UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS BAR ASSOCIATION

The Judgment of the Court was delivered by

R.V.RAVEENDRAN, J. 1. These appeals arise from the order dated 30.3.2004 of the Madras High Court in WP No. 2198/2003 filed by the President of Madras Bar Association (MBA for short) challenging the constitutional validity of Chapters 1B and 1C of the Companies Act, 1956('Act' for short) inserted by Companies (Second Amendment) Act 2002 E ('Amendment Act' for short) providing for the constitution of National Company Law Tribunal ('NCLT' or 'Tribunal') and National Company Law Appellate Tribunal ('NCLA T' or 'Appellate Tribunal').

2Copy pinpoint2. In the said writ petition, Madras Bar Association ('MBA') raised the following contentions :

(i) Parliament does not have the legislative competence to vest intrinsic judicial functions that have been traditionally performed by the High Courts for nearly a G century in any Tribunal outside the Judiciary.

(ii) The constitution of the National Company Law Tribunal and transferring the entire company jurisdiction of the High Court to the Tribunal which is not under the control of the H Judiciary, is violative of the doctrine of separation of

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 881 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

powers and independence of the Judiciary which are parts A of the basic structure of the Constitution.

(iii) Article 3238 of the Constitution enables the appropriate Legislature to provide for adjudication or trial by Tribunals of disputes, complaints or offences with respect to all or 8 any of the matters specified in clause (2). Clause (2) enumerate the matters in regard to which Tribunals can be constituted. The said list is exhaustive and not illustrative. The list does not provide for constitution of Tribunal for insolvency, revival and restructuring of the company. In the C absence of any amendment to Article 3238 providing for a National Tribunal for revival of companies and winding up companies, there is no legislative competence to provide for constitution of NCLT and NCLAT.

(iv) The various provisions of Chapters IB and IC of the Act D (sections 10FB, 10FD, 10FE, 10FF, 10FL(2), 10FO, 10FR(3), 10FT and 10FX) are defective and unconstitutional, being in breach of basic principles of Rule of Law, Separation of Powers and Independence of the Judiciary. E

3Copy pinpoint3. The Union of India submitted that it had constituted a High Level Committee on Law relating to Insolvency of Companies under the Chairmanship of Justice V. Balakrishna Eradi, a retired Judge of this Court, with other experts to examine the existing laws relating to winding-up proceedings of the company in order to r~model it in line with the latest developments and innovation~ in corporate laws and governance and to suggest reforms to the procedures at various stages followed in insolvency proceedings of the company in order to avoid unnecessary delay, in tune with international practices in the field. The said Committee identified the following areas which contributed to inordinate delay in finalisation of winding-up/dissolution of companies : (a) filing statement of affairs; (b) handing over of updated books of accounts; (c) realization of debts; (d) taking over possession H

882 SUPREME COURT REPORTS [201 OJ 6 S.C.R.

A of the assets of the company and sale of assets; (e) non- availability of funds for the Official Liquidator to discharge his duties and functions (f) settlement of the list of creditors; (g) settlement of list of contributories and payment of calls; (h) finalisation of income-tax proceedings; and (i) disposal of B misfeasance proceedings. The Committee found that multiplicity of court proceedings is the main reason for the abnormal delay in dissolution of companies. It also found that different agencies dealt with different areas relating to companies, that Board for Industrial & Financial Reconstruction c (BIFR) and Appellate Authority for Industrial & Financial Reconstruction (AAIFR) dealt with references relating to rehabilitation and revival of companies, High Courts dealt with winding-up of companies and Company Law Board (CLB) dealt with matters relating to prevention of oppression and mismanagement etc. Considering the laws on corporate 0 insolvency prevailing in industrially advanced countries, the Committee recommended various amendments in regard to the provisions of Companies Act, 1956 for setting-up of a National Company Law Tribunal which will combine the powers of the E CLB under the Companies Act, 1956, BIFR and AAlFR under the Sick Industrial Companies (Special Provisions) Act, 1985 as also the jurisdiction and powers relating to windingcup presently vested in the High Courts.

4Copy pinpoint4. It is stated that the recommendations of the Eradi F Committee were accepted by the Government and Company (Second Amendment) Act, 2002 was passed providing for establishment of NCLT and NCLAT to take-over the functiuns which are being performed by CLB, BIFR, AAIFR and the High Courts. It is submitted that the establishment of NCLT and G NCLAT will have the following beneficial effects: (i) reduce the pendency of cases and reduce the period of winding-up process from 20 to 25 years to about two years; (ii) avoid multiplicity of litigation before various fora (High Courts and quasi-judicial Authorities like CLB, BIFR and AAIFR) as all can H be heard and decided by NCLT; (iii) the appeals will be

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 883 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

streamlined with an appeal provided against the order of the A NCLT to an appellate Tribunal (NCLAT) exclusively dedicated to matters arising from NCLT, with a further appeal to the ~upreme Court only on points of law, thereby reducing the delay in appeals; and (iv) with the pending cases before the , Company Law Board and all winding-up cases pending before B the High Courts being transferred to NCLT, the burden on High Courts will be reduced and BIFR and AAIFR could be abolished.

