TMI Blog2023 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ode, any instruction, direction, advisory by the Tribunal, especially when it runs contrary to the statutory rules, is ultravires the Act, and without there being any source of power for issuance of such directions. Thus, wearing of gown is only optional and not mandatory before any courts other than the Supreme Court or the High Court - Further, the power conferred under Rule 51 of the NCLT Rules, is for the purpose of discharging its functions under the Act in accordance with the principles of natural justice and equity and is not an enabling provision to be read along with Section 432 of the Companies Act, 2013, which deals only with right to legal representation, and cannot be meant to confer upon it the power to prescribe the dress code, more so when it is contrary to the Bar Council of India rules. Similarly, the words such other powers used in Rule 16 (f) of the NCLT Rules, 2016 has to be read keeping in mind the later part of the rule dealing with the administrative power of the President as head of the Tribunal, while dealing with the staff, and cannot be stretched to mean to include the power to frame any rule or issue any instruction, in the nature of the one impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Law jurisdiction. Thus, after the constitution of the Tribunal, CLB was dissolved and all the matters pending before the CLB were transferred to the Tribunal. Consequently, the judicial members from legal profession and technical members from other professions like Chartered Accountants, Company Secretaries etc. have been appointed and hence, the Tribunal is a quasi judicial authority administered by judicial and technical members. Above all, as per Section 427 of the Companies Act, 2013, the President, Members, Officers and other employees of the Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. Similarly, the Chairperson, Members, Officers and other employees of the Appellate Tribunal are also deemed to be public servants. (ii) The petitioner as party-in-person further stated that the constitution of the Tribunal / Appellate Tribunal was challenged before this Court in WP No. 2198 of 2003 (Madras Bar Association v. Union of India, (2004) 59 CLA 417) and it went upto the Hon'ble Supreme Court and in Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 96 CLA 222 (SC)], the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion to consider the correctness of an order passed by the Joint Commissioner of Excise, Trivandrum, directing the petitioner therein, an advocate by profession, to appear before him by wearing appropriate robes, else he will not be heard. The Kerala High Court ultimately held that the insistence of a particular dress code by the Joint Commissioner of Excise, Trivandrum is misconceived and uncalled for. The relevant passage of the said decision is profitably quoted below: 7. A reading of the rules framed by the Bar Council of India shows that a black coat of the type mentioned, (with white shirt and white collar, stiff or soft, in cases falling under Rule 1 (b), chapkan, achkan or black sherwani, is essential in the case of male advocates appearing before tribunal and authorities. They should also wear white bands or a black tie. Advocates' gown is not obligatory. Male Advocates are properly robed for appearance before Tribunals and authorities, if they are dressed as above. 8. So far as lady advocates are concerned, they need conform to the general dress regulations prescribed in Rule 2, (read with the proviso regarding Gown, bands and black tie). They need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, imposing dress code, has been withdrawn. However, the order dated 14.11.2017 issued by the second respondent is still in force. Therefore, the petitioner prayed for allowing the writ petition and thereby setting aside the order dated 14.11.2017 passed by the second respondent. 4. Upon considering the pleadings and submissions made by the parties, we deem it fit and appropriate to delve into the issue involved herein. 5. For regulating and streamlining the various activities of the legal practitioners, including a uniform dress code, the Advocates Act was enacted in the year 1961. Under Chapter IV of the Bar Council of India Rules, the form of Dresses or Robes to be worn by Advocates is enumerated and the same is usefully extracted below: Form of dresses or robes to be worn by advocates (Rules under Section 49 (1) (gg) of the Act) 1. Advocates (a) A black buttoned up coat, chapkan, achkan, black sherwani and white badns with Advocates' Gowns. (b) A black open breast coat, white shirt, white collar, stiff or soft, and white bands with Advocates' Gowns In either case wear long trousers (white, black ,striped or grey) Dhoti exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) perform the functions entrusted to the President under these rules and such other powers as may be relevant to carry out his duties as head of the Tribunal while exercising the general superintendence and control over the administrative functions of the Members, Registrar, Secretary and other staff of the Tribunal. Rule 51. 51. Power to regulate the procedure.-The Tribunal may regulate its own procedure in accordance with the rules of natural justice and equity, for the purpose of discharging its functions under the Act. Rule 124. Professional dress for the authorised representatives.- While appearing before the Tribunal, the authorised representatives shall wear the same professional dress as prescribed in their Code of Conduct . 8. In the challenge to the constitutional validity of Part I-B and I-C of the Companies Act, providing for the Constitution of the National Company Law Tribunal and National Company Law Appellate Tribunal, the Hon ble Supreme Court, in Union of India v. Madras Bar Assn., [(2010) 11 SCC 1 : 2010 SCC OnLine SC 608] while explaining the scope of the term Tribunal , held as follows: Difference between courts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is shifted from courts to tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the tribunals should normally have only judicial members. Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, tribunals should have technical members. Indiscriminate appointment of technical members in all tribunals will dilute and adversely affect the independence of the judiciary. (d) The legislature can reorganise the jurisdictions of judicial tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (a standard example is the variation of pecuniary limits of the courts). Similarly while constituting tribunals, the legislature can prescribe the qualifications/eligibility criteria. The same is however subject to judicial review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of the judiciary or the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. 79 . We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided. 20 . Apart from the clear enunciation on legal position to the effect that the NGT is within the purview of Article 226 and 227 jurisdiction of the High Courts, the learned Attorney General on behalf of the Union of India has also made submissions consistent with L. Chandra Kumar [supra] and conceded the legal position. 21 . It can further be noted that in terms of the above ratio in L. Chandra Kumar [supra], the High Courts have been entertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in the negative, against the petitioners. . 31 . The petitioners have also pleaded that instead of appeal to the Supreme Court under Section 22 from the orders passed by the NGT, an appeal mechanism as a matter of right should also be provided before the concerned High Courts. According to them, appeal to the Supreme Court is inadequate and unaffordable and therefore inaccessible. On this aspect it needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute against the decision of a tribunal, the remedy under Article 226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under Section 22 of the NGT Act, is limited to the grounds under Section 100 of the CPC and the Supreme Court does not function as a regular first appellate Court. However, under Article 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, are available for an aggrieved party. Subject to discretion being exercised, the affected litigants can move High Court under Article 226 or 227 and in such cases, a SLP under Article 136 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Council of India rules. Similarly, the words such other powers used in Rule 16 (f) of the NCLT Rules, 2016 has to be read keeping in mind the later part of the rule dealing with the administrative power of the President as head of the Tribunal, while dealing with the staff, and cannot be stretched to mean to include the power to frame any rule or issue any instruction, in the nature of the one impugned, to prescribe the dress code for the advocates. Such instruction, in fact also runs contrary to Rule 124 of the NCLT Rules, which states that the professionals shall follow the dress code prescribed in their code of conduct. Therefore, the impugned proceedings in file No. 25/02/2017 dated 14.11.2017 is without authority and is hence illegal. 13. At this juncture, it was brought to our knowledge that the proceedings dated 27.01.2023 has been issued by the NCLT, by which ,the order impugned herein has been modified, with the effect of superseding the earlier instruction with regard to dress code for advocates, and the present order merely follows the Bar Council of India Rules. The proceedings dated 27.01.2023 is taken on record. However, the impugned order, though withdrawn, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
