accidents [or untoward incidents] and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Thirty-eighth year of the Republic of India as follows:

 CHAPTER I

Preliminary

  1. Short title, extent and commencement .—(1) This Act may be called The Railway Claims Tribunal Act, 1987.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification, appoint.

  1.  Definitions .—In this Act, unless the context otherwise requires,—

(a) “application” means an application made under section 16;

(b) “appointed day” means the date with effect from which the Claims Tribunal is established under section 3;

(c) “Bench” means a Bench of the Claims Tribunal;

(d) “Chairman” means the Chairman of the Claims Tribunal;

(e) “Claims Tribunal” means the Railway Claims Tribunal established under section 3;

(f) “Judicial Member” means a Member of the Claims Tribunal appointed as such under this Act, and includes the Chairman or Vice-Chairman who possesses any of the qualifications specified in sub-section (3) of section 5;

(g) “Member” means a Member (whether Judicial or Technical) of the Claims Tribunal, and includes the Chairman and Vice-Chairman;

(h) “notification” means a notification published in the Official Gazette;

(i) “prescribed” means prescribed by rules;

(j) “Railways Act” means the [Indian Railways Act, 1890 (9 of 1890)];

(k) “rules” means rules made under this Act;

(l) “Technical Member” means a Member of the Claims Tribunal who is not a Judicial Member, and includes the Chairman or a Vice-Chairman who possesses any of the qualifications specified in sub-section (4) of section 5;

(m) “Vice-Chairman” means a Vice-Chairman of the Claims Tribunal.

Explanation .—References to the Vice-Chairman in this Act shall be construed as references to each of the Vice-Chairman;

[(n) “untoward incident” shall have the meaning assigned to it in clause (c) of section 123 of the Railways Act, 1989 (24 of 1989);]

[(o)] words and expressions used and not defined in this Act but defined in the Railways Act or the rules made thereunder shall have the meanings respectively assigned to them in that Act or the said rules.

 CHAPTER II

Establishment Of Railway Claims Tribunal And Benches Thereof

  1. Establishment of Railway Claims Tribunal .—The Central Government shall, by notification, establish a Claims Tribunal, to be known as the Railway Claims Tribunal, to exercise the jurisdiction, powers and authority conferred on it by or under this Act.
  2. Composition of Claims Tribunal and Benches thereof .—(1) The Claims Tribunal shall consist of a Chairman, four Vice-Chairmen and such number of Judicial Members and Technical Members as the Central Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Claims Tribunal may be exercised by Benches thereof.

(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Technical Member.

(3) Notwithstanding anything contained in sub-section (1), the Chairman—

(a) may, in addition to discharging the functions of the Judicial Member or the Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench;

(b) may transfer a Vice-Chairman or other Member from one Bench to another Bench;

(c) may authorise the Vice-Chairman or the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Vice-Chairman or, as the case may be, the Judicial Member or the Technical Member of another Bench.

(4) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Claims Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may, by general or special order, specify:

Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer, to such Bench as the Chairman may deem fit.

(5) Subject to the other provisions of this Act, the Benches shall sit at such places as the Central Government may, by notification, specify.

  1. Qualifications for appointment as Chairman, Vice-Chairman or other Member .—(1) A person shall not be qualified for appointment as the Chairman unless he—

(a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of a Vice-Chairman.

(2) A person shall not be qualified for appointment as the Vice-Chairman unless he—

(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that service or any higher post for at least five years; or

(c) has, for at least five years, held a civil judicial post carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India; or

(d) has, for at least five years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways; or

(e) has, for a period of not less than three years, held office as a Judicial Member or a Technical Member.

(3) A person shall not be qualified for appointment as a Judicial Member unless he—

(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) has been a Member of the Indian Legal Service and has held a post in Grade I of that service for at least three years; or

(c) has, for at least three years, held a civil judicial post carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India.

