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Preparation And Presentation Before Regulators, Authorities & Commercial Tribunals

Preparation And Presentation Before Regulators, Authorities & Commercial Tribunals

Introduction

At the time of cardiac arrest, Cardiopulmonary resuscitation, commonly known as CPR, is an emergency procedure that can help the patient until further measures are taken to restore him to health. Similarly, at the time of presentation before various Authorities, CPR – Communications is Key; Planning is Crucial; Relationship Building – is the advocacy procedure that needs to be adopted if one wants to win a case.

The number of people practicing advocacy before tribunals remain low and repetitive as many are afraid to venture into this arena. However, it is possible to outshine in a tribunal setting, regardless of the jurisdiction, provided the unwavering focus is applied at the time of preparation, presentation, and advocacy before Tribunals and Authorities.

Tribunals have grown in India both in number and authority and their powers, functions, practice, and procedure have become a subject in itself for both applicants/appellants, respondents, and interested learners. Apart from Tribunals, there may be bodies performing quasi-judicial functions that have been created and are administered by the Central Government and they may be falling in categories of Commissions, Boards, or other Authorities.

Related Topic:
Govt. Notifies New Rules to Appointment in The Tribunals

These Tribunals, Commissions, Boards, Authorities provide independent adjudication of disputes and function through prescribed practice and procedure which may vary as per the nature of the function they perform.

Meaning And Role of Tribunals

A preliminary search on the Wikipedia search engine on the internet shows that the term ‘Tribunal‘ is derived from the word ‘tribunes‘, which means ‘Magistrates of the Classical Roman Republic‘. “Tribunal” originally referred to the office of the tribunes, and the term is still sometimes used in this sense in historical writings.

Generally, in most cases, a Tribunal is a quasi-judicial body with a lesser degree of a formality than a Court. The tribunals perform an important role in the judicial mechanism of the country and ease pressure on overburdened courts.

Tribunals are not new entities in India. The Income Tax Appellate Tribunal being the foremost established Tribunal in India dates back to 25th January 1941. However, despite authorizing the establishment of Tribunals, the Constitution of India does not define a ‘tribunal‘. Various Court judgments have tried demarcating the functions of both Court and Tribunal and in the process have tried to bring forth the meaning of each. The dictionary meaning as on the internet of Tribunal is “a body established to settle certain types of dispute”.

The Law Commission of India in its Report 272 dated 27th October 2017, titled ‘Assessment of Statutory Frameworks of Tribunals in India‘ has described ‘Tribunal‘ as an administrative body established for the purpose of discharging quasi-judicial duties.

The definition of ‘Tribunal‘ has been taken up by the courts in various judgments viz. Harinagar Sugar Mills Ltd. vs. Shyam SundarJhunjhunwala – (1962) 2 SCR 339; Kihoto Hollohon vs. Zachillhu – 1992 Supp (2) SCC 651and many others.

The Supreme Court in Union of India v. R.Gandhi, Civil Appeals No.3067 of 2004 with No.3717 of 2005, decided on 11.05.2010, observed and held as under:

The term `Courts’ refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for the administration of justice that is for the exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs, and to adjudicate upon disputes. „Tribunals‟ on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute or to determine controversies arising out of any administrative law. Courts refer to Civil Courts, Criminal Courts, and High Courts. Tribunals can be either private Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution (Administrative Tribunals under Article 323-A and Tribunals for other matters under Article 323-B) or Statutory Tribunals which are created under a statute. [Para 12] [901-E-H; 902-A]

The landmark Madras Bar Association v/s Union of India & Anr judgment of the Supreme Court on 14 May 2015 specifically rejected the contention that transferring judicial function, traditionally performed by the Courts, to the Tribunals offended the basic structure of the Constitution.

The judicial system in India is classified into various levels – at the top is the Supreme Court, followed by the High Courts at the State level, District courts at the District levels, and Lok adalats at the village and Panchayat levels. The Tribunals play a distinct role in this system.

The Law Commission of India in its Report 272 dated 27th October 2017, titled ‘Assessment of Statutory Frameworks of Tribunals in India‘ has recommended that there should be uniformity in the appointment, tenure, and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals. While making the appointments to the Tribunal, independence shall be maintained.

