M.L. Chauhan, Member (J):
1. Applicant, while working as Regional Director, Ministry of Corporate Affairs, Kolkata, applied for the post of Member (Technical), Company Law Board (CLB), pursuant to the circular dated 30.06.2009 for filling up the posts of Members (Judicial) and Member (Technical) in the CLB. Subsequently, applicant received a letter dated 09.10.2009, whereby he was asked to convey his willingness immediately for appointment to the post of Member (Technical) in the CLB, if selected, and the applicant conveyed his willingness on the same day. Applicant received offer of appointment as Member (Technical) in the CLB on 18.12.2009 vide letter dated 18.12.2009, whereby he was informed that he has been appointed as Member (Technical) in CLB in the pay scale of Rs.67000-79000/- till the age of 62 years or till the winding up of the Company Law Board and the National Company Law Board Tribunal is constituted/operationalised or until further orders, whichever is the earliest. It was further stipulated in the said order that appointment to the post of Member (Technical), CLB and other terms and conditions shall be governed by the provisions of the Companies Act, 1956 and Company Law Board (Qualification, Experience and other Conditions of Service of Members) Rules, 1993 as amended from time to time. Attention of the applicant was also drawn to Rule 3A of the Company Law Board (Qualification, Experience and other Conditions of Service of Members), Rules 1993 as amended from time to time, according to which the employees of the Central Government on their selection as Member shall have to retire from their service before joining as Members of the CLB. The applicant was asked to convey his offer of acceptance immediately and in any case within two weeks from the date of issue of the offer of appointment. A copy of the letter of offer of appointment has been placed on record as Annexure A-8. Applicant vide letter dated 01.01.2010 (Annexure A-9) conveyed his conditional acceptance to the offer of acceptance as Member (Technical), CLB with a request that his lien on the existing post may be kept by making suitable amendments in the rules by deleting Rule 3A and 3B of the said Rules. However, the request of the applicant was rejected vide letter dated 13.01.2010 (Annexure A-10) in terms of the provisions contained in Rule 3A of the CLB, which provides that the employees on their selection as Members shall have to retire from their service before joining as Members of the Company Law Board and the applicant was asked to seek retirement from Government service and convey his decision to join the post of Member (Technical) CLB, as per the statutory provisions, latest by 20.01.2010. The fact remains that despite the aforesaid letter dated 13.01.2010 applicant neither sought voluntary retirement nor gave his unqualified acceptance for the aforesaid post but continued to make repeated representations on one pretext or the other and ultimately a show cause notice dated 30.04.2010 (Annexure A-19) was issued to the applicant as to why offer of appointment as Member (Technical) CLB should not be cancelled and he should not be debarred for appointment in all Autonomous, Statutory and Regulatory Bodies for a period of 03 years in terms of OM No.27/2/2009-EO(SM.II) dated 16.07.2009 of Department of Personnel and Training (DoPT). Applicant filed reply to the show cause notice on 12.05.2011. However, the respondents vide impugned order dated 24.09.2010 (Annexure A-1) cancelled the appointment of the applicant as Member (Technical), CLB and debarred him for 03 years for consideration for appointment in all autonomous/statutory bodies. It is this order, which is under challenge before this Tribunal.
2. Notice of this Application was given to the respondents, who have filed their reply and one of the objections raised by them in the reply-affidavit is that this Tribunal has got no jurisdiction to entertain the matter.
3. In order to decide the preliminary objection taken by the respondents regarding maintainability of this OA, we have heard learned counsel of the parties. Learned counsel of applicant has argued that since the grievance is regarding recruitment to the post of Member (Technical) CLB, which is a civil post and the applicant also belongs to a civil service under the Union viz. Indian Corporate Law Service, this Tribunal has got jurisdiction power and authority to decide the OA.
4. On the contrary, learned counsel of respondents submitted that CLB has not been notified under Section 14 of the Administrative Tribunals Act, 1985 till date and hence the present OA cannot be entertained by this Tribunal.
5. In order to decide the matter in controversy, let us consider the relevant provisions of the Administrative Tribunals Act, 1985 as well as the relevant provisions of the Companies Act, 1956, under which the CLB was constituted and Regulations/Rules framed regarding conditions of service of the members. It cannot be disputed that CLB is creation of a Statute, i.e., Companies Act, 1956 and was established by the Central Government in exercise of the powers conferred by sub-sections (1), (2) and (3) of Section 10E of the Companies Act, 1956 with effect from the forenoon of 31st May, 1991 vide notification No. S.O. 364 (E) dated 31st May, 1991. It may be stated that the CLB was constituted/established to exercise quasi-judicial functions effectively and independently, which matters were previously dealt with and managed by the Executive Authority of the Central Government. At this stage, it will be relevant to quote Section 10E of the Companies Act, 1956, which deals with constitution of Board of Company Law Administration and thus reads:
“10E. Constitution of Board of Company Law Administration.”