(4) A person shall not be qualified for appointment as a Technical Member unless he has, for at least three years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways.

(5) Subject to the provisions of sub-section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President.

(6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.

  1. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances .—(1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, such one of the Vice-Chairmen as the Central Government may, by notification, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, such one of the Vice-Chairmen as the Central Government may, by notification, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.

  1. Term of office .—The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains,—

(a) in the case of the Chairman, the age of sixty-five years; and

(b) in the case of the Vice-Chairman or any other Member, the age of sixty-two years, whichever is earlier.

  1. Resignation and removal .—(1) The Chairman, Vice-Chairman or other Member may, by notice in writing under his hand addressed to the President, resign his office:

Provided that the Chairman, Vice-Chairman or other Member shall, unless he is permitted by the President to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

(2) The Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the President on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which such Chairman, Vice-Chairman or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman or other Member referred to in sub-section (2).

  1. Salaries and allowances and other terms and conditions of service of Chairman, Vice-Chairman and other Members .—The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairman, Vice-Chairman and other Members shall be such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman, Vice-Chairman or other Member shall be varied to his disadvantage after his appointment.

  1. Provision as to the holding of offices by Chairman, Vice-Chairman, etc., on ceasing to be such Chairman or Vice-Chairman, etc .—On ceasing to hold office—

(a) the Chairman of the Claims Tribunal shall be ineligible for further employment either under the Government of India or under the Government of a State;

(b) a Vice-Chairman shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of the Claims Tribunal, or as the Chairman, Vice-Chairman or member of any other Tribunal established under any law for the time being in force, but not for any other employment either under the Government of India or under the Government of a State;

(c) a Member (other than the Chairman or Vice-Chairman) shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman or Vice-Chairman or as the Chairman, Vice-Chairman or member of any other Tribunal established under any law for the time being in force, but not for any other employment either under the Government of India or under the Government of a State;

(d) the Chairman, Vice-Chairman or other Member shall not appear, act or plead before the Claims Tribunal.

Explanation .—For the purposes of this section, employment under the Government of India or under the Government of a State includes employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the Government.

  1. Financial and administrative powers of Chairman .—The Chairman shall exercise such financial and administrative powers over the Benches as may be vested in him under the rules:

Provided that the Chairman shall have authority to delegate such of his financial and administrative powers as he may think fit to the Vice-Chairman or any other officer of the Claims Tribunal, subject to the condition that the Vice-Chairman or such officer shall, while exercising such delegated powers, continue to act under the direction, control and supervision of the Chairman.

  1. Staff of Claims Tribunal .—(1) The Central Government shall determine the nature and categories of the officers and other employees required to assist the Claims Tribunal in the discharge of its functions and provide the Claims Tribunal with such officers and other employees as it may think fit.

(2) The officers and other employees of the Claims Tribunal shall discharge their functions under the general superintendence of the Chairman.

(3) The salaries and allowances and conditions of service of the officers and other employees of the Claims Tribunal shall be such as may be prescribed.

CHAPTER III

Jurisdiction, Powers And Authority Of Claims Tribunal

  1. Jurisdiction, powers and authority of Claims Tribunal .—(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority, as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the Railways Act,—

(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for—

(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;

(ii) compensation payable under section 82-A of the Railways Act or the rules made thereunder; and

(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the railway administration under section 124-A of the said Act or the rules made thereunder.

(2) The provisions of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.

  1. Distribution of business amongst Benches .—(1) Where any Benches are constituted, the Central Government may, from time to time, by notification, make provisions as to the distribution of the business of the Claims Tribunal amongst the Benches and specify the matters which may be dealt with by each Bench.

(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairman shall be final.

Explanation .—For the removal of doubts, it is hereby declared that the expression “matters” includes an application under section 20.

  1. Bar of jurisdiction .—On and from the appointed day, no Court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-sections (1) and (1-A) of section 13.