5Copy pinpoint5. It was contended that the power to provide for establishment of NCLT and NCLAT was derived from Article C 245 read with several entries in List I of the Seventh Schedule and did not originate from Article 3238. It was submitted that various provisions in Parts IB and IC of the Act relating to the constitution of NCLT and NCLAT were intended to provide for selection of proper persons to be their President/Chairperson/ D members and for their proper functioning. It was submitted that similar provisions relating to establishment of other alternative institutional mechanisms such as Administrative Tribunals, Debt Recovery Tribunals and Consumer fora, had the seal of approval of this Court in S. P. Sampath Kumar vs. Union of E · India - 1987 (1) SCC 124, L. Chandrakumar v. Union of India (1997) 3 SCC 261; Union of India v. Delhi High Court Bar Association (2002) 4 SCC 275 and State of Karnataka v. Vishwabharathi House Building Co-operative Society 2003(2) sec 412. F

6Copy pinpoint6. The Madras High Court by its order dated 30.3.2004 ··held that creation of the NCLT and vesting the powers hitherto exercised by the High Courts and CLB in the Tribunal was not unconstitutional. It referred to and listed the defects in several provisions (that is mainly sections 1OFD(3)(f)(g)(h), 1OFE, G 10FF, 10FL(2), 10FR(3), 10FT) in Parts IB and IC of the Act. It therefore declared that until the provisions of Part IB and IC of the Act, introduced by the Amendment Act which were defective being violative of basic constitutional scheme (of separation of H

884 SUPREME COURT REPORTS (201 OJ 6 S.C.R.

A judicial power from the Executive and Legislative power and independence of judiciary enabling impartial exercise of judicial power) are duly amended by removing the defects that were pointed out; it will be unconstitutional to constitute a Tribunal and Appellate Tribunal to exercise the jurisdiction now exercised by B the Hi~Jh Court or the Company Law Board.

7Copy pinpoint7. The Union of India has accepted that several of the defects pointed out by the High Court in Parts IB and IC of the Act, require to be corrected and has stated that those provisions r- will be suitably amended to remove the defects. It has not "" however accepted the decision of the High Court that some other provisions of Parts IB and IC are also defective TO narrow down the controversy in regard to the appeal by the Union, we note below the defects pointed out by the High Court in regard to various provisions in Parts IB and IC of the Act and the stand D of Union of India in respect of each of them.

~ections 10FE and 10FT : Tenure of PresidenUChairman i3nd Members of NCLT and NCLAT fixed as three years yvith eligibility for re-appointment E (7.1.) The High Court held that unless the term of office is fixed as at least five years with a provision for renewal, except in cases of incapacity, misconduct and the like, the constitution of the Tribunal cannot be regarded as satisfying the essential F requirements of an independent and impartial body exercising judicial functions of the state.

The Union Government has accepted the finding and agreed to amend section 1OFE and 1OFT of the Act to provide for a five year term for the Chairman/President/Members. ,G However, the Government proposes to retain the provision for 1 reappointment instead of 'renewal', as the reappointments would be considered by a Selection Committee which would be headed by the Chief Justice of India or his nominee. As the Government proposes to have minimum eligibility of 50 years for first appointment as a Member of the Tribunal, a Member I

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 885 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

will have to undergo the process of re-appointment only once or twice.

Section 10FE - second proviso : Enabling the President/ Members of NCl_T to retain their lien with their parent cadre/Ministry/D:~partment while holding office B

(7.2) The High Court held that in so far as the President is concerned, there is no question of holding a lien and the . reference to President must be deleted from the second proviso to section 1OFE. c The Union Government has accepted the decision and has stated that it proposes to amend the proviso and delete the reference to the President in the second proviso.

(7.3) The High Court also held that the period of lien in 0 regard to the members of NCLT should be restricted to only one year instead of the entire period of service as a Member of NCLT.

The Union Government has submitted that in view of the proposed longer tenure of five years as against the three years, E the government proposes to permit the members to retain their lien with their parent cadre/Ministry/Department for a period of three years, as one year may be too short for the members to decide whether to give up the lien or not. F Section 1 OFD(1) : Qualification for appointment as President

(7.4) The High Court has suggested that it would be appropriate to confine the choice of persons to those who have held the position of a Judge of a High Court for a minimum G period of five years instead of the existing provision which provides that Central Government shall appoint a person who has been, or is qualified to be, a Judge of a High Court, for the post of President of the Tribunal. H

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The Government has agreed in part and proposes to amend the Act for appointment of a retired or serving High Court Judge alone as the President of the Tribunal. It however feels that minimum length of service as experience, need not be fixed in the case of High Court Judges, as the Selection B Committee headed by the Chief Justice of India or his nominee would invariably select the most suitable candidate for the post.

