In the present paper it is attempted to discuss the enforcement mechanisms of the administrative tribunals in the country and as examples some important tribunals are taken: which are as follows:

1.      Central Administrative Tribunals constituted under the Administrative Tribunals Act, 1985;

2.      National Green Tribunal constituted under the National Green Tribunal Act, 2010;

3.      National Tax Tribunal constituted under the National Tax Tribunal Act, 2005;

4.      Industrial Tribunals, Tribunal, Labour Courts etc. constituted under the Industrial Disputes Act, 1947;

5.      Competition Commission constituted under the Competition Act, 2002;

6.      Railway Claims Tribunals constituted under the Railway Claims Tribunal Act, 1987.

CENTRAL ADMINISTRATIVE TRIBUNALS

Central Administrative Tribunals, hereinafter referred to as CAT, is constituted under sub-section (1) of section 4 of the Administrative Tribunals Act, 1985. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provides for the powers or the teeth to CAT.

Power to punish for contempt: “Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act, 1971.[1]

Procedure and powers of Tribunals (CAT) :—

“(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.

(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:—

(a)    summoning and enforcing the attendance of any person and examining him on oath;

(b)    requiring the discovery and production of documents;

(c)    receiving evidence on affidavits;

(d)    subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(e)    issuing commissions for the examination of witness or documents;

(f)     reviewing its decisions;

(g)    dismissing a representation for default or deciding it ex parte;

(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and

(i) any other matter which may be prescribed by the Central Government.”[2]

Proceedings before a Tribunal to be judicial proceedings:--“All proceedings before a Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code.”[3]

Members and staff of Tribunal to be public servants.—The Chairman and other Members and the officers and other employees provided under section 13 to a Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.”[4]

Protection of action taken in good faith.—“No suit, prosecution or other legal proceeding shall lie against the Central or State Government or against the Chairman, or other Member of any Central or Joint or State Administrative Tribunal, or any other person authorised by such Chairman, or other Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.”[5]

NATIONAL GREEN TRIBUNAL

National Green Tribunal, hereinafter referred to as NGT, is constituted under section 3 of the National Green Tribunal Act, 2010. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provide for the powers or the teeth to the NGT.

Procedure and powers of Tribunal (NGT). –

“1.     The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.

2.     Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.

3.     The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.

4.     The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:-

a.     summoning and enforcing the attendance of any person and examining him on oath;

b.    requiring the discovery and production of documents;

c.     receiving evidence on affidavits;

d.    subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;

e.     issuing commissions for the examination of witnesses or documents;

f.     reviewing its decision;

g.    dismissing an application for default or deciding it ex parte;

h.     setting aside any order of dismissal of any application for default or any order passed by it ex parte;

i.      pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;

j.      pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;

k.     any other matter which may be prescribed.

5.     All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.”[6]

Execution of award or order or decision of Tribunal (NGT). –

“1.     An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.

2.     Notwithstanding anything contained in sub-section (1), the Tribunal may transmit any order or award made by it to a civil court having local jurisdiction and such civil court shall execute the order or award as if it were a decree made by that court.

3.     Where the person responsible, for death of, or injury to any person or damage to any property and environment, against whom the award or order is made by the Tribunal, fails to make the payment or deposit the amount as directed by the Tribunal within the period so specified in the award or order, such amount, without prejudice to the filing of complaint for prosecution for an offence under this Act or any other law for the time being in force, shall be recoverable from the aforesaid person as arrears of land revenue or of public demand.”[7]

Penalty for failure to comply with orders of Tribunal. –

“1.     Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention:

Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.

2.     Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code.”[8]

Cognizance of offences. –

“1.     No court shall take cognizance of any offence under this Act except on a complaint made by-

a.     the Central Government or any authority or officer authorised in this behalf by that Government; or

b.    any person who has given notice of not less than sixty days in such manner as may be prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

2.     No court inferior to that of a Metropolitan Magistrate or, a Judicial Magistrate of the first class shall try any offence punishable under this Act.”[9]

Members and staff of Tribunal to be public servants. –

“The Chairperson, the Judicial and Expert 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.”[10]

Protection of action taken in good faith. –

“1.     No suit or other legal proceeding shall lie against the employees of the Central Government or a State Government or any statutory authority, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.