CHAPTER IV

Procedure

  1. Application to Claims Tribunal .—(1) A person seeking any relief in respect of the matters referred to in sub-section (1) or sub-section (1-A) of section 13 may make an application to the Claims Tribunal.

(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such application and by such other fees for the service or execution of processes as may be prescribed:

Provided that no such fee shall be payable in respect of an application under sub-clause (ii) of clause (a) of sub-section (1) or, as the case may be, sub-section (1-A) of section 13.

  1. Limitation .—(1) The Claims Tribunal shall not admit an application for any claim—

(a) under sub-clause (i) of clause (a) of sub-section (1) of section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway;

(b) under sub-clause (ii) of clause (a) of sub-section (1) or, as the case may be, sub-section (1-A) of section 13 unless the application is made within one year of occurrence of the accident;

(c) under clause (b) of sub-section (1) of section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration:

Provided that no application for any claim referred to in sub-clause (i) of clause (a) of sub-section (1) of section 13 shall be preferred to the Claims Tribunal until the expiration of three months next after the date on which the intimation of the claim has been preferred under section 78-B of the Railways Act.

(2) Notwithstanding anything contained in sub-section (1), an application may be entertained after the period specified in sub-section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period.

  1. Procedure and powers of Claims Tribunal .—(1) The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry.

(2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced.

(3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default or deciding it ex parte ;

(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte ;

(i) any other matter which may be prescribed.

  1. Right to legal representation and presenting officers .—(1) A person making an application to the Claims Tribunal may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Claims Tribunal.

(2) A railway administration may authorise one or more legal practitioners or any of its officers to act as presenting officers and every person so authorised by it may present its case with respect to any application before the Claims Tribunal.

  1. Power of Chairman to transfer cases from one Bench to another .—On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.
  2. Decision to be by majority .—If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
  3. Execution of orders of Claims Tribunal .—(1) An order made by the Claims Tribunal under this Act shall be executable by the Claims Tribunal as a decree of Civil Court and, for this purpose, the Claims Tribunal shall have all the powers of a Civil Court.

(2) Notwithstanding anything contained in sub-section (1), the Claims Tribunal may transmit any order made by it to a Civil Court having local jurisdiction and such Civil Court shall execute the order as if it were a decree made by that Court.

CHAPTER V

Appeals

  1. Appeals .—(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or in any other law, an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal, to the High Court having jurisdiction over the place where the Bench is located.

(2) No appeal shall lie from an order passed by the Claims Tribunal with the consent of the parties.

(3) Every appeal under this section shall be preferred within a period of ninety days from the date of the order appealed against.

CHAPTER VI

Miscellaneous

  1. Transfer of pending cases .—(1) Every suit, claim or other legal proceeding (other than an appeal) pending before any Court, Claims Commissioner or other authority immediately before the appointed day, or, as the case may be, the date of commencement of the provisions of sub-section (1-A) of section 13, being a suit, claim or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the appointed day, or, as the case may be, the date of commencement of the provisions of sub-section (1-A) of section 13, within the jurisdiction of the Claims Tribunal, shall stand transferred on that day or, as the case may be, date to the Claims Tribunal.

(2) Where any suit, claim or other legal proceeding stands transferred from any Court, Claims Commissioner or other authority to the Claims Tribunal under sub-section (1),—

(a) the Court, Claims Commissioner or other authority shall, as soon as may be after such transfer, forward the records of such suit, claim or other legal proceeding to the Claims Tribunal;

(b) the Claims Tribunal may, on receipt of such records, proceed to deal with such suit, claim or other legal proceeding, so far as may be, in the same manner as an application, from the stage which was reached before such transfer or from any earlier stage or de novo as the Claims Tribunal may deem fit.