Sgction 10FD(3)(f) : Appointment of Technical Member to NCLT --- c (7.5) The High Court has held that appointment of a member under the category specified in section 1OFD(3)(f), can have a role only in matters concerning revival and rehabilitation of sick industrial companies and not in relation to other matters. The High Court has therefore virtually indicated that NCLT should D have two divisions, that is an Adjudication Division and a Rehabilitation Division and persons selected under the category specified in clause (f) should only be appointed as members of the Rehabilitation Division.

E The Union Government contends that similar provision el<ists in section 4(3) of the Sick Industrial Companies (Special Provisions) Act, 1985; that the provision is only an enabling one so that the best talent can be selected by the Selection Committee headed by the Chief Justice of India or his nominee; and that it may not be advisable to have Division or limit or F place restrictions on the power of the President of the Tribunal to constitute appropriate benches. It is also pointed out that a Technical Member would always sit in a Bench with a Judicial Member.

G Section 1 OFD(3)(g) : Qualification for appointment of Technical Member

(7 .6) The High Court has observed that in regard to Presiding Officers of Labour Courts and Industrial Tribunals or H National Industrial Tribunal, a minimum period of three to five

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 887 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

years experience should be prescribed, as what is sought to A be utilized is their expert knowledge in Labour Laws. ·

The Union Government submits that it may be advisable to leave the choice of selection of the most appropriate candidate to the Committee headed by the Chief Justice of 8 India or his nominee.

(7.7) The High Court has also observed that as persons who satisfy the qualifications prescribed in section 1OFD(3)(g) would be persons who fall under section 1OFD(2)(a), it would be more appropriate to include this qualification in section C 10FD(2)(a). It has also observed in section 10FL dealing with "Benches of the Tribunal", a provision should be made that a 'Judicial Member' with this qualification shall be a member of the special Bench referred to in section 1OFL(2) for cases relating to rehabilitation, restructuring or winding up of D Companies.

The Union Government has not accepted these findings and contends that the observations of the High Court would amount to judicial legislation. E Section 10FD(3)(h) : Qualification of technical member of NCLT

(7.8) The High Court has observed that clause (h) referring to the category of persons having special knowledge of and experience in matters relating to labour, for not less than 15 years is vague and should be suitably amended so as to spell out with certainty the qualification which a person to be appointed under clause (h) should possess.

The Union Government contends that in view of the wide and varied experience possible in labour matters, it may not be advisable to set out the nature of experience or impose any restrictions in regard to the nature of experience. It is submitted that the Selection Committee headed by the Chief Justice of India or his nominee would consider each application on its own H

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A merits.

(7.9) The second observation of the High Court is that the member selected under the category mentioned in clause (h) must confine his participation only to the Benches dealing with B revival and rehabilitation of sick companies and should also be excluded from functioning as a single Member Bench for any matter.

The Union Government contends that it may not be advisable to fetter the prerogative of the President of the C Tribunal to constitute benches by making use of available members. It is also pointed out that it may not be proper to presume that a person well-versed in labour matters will be unsuitable to be associated with a Judicial Member in regard to adjudication of winding-up matters. D Section 10FL(2) - Proviso : Winding up proceedings by single Member

(7.10) The High Court has held that it is impermissible to authorize a single member Bench to conduct the winding up E proceedings after a special three Members Bench passes an order of winding up; and if such single member happens to be a labour member appointed under section 1OFD(3)(f), it would be a mockery of a specialist Tribunal.

F The Union Government has accepted the finding and has agreed to amend the proviso to section 1OFL(2) to provide that a winding up proceedings will be conducted by a Bench which would necessarily include a judicial member.

Sections 1OFF and 1 OFK(2) : Power of Central G Government to designate any member to be a Member (Administration)

(7.11) The High Court has held that sections 1OFF and 10FK(2) should be suitably amended to provide that a member H may be designated as Member (Administration) only in

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 889 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

consultation with the President, and further provide that the A Member (Administration) will discharge his functions in relation to finc>nce and administration of the Tribunal under the overall control and supervision of the President.

The Union Government has accepted the decision and has 8 agreed to drop the provision for Member Administration. It was stated that the Act would be amended to provide that the administration and financial functions would be discharged under the overall control and supervision of the President. It was stated that the Act would be further amended to provide for C creation of the posts of Vice-Presidents.