2.     No suit, prosecution or other legal proceeding shall lie against the Chairperson or, Judicial Member or Expert Member of the Tribunal or any other person authorised by the Chairperson or Judicial Member or the Expert Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.”[11]

NATIONAL TAX TRIBUNAL

National Tax Tribunal, hereinafter referred to as NTT, is constituted under section 3 of the National Tax Tribunal Act, 2005. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provides for the powers or the teeth to NTT.

Procedure and powers of NTT.—

“(1) The NTT shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.

(2) Subject to the other provisions of this Act, the NTT shall have powers to regulate its own procedure.

(3) The NTT shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908  while trying a suit, in respect of the following matters, namely:—

(a) requiring the discovery and production of books of account and other documents;

(b) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or a copy of such record or document, from any office;

(c) dismissing an appeal for default or deciding it, ex parte;

(d) setting aside any order of dismissal of any appeal for default or any order passed by it, ex parte;

(e) rectifying any mistake or error apparent on the face of record; and

(f) any other matter which may be prescribed.

(4) All proceedings before the NTT shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code and the NTT shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.”[12]

 Power to punish for contempt.—

“The NTT shall have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as the High Court has and may exercise such power or authority, for this purpose under the provisions of the Contempt of Courts Act, 1971 (70 of 1971), which shall have effect subject to the modification that—

(a) any reference therein to a High Court shall be construed as including a reference to the NTT;

(b) any reference to the Advocate General in section 15 of the said Act shall be construed as a reference to such law officer as the Central Government may specify in this behalf:

Provided that such matters shall be heard by a Special Bench consisting of five Members constituted by the Chairperson.”[13]

 Members, etc., to be public servants.—

“The Chairperson, Members and other officers and employees of the NTT shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.”[14]

Protection of action taken in good faith.—

“No suit, prosecution or other legal proceedings shall lie against the NTT or its Chairperson, Member, officer or other employee in the discharge of any function for any loss or damage caused or likely to be caused by any act which is, in good faith, done or intended to be done in the discharge of any function under this Act.”[15]

INDUSTRIAL TRIBUNALS, TRIBUNAL, LABOUR COURTS

National Tribunal is a National Industrial Tribunal constituted under section 7B of the Industrial Disputes Act, 1947 (hereinafter referred to as IDA). Tribunal is a Industrial Tribunal constituted under section 7A of the IDA. Labour Court is constituted under section 7 of the IDA. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provides for the powers or the teeth to NTT.

Procedure and powers of conciliation officers, Boards, Courts and Tribunals.

“(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.]

(2) A conciliation officer or a member of a Board, 4*[or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal] (3) Every Board, Court, 1*[Labour Court, Tribunal and National Tribunal] shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:--

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commissions for the examination of witnesses;

(d) in respect of such other matters as may be prescribed;

and every inquiry or investigation by a Board, Court, 2*[Labour Court,

Tribunal or National Tribunal], shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).

(6) All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

(7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all

necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue.]

(8) Every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 345,346 and 348 of the Code of Criminal Procedure, 1973.”[16]

Protection of action taken under the Act.

“Protection of action taken under the Act.- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made there under.”[17]

COMPETITION COMMISSION OF INDIA

Competition Commission of India is constituted under section 7 of the Competition Act, 2002. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provides for the powers or the teeth to CAT.

Power of Commission to regulate its own procedure

“(1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure.

(2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses or documents;

(e) requisitioning, subject to the provisions of sections 123 and 124of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office.

(3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary to assist the Commission in the conduct of any inquiry by it.

(4) The Commission may direct any person:

(a) to produce before the Director General or the Secretary or an officer authorized by it, such books, or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;

(b) to furnish to the Director General or the Secretary or any other officer authorized by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.”[18]

Execution of orders of Commission imposing monetary penalty

“(1) If a person fails to pay any monetary penalty imposed on him under this Act, the Commission shall proceed to recover such penalty, in such manner as may be specified by the regulations.

(2) In a case where the Commission is of the opinion that it would be expedient to recover the penalty imposed under this Act in accordance with the provisions of the Income-tax Act, 1961 (43 of 1961), it may make a reference to this effect to the concerned income-tax authority under that Act for recovery of the penalty as tax due under the said Act.