“(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall by notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.
(1A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it, by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it by the Central Government by notification in the Official Gazette under the provisions of this Act or that other law.
(2) The Company Law Board shall consist of such number of members, not exceeding [nine] as the Central Government deems fit, to be appointed by that Government by notification in the Official Gazette.
Provided that the Central Government may, by notification in the Official Gazette, continue the appointment of the chairman or any other member of the Company Law Board functioning as such immediately before the commencement of the Companies (Amendment) Act, 1988, as the chairman or any other member of the Company Law Board, after such commencement for such period not exceeding three years as may be specified in the notification.
(2A) The members of the Company Law Board shall possess such qualifications and experience as may be prescribed.
(3) One of the members shall be appointed by the Central Government to be the chairman of the Company Law Board.
(4) No act done by the Company Law Board shall be called in question on the ground only of any defect in the constitution of, or the existence of any vacancy in the Company Law Board.
(4A) omitted
[4B] The Board may, by order in writing, form one or more Benches from among its members and authorize each such Bench to exercise and discharge such of the Board’s powers and functions as ay be specified in the order, and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.
(4C) Every Bench referred to in sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) discovery and inspection of documents or other material objects producible as evidence;
(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;
(c) compelling the production of documents or other material objects producible as evidence and impu8nding the same;
(d) examining witnesses on oath;
(e) granting adjournments;
(f) reception of evidence on affidavits.
(4D) Every Bench shall be deemed to be a civil court for the purposes of section 195 and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and for the purpose of section 196 of that Code.
(5) Without prejudice to the provisions of sub-sections (4C) and (4D), the Company Law Board shall in the exercise of its powers and the discharge of its functions under this Act or any other law be guided by the principles of natural justice and shall act in its discretion.
(6) Subject to the foregoing provisions of this section, the Company Law Board shall have power to regulate its own procedure.”
6. At this stage, it will also be useful to quote Section 642 of the Companies Act, 1956, which contains provisions regarding power of Central Government to make rules and thus reads:
“642. Power of Central Government to make rules.
(1) In addition to the powers conferred by section 641, the Central Government may, by notification in the Official Gazette, make rules-
(a) for all or any of the matters which by this Act are to be, or may be, prescribed by the Central Government; and
(b) generally to carry out the purposes of this Act.
(2) Any rule made under sub-section (1) may provide that a contravention thereof shall be punishable with fine which may extend to 1[five thousand rupees] and where the contravention is a continuing one, with a further fine which may extend to 2[five hundred rupees] for every day after the first during which such contravention continues.
(3) Every rule made by the Central Government under sub-section (1) shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be 4[comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid,] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
7. At this stage, it will also be useful to quote the relevant portion of the Companies Law Board (Qualifications, Experience and other Conditions of Service of Members) Rules, 1993, which rules have been framed in exercise of the powers conferred by sub section (2A) of Section 10B read with Companies Act, 1956, as notified on 28.04.1993, which has been placed on record as Annexure A-7. Rule 2 (c) defines ‘Member’ to means a Judicial or Technical Member and includes Vice-Chairman and Chairman. Rule 3 stipulates qualification and age limit for appointment of Members. The amended Rule 3A contains the following provision, i.e., the employees of the Central Government on their selection as Members shall have to retire from their service before joining as Member of the Company Law Board. Rule-4 deals with method of recruitment, which stipulates that selection of Members, shall be made by the Government of India in consultation with the Chief Justice of India or his nominees.
8. Thus, from the provisions, as quoted above, it is clear that the CLB, which is creation of a Statute, i.e., Companies Act, 1956, cannot be said to be a Department of the Government. It is a quasi-judicial authority created under the Companies Act, 1956 and recruitment and conditions of service of a person appointed as Member of the CLB is also governed by the separate set of rules framed under the relevant provisions of sub-Section (2A) of Section 10B read with clause (a) of sub-section (1) of Section 642 of the Companies Act, 1956, as mentioned above.
9. If one has regard to the 1993 Rules, as amended from time to time, it is also clear that before a person can be appointed as a Member he will have to seek retirement from Government service. Thus, we are of the view that the CLB, which functions independently as a statutorily constituted Tribunal while exercising quasi-judicial functions cannot be said to be a department of the Government but is a statutory Board, which performs quasi-judicial functions and has power to regulate its own procedure while deciding the matters. Thus, a Member of the CLB cannot be said to be holder of a civil post under the Union. As already noticed above, before a person can be appointed as a Member of the CLB, he has to seek retirement from the Government service also establishes that the Member of CLB is not a holder of civil post under the Union, the contention raised by the learned counsel for the applicant that in terms of the provision contained in Rule 13, which provides that in respect of matter for which no provision is made in the 1993 Rules shall be the same as may for the time being be applicable to other employees of the Government of India of corresponding statutes, makes them holders of civil posts under the Union cannot be accepted.