Section 10 FR(3) : Appointment of members of the Appellate Tribunal

(7 .12) The High Court has observed that section 1OFR(3) 0 must be suitably amended to delete the reference to all subjects other than ·1aw and accountancy. It has also stated that it would be more appropriate to incorporate a provision similar to that in section 5(3) of the SICA which provides that a member of the Appellate Authority shall be a person who is or has been a E Judge of a High Court or who is or has been an officer not below the rank of a Secretary to the Government who has been a member of the Board for not less than three years.

The Union Government contends that the provision is only an enabling one; and since the Chairperson of the Appellate F Tribunal would be a former Judge of the Supreme Court or former Chief Justice of High Court, it may not be advisable to limit the scope of eligibility criteria for members E1Specially when a Selection Committee headed by the Chief Justice of India or his nominee would make the selection. G

Section 1 OFX - Selection Process for President/ Chairperson

(7.13) The High Court has expressed the view that the H

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A selection of the President/Chairperson should be by a Committee headed by the Chief Justice of India in consultation with two senior Judges of the Supreme Court.

The Union Government has submitted that it would not be B advisable to make such a provision in regard to appointment of President/Chairperson of statutory Tribunals. It is pointed out no other legislation constituting Tribunals has such a provision.

!he challenge in the appeals

c 8. Union of India contends that the High Court having held that the Parliament has the competence and power to establish NCLT and NCLAT, ought to have dismissed the writ petition. It is submitted that some of the directions given by the High Court to reframe and recast Parts IB and IC of the Act amounts to 0 converting judicial review into judicial- legislation. However, as Union of India has agreed to rectify several of the defects pointed out by the High Court (set out above), the appeal by the Union Government is now restricted to the findings of the High Court relating to sections 1OFD(3){f), (g) and (h) and E 10FX.

9Copy pinpoint9. On the other hand, MBA in its appeal contends that the High Court ought not to have upheld the constitutional validity of Parts IB and IC of the Act providing for establishment of NCLT and NCLAT; that the High Court ought to have held that F constitution of such Tribunals taking away the entire Company Law jurisdiction of the High Court and vesting it in a Tribunal which is not under the control of the Judiciary, is violative of . doctrine of separation of powers and the independence of Judiciary which are parts of the basic structure of the G Constitution. MBA also contends that the decisions of this Court in Union of India vs. Delhi High Court Bar Association - 2002 (4) sec 275, with reference to constitutional validity of the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 providing for constitution of the H Debt Recovery Tribunals and State of Karnataka vs.

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 891 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

Vishwabharathi House Building Co-op., Society - 2003 (2) A sec 412 in regard to the constitutional validity of Consumer Protection Act, 1986 providing for constitution of consumer fora 1 require reconsideration.

10Copy pinpoint10. When these civil appeals came up for hearing before B a three-Judge Bench of this Court, the Bench was of the view that the decisions in L. Chandra Kumar v. Union of India (1997) 3 SCC 261, Union of India v. Delhi Bar Association (2002) 4 SCC 275 and State of Karnataka v. Vishwa Bharati Housing Building Cooperative Societies & Anr (2003) 2 SCC 412 holding that Parliament and State legislatures possessed C legislative competence to effect changes in the original jurisdiction in the Supreme Court and High Court, had not dealt with the following issues:

(i) To what extent the powers and judiciary of High D Court (excepting judicial review under Article 226/ 227) can be transferred to Tribunals?

(ii) Is there a demarcating line for the Parliament to vest intrinsic judicial functions traditionally performed by courts in any Tribunal or authority outside the judiciary?

(iii) Whether the "wholesale transfer of powers" as contemplated by the Companies (Second Amendment) Act, 2002 would offend the constitutional scheme of separation of powers and independence of judiciary so as to aggrandize one branch over the other?

Therefore the Three Judge Bench, by order dated G 13.5.2007 directed the appeals to be heard by a Constitution Bench, observing that as the issues raised are of seminal importance and likely to have serious impact on the very structure and independence of judicial system. '\.

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11Copy pinpoint11. We may first refer to the relevant provisions of the Companies Act, 1956 as amended by the Companies (Second Amendment) Act, 2002 relating to the constitution of NCLT and NCLAT:

B .Part 18 - National Company Law Tribunal

10FB. Constitution of National Company Law Tribunal: The Central Government shall, by notification in the Official Gazette, constitute a Tribunal to be known as the National Company Law Tribunal to exercise and discharge such c powers and functions as ar~. or may be, conferred on it by or under this Act or any other law for the time being in force.

10FC. Composition of Tribunal: The Tribunal shall consist D of a President and such number of Judicial and Technical Members not exceeding sixty-two, as the Central Government deems fit, to be appointed by that Government, by notification in the Official Gazette.

1OFD. Qualifications for appointment of President and E Members: (1) The Central Government shall appoint a person who has been, or is qualified to be, a Judge of a High Court as the President of the Tribunal.