  1. Proceedings before Claims Tribunal to be judicial proceedings .—All proceedings before the Claims Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860).
  2. Members and staff of Claims Tribunal to be public servants .—The Chairman, Vice-Chairman and other Members and the officers and other employees of the Claims Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
  3. Protection of action taken in good faith .—No suit, prosecution or other legal proceeding shall lie against the Central Government or against the Chairman, Vice-Chairman or other Member, or any other person authorised by the Chairman, Vice-Chairman or other Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.
  4. Act to have overriding effect .—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
  5. Power to remove difficulties .—(1) If any difficulty arises in giving effect to provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made after the expiry of a period of three years from the appointed day.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

  1. Power to make rules .—(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.

(2) Without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:—

(a) the procedure under sub-section (3) of section 8 for the investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman or other Member;

(b) salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairman, Vice-Chairman and other Members under section 9;

(c) the financial and administrative powers which the Chairman may exercise over the Benches under section 11;

(d) the salaries and allowances and conditions of service of officers and other employees of the Claims Tribunal under sub-section (3) of section 12;

(e) the form of application, the documents and other evidence to be accompanied with such application and fee in respect of filing of such application and fee for the service or execution of processes under sub-section (2) of section 16;

(f) the rules subject to which the Claims Tribunal shall have powers to regulate its own procedure under sub-section (1) of section 18 and the additional matters in which the Claims Tribunal may exercise powers of Civil Court under clause (i) of sub-section (3) of that section;

(g) any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

30-A. Power to make rules retrospectively .—The power to make rules under clause (b) of sub-section (2) of section 30 shall include the power to make such rules or any of them retrospectively from a date not earlier that the date on which this Act received the assent of the President, but no such retrospective effect shall be given to any such rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.

[CHAPTER VII]

Amendments To The Railways Act

  1. Amendment of section 3.—In section 3 of the Railways Act, after clause (18), the following clause shall be inserted, namely:—

“(19) “Claims Tribunal” means the Railway Claims Tribunal established under section 3 of the Railway Claims Tribunal Act, 1987.”.

  1. Amendment of section 78-A .—In section 78-A of the Railways Act, for the word “suit”, the words “application before the Claims Tribunal” shall be substituted.
  2. Substitution of new section for section 80.—For section 80 of the Railways Act, the following section shall be substituted, namely:—

“80. Application for compensation .—An application to the Claims Tribunal for compensation for loss of the life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or non-delivery of animals or goods may be made,—

(a) if the passenger was, or the animals or goods were, booked from one station to another on the railway of the same railway administration, against that railway administration;

(b) if the passenger was, or the animals or goods were, booked through over the railway of two or more railway administrations, against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage, as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred.”

  1. Omission of sections 82-B, 82-D and 82-F .—Sections 82-B, 82-D, and 82-F of the Railways Act shall be omitted.
  2. Amendment of section 82-C .—In section 82-C of the Railways Act,—

(a) in sub-section (1), for the words “Claims Commissioner”, the words “Claims Tribunal” shall be substituted;

(b) sub-section (2) and the Explanation thereto shall be omitted.

  1. Amendment of sections 82-E, 82-G and 82-HH .—In sections 82-E, 82-G and 82-HH of the Railways Act, for the words “Claims Commissioner”, wherever they occur, the words “Claims Tribunal” shall be substituted.
  2. Amendment of section 82-I .—In section 82-I of the Railways Act, for the words, figures and letters “sections 82-A to 82-HH”, the words, figures and letters “sections 82-A, 82-C, 82-E and 82-G to 82-HH” shall be substituted.
  3. Amendment of section 82-J .—In section 82-J of the Railways Act,—

(a) in sub-section (1), for the words, figures and letters “sections 82-A to 82-H inclusive”, the words, figures and letters “sections 82-A, 82-C, 82-E, 82-G and 82-H” shall be substituted;

(b) in sub-section (2), clause (i) and clauses (iv) to (vi) shall be omitted.