(3) Where a reference has been made by the Commission under sub-section(2) for recovery of penalty, the person upon whom the penalty has been imposed shall be deemed to be the assessee in default under the Income Tax Act, 1961 (43 of 1961) and the provisions contained in sections 221 to227, 228A, 229, 231 and 232 of the said Act and the Second Schedule to that Act and any rules made there under shall, in so far as may be, apply as if the said provisions were the provisions of this Act and referred to sums by way of penalty imposed under this Act instead of to income- tax and sums imposed by way of penalty, fine, and interest under the Income–tax Act, 1961 (43 of 1961) and to the Commission instead of the Assessing Officer.”[19]

RAILWAY CLAIMS TRIBUNALS

Railway Claims Tribunals are constituted under section 3 of the Railway Claims Tribunals Act, 1987. From the perspective of enforcement mechanisms provided in the Act, the following are the provisions which provides for the powers or the teeth to CAT.

 Procedure and powers of Claims Tribunal.—

“(1) The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry.

(2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced.

(3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(i) any other matter which may be prescribed.”[20]

 Proceedings before Claims Tribunal to be judicial proceedings.—

"All proceedings before the Claims Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code.”[21]

 Members and staff of Claims Tribunal to be public servants.—

“The Chairman, Vice-Chairman and other Members and the officers and other employees of the Claims Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.”[22]

Protection of action taken in good faith.—

“No suit, prosecution or other legal proceeding shall lie against the Central Government or against the Chairman, Vice-Chairman or other Member, or any other person authorised by the Chairman, Vice-Chairman or other Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.”[23]

Enforcement Mechanism: How it works

The enforcement mechanism contemplated by the statutes under which the Tribunals are constituted could be twosome, firstly, conferment with the power to punish for the contempt, secondly, conferment of proceedings undertaken by them with the designation of ‘Judicial Proceedings’ as governed by the Indian Penal Code and the Code of Criminal Procedure.

Power to punish for Contempt

Some of the Tribunals in the country are conferred with the power to punish for its contempt. This power is quite a crucial power and the respective Tribunals shall proceed with the procedure as per the provisions of the Contempt of Courts Act, 1971 in the same way a High Courts proceeds with. Such a Tribunal is itself competent to punish a person committing its contempt. The reason to do so is that these Tribunals are a High Court substitute body and not one subject to, or under the superintendence of, the High Court under Articles 226 and 227.

Proceedings before the Tribunals are deemed as ‘Judicial Proceedings’

The term ‘Judicial Proceedings’ , though is not defined in the IPC, but its meaning could be culled out from the provisions of section 193 of the IPC. Explanation 3 to Section 193 IPC provides for the following:

“An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of judicial proceeding, though that investigation may not take place before a Court of Justice.”[24]

Another aspect is that all the members and officials constituting any Tribunals in the Country are deemed to be ‘public servant’ as defined under section 21 of the IPC. Here public servant could be looked from two perspectives, firstly, public servant as such, secondly, public servant either undertaking or deemed to be undertaking any ‘judicial proceedings’. It is in this second sense that the members constituting the Tribunals are to be seen.

Offences pertaining to the ‘public servant’ as such are dealt with by Chapters IX and X of the IPC which provides for ‘offences by or relating to Public Servants’ and ‘offences of contempts of the lawful authority of public servants’ respectively; whereas when ‘public servant undertakes or deemed to be undertaking, as in the case of the Tribunals, than Chapter XI of the IPC applies which provides for ‘offence of false evidence and offences against public justice’. The prosecution for offences pertaining to the ‘judicial proceedings’ are governed by clause (b) of sub-section (1) of section 195 of the CrPC, which provides that, the Court shall not take cognizance of such offences except upon the complaint in writing made by the concerned Tribunal or its authorised officer.

There is some overlapping between section 228 of the IPC and ‘contempt of court’ punishable under the Contempt of Courts Act. The Supreme Court has ruled that if in its true nature and effect, the act complained of really amounts to ‘scandalising the court’, then it would amount to contempt of court triable by the High Court under the Contempt of Courts Act. But if the act complained of does not amount to contempt of court but falls under section 228, IPC, then it is not triable by the High Court but by a lower criminal court.[25]

The power of a court to punish a person for its contempt is an important instrument in the hands of the Court to ensure that its orders are enforced by the Administration and other parties concerned. Similarly, power to punish for contempt of adjudicatory bodies is necessary to make them effective instruments of dispute settlement. Without such power there remains the possibility that their orders may not be complied with.[26]

PARMINDER SINGH

Advocate

Tis Hazari Courts,

DELHI - 110054