(2) A person shall not be qualified for appointment as F Judicial Member unless he-

(a) has, for at least fifteen years, held a judicial office in the territory of India; or

(b) has, for at least ten years been an advocate of a High G Court, or has partly held judicial office and has been partly in practice as an advocate for a total period of fifteen years; or

(c) has held for at least fifteen years a Group 'A' post or an equivalent post under the Central Government or a

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 893 BAR ASSOCIATION [R.V. RAVEENDRAN, J.)

State Government including at least three years of service as a Member of the Indian Company Law Service (Legal Branch) in Senior Administrative Grade in that service; or

(d) has held for at least fifteen years a Group 'A' post or an equivalent post under the Central Government (including 8 at least three years of service as a Member of the Indian Legal Service in Grade I of that service).

(3) A person shall not be qualified for appointment as Technical Member unless he- c (a) has held for at least fifteen years a Group 'A' post or an equivalent post under the Central Government or a State Government [including at least three years of service as a Member of the Indian Company Law Service (Accounts Branch) in Senior Administrative Grade in that o Service]; or

(b) is, or has been, a Joint Secretary to the Government of India under the Central Staffing Scheme, or any other post under the Central Government or a State Government carrying a scale of pay which is not less than that of a Joint E Secretary to the Government of India for at least five years and has adequate knowledge of, and experience in, dealing with problems relating to company law; or

(c) is, or has been, for at least fifteen years in practice as F a chartered accountant under the Chartered Accountants Act, 1949 (38 of 1949); or

(d) is, or has been, for at least fifteen years in practice as a cost accountant under , the Costs and Works G Accountants Act, 1959 (23 of 1959); or

(e) is, or has been, for at least fifteen years working experience as a Secretary in whole-time practice as defined in clause (45A) of section 2 of this Act and is a member of the Institute of the Companies Secretaries of H

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A India constituted under the Company Secretaries Act, 1980 (56 of 1980); or

(f) is a person of ability, integrity and standing having special knowledge of, and professional experience of not less than twenty years in, science, technology, economics, B banking, industry, law, matters relating to industrial finance, industrial management, industrial reconstruction, administration, investment, accountancy, marketing or any other matter, the special knowledge of, or professional experience in, which would be in the opinion of the Central c Government useful to the Tribunal; or

(g) is, or has been, <!_ Presiding Officer of a Labour Court, Tribunal or National Tribunal constituted under the Industrial Disputes Act, 1947 (14 of 1947); or

(h) is a person having special knowledge of, and experience of not less than fifteen years in, the matters relating to labour. ' Explanation.-For the purposes of this Part,- E (i) "Judicial Member" means a Member of the Tribunal appointed as such under sub-section (2) of section 1OFD and includes the President of the Tribunal;

(ii) "Technical Member" means a Member of the Tribunal F appointed as such under sub-section (3) of section 10FD.

10FE. Term of office of President and Members: The President and every other Member of the Tribunal shall hold office as such for a term of three years from the date on G which he enters upon his office but shall be eligible for re- appointment:

Provided that no President or other Member shall hold office as such after he has attained,- H

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 895 BAR ASSOCIATION [RV RAVEENDRAN, J.]

(a) in the case of the President, the age of sixty-seven A years;

(b) fr,-fhe case of any other Member, the age of sixty-five years:

Provided further that the President or other Member may. 8 retain his lien with his parent cadre or Ministry or Department, as the case may be, while holding office as such.

10FF. Financial and administrative powers of Member C Administration: The Central Government shall designate any Judicial Member or Technical Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules which may be made by the Central Government: o Provided that the Member .Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Tribunal subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.

1OFK. Officers and employees of Tribunal: (1) T h e Central Government shall provide the Tribunal with such officers and other employees as it may deem fit.

(2) The officers and other employees of the Tribunal shall discharge their functions under the general superintendence of the Member Administration. G (3) The salaries and allowances and other terms and conditions of service of the officers and other employees of the Tribunal shall be such as may be prescribed.

10FL. Benches of Tribunal: (1) Subject to the provisions H

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A of ~his section, the powers of the Tribunal may be exe~cised by Benches, constituted by the President of the Tribunal; out of which one shall be a Judicial Member and another shall be a Technical Member referred to in clauses {a) to (f) of sub-section (3) of section 1OFD: B Provided that it shall be competent for the Members authorised in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, t c as the President of the Tribunal may, by general or special order, specify:

Provided further that if at any stage of the hearing of any such case or matter, it appears to the Member of the 0 Tribunal 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 of the Tribunal or, as the case may be, referred to him for transfer to such Bench as the President may deem fit. E (2) The President of the Tribunal shall, for the disposal of any case relating to rehabilitation, restructuring or winding up of the companies, constitute one or more Special Benches consisting of three or more Members, each of whom shall necessarily be a Judicial Member, a Technical F Member appointed under any of the clauses (a) to (f) of sub-section (3) of section 1OFD, and a Member appointed under clause (g) or clause (h) of sub-section (3) of section 10FD:

G Provided that in case a Special Bench passes an order in respect of a company to be wound up, the winding up proceedings of such company may be conducted by a Bench consisting of a single Member.

