TaxTMI 
TaxTMI 
2023 (2) TMI 489
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.... is extracted below: "In addition to the dress code already approved vide order dated 02.08.2016, wearing of gown would be necessary w.e.f. 20th November 2017 in all the benches of NCLT for Hon'ble President, Members and Advocates. 2. The dress code for other Authorised Representatives and parties in person shall remain same as issued vide Order dated 02.08.2016." 3. (i) According to the petitioner, the National Company Law Tribunal ("the Tribunal or NCLT") and the National Company Law Appellate Tribunal ("NCLAT or the Appellate Tribunal") were constituted under the Companies Act, 2013 and the Tribunal started functioning from 01.06.2016. Hitherto, Company Law Tribunal (CLB) was in existence from 1991 to 2016 until the constitution of the Tribunal on 01.06.2016. Upon constitution, the Tribunal exercises similar powers as that of the CLB in addition to the powers as conferred under the Insolvency and Bankruptcy Code, 2016 (IBC). It is further stated by the petitioner that the Central Government constituted the Tribunal with an objective to dispose of cases relating to company matters expeditiously and to replace the erstwhile CLB and Board for Industrial and....
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....Tribunal in his/her professional dress, if any". The petitioner has no qualm or quarrel over the earlier notification dated 02.08.2016 inasmuch as an Advocate, who is a professional, will have to adhere to whatever dress code prescribed by the Bar Council of India, the Advocates Act and the Rules made thereunder. On the other hand, the second respondent invoked the power under Rule 51 of the NCLT Rules, which is exercisable only to regulate the procedures required to administer the Tribunal. It is also stated that the manner in which the second respondent has to function, has been enumerated under Rule 17 of the NCLT Rules, 2016 and none of the powers prescribed therein empowers the second respondent to issue the impugned order to regulate the dress code to be worn by the advocates. Even assuming such a power exists, the second respondent is statutorily barred from issuing directions to wear a particular dress as it is in conflict with the statutory rules framed by the Bar Council of India in consonance with the Advocates Act and the Rules made thereunder and therefore, the impugned order has to be set aside. (iv) To buttress his submission, the petitioner placed reliance ....
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....(1) of the Advocates Act and the second respondent has no jurisdiction to pass the impugned order imposing dress code. (vii) Ultimately, the petitioner stated that on 08.12.2017, when this writ petition was listed for hearing, this Court granted an order of interim stay. Notwithstanding the order of interim stay, the Tribunal issued an order dated 05.11.2018 stating that "all the advocates are expected to wear the gown before the Benches of National Company Law Tribunal at New Delhi w.e.f. 12.11.2018". According to the petitioner, the order dated 05.11.2018 is per se contemptuous and in violation of the interim order dated 08.12.2017 granted by this Court. Therefore, the petitioner issued a notice dated 16.11.2018 to the second respondent requiring the third respondent to withdraw the order dated 05.11.2018 from the NCLT website. In response, the third respondent passed an Office order dated 27.11.2018 stating as follows: "Order No.25/02/2018-NCLT dated 5th November 2018 issued by this office regarding wearing of gown by the advocates before the Benches of NCLT at Delhi w.e.f. 12th November 2018 stands withdrawn. The wearing of gown is discretionary. T....
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....tes, both male and female, before various Courts, Tribunals and forums, is explicit. The mandatory compliance required before the High Courts or Supreme Court has not been prescribed for other forums. There is a clear distinction. That apart, it is obvious from Section 34 of the Advocates Act, 1961, extracted below, that it is only the High Court which has powers to frame rules laying down the conditions for practice, which undoubtedly includes the dress code: "Section 34 Power of High Courts to make rules.- (1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. ....." 7. It will be useful to refer to the provisions under the Companies Act and NCLT Rules, that have been relied by the Tribunal to issue such instruction. Section 432. Right To Legal Representation. "A party to any proceeding or appeal before the Tribunal or the Appellate Tribunal as the case may be, may either appear in person or authorise one or mre chartered accounts or company secretaries or cost accountants or legal practitioners or any other person....
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.... Article 323-B) or statutory tribunals which are created under a statute (Motor Accidents Claims Tribunal, Debt Recovery Tribunals and Consumer Fora). Some Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals). Other statutory tribunals have judicial and technical members (Administrative Tribunals, Tdsat, Competition Appellate Tribunal, Consumer Fora, Cyber Appellate Tribunal, etc.) ............... 106. We may summarise the position as follows: (a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal. (b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a judicial tribunal. This means that such tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the tribunal should have the i....
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....including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf.... ..........." 10. Further, it is settled law that the High Courts can exercise their powers under Article 226 of the Constitution of India or the supervisory jurisdiction under Article 227 of the Constitution of India over the Tribunals, which exercise judicial or administrative functions. In a recent judgment in Madhya Pradesh High Court Advocate Bar Association and Another v. Union of India & Others [2022 SCC Online SC 639], the Hon'ble Apex Court held as follows: "19. Insofar as the contention of the petitioners that there is ouster of jurisdiction of the High Courts under Article 226 and 227 of the Constitution because of Sections 14 & 22 of the NGT Act, it must be recalled that in L.Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577], it has been categorically declared that the power of judicial review under Articles 226, 227, and 32 are part of the basic structure of our constitution and the same is inviolable. The following pe....
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....t has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 22. It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the ba....
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....r the appearance of the Advocates before it, the courts and Tribunals, subordinate to it. In absentia, the rules in chapter IV of the Bar Council of India Rules shall prevail and the Tribunals have no authority to issue any instructions determining the dress code for the appearance of the advocates before it. When there are statutory rules framed by the competent authority and when the statute has conferred the powers on the High Court with reference to prescription of the dress code, any instruction, direction, advisory by the Tribunal, especially when it runs contrary to the statutory rules, is ultravires the Act, and without there being any source of power for issuance of such directions. 12. Thus, it could be inferred from the reading of the above-stated legal provisions that the wearing of "gown" is only optional and not mandatory before any courts other than the Supreme Court or the High Cours. The judgment of the Kerala High Court referred to above by the Petitioner is also on the point. Further, the power conferred under Rule 51 of the NCLT Rules, is for the purpose of discharging its functions under the Act in accordance with the principles of natural justice and equity....