TMI Blog2016 (4) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... s inclusion/noninclusion in the list. Notwithstanding the requirement of the master circular regarding the requirement of compliance with natural justice, the GRC/Identification Committee of the lending bank not being authorised to take evidence cannot be said to discharge functions other than administrative - Having regard to the above, there is no question of holding in favour of representation of the petitioners before the GRC/Identification Committee by an advocate. It cannot be gainsaid that the right of an advocate to practice is not unrestricted and is subject to reasonable restrictions. Petition dismissed. - W.P. No. 3989, 3990 (W) of 2016 - - - Dated:- 15-4-2016 - Dipankar Datta, J. For the petitioners: Mr. Abhrajit Mitra, Mr. Satadip Bhattacharya, Mr. L. Vishal Kumar, Mr. Rajesh Upadhyay, Mr. Aritra Basu, Ms. Soumosree Chatterjee, Mr. Subhadeep Basak, For the respondent: Mr. Anirban Pramanick, Mr. Anindya Lahiri, Ms. Soni Ojha, JUDGMENT 1. In view of the common issues involved in these two writ petitions, the same have been heard together. This Bench proposes to dispose of the same by this common judgment and order. 2. The case pleaded in W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit challenges a document dated 27th November, 2014. According to Mr. Mitra, learned senior advocate for the writ petitioners it is a decision declaring them as willful defaulters, without following the correct procedure. According to the bank represented by Mr. Saha, learned advocate it is just a show cause notice. The submission of Mr. Saha is accepted. The document dated 27th November, 2014 will be taken as a show cause notice. Any alleged decision contained therein will also be taken as an allegation or charge against the petitioners. The petitioners will be at liberty to submit a written defence to this show cause notice, if not already filed and also an additional defence within three weeks from date. The writ petitioners will also be entitled to ask for all documents and details of all facts pleaded in the show cause notice within two weeks from date, which will be provided by the bank within two weeks thereafter. The adjudication should be made following the norms mentioned in clause 3 especially clause 3(i) of the Master Circular on willful defaulters published by the Reserve Bank of India. The petitioner should be given a hearing and the decision should be a reasone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of this master circular, the petitioners were called upon to attend hearing before the Identification Committee. 6. Mr. Mitra, learned senior advocate appearing for the petitioners, contended that the SBI acted illegally and arbitrarily and in a high-handed manner by informing them in advance of the doors of the hearing hall being shut if they are represented by advocates/chartered accountants/consultants not on their pay roll. He contended that with the enforcement of section 30 of the Advocates Act, the right of an advocate to practise cannot be denied and that since an advocate primarily represents a party, an advocate to be engaged by the petitioners to represent them must be allowed audience. In support of his submission, Mr. Mitra referred to various decisions which shall be dealt with at a later stage of this judgement and order. Alternatively, it was argued by Mr. Mitra that the petitioners should be permitted to take the assistance of their chartered accountant for the purpose of placing their case and in the event such permission be declined, the same would result in miscarriage of justice. According to him, inclusion of the name of a party in the list of wilful de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) [Kingfisher Airlines Limited v. Union of India] had the occasion to observe as follows: 24. The GRC of the bank is to hear the appellant before taking a view on the appellant s representation that the bank has wrongly classified it as a wilful defaulter. The committee does not possess any power to take down evidence. Hence, there is no scope for examining and cross-examining any witness. The consequences the appellant is likely to suffer are those specified in the MC. The appellant is a company taking a ₹ 398.22 credit limit from the bank. ********* 29. Here the proceeding is between a lender and a borrower, and a committee of the lender is to hear the borrower. The committee is not to decide any lis between the parties; nor is it to adjudicate any dispute; nor to inquire into any charge and record its findings. It is only to take a view on the appellant s representation against proposal of the bank, based on its records related to the appellant s loan account, to classify the appellant as a wilful defaulter. 30. ***** 31. The evident purpose of the hearing of the borrower is to ensure that the lender does not commit a mistake in identifying and classifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the petitioning company to appoint an advocate to represent it provided an undertaking were given that the hearing of the matter would be concluded in one day. 13. The Delhi High Court in Punjab National Bank (supra) while upholding the order under appeal of the learned single judge disagreed with the views expressed by the Calcutta and the Bombay High Courts and in the process appears to have assigned several reasons. This Bench need not deal with those reasons, which are guided by the personal perception of the learned judges comprising the Bench ~ an impermissible approach to hold in favour of a party ignoring the basic postulate of the rule of law. There can be no doubt that the mind-set and approaches of judges of the High Courts may vary but when it boils down to the question of interpretation of a legal provision and while agreeing that the interpretation of law must keep pace with contemporary needs and challenges, such law cannot be read, interpreted and understood in a manner that would militate against statutory inhibition. It