(3) If the Members of a Bench differ in opinion on any point H

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 897 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

or points, it shall be decided according to the majority, if A there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President of the Tribunal for hearing on such point or points shall be decided according to the other of the other Members of the Tribunal B and such point or points shall be decided according to the opinion of the majority of Members of the Tribunal who have heard the case, including those who first heard it.

(4) There shall be constituted such number of Benches, as C may be notified by the Central Government.

(5) In addition to the other Benches, there shall be a Principal Bench atNew Delhi presided over by the President of the Tribunal. D (6) The Principal Bench of the Tribunal shall have powers of transfer of proceedings from any Bench to another Bench of the Tribunal in the event of inability of any Bench from hearing any such proceedings for any reason:

Provided that no transfer of any proceedings shall be made under this sub-section except after recording the reasons for so doing in writing.

10FO. Delegation of powers: The Tribunal may, by general or special order, delegate, subject to such conditions and limitations, if any, as may be specified in the order, to any Member or officer or other employee of the Tribunal or other person authorized by the Tribunal to manage any industrial company or industrial undertaking or any operating agency, such powers and duties under this Act G as it may deem necessary.

Part IC - APPELALTE TRIBUNAL

1OFR. Constitution of Appellate Tribunal: (1) The Central Government shall, by notification in the Official Gazette, H

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A constitute with effect from such date as may be specified therein, an Appellate Tribunal to be called the "National Company Law Appellate Tribunal" consisting of a Chairperson and not more than two Members, to be appointed by that Government, for hearing appeals against B the orders of the Tribunal under this Act.

(2) The Chairperson of the Appellate Tribunal shall be a person who has been a Judge of the Supreme Court or the Chief Justice of a High Court.

c (3) A Member of the Appellate Tribunal shall be a person of ability, integrity and standing having special knowledge of, and professional experience of not less than twenty-five yearn in, science, technology, economics, banking, industry, law, matters relating to labour, industrial finance, D industrial management, industrial reconstruction, administration, investment, accountancy, marketing or any other matter, the special knowledge of, or professional experience in which, would be in the opinion of the Central Government useful to the Appellate Tribunal. E 1OFT. Term of office of Chairperson and Members: The Chairperson or a Member of the Appellate Tribunal shall hold office as such for a term of three years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of three years: F Provided that no Chairperson or other member shall hold office as such after he has attained,-

(a) in the case of the Chairperson, the age of G seventy years;

(b) in the case of any other Member, the age of sixty-seven years.

10FX. Selection Committee: (1) The Chairperson and H Members of the Appellate Tribunal and President and

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 899 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

Members of the Tribunal shall be appointed by the Central A ·., >"Government on the recommendations of a Selection " eommittee consisting of: '· ', "·· 1a) Chief Justice of India or his nominee Chairperson; B (b) Secretary in the Ministry of Finance and Company Affairs Member;

(c) Secretary in the Ministry of Labour Member;

(d) Secretary in the Ministry of Law and Justice c (Department of Legal Affairs or Legislative Department) Member;

(e) Secretary in the Ministry of Finance and Company Affairs (Department of Company Affairs) D Member.

(2) The Joint Secretary in the Ministry or Department of the Central Government dealing with this Act shall be the Convenor of the Selection Committee. E )()()( )()()( )()()(

(5) Before recommending any person for appointment as the Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal, the Selection F Committee shall satisfy itself that such person does not have financial or other interest which is likely to affect prejudicially his functions as such Chairperson or member of the Appellate Tribunal or President or Member of the Tribunal, as the case may be. G

(6) No appointment of the Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal shall be invalidated merely by reason of any

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A vacancy or any defect in the constitution of the Selection Committee.

10G. Power to punish for contempt: The Appellate Tribunal shall have the same jurisdiction, powers and authority in respect of contempt of itself as the High Court has and 8 may exercise, for this purpose under the provisions of the Contempt of Courts Act, 1971 (70 of 1971 ), shall have the effect subject to modifications that-

(a) the reference therein to a High Court shall be construed c as including a reference to the Appellate Tribunal;

(b) the reference to Advocate-General in section 15 of the said Act shall be construed as a reference to such law officers as the Central Government may specify in this behalf. D 1OGB. Civil court not to have jurisdiction: (1) No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act E or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force. F 10GF. Appeal to Supreme Court: Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising G out of such decision or order:

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within H a further period not exceeding sixty days.

