By Akanksha Sharma
Introduction
“There will be uniformity in service conditions and pay structure of all those retired judges who are being appointed in all these tribunals. Where there is less work and there are two- three tribunals, that will now be done by one,” Finance Minister Arun Jaitley said in Parliament, moving the amendments as part of the Finance Bill 2017.[1]
Finance Act of 2017 states that the purpose of this Act is:
Bill to give effect to the financial proposals of the Central Government for the financial year 2017-18.
A tribunal generally is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes. Tribunals are needed for a specialised and effective hearing of technical matters that may at times miss the eye of law at conventional Courts.
The procedural simplicity and speedy justice that is guaranteed by a tribunal reduces the burden of the constitutional courts and thus its importance cannot be undermined. To overcome the situation that arose due to the pendency of cases in various courts, Tribunals have been established.
Under Article 323B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to following matters:
- Taxation,
- Foreign exchange, import and export,
- Industrial and labour,
- Land reforms,
- Ceiling on urban property,
- Elections to Parliament and state legislatures,
- Food stuff,
- Rent and tenancy rights.
Why Are Tribunals Merged?
The government has merged several powerful administrative tribunal and assumed powers to appoint and remove their chiefs. The Finance Act of 2017 merged eight tribunals according to functional similarity.
In a bid to rationalise tribunals and bring in more uniformity in terms of service and efficiency, the Centre brought the axe down on eight tribunals, as a part of its amendments to the Finance Bill.
The list of the tribunals according to functional similarity. The list of the tribunals that have been merged and their powers are:
The Employees Provident Fund Appellate Tribunal with The Industrial Tribunal
The Employee Provident Fund Tribunal merged with the Industrial Tribunal and it now has the following powers:
- This Tribunal support measures for securing and preserving good relations between employers and employees.
- To provide suitable machinery for the equitable and peaceful settlement of industrial disputes.
- To prevent illegal strikes and lockouts.
- To afford relief to workers against layoffs, retrenchment, wrongful dismissal and victimisation.
- To promote collective bargaining.
- To improve the conditions of workers.
- To avoid unfair labour prices.
- Decisions related to anticipation.
- Decisions and cases related to potential infringement.
- Orders related to the substitution of applicants.
- Orders pertaining to revocation of the patent in the public interest.
- Correction of clerical errors.
The Copyright Board with The Intellectual Property Appellate Board
Powers of The Intellectual Property Appellate Board are curtailed in the following circumstances where the orders passed by the State Government are:
- Related to inventions pertaining to defence purposes.
- Includes directions of secrecy associated with such inventions.
- It involves revocation of patents which are contrary or prejudicial to the public interest.
- With respect to patents pertaining to atomic energy.
- Where the controller passes an order granting an extension of time under the Act cannot be appealed against.
Intellectual Property Appellate Board has appellate jurisdiction in the following matters:
- Refusal of application due to the failure of compliance with the requirements of the Act
- Orders related to divisional application
- Orders pertaining o the dating of application
The Railways Rates Tribunal with The Railways Claims Tribunal
The Claims Tribunal shall have for the purposes of charging 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:
- Summoning and enforcing the attendance of any person and examining him an oath,
- Requiring the discovery and production of documents,
- Receiving evidence on affidavits,
- Reviewing its decisions,
- Dismissing an application for default or deciding it ex parte,
- Setting aside any order of dismissal of any application for default or any order passed by its ex parte,
- Any other matter which may be prescribed.
The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
Appellate Tribunal is National Tribunal having its Headquarters at New Delhi. The benches of the Appellate Tribunal sit at New Delhi without any benches elsewhere in the country.
The Tribunal adjudicates Appeals and allied petitions filed against the attachments/ forfeitures order passed by the Competent Authorities under the
- SAFEMA/ NDPS Acts and orders of attachments / forfeitures of properties involved in Money Laundering by Adjudicating Authority under PMLA.
- It also Adjudicates appeals filed against the orders imposing fine passed by the Director- Financial Intelligence Unit India (FIU- India).
The National Highways Tribunal with The Airport Appellate Tribunal
- The Airport Appellate Tribunal established under section 28-I of the Airports Authority of India Act, 1994shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be the Tribunal for the purposes of this Act and the said tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.
- The Central Government shall, by notification in the Official Gazette, establish a Tribunal, to be known as the Airport Appellate Tribunal, to exercise the jurisdiction, powers and authority conferred on it by or under this Act.
The Cyber Appellate Tribunal and The Airports Economic Regulatory Tribunal
The appellate authority has the powers of summoning, inquiring, and receiving evidence on affidavits, review, and dismissal of the application. Such power is vested under the Code of Civil Procedure, 1908.
For the purpose of requesting any public record or document from office, the provisions of Section 123 and Section 124 of the Indian Evidence Act, 1872 shall be applicable.
Powers of the Authority-
- Under Section 14 of the Act, the Authority has been empowered to conduct an investigation and order the “aeronautical and airport service provider” to furnish, in writing, the explanation of its functions with regard to its performance.
- Under the said Section, the Authority can appoint one or more persons to inquire about the work affairs and direct its officers to look into the accounts book and other related documents of the service provider.
- If the service provider is a government department, the Authority shall inspect each of its offices and the department is bound to furnish all the account books and account related statements before the Authority on demand.
- If the service provider is a firm or company, every person related to the company or firm including the director, partner, manager, and secretary shall have to furnish the account book details, and statement details before the Authority on demand. The authority can inspect every member, including the aforementioned persons, if it is required.