would, however, be necessary to deal with one observation of the Bench relating to representation before the Labour/Industrial Tribunals w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of any person as a witness and which we do not find the GRC to be authorized to. It thus cannot be said that the GRC is legally authorized to take evidence. (Y) The only question which thus remains for consideration to attract the applicability of Section 30 supra is, whether the GRC can be called a Tribunal within the meaning of Clause (ii) of Section 30 of the Advocates Act. (Z) Tribunal is a Latin word meaning a raised platform on which the seats of the Tribunals or Magistrates are placed (refer State of M.P. v. Anshuman Shukla MANU/SC/7678/2008 : (2008) 7 SCC 487). (AA) Article 136 of the Constitution of India, while conferring in the Supreme Court the power to grant special leave to appeal, provides for a special leave to appeal from any judgment, decree, determination, sentence or order passed by any Court or Tribunal. (GG) Seen in this conspectus, the GRC has been constituted by the Master Circular. Such Circulars of the Reserve Bank of India (RBI) have in, ICICI Bank Ltd. v. Official Liquidator of APS Star Industries Ltd. MANU/SC/0782/2010 : (2010) 10 SCC 1 and in Peerless General Finance Investment Co. Limited v. Reserve Bank of India MANU/SC/0685/19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be entitled as of right to practise throughout the territories to which this Act extends,- (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. 17. That all Courts are tribunals but not the other way round is too well-settled for any authority to be cited. However if any authority is required, one may usefully refer to the Constitution Bench decisions reported in 1992 Supp (2) SCC 651 [Kihoto Hollohan v. Zachillhu] and (2010) 11 SCC 1 [Union of India v. Madras Bar Association]. Having regard to such Constitution Bench decisions and also on the plain reading and understanding of section 30, courts in clause (i) would not include a tribunal particularly when tribunal is separately used in clause (ii). In the considered view of this Bench, neither grammar nor convenience compels the construction adopted by the learned judges in Punjab National Bank (supra) [to the effect that the phrase legally authorised to take evidence in clause (ii) qualifies pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consideration questions of policy. It is not unlikely that even in this process of reaching administrative decisions, the administrative bodies of 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 decisions 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 decisions pronounced by Courts. 9. *** 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. Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as Parliament prescribes. It is clear that the scheme of Sections 71 to 80 which form part of Chapter III of the said Constitution, is that the judicial power of the State can be conferred only on courts recognised by the provisions of the said Chapter. In other words, it is not competent to the legislature in Australia to confer judicial power properly so-called on any body or authority other than or apart from the courts recognised by Chapter III and so, the use of the expression judicial power or its conferment in regard to tribunals which are not courts properly so-called, would under the Australian Constitution be wholly inappropriate. If any tribunals other than courts are established and power is given to them to deal with and decide special disputes between the parties, the power which such tribunals would exercise cannot be described as judicial power, but would have to be called quasi-judicial power. *** 33. The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercises its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble R.S. Bachawat, J. (as His Lordship then was). It would be profitable to quote the relevant portion of His Lordship s view on the point: 44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is really a quasi-judicial act, and, therefore, an application for a writ of certiorari lies in respect of such order under Article 226 of the Constitution. Similarly, in Thomas Dana v. State of Punjab, AIR 1959 SC 375 this Court has observed that the Collector and other Officers in the hierarchy mentioned by the Sea Customs Act may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way; even so, the Act does not contemplate that in doing so, the said authorities are functioning as a Court. 10 The result, therefore, is that it is no longer open to doubt that the Customs Officer is not a Court or Tribunal though in adjudicating upon matters under S. 167 of the Act he has to act in a judicial manner 24. The other decision is Kihoto Hollohan (supra), wherein it was observed : 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. *** 25. Reference in this connection may also be made to the decision of a Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses an existing dispute between two or more parties and involves (1) and (2) referred to above, but does not necessarily involve (3) and never involves (4), since the place of (4) is in fact taken by administrative action, the character of which is determined by the Minister's free choice. 27. The ruling of the Supreme Court in its decision reported in AIR 1973 SC 303 [Union of India v. K.P. Joseph] that the principle of audi alteram partem applies even in respect of an administrative order which confers right and imposes duties, cannot also be ignored. What logically follows is that merely because parties are heard and evidence produced by them considered prior to an order being passed by an administrative authority does not necessarily make his order a quasi-judicial order. It remains to be an administrative order with the authority passing the order being under an obligation to discharge functions as if it were a quasi-judicial authority. 