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 901 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

Section 1OFJ relates to removal and suspension of A President or members of the NCLT. Section 1OFV relates to removal and suspension of Chairman or members of NCLAT. Sub-section (2) of those sections provide that the PresidenUChairman or a member shall not be removed from his office except by an order made by the Central B Government on the ground of proven misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which the President/Chairman or member has been informed of the charges against him and given a reasonable opportunity of being heard in c respect of those charges. Sub-section (3) provides that the Central Government may suspend from office, the PresidenUChairman or Member of the Tribunal in respect of whom a reference has been made to the Judge of the Supreme Court under sub-section (2) until the Central 0 Government has passed orders on receipt of the report of the Judge of the Supreme Court on such reference.

Difference between Courts and Tribunals

12Copy pinpoint12. The term 'Courts' refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law. Courts refer to Civil Courts, Criminal Courts and High Courts. Tribunals can, be either private Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution (Administrative Tribunals under Article 323A and Tribunals for other matters under Article 3238) or Statutory H

p. 902

A Tribunals which are created under a statute (Motor Accident Claims Tribunal, Debt Recovery Tribunals and consumer fora). Some Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals). Other statutory Tribunals have B Judicial and Technical Members (Administrative Tribunals, TDSAT, Competition Appellate Tribunal, Consumer fora, Cyber Appellate Tribunal, etc).

1.3. This court had attempted to point out the difference C between Court and Tribunal in several decisions. We may refer a few of them.

(13.1) In Harinagar Sugar Mills Ltd. vs. Shyam Sundar Jhunjhunwala - (1962) 2 SCR 339, Hidayatullah J., succinctly explained the difference between Courts and Tribunals, thus: D "All Tribunals are not courts, though all courts are Tribunals". The word "courts" is used to designate those Tribunals which are set up in an organized state for the administration of justice. By administration of justice is meant the exercise of juridical power of the state to E maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris, which is disturbed ...... ..

F When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution G or some Act of Legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature". There can thus be no

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 903 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

doubt that the Central Government does not come within this class.

With the growth of civilization and the problems of modern life, a large number of administrative Tribunals have come into existence. These Tribunals have the authority of law 8 to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Courts' in Art.136, 227, or 228 or in Arts. 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature but not Tribunals other than such Courts. This is the reason for using both the expressions in Arts. 136 and 227.

By "Courts" is meant Courts of Civil Judicature and by "Tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. E Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special F matters go before Tribunals, and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established." G In my opinion, a Court in the strict sense is a Tribunal which is a part of the ordinary hierarchy of Courts of Civil Judicature maintained by the State under its constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State ~xcept those H

p. 904

A that are excluded by law from their jurisdiction. The word "judicial'', be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892) 1 Q.B. 431, in these words : B "The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to being to bear a c judicial mind - that is, a mind to determine what is fair and just in respect of the matters under consideration."

That an officer is required to decide matters before him D "judicially" in the second sense does not make him a Court or even a Tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.

Courts and Tribunals act "judicially" in both senses, and E in the term "Court" are included the ordinary and permanent Tribunals and in the term "Tribunal" are included all others, which are not so included".

(emphasis supplied) F (13.2) In Jaswant Sugar Mills vs. Laxmi Chand - 1963 Supp (1) SCR 242, this Court observed that in order to be a Tribunal, a body or authority must, besides being under a duty to act judicially, should be invested with the judicial power of G the state.

(13.3) In Associated Cement Companies Ltd. vs. P. N. Sharma - (1965) 2 SCR 366, another Constitution Bench of this Court explained the position of Tribunals thus:

H "The expression "court" in the context denotes a Tribunal

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 905 BAR ASSOCIATION [RV. RAVEENDRAN, J.]

constituted by the State as a part of the ordinary hierarchy of courts which are invested with the State's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of courts and their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact ·and law raised before them by adopting a process which in 0 described as judicial process. The powers which these courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions.

In every State there are administrative bodies or authorities which are required to deal with matters with.in their jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching their administrative decisions, administrative bodies can and often to take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative divisions, the administrative bodies or authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decision conferred on such administrative bodies is clearly distinct and separate from the judicial power conferred on courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decision pronounced by courts. H

906 SUPREME COURT REPORTS [201 O] 6 S.C.R.

A Tribunals which fall under the purview of Article 136(1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the court one common characteristic; both the B courts and the Tribunals are constituted by the state and are invested with judicial as distinguished from purely administrative or executive functions (vide Durga Shankar Mehta v. Raghuraj Singh - 1955 (1) SCR 267). They are both adjudicating bodies and they deal with and finally c determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and "in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the Tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the Tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of Tribunals, it is the State's inherent judicial power which has been transferred and by virtue of the said power, it is the State's inherent judicial function which they discharge."