CONNECTED LAWS

Rojer Mathew Vs. South Indian Bank Ltd. and Ors-07/11/2018

SUPREME COURT OF INDIA JUDGMENTS

[HEARING OF THIS CASE SHALL BE CONTINUED- EDITOR]

  • Recommended setting up of all India Tribunal service
  • Administration of the Tribunals.
  • “We broadly approve the concept of having an effective and autonomous oversight body for all the Tribunals with such exceptions as 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. 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”

SUPREME COURT OF INDIA

Rojer Mathew Vs. South Indian Bank Ltd. and Ors.

[Special Leave Petition (Civil) No. 15804 of 2017]

O R D E R

1. Restructuring of Tribunal System in the light of constitutional 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 inexpensive quality justice.

2. In R.K. Jain versus Union of India, a Bench of this Court called for taking stock of the situation of working of Tribunals. It was observed that the 1 (1993) 4 SCC 119 2 Para8 2 personnel appointed to man the Tribunals discharge judicial/quasi judicial powers and thus, persons who adjudicate upon such 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 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 monitoring.

3. In L. Chandra Kumar versus Union of India, a Bench of 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 mind on account 3 Para 67 4 Para 68 5 Para 70 6 Para 76 7 (1997) 3 SCC 261 3 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 standards. Exclusion of judicial review by High Courts and direct appeals to this Court was too costly and inaccessible and thus ineffective. The decisions of the Tribunals should be amenable to scrutiny before a Division Bench of the High Court . Short tenure of members of Tribunal was not proper. Non judicial members must have judicial experience. There was need to review the competence of persons manning the Tribunals and oversight mechanism. Wholly independent agency was required for administration of all the Tribunals. A single umbrella organization could remove the ills of the present system.

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 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 13 (2010) 11 SCC 1 4 with courts.

When the jurisdiction from courts is transferred to tribunals, members of judiciary should be the presiding officers/members such as Rent Tribunals, 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 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 substituted16. Experience of 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 14 Para 90 15 Para 93 16 Para 108 17 Para 109 5 exercised by courts 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 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 be inappropriate for the Central Government to have any administrative 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 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 18 Para 112 and 120 19 (2014) 10 SCC 1 20 Para 113.2 21 Para 122 22 Para 124 23 Paras 126-127 6 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 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 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, 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. 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 7 Accordingly, this Court framed certain questions to be examined by the Law Commission.

The Law Commission has submitted its 272nd Report inter alia 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 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. 74th Report of the Parliamentary Standing Committee considered a draft Bill for Uniform Service Conditions of members of 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, 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. 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 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 :

“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 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.

ii) Whether ‘Access to Justice Facilitation Centres’ (AJFCs), 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 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/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.

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.”

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 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 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 10 Union of India was not averse to revisit the issue of access to justice.

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. 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 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 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 amongst them to be Chairman)

B. Two retired High Court Judges (Members)

C. Three members representing the Executive. 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 Justice of India; Current Law Minister; and Leader of the Opposition.

17. The NTC should oversee functioning of central Tribunals and 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 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 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 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. 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 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. 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.

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 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;

(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.

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 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.

J. [ADARSH KUMAR GOEL]

J. [INDU MALHOTRA]

NEW DELHI;

MAY 07, 2018.

National Company Law Appellate Tribunal [NCLAT-India]

Company Law Encyclopedia

Constituted under Section 410 of the Companies Act, 2013

AT: Pt. Deen Dayal Antyodaya Bhawan, 3rd Floor, CGO Complex, Lodhi Road, New Delhi – 110003

Hear appeals against the Order of:-

  1. Company Law Tribunal(s) (NCLT), with effect from 1st June, 2016
  2. NCLT(s) under Section 61 of the Insolvency and Bankruptcy Code, 2016 (IBC), with effect from 1st December, 2016.
  3. Insolvency and Bankruptcy Board of India under Section 202 and Section 211 of IBC.
  4. Competition Commission of India (CCI) , with effect from 26th May, 2017.