TMI Blog2015 (9) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... s an admitted position that the post of a Judicial Member under Respondent No.3 is still lying vacant and that the impugned show cause notice was issued and the order under challenge passed in the absence of such a Member. Apart from what have been observed earlier, in a proceeding of the present kind, where orders were passed ex parte by the Adjudicating Authority in the absence of the Petitioner- University, it would have been essential for a Judicial Member to be part of the Bench considering the nature of the lis before it to ensure that the orders are passed in satisfaction of all the principles relevant and acceptable in law. The Petitioner-University, apart from showing technical flaws in the constitution of the Bench, concededly has been unable to place anything before this Court to indicate that they have been prejudiced in any manner. It is also conceded that the Petitioner- University has not yet responded to the show cause notice. It is of the considered opinion that it would be appropriate for the Petitioner-University to approach the Adjudicating Authority first and place all his grievances before it. In order to allay the apprehensions expressed by the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niversity immense hardship firstly, because the Petitioner-University was deprived of an opportunity of hearing and secondly, that the order having been passed ex parte was de hors judicial consideration as the Bench which passed the order did not have a Judicial Member. 3. At the time of arguments, Mr. Shakeel Ahmed, Learned Counsel for the Petitioner-University, re-emphasised the aforesaid proposition and urged that such was the intention of the Legislature can be clearly made out from Sub-Sections (2) and (3) of Section 6 of the PMLA. On this, he would refer to L. Chandra Kumar vs. Union of India and Others : (1997) 3 SCC 261 ; Union of India vs. R. Gandhi, President, Madras Bar Association : (2010) 11 SCC 1 and Tamil Nadu Generation and Distribution Corporation Limited vs. PPN Power Generating Company Private Limited : (2014) 11 SCC 53 . 4. It was the submission of Mr. Ahmed that Clause (b) of Sub-Section (5) of Section 6 read conjointly with Sub-Section (3) of Section 6 of the PMLA, would necessarily require every Bench constituted should have one Member who is a Judicial Member. He submits that presently the post of the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity conditions for persons to be appointed as the Members of the Adjudicating Authority. We may reproduce below Sub- Sections (1), (2) and (3) and Clauses (a) and (b) of Sub-Section (5) of Section 6 of the PMLA- 6. Adjudicating Authorities, composition, powers, etc .-(1) The Central Government shall, by notification, appoint [an Adjudicating Authority] to exercise jurisdiction, powers and authority conferred by or under this Act. (2) An Adjudicating Authority shall consist of a Chairperson and two other Members: Provided that one Member each shall be a person having experience in the field of law, administration, finance or accountancy. (3) A person shall, however, not be qualified for appointment as Member of an Adjudicating Authority,- (a) in the field of law, unless he- (i) is qualified for appointment as District Judge; or (ii) has been a member of the Indian Legal Service and has held a post in Grade I of that service; (b) in the field of finance, accountancy or administration unless he possesses such qualifications, as may be prescribed. (5) Subject to the provisions of this Act,- (a) the jurisdiction of the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihoto Hollohan (supra) relied upon to arrive at the above finding is found reproduced in paragraph 58 of the Tamil Nadu Generation and Distribution Corporation Limited (supra) which we may also reproduce below:- 58. Again in para 99, it is observed as follows: ( Kihoto Hollohan case , SCC p.707) 99 . Where there is a lis-an affirmation by one party and denial by another-and the dispute necessarily involves 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. In Associated Cement Companies Ltd. v. P.N. Sharma this Court said: (AIR p.1606, para 33 : SCR pp. 386-87) 33 ... The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule 6(6) is a part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Judicial Member to be part of the Bench considering the nature of the lis before it to ensure that the orders are passed in satisfaction of all the principles relevant and acceptable in law. Prima facie , therefore, I am of the view that the order does not appear to pass the muster of the law laid down in Tamil Nadu Generation and Distribution Corporation Limited (supra). 15. Having observed as above, I am, however, not inclined to quash the proceedings at this stage for the reasons that follow hereafter. 16. The Petitioner-University, apart from showing technical flaws in the constitution of the Bench, concededly has been unable to place anything before this Court to indicate that they have been prejudiced in any manner. It is also conceded that the Petitioner- University has not yet responded to the show cause notice. Under such circumstances, I am of the considered opinion that it would be appropriate for the Petitioner-University to approach the Adjudicating Authority first and place all his grievances before it. 17. However, in order to allay the apprehensions expressed by the Petitioner-University, it would be sufficient to direct the Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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