28. Insofar as courts are concerned, there appears to be no problem. It is only in respect of the tribunals and other statutory authorities that an enquiry is needed to come to a conclusion as to whether the judicial power of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an administrative decision. Such proceeding does not assume the character of a proceeding before a tribunal, where the adjudicator appointed to decide rights of parties has to proceed without bias and predilection, and maintain absolute fairness and impartiality. If the reasoning in Punjab National Bank (supra) were to be accepted, every statutory authority duty bound in terms of statutory provisions to decide rights and obligations of citizens quasi-judicially before taking an administrative action would have to be regarded as tribunal , for eg. an authority acting under statutory provisions to cancel licenses/permits, an authority authorized to determine tax liabilities, an authority empowered to take disciplinary action against its employee on a finding of misconduct arrived at in pursuance of domestic enquiry, etc. If such an authority were regarded as a tribunal , it would stand to reason that its decision could be made amenable to the jurisdiction of the High Courts under Article 227 or of the Supreme Court under Article 136 of the Constitution. The position in law obviously is not so, since the GRC/Identification Committee does not decide any lis. As the GRC/Identifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the extracted passages from the decision in P. N. Sharma (supra) in the proper perspective, this Bench has no hesitation to hold that the same is unworthy of being relied upon and cannot be pressed into service by Mr. Mitra to urge this Bench to revisit its own decision. 33. It would not be irrelevant to notice at this stage the decisions relied on by Mr. Pramanick and the proposition of law laid down therein based on consideration of previous decisions of the Supreme Court on the point of representation of a delinquent employee in a domestic enquiry by a legal practitioner. A sentence from the decision in K.V. Rama Reddy (supra) summarises the legal position and is extracted below: 7. The law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation. *** 34. Harsh it is, no doubt, for an employee facing domestic enquiry. More often than not, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity to defend himself, on his request, was kept open. This decision, therefore, has no application on facts and in the circumstances. 38. The decision in J. K. Aggarwal (supra) had been considered by this Bench while deciding Kingfisher Airlines Limited (supra). There cannot be any dispute with regard to the proposition of law laid down therein. However in the present case, there is no evidence which is worthy of reliance that any member of the GRC/Identification Committee is a legally trained person. Law is well-settled that when a point of law is required to be substantiated by facts, the party raising the point must plead and prove such facts by evidence which must appear from the writ petition, and that if such facts are not pleaded or the evidence in support of such fact is not annexed to the writ petition, the Court shall not entertain the point. Reference in this connection may be made to the decision reported in (1988) 4 SCC 534 [Bharat Singh v. State of Haryana]. It is the duty of the petitioners to show by annexing relevant evidence to the writ petition that members comprising the GRC/Identification Committee are legally trained persons. That having not been shown, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined for the authority to be regarded as quasi-judicial and paragraphs 20 to 25 and 27 to 29 have been referred to in this connection. It would appear from paragraph 20 of the decision that whether or not the Election Commission in exercise of its powers under section 29-A of the Representation of People Act, 1951 exercises administrative or quasi-judicial powers was the question that fell for consideration. Paragraphs on which reliance have been placed by Mr. Mitra (20 to 25 and 27 to 29) must necessarily be read together with paragraph 26 reading as follows: 26. Coming to the second argument of learned counsel for the respondents, it is true that mere presence of one or two attributes of quasi-judicial authority would not make an administrative act as a quasijudicial act. In some case, an administrative authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be a quasi-judicial act. It is a different thing that in some cases, fair play may demand affording of an opportunity to the claimant whose right is going to be affected by the act of the administrative authority, still such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate to practice is not unrestricted and is subject to reasonable restrictions. 44. Apart from the discussions above, there is one other point which is a hurdle that the petitioners have not been able to clear. Hearing was sought to be afforded to the petitioners in compliance with the order of the coordinate Bench dated February 17, 2015. By that date, the up-dated master circular had come into existence which required the Identification Committee to consider the point of identification of a defaulting borrower as a wilful defaulter. Such up-dated master circular provides that a hearing may be afforded to the party proceeded against if the Identification Committee considers it necessary. The master circular does not refer to representation by an advocate. In the absence of any such enabling provision, clause (iii) of section 30 would stand in the way and not permit a representation by an advocate as of right. In proceedings before the GRC/Identification Committee if at all the petitioners had the right of being represented by their advocates and sought enforcement thereof, they ought to have urged the point before the coordinate Bench on February 17, 2015 when their earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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