The Tribunals, Appellate Tribunals, and Other Authorities (Conditions of Service) Bill, 2014 which sought to establish uniform conditions of service for the chairpersons and members of 26 tribunals and authorities were introduced in Rajya Sabha on 19th February 2014 and then later withdrawn on 11th April 2017. The Finance Act of 2017 came into effect on 1st April 2017. Before the Finance Act 2017, the Acts that set up a tribunal also contained provisions of qualifications for appointment, the term of office, and removal of its members. The amendments in the Finance Act, 2017 have modified these conditions of service of 19 tribunals that are currently in place. The amendments permit the central government to decide the terms of service including appointments, terms of office, salaries and allowances, and removal of tribunal members through rules. The Act also sought to replace certain Tribunals and transfer their functions to existing Tribunals; thereby it has merged eight tribunals on the ground of functional similarity. These are as follows:

  • The Employees Provident Fund Appellate Tribunal (EPFAT) with The Industrial Tribunal.
  • The Copyright Board with The Intellectual Property Appellate Board. 
  • The Railways Rates Tribunal with The Railways Claims Tribunal. 
  • The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 
  • The National Highways Tribunal (NHT) with The Airport Appellate Tribunal (AAT). 
  • The Cyber Appellate Tribunal and The Airports Economic Regulatory Authority Appellate Tribunal with The Telecom Disputes Settlement and Appellate Tribunal (TDSAT). 
  • The Competition Appellate Tribunal with the National Company Law Appellate Tribunal.

In exercise of the powers conferred by section 184 of the Finance Act, 2017, the Central Government had framed ‘The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These Rules were struck down by the Supreme Court in November 2019. The reframed the Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience, and Other Conditions of Service of Members) Rules, 2020 were notified by the Ministry of Finance on 12-02-2020. These Rules are made in exercise of powers under Section 184 of the Finance Act 2017 and are applicable to the following Tribunals:

1. Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act 1947.

2. Income Tax Appellate Tribunal under the Income Tax Act 1961.

3. Customs, Excise, Service Tax Appellate Tribunal under the Customs Act 1962.

4. Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976.

5. Central Administrative Tribunals under the Administrative Tribunals Act 1985.

6. Railway Claims Tribunal under the Railway Claims Tribunal Act 1987.

7. Securities Appellate Tribunal under the Securities and Exchange Board of India Act 1992.

8. Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.

9. Debts Recovery Appellate Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.

10. Airport Appellate Tribunal under the Airport Authority of India Act 1994.

11.Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act 1997.

12. Appellate Board under the Trade Marks Act 1999.

13. National Company Law Appellate Tribunal under the Companies Act 2013.

14. Authority for Advance Ruling under the Income Tax Act 1961.

15. Film Certification Appellate Tribunal under the Cinematograph Act 1956.

16. National Consumer Dispute Redressal Commission under the Consumer Protection Act 2019.

17. Appellate Tribunal for Electricity under the Electricity Act 2003.

18. Armed Forces Tribunal under the Armed Forces Act 2007.

19. National Green Tribunal under the National Green Tribunal Act 2000.

Constitutional Provisions

The Constitution of India is the longest written constitution of any sovereign country in the world and currently it consists of XXII parts which are divided into Articles numbered up to 395 and 12 schedules. It is the supreme law and all acts and rules derive their power from the Constitution.

The provisions relating to ‘Tribunals‘ are covered in Part XIVA of the Constitution. The provisions viz. Part XIVA was not a part of the original constitution but was inserted in the Constitution vide The Constitution (FortySecond Amendment) Act of 1976.

The Constitution of India through Part XIVA, Articles 323A (Administrative Tribunals), and 323B (Tribunals for other matters) empower the Legislature to set up administrative and other tribunals respectively and describe the powers and functions that may be vested in such tribunals.

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Preparation And Presentation Before Regulators, Authorities & Commercial Tribunals

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Profile photo of CA Rajkumar Adukia CA Rajkumar Adukia