- The Authority has the power to direct the service provider with regard to its performance and proper functioning.
Authority Appellate Tribunal with The Settlement and Appellate Tribunal (TDSAT)
Tribunal has the same powers as are vested in a civil court –
- Summoning and enforcing the attendance of any person and examining him an oath
- Requiring the discovery and production of documents
- Receiving evidence on affidavits
- Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document, from any office
- Issuing commissions for the examination of witness or documents
- Reviewing its decisions
- Dismissing an application for default or deciding it ex parte
- Setting aside any order of dismissal or any application for default or any order passed by it ex parte
The Competition Appellate Tribunal with the National Company Law Appellate Tribunal
It enjoys a wide range of powers:
- De- registration of Companies
- Power to seek assistance of Chief Metropolitan Magistrate
- Declare the liability of members unlimited
- De- registration of companies in certain circumstances when there is registration of companies is obtained in an illegal or wrongful manner
- Remedy of oppression and mismanagement
- Power to hear grievance of refusal companies to transfer securities and rectification of register of members
- Protection of the interest of various stakeholders, especially non- promoter shareholders and depositors
- Power to provide relief to the investors against a large set of wrongful actions committed by the company management or other consultants and advisors who are associated with the company.
- Aggrieved depositors have the remedy of class actions for seeking redressal for the acts/omissions of the company which hurt their rights as depositors.
- Powers to direct the company to reopen its accounts or allow the company to revise its financial statement but do not permit reopening of accounts. The company can itself also approach the Tribunal through its director for revision of its financial statement.
- Power to investigate or for initiating investigation proceedings. An investigation can be conducted even abroad. Provisions are provided to assist investigation agencies and courts of other countries with respect to investigation proceedings.
- Power to investigate into the ownership of the company.
- Power to freeze assets of the company.
- Power to impose restriction on any securities of the company.
- Conversion of public limited company into private limited company.
- If the company cannot or has not held an Annual General Meeting as required under the Companies Act or a required Extraordinary General Meeting, then the Tribunal has powers to call for a General Meetings.
- Power to alter the financial year of a company registered in India.
The amendments under the Finance Bill, which is being discussed in Lok Sabha, will change several laws and allow the government to set criteria for appointment and removal of chairperson, vice-chairperson and other members of the tribunals, and decide on their terms of service.
Finance Bill, 2017 being passed as money bill includes attempt to rationalise the functioning of multiple tribunals. As a result what used to be 26 tribunals are now down to 19. As the qualification, tenure, conditions of service, removal and emoluments of the chairpersons and members of these tribunals will all be under the control of the Centre which has raised questions about the independence of these adjudicatory bodies.
What are the positive impacts of merging these tribunals?
There are many positive impacts for this merging of tribunals these are:
- Rationalising tribunals would lead to efficiency of work.
- It will ensure uniform service conditions.
- Reducing the number of tribunals will speed up dispute resolution and curb wasteful expenditure.
- It may prevent overlapping, for example, Competition Appellate Tribunal (Compat) will be merged with the National Company Law Appellate Tribunal. Since both deal with similar matters, it will particularly help in cases where a single transaction is overseen by both. For Example: Idea- Vodafone merger.
What are the criticisms against merging of tribunals?
With the positive impacts there is also a lot of criticism:
- It is believed that by allowing the executive to determine appointments, reappointment and removal of members; the independent functioning of tribunals might be affected.
- By increasing the control over tribunals, which would be contrary to the 2014 Supreme Court order that held Tribunals o be free of Executive interference.
- Its appointment and removal may also pose a conflict of interest by the government.
- The important question that arises is that whether the doctrine of separation of powers has been violated.
- Mergence may lead to overburdening of more cases than it could handle.
- It is said that merging of COMPAT with NCLT can overburden NCLT with more cases than it could handle.
- Also, the new Insolvency and bankruptcy Code has designated NCLT as the adjudicating authority for corporate cases which adds extra burden on it.
Conclusion
Since the 1990s there has been a proliferation of appellate tribunals and indeed, a proliferation of regulators. Some Tribunals created in 1990s may have done remarkably well- the Securities Appellate Tribunal (SAT) in the securities market, the Telecom sector, are excellent examples.
But the government approved to merge eight of the tribunals. The Centre has also obtained an authority to determine the qualifications, term of office salaries and many more terms of service. Age limits have been increased, for instance, chairpersons of tribunals will now retire at age 70.
The Authority for Advance ruling, for instance had been functioning without full strength for the past few years, resulting in a huge backlog, even as the I-T Act mandates that a ruling will be given within six months of the application being filed.
Merger of Tribunals is causing anxiety among sections of experts. For example, cases heard by the Competition Appellant Tribunal, under the Competition Act, will now be heard by NCLAT , which is specialised to deal with the Companies Act. “Mergers will result in tribunal bodies losing their specialisation,” claims an Advocate.
Hence what can be done is as India has a number of Tribunals to look into appeals made from orders of specific regulator or sectors.
Therefore, post- merging the Centre will have to ensure specialisation:
- High Courts that deal with all matters have dedicated benches. Similarly in Tribunals too, specific cases can be dealt by respective benches.
- Senior people from diverse backgrounds, can be appointed to deal with varied industry matters.
- Uniformity in administrative rules will help in streamlining the functioning of these quasi- judicial bodies and ensure that vacancies aren’t kept pending for long.
- The Government must ensure the independence of the tribunal- a requirement that is part of the basic structure of the constitution.
References
- Government moves to reform Tribunals, available at-livemint.com(Last Visited June 5th 2021) ↑