Constitutional Perspective
The Central Government recognised the importance of setting up tribunals outside the judicial system that would help alleviate the overburdened judicial machinery. In 1976, the Constitution of India (“Constitution”) was amended through the 42nd Amendment to add two new provisions to the Constitution, viz., Articles 323A and 323B. This change laid the foundation for tribunal system and for the evolution of the system of administrative adjudication in India.
Article 323A provides that Parliament, through legislation, may establish tribunals to settle disputes concerning recruitment and terms of service of individuals appointed to public offices under the Central, State, local or other authority, as well as corporations owned or controlled by the government. The law made by Parliament for the purpose may specify the jurisdiction and procedure of these tribunals, thereby excluding the jurisdiction of all courts except the Supreme Court under Article 136 concerning service matters falling within the purview of these tribunals.
In comparison, Article 323B of the Constitution has a much wider coverage. It empowers the appropriate legislature to provide for adjudication or trial by tribunals of any disputes or offences with respect to the matters specified in clause (2) of Article 323B.
Decriminalising offences under the Companies Act
The Government of India has taken many steps to decriminalise certain offences under the Companies Act, 2013 (“CA, 2013”). In line with the government’s stated objective of promoting Ease of Doing Business and pursuant to the recommendation of the Committee to Review Offences under the Companies Act, 2013, the CA, 2013 was amended by the Companies (Amendment) Act, 2019 whereby 16 offences of the CA, 2013 were decriminalised and made civil violations. Further, the Companies (Amendment) Act, 2020 decriminalised nearly 46 provisions under the CA, 2013, after considering the recommendations made in the Report of Company Law Committee, 2019 (“CLC Report”).
The adjudication of such decriminalised offences is being done by the officers appointed by Ministry of Corporate Affairs. Section 454 of the CA, 2013, talks about adjudication of penalties. There was no corresponding provision to Section 454 in the Companies Act, 1956. A new provision was introduced to provide for the adjudication of penalties under Section 454 under the CA, 2013. As per the scheme of Section 454 read with the Companies (Adjudication of Penalties) Rules, 2014, as amended by the Companies (Adjudication of Penalties) Amendment Rules, 2019 (“Rules”) the Adjudicating Officer can pass orders imposing penalty on companies including officers-in-default or any other person for noncompliance or default under the provisions of the CA, 2013. Rule 3 provides for the appointment of the Adjudicating Officer and the procedure to be followed by him in adjudication of penalties. While adjudging the quantum of penalty, the Adjudicating Officer will have to take into consideration certain factors such as size of the company, nature of business carried on by the company, nature of the default, etc. as provided in the Rule 3(12) of the Rules.
Moreover, under Section 454(5) of the CA, 2013, any person/company aggrieved by the order of an Adjudicating Officer may appeal to the Regional Director having jurisdiction in the matter and the Regional Director may decide the appeal after hearing the parties concerned. Every appeal has to be filled within sixty days from the date on which the copy of order made by the Adjudicating Officer is received by the aggrieved person.
An important feature of this section is that it follows principles of natural justice. Under sections 454(4) and 454(7) of the CA, 2013, no order can be passed by either the Adjudicating Officer or the Regional Director unless an opportunity of hearing has been duly provided to the defaulting company or to any person authorized by it.
As per Section 454(8) of the CA, 2013, where a company fails to comply with the order made by the Adjudicating Officer or the Regional Director, within a period of 90 days from the date of the receipt of the copy of the order, the company shall be punishable with a fine not less than twenty-five thousand rupees (INR 25000), but which may extend to five lakh rupees.
Appeal against the Orders:
As per Section 454 of the Act, any person aggrieved by the Adjudicating Officer’s order may appeal to the Regional Director, who is also an officer appointed by the Ministry of Corporate Affairs (“MCA”) and operates under its administrative control. Currently, the law does not provide for a further appeal to the National Company Law Tribunal (“NCLT”), the National Company law Appellate Tribunal (“NCLAT”) or any other judicial forum. It is recommended that Section 454 be amended to provide for an appeal against the Adjudicating Officer’s decision to the NCLT, followed by a second appeal to the NCLAT. Further, appeal to the Regional Director would not add any value from the judicial perspective as the Regional Director is also an officer appointed by the MCA.
The CLC Report of 2019 recommended suitable amendments to the Companies Act to introduce further appeal to NCLT for the next phase. As per the Report of the Committee, “While the Committee was of the opinion that providing for an additional stage of appeal against the orders of the RD may be beneficial, it was also noted that the same requires comprehensive examination to identify all such provisions where an appellate mechanism is desirable. Accordingly, suitable amendments in this regard may be considered and taken up in the next phase.” This Report is of 2019, and yet no legislative action has been taken in this matter thus far.
The Supreme Court in Union of India v. Madras Bar Assn.[1] held that tribunals should have a judicial member and a technical member, and that the judicial member will ensure compliance with the basic principles of natural justice, such as fair hearing and reasoned orders. The SC stated that a technical member ensures the availability of expertise and experience related to the field of adjudication for which the special tribunal is created, thereby improving the quality of adjudication and decision making.
The adjudication of penalty, which is a quasi-judicial function, now falls upon the Adjudicating Officer and the Regional Director. Both the Adjudicating Officer and the Regional Director are appointed by the Central Government and are under the Government’s direct control. As per the Ministry of Corporate Affairs website, 2572 adjudicating orders have been passed by the ROC till date out of which 347 have been appealed and the Regional Director has passed adjudicating orders for the same. Establishing an independent authority comprising adjudicators with a judicial background could enhance the neutrality and objectivity of the entire process of adjudication.
Conclusion
The adjudication of penalty, being a quasi-judicial function, needs to be undertaken by a forum which has a judicial member. The NCLT and the NCLAT are tribunals constituted under the CA, 2013 and have a judicial member. Section 454 of the CA, 2013 needs to be amended to provide for an appeal to the jurisdictional NCLT against the order of the ROC and then a right of second appeal to the NCLAT. This will introduce judicial scrutiny of the orders passed by the ROC by a forum with judicial background. It will also give much-needed credibility to the adjudication process under Section 454 of the CA, 2013. Hopefully, the MCA will take necessary steps to introduce suitable amendments to Section 454, to provide for a first appeal to the NCLT, followed by a second appeal to the NCLAT as discussed above in the next round of amendments to the CA, 2013.
* The Author was assisted by Anika Natani, Intern.
[1] Union of India v. Madras Bar Assn., (2010) 11 SCC 1