CA (Dr.) Adukia left no stone unturned during his career span expanding to more than 37 years. He is chairman of Meridian Business Consultants Private Limited. The company is involved in providing A to Z services required by any business. CA (Dr.) Adukia is a legendary example of seeking ways to explore new areas of business and profession. He is a pioneer of many areas of the practice which were never thought before by professionals. His mantra is to provide services to clients that help them in building better and sustainable businesses. He is a knowledge seeker and believes that knowledge needs to be ingrained and used for the benefit of society at large. He strongly believes that professionals have to go beyond the traditional areas of practice like audit and direct and indirect taxation. These are the least rewarded areas in comparison to the knowledge and expertise we have as chartered accountants. He feels that one must expand himself to serve better and not settle for less whether in terms of rewards or the various kinds of assignments. Being an adherent follower of the “Science of Getting Rich, he believes the pie gets bigger and bigger so that it can cater to every individual’s needs. We contribute to creating an abundant universe by asking for more riches. And he desires better remuneration for assignments not just for himself but for all his fellow professionals. He achieves this by mentoring the professionals, handholding them through various workshops, webinars, and lectures he conducts for professionals who wish to enter into new areas of practice. He has mentored 1000 professionals for passing the Insolvency Exam and Valuation Exam. Professional Areas of Expertise He has been a well know professional exhibiting expertise and providing services in the following areas:  Taxation  Corporate Advisory & Compliance  Corporate Insolvency& Bankruptcy  Civil And Commercial Litigation  Alternative Dispute Resolution (ADR)  Intellectual Property Rights  Anti-trust & Competition Real Estate  Family Law  Criminal Laws  Labour &Employment Laws  Banking & Finance  Charitable Organizations  Forensic Services  Entertainment, Media & Broadcasting  Pharmaceuticals, Food & Drug  Antidumping, International Trade Law& WTO  Telecommunication  Information Technology  Infrastructure Projects  Insurance Law  Cooperative Sector  Environment Law He represents clients at Debt recovery tribunals and has filed applications under the Insolvency and Bankruptcy Code 2016 for recovery of debts through the National Company Law Tribunal (NCLT). He has also represented clients at various commercial tribunals like The Appellate tribunal under The Prevention of Money Laundering Act 2002, The National Company Law Appellate Tribunal for cases under Companies Act 2013 and the Competition Act 2002, the Telecom Disputes Settlement and Appellate Tribunal for cases under the Information Technology Act 2000. Experience His vast experience includes training and professional services to banks, financial institutions, Corporate, Government Departments, and Regulators and as:  An eminent Speaker and Business Advisor,  An expert on Business laws, cyber laws, cybersecurity, International Forensic Expert  Faculty at Insolvency and Bankruptcy Board of India  Author of more than 300 books on a wide variety of topics ranging from those dealing with Trade, Taxation, Finance, Real Estate, the Insolvency & Bankruptcy Code, Intellectual Property Rights, Banking laws, Emerging technologies like AI and Blockchain to topics relating to personal and professional growth. He is the winner of National Book Honor Awards 2018  He has been conducting seminars and lectures across various countries.  Authority on Banking Laws, Insolvency Laws, Insurance Laws, Intellectual property laws, Indian GAAP, IFRS, and Ind-AS.  Business advisor for various companies on varied subjects  Travelled across the globe for his professional work and knowledge sharing. He has widely travelled three fourth of globe addressing international conferences and seminar on various international issues like Corporate Social Responsibility, Corporate Governance, Business Ethics etc. Education Having graduated from Sydenham College of Commerce & Economics in 1980 as a 5th rank holder at Bombay University and he has also received a Gold Medal for highest marks in Accountancy & Auditing. He cleared the Chartered Accountancy Examination with 1st Rank in Intermediate and 6th Rank in Final. He also secured 3rd Rank in the Final Cost Accountancy Course. He has been awarded the G.P. Kapadia prize for the best student of the year 1981. He also holds a Degree in law, Ph.D. in Corporate Governance in Mutual Funds, MBA, Diploma in IFRS (UK), and Diploma in Labour law and Labour welfare, Diploma in IPR, Diploma in Criminology. He has done Master in Business Finance, a one-year post qualification course by ICAI. He has also done Certificate Courses conducted by ICAI on  Arbitration  Forensic Audit and Fraud prevention  Concurrent Audit Significant Professional Achievements: He is a member of the International Bar Association. The International Bar Association, established in 1947, is the world's leading international organization of legal practitioners, bar associations, and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. He served as President of GST Research foundation, a society registered under Societies Registration Act, 1860. He is the Chairman of Association of Indian Investors, a Section 8 Company wherein its main thrust is to educate the layman about the principles of a safe investment, the complexity of the capital market, changing rules of the market operations, designing and implementing effective Internal Financial Control the framework, the framework on enhancing the Cybersecurity of the organizations and implementation of ISO 27000 framework and provide Corporate Governance Services. He is also Vice President of All India Insolvency Professionals. All India Insolvency professionals is an organization providing services in the field of insolvency and bankruptcy, corporate restructuring, etc. The Organization is currently having 200 professionals all over India as its members. Current& Past Memberships:  International Financial Reporting Standards (IFRS) Foundation SME Group  Insol India National Committee for Regional Affairs.  