Securities Appellate Tribunal, Mumbai (SAT): The Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) held that Bench constituting the Presiding Officer and Judicial member can proceed to hear and decide the appeals, etc. which are filed before the SAT and non-availability of Technical member is not defective.
In the present matter, a piquant situation arose due to the vacancy of a Technical member in the Securities Appellate Tribunal.
SEBI raised the question of the composition of the Bench of Tribunal hearing the appeals, etc. filed before the tribunal.
SEBI stated that in terms of Section 15L(2)(b) of the Securities and Exchange Board of India Act, 1992, the Bench constituted should include at least one Technical Member and without the said member the appeal should not be heard.
SAT was functioning with a Presiding Officer, a Judicial Member and Technical Member. But since 31st March, 2021, the tribunal was working with Presiding Member and Judicial Member as the Technical Member had demitted the office.
Originally the Tribunal was a one Member Bench as per Section 15L of the SEBI Act, but the same was amended in the year 2002 to form a 3-Member Bench.
“15L. Composition of Securities Appellate Tribunal.
A Securities Appellate Tribunal shall consist of a Presiding Officer and two other members, to be appointed, by notification, by the Central Government:
Provided that the Securities Appellate Tribunal, consisting of one person only, established before the commencement of the Securities and Exchange Board of India (Amendment) Act, 2002, shall continue to exercise the jurisdiction, powers and authority conferred on it by or under this Act or any other law for the time being in force till two other Members are appointed under this section.”
Question to be answered
Whether the vacancy in the office of the Technical Members is fatal to the constitution of the Tribunal?
In Tribunal’s opinion, legislature’s intention has never been to stall or render the Tribunal non-functional in the absence of a Technical Member and therefore, a harmonious construction had to be given.
Coram opined that Tribunal would continue to function even if there was a vacancy in the office of the Presiding Officer. Tribunal will not become non-functional or headless. Hence, if a vacancy of a member occurs whether it is Judicial Member or Technical member and if there is a coram inspite of a vacancy, the Tribunal can proceed and hear the matters.
Rule 5 also provides that in the absence of a Presiding Officer the Government can appoint one of the members to preside over the sitting of the Tribunal, meaning thereby, that even in the event of a vacancy the Tribunal will not become non functional and will continue to discharge its functions from the remaining members.
Can Tribunal’s proceedings be questioned on the basis of any defect in SAT’s constitution?
Section 15R provides that any proceedings taken before the Tribunal cannot be questioned in any manner on the ground of any defect in the constitution of SAT. This provision protects the legality and validity of the orders passed by the Tribunal even if it is found that there was a defect in the constitution of the Tribunal. This provision clearly indicates that Section 15L(2)(b) and its proviso are the only directory in nature and cannot be mandatory.
Upon a harmonious construction of the provisions of Section 15L read with Section 15P, Section 15-PA and Section 15R it would be clear that the Tribunal does not come to a grinding halt whenever there is an absence or vacancy of a Member. When there is no Technical Member, a Bench would have to be constituted by the Presiding Officer from amongst the Members who have been appointed.
Coram expressed that where the Presiding Officer is functional he alongwith the other Member/Members shall conduct the proceedings and where a vacancy occurs in the office of the Presiding Officer, then the senior most Judicial Member shall act as a Presiding Officer till the date on which a new Presiding Officer is appointed.
Recently, in the International Association for Protection of Intellectual Property (India Group) v. Union of India, 2021 SCC OnLine SC 89, decided on 12th February, 2021 Supreme Court held that in the absence of Technical Member the Chairperson can discharge the functions of a Judicial Member or Technical Member of the Bench to which he is appointed and can discharge the functions of a Judicial Member, or as the case may be, of a Technical Member, of any other Bench. The Supreme Court held that in the absence of a Member, the Chairperson may, if the occasion so arises, act as a Technical Member or a Judicial Member.
Tribunal performs judicial functions.
It was elaborated that it is an essential requirement under the SEBI Act that the Presiding Officer is a Judicial Member. A Presiding Officer can never be appointed from a Technical Member. The Technical Member cannot replace a Judicial Member.
Further, the Coram in view of the question of the presence of a technical member stated that a Technical member is an aid to assist the Bench requiring technical expertise on an issue and, thus, it cannot be said that if a Technical Member is not available the Bench comprising of two Judicial Members cannot function.
In view of the Supreme Court decision in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 and upon harmonious construction of the SEBI Act, Tribunal opined that the functioning of the Tribunal presently comprising of a Presiding Officer and a Judicial Member is not defective on account of non-availability of Technical member.
Hence SEBI’s objection in view of the above was rejected.
Tribunal’s Parting words
Can this Tribunal face such crisis of non-functioning due to non-filling up of the vacancies by the Central Government?
Tribunal stated that Central Government should expedite and fill up the vacancy.
A fourth post of Technical Member was created vide notification dated 16th May 2019. No steps have been taken by the Central Government to fill up this vacancy, even though two years have elapsed. Further, the government knew that the only Technical Member was going to retire on 31st March, 2021. Till date, no steps have been taken to fill up the post whereas such steps should have been taken at least a couple of months before the retirement of the Technical Member.
Coram requests the Central Government to fill the vacancies at the earliest along with necessary amendment to solve the discrepancy in the charging section to the proviso under Section 15L(2)(b).
Registrar of this Tribunal is directed to send a certified copy of this order to the Secretary, Ministry of Finance, Department of Economic Affairs, with a request to fill up the vacancies at the earliest and consider making appropriate amendments.
Registrar is also directed to send a certified copy of this order to the Secretary General of the Supreme Court of India with a request to place our order before the Chief Justice of India and, if desired, to treat this order as a PIL and resolve the issue on the judicial side so that the matter is resolved once and for all from the highest Court in India. [Axis Bank Ltd. v. NSE, 2021 SCC OnLine SAT 135, decided on 17-05-2021]
Advocates before the Tribunal:
Mr. Gaurav Joshi, Senior Advocate with Mr. Neville Lashkari, Mr. Chaitanya D. Mehta, Ms. Sonali Aggarwal and Ms. Drishti Gudhaka, Advocates i/b. M/s. Dhruve Liladhar & Co.
Mr. Rafique Dada, Senior Advocate with Mr. Anubhav Ghosh and Mr. Ravishekhar Pandey, Advocates i/b. The Law Point and Mr. Fredun De Vitre, Senior Advocate with Mr. P.N. Modi, Senior Advocate, Mr. Somasekhar Sundaresan and Mr. Suraj Chaudhary, Advocates.