(emphasis supplied)

F (13.4) In Kihoto Hof/ohan vs. Zachi/lhu - 1992 Supp (2) SCC 651, a Constitution Bench reiterated the above position and added the following :

Where there is a lis - an affirmation by one party and denial by another - and the dispute necessarily involves G a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court".

H In S.P. Sampath Kumar vs. Union of India - (1987) 1 SCC

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 907 BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

124, this Court expressed the view that the Parliament can A without in any way_violating the basic structure doctrine make effective alternative institutional mechanisms or arrangements for judicial review.

14Copy pinpoint14. Though both Courts and Tribunals exercise judicial 8 power and discharge similar functions, there are certain well- recognised differences between courts and Tribunals. They are

(i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of C justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts. D (ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a Judicial Member and a Technical Member who is an 'expert' in the field to which Tribunal relates. Some highly specialized fact finding Tribunals may have only Technical E Members, but they are rare and are exceptions.

(iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and Evidence Act, requiring an elaborate procedure in decision making, Tribunals generally regulate their owr procedure F applying the provisions of the Code of Civil Procerlure only where it is required, and without being restricted by the strict rules of Evidence Act.

Re: Independence of judiciary G

15Copy pinpoint15. Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary. If 'Impartiality' is the soul of Judiciary, 'Independence' is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to H

p. 908

A do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a B Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things - security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the c Executive).

1Ei. In Union of India vs. Sanka/chand Himatla/ Sheth - 1977 {4) SCC 193, a Constitution Bench of this Court

D explained the importance of 'Independence of Judiciary' thus :

"Now the independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of - our founding document. It is indeed a part of our ancient tradition which has produced great judges in the past. In England too, from where we have inherited our present system of administration of justice in its broad and essential features, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for any one to think otherwise ......... .

The Constitution makers, therefore, enacted several provisions designed to secure the independence of the superior judiciary by insulating it from executive or legislative control, .............. .

... ... .. even with regard to the Subordinate Judiciary the framers of the Constitution were anxious to secure that it should be insulated from executive interference and once appointment of a Judicial Officer is made, his subsequent

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 909 BAR ASSOCIATION [R.V. RAVEENDRAN, J.] career should be under the control of the High Court and he should not be exposed to the possibility of any improper executive pressure."

In Supreme Court Advocates-on-Record.Association & Ors. v. Union of India (1993) 4sec 441, J.S. Verma; J. (as he then 8 was) speaking for the majority, described the attributes of an independent judge thus :

" .:.Only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and. ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge.".

(emphasis supplied}

In his concurring opinion, Pandian J. stated that "it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours." He further stated :

" .. that to have an independent judiciary to meet all challenges, unbending before all authorities and to uphold the imperatives of the Constitution at all times, thereby preserving the judicial integrity, the person to be elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior interest, loyalty and obligation and prepared under all circumstances or eventuality to pay any price, bea,r any burden and to meet any hardship and always wedded only to the principles of the Constitution and 'Rule of Law'. If the selectee bears a particular stamp for the purpose of . changing the cause of decisions bowing to the diktat of H

l

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A his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. Though it is illogical to spin out a new principle that the keynote is not the judge but the s judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest and that the necessity c for maintaining independence of judiciary is to ensure a fair and effective administration of justice."

The framers of the Constitution stated in a Memorandum ("See The Framing of India's Constitution - a.Shiva Rao, volume 1- 8, Page 196) : D "We have assumed that it is recognized on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high- handed exercise of power by the executive ... in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient judiciary has been steadily kept in view."

In L Chandra Kumar, the seven Judge Bench of this Court held:

G "The Constitution of India while conferring power of judicial review of legislative action upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would H

UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 911 . BAR ASSOCIATION [R.V. RAVEENDRAN, J.]

indicate that they were very greatly concerned with securing A the independence of the judiciary." . '

Independence of Judiciary has always been recognized as a part cf the basic structure of the Constitution (See : Supreme Court Advocates-on-Record Association vs. Union of India - 8 1993 (4) SCC 441, State of Bihar vs. Bal Mukund Shah - 2000 (4) SCC 640, Shri Kumar Padma Prasad vs. Union of India - 1992 (2) SCC 428, and All India Judges Association vs. Union of India - 2002 (4) SCC 247).

Separation of Power. c

17Copy pinpoint17. In Rai Sahib Ram Jawaya Kapur vs. The State of Punjab - 1955 (2) SCR 225, this Court explained the doctrine of separation of powers thus :

"The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another."

In Chandra Mohan vs. State of UP-AIR 1966 SC 1987, this Court held: F ''The Indian Constitution, though it does not accept the strict qoctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including G in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that "it is the Subordinate Judiciary in India who are brought most H