Membership of the following committees of International Bar Association  Asia Pacific Regional Forum  Forum for Barristers and Advocates  Arbitration Committee  Bar Issues Commission (BIC)  Member of INSOL India  CAG Advisory Committee  Quality Review Board, Government of India Professional Service CA (Dr.). Adukia’s service and contribution to the profession  Chairman of WIRC of ICAI in 1997-98  International Member of Professional Accountants in Business Committee (PAIB) of the International Federation of Accountants (IFAC)from 2001 to 2004  Member of Inspection Panel of Reserve Bank of India  Member of J.J. Irani committee (which drafted Companies Bill 2008)  Member of Secretarial Standards Board of ICSI  Member of Working Group of Competition Commission of India, National Housing Bank, NABARD, RBI, CBI, etc.  Independent Director of Mutual Fund Company and Asset Management Company.  Worked closely with the Ministry of Corporate Affairs on the drafting of various enactments.  Served as Independent Director of SBI Funds Management Private Limited and Bank of India asset management co. ltd  Served as Independent director at ICAI accounting research foundation section 8 company  Actively involved with ICAI as a Central Council Member during the period when the convergence to IFRS was conceptualized in India and has been instrumental in materializing the idea.  Address to Insolvency and Bankruptcy Board of India  Address to Institute of Chartered Accountants of India  Address to Institute of Company Secretaries of India  Address to Institute of Cost Accountants of India  Address to Chamber of Indian Micro Small & Medium Enterprises  Speaker in IIA’s 2013 International Conference in Orlando on Green Audit.  Faculty at Indian Institute of Corporate Affairs for courses on Insolvency Laws and Corporate laws.  Faculty Speaker in Workshop on Commodity Risk Management for Bankers organized by CAFRAL (Centre for Advanced Financial Research and Learning)  Faculty at National Institute of Securities Management (NISM)and Indian Institute of Corporate Affairs (IICA)  Addressed the Program for Principal Inspecting Officers & Inspecting Officers by Reserve Bank of India- Department of Non-Banking Supervision.  Addressed the National apex Chamber of Commerce and State apex Chamber of Commerce including his address to ASSOCHAM, Confederation of Indian Industry (CII), Federation of Indian Chamber of Commerce and Industry (FICCI), and All India Manufacturers Organization (AIMO).  Addressed the CBI officers, officers of Serious Fraud Investigation Office (SFIO), and various State Police Academies.  Addressed the SCOPE- Standing Conference of Public Enterprises which is an apex professional organization representing the Central Government Public Enterprises. It has also some State Enterprises, Banks and other Institutions as its members.  Addressed the National Academy of Audit and Accounts (NAAA) He has been a panel member at the following Arbitral Institutions/Forums:  International Bar Association  Bombay High Court  Indian Council of Arbitration  The International Centre of Alternate Dispute Resolution  The Institute of Chartered Accountants of India  Bombay stock exchange  National stock exchange  Western Region - Ministry of Corporate Affairs, Government of India  South Eastern region - Ministry of Corporate Affairs, Government of India  North Western Region - Ministry of Corporate Affairs, Government of India  India International ADR Association  International and Domestic Arbitration Centre India  ASSOCHAM ICADR  Mumbai Centre for International Arbitration  Main Mediation Centre Maharashtra & Goa  Airports Authority of India (AII)  Bharat Sanchar Nigam Limited (BSNL) Global Life and Business Transformation Guru CA (Dr.) Adukia is a motivational speaker, Growth Coach, and Life and business coach. He has done various Self developments from India and the USA. CA (Dr.) Adukia has done a graduate course from Landmark worldwide which is personal and professional growth, training, and development company focusing on people achieving success and fulfillment. His exposure to advanced programs and introduction to leadership programs has made him the most sought-after trainer in the areas of business development and personal development. He has been a trainer at many corporates which has resulted in positive and permanent shifts in the quality and life of people. He is an adherent follower of “Think and Grow Rich” by Napoleon Hill. He is also trained by the Bob Proctor series on “Thinking into results”. His experience from his international training has been penned down in his various books on self-development. Some of his books on Self-development are 1. Magical Formula for Success 2. Strike Gold 3. Reinvent your Mind 4. Self-Empowerment 5. Genius is Universal 6. How to be super successful professional 7. Hoe to be a super successful person 8. Zooming your business and profession 9. Time management 10. Stress management 11. Goal setting CA (Dr.) Adukia is very passionate about learning new things and believes self-improvement is a permanent process. His zeal is infectious to any person who meets him either for professional growth advice, business growth advice or for personal growth advice. CA (Dr.) Adukia has given solutions to growth for everyone. He has done courses on:  Winner  Time management  Stress management He has mastered programs on:  Siddha Samadhi Yoga  Silva mind control  Alternative therapy  Think and Grow Rich  Art of living  Reiki Awards and Accolades He has been felicitated with awards like  The Jeejeebhoy Cup for proficiency and character,  State Trainer by the Indian Junior Chamber,  “Rajasthan Shree” by Rajasthan Udgosh, a noted Social Organization of Rajasthan and  Several other awards as a successful leader in various fields.  National Book Honors Award 2018 CA (Dr.) Adukia continuously endeavors to help the clients achieve the desired results through customized and innovative solutions that involve focusing on exploring opportunities and leveraging them to enhance the growth and expansion of his clients. Sharing knowledge is enhancing knowledge. CA (Dr.) Adukia encourages the precise energies in research, training, seminars, and books writing in the field, the one has passion.

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