10. Now, let us consider the question of jurisdiction in the light of relevant provisions made in the Administrative Tribunals Act, 1985 and whether we can entertain this OA without there being any notification under Section 14 (2) of the Administrative Tribunals Act, 1985 thereby conferring jurisdiction, power and authority upon this Tribunal to entertain and decide service dispute regarding employees of CLB?
11. Article 323-A of the Constitution provides for enactment of law by the Parliament for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. It further provides that such law may specify the jurisdictions, powers and authority which may be exercised by such Tribunals. The Parliament has enacted this Act as provided in Article 323-A of the Constitution of India. The preamble to the Act gives its object in the following words:
“An act to provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government in pursuance of Article 323-A of the Constitution and for matters connected therewith or incidental thereto.”
The object of establishment of the Administrative Tribunals is to provide a specialized forum for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union etc. The object has to be borne in mind in construing Section 14 of the Act. Section 14 of the Act speaks of the jurisdiction, powers and authority of the Tribunal and reads:
“14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-
(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence service, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c) ] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred in clause (c) ] appointed to any defence services or a post connected with defence,
and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controller by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation - for the removal of doubts, it is hereby declared that references to ‘Union’ in this sub-section shall be construed as including references also to a Union territory.]
(2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controller by Government, not being a local or other authority or corporation [or society] controller or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dated may be so specified under sub-section in respect of different classes of or different categories under any class of, local or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court [***] in relation to-
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) of sub-section (1) ] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs.”
The expression ‘Service matters’ has been defined as follows:
“3 (q) service matter’s, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects-
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;”
Section 28 of the Act excludes jurisdiction of all courts except the Supreme Court under Article 136 of the Constitution in respect of matters which fall within the jurisdiction of the Tribunal. It is, therefore, clear that the Tribunal has been conferred exclusive jurisdiction in relation to recruitment and conditions of service of the personnel specified in Section 14 of the Act at the first instance. The personnel specified are:
(i) members of All India Service.
(ii) persons appointed to any civil service of the Union or any civil post under the Union; and
(iii) civilians appointed to any defence services or post connected with defence.
The Tribunal has not been conferred jurisdiction to adjudicate all types of disputes of the specified personnel. Jurisdiction is conferred only in relation to their recruitment and service matters. Other types of disputes of these personnel are outside the jurisdiction of the Tribunal. However, this Tribunal has also been conferred jurisdiction in relation to recruitment and personal matters of persons appointed to any service or post in connection with the affairs of any local or other authority or corporation or authority if provisions of Section 14 (3) of the A.T. Act are applied by Central Government, by issuing notification by invoking provisions of Section 14 (2) of the A.T. Act.
12. Admittedly, in this case no such notification under Section 14 (2) of the Administrative Tribunals Act, 1985 has been issued whereby making provisions of Section 14 (3) of the Administrative Tribunals Act, 1985 applicable in respect of Board of Company Law Administration. As already stated above, the grievance raised by the applicant in this case is regarding his appointment as Member (Technical) of the Board of Company Law Administration and dispute is not in regard to the recruitment and conditions of service of a member of All India Service or a person appointed to any civil service of the Union or any civil post under the Union, which is covered under Section 14 (1) of the A.T. Act. As stated above, appointment of applicant to the post of Member, Board of Company Law Administration cannot be said to be an appointment to a civil post under the Union. Admittedly, applicant is making a grievance regarding his appointment as Member (Technical) of the CLB, which appointment is regulated in terms of the recruitment rules of 1993 framed in exercise of the powers conferred under sub-section (2A) of Section 10E read with clause (a) of sub-section (1) of Section 642 of the Companies Act, 1956.
13. Thus, we are of the view that this Tribunal has no jurisdiction to entertain the matter so long as a notification is not issued by the Central Government in exercise of the powers conferred by Section 14 (2) of the A.T. Act, 1985 in respect of CLB, thereby making provisions of Section 14 (3) of the Act applicable from a specified date. Judicial notice can be taken of the fact that the Central Government has issued different notifications, invoking the provisions of sub sections (2) and (3) of Section 14 of the Act for inclusion of Corporations/Societies/ other Societies owned or controlled by the Government within the purview of this Tribunal, including Income Tax Appellate Tribunal, which is also a statutory body under the Ministry of Law and Justice, Central Pollution Control Board, constituted under the Water (Prevention and Control of Pollution) Act, 1974, Central Social Welfare Board, an authority controlled by the Government, Coconut Development Board, a statutory authority under the Ministry of Agriculture etc. But no such notification has been issued qua Company Law Administration constituted under the Companies Act. Accordingly, we are of the view that the present OA is not maintainable and we have got no jurisdiction, power and authority to decide the matter in terms of the provisions contained in Section 14 of the Administrative Tribunals Act, 1985. Applicant may take recourse to the appropriate forum to agitate his grievances. Registry is directed to return the paper-book to the applicant.