F UNCTIONS , POWERS AND DUTIES OF THE
CHAPTER 92 P OWERS AND PROCEDURE
Power of the Tribunal.
386. (1) The Tribunal will have the same powers as are vested in a Civil Court under the Civil Procedure Code while trying a suit, in respect of the following matters,
30
namely, –
(a) summoning and enforcing the attendance of any person and examining the person on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
35
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
40
(h) any other matter as may be prescribed.
175 Part XVII: 92. POWERS AND PROCEDURE
(2) Every proceeding before the Tribunal will be deemed to be a judicial proceed-ing within the meanproceed-ing of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860).
(3) The Tribunal will be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Criminal Procedure Code. 5
(4) Unless otherwise mentioned in the Act, in disposing an appeal the Tribunal may pass an order confirming, modifying or setting aside the order appealed against.
(5) The Tribunal must attempt to dispose an appeal within a period of one hundred and eighty days from the date of filing of the appeal. 10
Settlement of proceedings.
387. (1) Notwithstanding anything contained in this Act, any proceedings pending be-fore the Tribunal may be settled, with the approval of the Tribunal.
(2) The procedure by which the Regulator and a person may arrive at a settlement will be governed by the provisions of section104.
(3) The Tribunal may approve a settlement only on being satisfied that the provi- 15
sions of section104have been complied with.
(4) If the Tribunal approves a settlement agreement in respect of an alleged viola-tion, it must –
(a) neither institute any proceedings for taking an enforcement action in re-spect of the same cause of action as is covered in the settlement agree- 20
ment;
(b) nor intitute criminal proceedings against the person in respect of the same cause of action.
Levy and collection of fees by the Tribunal.
388. (1) The Tribunal may levy such fees for the conduct of its proceedings as may be
prescribed. 25
(2) The Central Government must prescribe the scale of fees that may be levied by the Tribunal for discharge of its functions.
(3) In precribing the fees, the Central Government must take into consideration the following factors, –
(a) the requirement that the fees are not disproportionate to the costs likely 30
to be incurred by the Tribunal in discharging the functions for which the fees are levied;
(b) the financial requirements of the Tribunal; and
(c) the recommendations made by the procedure committee.
Costs.
389. (1) The Tribunal will have the power to impose costs in disposing of any appeal. 35
(2) The Central Government must prescribe rules on the imposition and quantum of costs which may be imposed by the Tribunal.
Allocation of matters.
390. (1) The Presiding Officer may constitute benches of the Tribunal at such locations and for such classes of proceedings as may be necessary.
176 Part XVII: 92. POWERS AND PROCEDURE
(2) Every bench of the Tribunal must comprise at least one Judicial Member, one of whom will preside over it, and such number of Technical Members as may be determined by the Presiding Officer.
(3) The Presiding Officer will be responsible for the allocation and listing of mat-ters before the Tribunal and its benches.
5
(4) While allocating matters to a bench of the Tribunal, the Presiding Officer may take into account the expertise of the Tribunal Members on that bench in the subject matter or the applicable laws.
Hearing centres.
391. (1) The Presiding Officer may constitute hearing centres of the Tribunal at such locations and for such classes of proceedings as may be necessary.
10
(2) The Tribunal must take steps to safeguard the integrity of a proceeding con-ducted through a hearing centre, including by issuing practice directions for this purpose.
Procedure of the Tribunal.
392. (1) The Tribunal will not be bound by the procedure laid down in the Civil Proce-dure Code.
15
(2) The proceedings of the Tribunal will be governed by, – (a) rules made by the Central Government; and
(b) practice directions issued by the Presiding Officer, in respect of matters not governed by rules.
(3) The Central Government must prescribe rules governing the proceedings of the
20
Tribunal taking into account the following principles, –
(a) that the recommendations of the procedure committee are considered;
(b) that the principles of natural justice are followed;
(c) that the proceedings are handled with fairness, reasonable speed and ef-ficiency;
25
(d) that the procedure allows the proceedings of the Tribunal to be conve-niently conducted, if necessary, by electronic means where possible;
(e) that the procedures are simple and clear; and (f) that the Tribunal is accessible.
(4) Subject to the rules prescribed by the Central Government, the Presiding
Offi-30
cer may issue practice directions governing the proceedings before the Tribunal taking into account the principles in sub-section(3).
(5) The Tribunal must publish the rules and practice directions governing the pro-ceedings before it.
Composition and function of procedure committee.
393. (1) The Tribunal must have a procedure committee comprising, –
35
(a) the Presiding Officer;
(b) the Registrar; and
(c) three experts in the field of law nominated by the Presiding Officer.
(2) The procedure committee must periodically, –
177 Part XVII: 93. ADMINISTRATION
(a) review the rules and practice directions governing the proceedings of the Tribunal, taking into account the data generated by the functioning of the Tribunal;
(b) assess the impact of such rules and practice directions on the functioning
of the Tribunal; and 5
(c) recommend to the Central Government –
(i) modifications to the rules governing proceedings before the Tri-bunal; and
(ii) the scale of fees which may be charged by the Tribunal under this
Act. 10
(3) The Tribunal must publish the recommendations made by the procedure com-mittee.
Appearance before the Tribunal.
394. An appellant may appear before the Tribunal in person or authorise one or more of the following persons to present his case before the Tribunal –
(a) where the appellant is a body corporate, any of its officers; 15
(b) an advocate as defined in the Advocates Act, 1961 (25 of 1961);
(c) a chartered accountant as defined in the Chartered Accountants Act, 1949 (38 of 1949);
(d) a company secretary as defined in the Company Secretaries Act, 1980 (56 of
1980); or 20
(e) a cost accountant as defined in the Cost and Works Accountants Act, 1959 (23 of 1959).
Limitation.
395. The provisions of the Limitation Act, 1963 (36 of 1963) will except to the extent provided in this Act apply to all proceedings before the Tribunal.
CHAPTER 93 25
ADMINISTRATION
Duties of the Registrar.
396. (1) The Central Government must appoint a Registrar in consultation with the Presiding Officer to assist the Tribunal’s administrative functions.
(2) The Registrar will be subject to the superintendence and oversight of the Pre-siding Officer in the discharge of his functions under this Act. 30
(3) The administative functions of the Tribunal may be supported by a seperate agency or body corporate approved by the Central Government in consultation with the Presiding Officer pursuant to an agreement.
Duty to develop electronic systems.
397. (1) The Tribunal must develop systems and procedures to ensure that the functions of the Tribunal are discharged through electronic systems. 35
(2) The Tribunal must develop systems to, –
(a) enable submission of documents through electronic means;
(b) schedule hearings of the Tribunal in an efficient manner;
(c) enable recording of evidence through electronic means;
(d) enable parties to present their cases through electronic means; and 40
178 Part XVII: 93. ADMINISTRATION
(e) enable public viewing of proceedings including by way of transmission of hearings through electronic means.
Staff of the Tribunal.
398. (1) The Presiding Officer may in consultation with the Central Government ap-point staff to assist the Tribunal in the effective discharge of its functions.
(2) The Central Government may in consultation with the Presiding Officer
de-5
termine the salaries, allowances and terms and conditions of service of such staff.
Fund of the Tribunal.
399. (1) The Tribunal must constitute a fund, to which the following amounts may be credited –
(a) all fees received by the Tribunal;
10
(b) all funds received by the Tribunal from the Regulators pursuant to section 400; and
(c) all funds provided to the Tribunal by the Central Government;
(2) The fund must be applied for meeting the following expenses, –
(a) the salaries, allowances and other remuneration of Tribunal members, the
15
Registrar and other staff of the Tribunal; and
(b) expenses incurred by the Tribunal for the discharge of its functions.
Finances of the Tribunal.
400. (1) The Tribunal must at the end of each financial year prepare a report containing, –
(a) details of the financial requirements of the Tribunal for the next financial
20
year; and
(b) a payment schedule stipulating the amount of funds that each Regulator must pay to the Tribunal and the timelines for the same.
(2) The Tribunal must forward a copy of the report to the Central Government not later than a month before the beginning of the next financial year and publish
25
the same immediately.
(3) The Central Government must forward the report to the Regulators.
(4) Each Regulator must pay into an account designated for that purpose the amounts stipulated in the report in accordance with the payment schedule.
(5) In exceptional circumstances, the Presiding Officer may request the Central
30
Government to provide funds to meet the financial requirements of the Tri-bunal.
Performance of the Tribunal.
401. (1) The Presiding Officer must, in consultation with the Registrar, develop systems to accurately measure the administrative functioning of the Tribunal.
(2) The Presiding Officer must, in consultation with the Registrar, create targets for
35
measuring the performance of the administrative functioning for each financial year.
(3) The systems and targets must, – (a) promote transparency;
179 Part XVII: 93. ADMINISTRATION
(b) be designed to provide an accurate representation of functioning of the Tribunal;
(c) provide objective methods of measurement, where possible;
(d) provide subjective methods of measurement where objective
measure-ments are not possible; 5
(e) incorporate global best practices in measurement of functioning of tri-bunals and courts; and
(f) consider the requirements of individuals appearing before the Tribunal.
(4) The Presiding Officer must review the systems once every three years to –
(a) incorporate global best practices; 10
(b) update the systems of measurement; and
(c) include new metrics of measure of processes and functions.
Annual report of the Tribunal.
402. (1) The Tribunal must publish an annual report within ninety days from the end of every financial year.
(2) The annual report must contain, – 15
(a) the audited financial statements of the Tribunal;
(b) the results of measurement of the functioning of the Tribunal in accor-dance with section401;
(c) the targets for the following financial year in accordance with section401;
(d) the report under section400(1); and 20
(e) all instances of the Tribunal not disposing the appeal within one hundred and eighty days.
Transparency of the Tribunal.
403. (1) The Tribunal must publish all orders passed by it immediately.
(2) The rules and practice directions governing the proceedings of the Tribunal must contain provisions to ensure that the Tribunal functions in a transparent 25
manner, and may include the requirement to, –
(a) audio-visually record all the proceedings of the Tribunal;
(b) publish the records of the proceedings;
(c) publish such other information as may be necessary.
(3) The Tribunal must maintain a website to – 30
(a) publish all information that the Tribunal is obliged to publish under this Act; and
(b) provide material information about its functions.
(4) All information published under sub-section(3)must be in an easily accessible
and text-searchable format. 35
(5) The Tribunal must review the quality of the website based on international best practices at least once every three years.
(6) The Tribunal must, –
(a) prepare a report containing the findings of the review under sub-section
(5); and 40
(b) publish the report with the annual report for that year.
(7) Any information not published on the website of the Tribunal as per the re-quirements of this section will be presumed to not have been published, for the purposes of this Act.
180 Part XVIII: 93. ADMINISTRATION
PART XVIII
M ISCELLANEOUS
Rebuttable presumptions.
404. All presumptions created under this Act will be rebuttable.
Violations by bodies corporate.
405. (1) Where a violation under this Act has been committed by a body corporate, ev-ery officer of the body corporate who at the time the violation was committed,
5
was in charge of, and was responsible to, the body corporate for the conduct of the business of the body corporate, as well as the body corporate, will be liable for the commission of the violation.
(2) An officer of a body corporate will not be liable to be proceeded against for a violation committed by the body corporate under this Act, unless such violation
10
is, –
(a) shown to have been committed with the consent or connivance of that officer;
(b) shown to have been committed with the knowledge of that officer, at-tributable to such officer due to the internal processes of the body
corpo-15
rate; or
(c) attributable to the gross neglect on the part of the officer.
(3) Any criminal proceedings or enforcement action against either the officer or the body corporate will not bar proceedings against the other.
(4) In this section, “officer” includes director, member of the managing committee,
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chief executive, manager, secretary, individuals in control, and persons who purport to be officers with the knowledge of the body corporate.
Members, officers and employees of all Financial Agencies to be public servants.
406. The members, officers, and employees of all Financial Agencies and the Tribunal, will be deemed, when acting or purporting to act in pursuance of any of the pro-visions of this Act, to be public servants within the meaning of section 21 of the
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Indian Penal Code, 1860 (45 of 1860).
Protection of action taken in good faith.
407. No suit, prosecution or other legal proceedings will lie against the Central Govern-ment or any Financial Agency or their members, officers, employees, for anything which is done, or intended to be done, in good faith done under this Act.
Application of other laws not barred.
408. The provisions of this Act are in addition to, and not in derogation of, the
provi-30
sions of any other law for the time being in force.
Exemption from
409. Nothing contained in any law or enactment in force, in relation to taxation, in- tax.
cluding the Wealth Tax Act, 1957 (27 of 1957) and the Income Tax Act, 1961 (43 of 1961), will make any Financial Agency or the Tribunal liable to pay wealth tax, income tax, service tax, or any other tax or duty with respect to its wealth, income,
35
services, profits or gains.
Liquidation.
410. No Financial Agency will be placed in liquidation save by order of the Central Government, in such manner as it may direct.
181 Part XVIII: 94. TRANSITION PROVISIONS
Prohibition on avoiding this Act.
411. (1) A person must not, either alone or with others, engage in any conduct for the purpose of avoiding or abusing, the provisions of this Act, unless such conduct is justified by a bona fide purpose.
(2) Any person who violates sub-section(1)commits a Class C offence.
Power of Central Government to remove difficulties.
412. (1) If any difficulty arises in giving effect to the provisions of this Act, the Cen- 5
tral Government may, in consultation with the concerned Financial Agency or Tribunal, make provisions that appear to it to be necessary for removing the difficulty, through a notification.
(2) The Central Government must not notify any provision that is inconsistent with
the provisions, intent or purpose of this Act. 10
(3) The power of the Central Government to remove difficulties, as described in sub-section(1)will not extend to the removal of difficulties in the regulations, or bye-laws of any Financial Agency.
(4) The power of the Central Government to issue orders under this section may be exercised at any time prior to the expiry of three years from the notification 15
of the relevant provision.
(5) The Central Government must lay every order made under this section before each House of Parliament, as soon as may be possible, after it is made.
(6) The provisions of section69will apply to every order made under this section, as if such order were a rule made by the Central Government. 20
CHAPTER 94