1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.312 OF 2010 IN WRIT PETITION NO. 2571 OF 2008. Mr. Dhirajlal N. Shah. ..Petitioner. v/s. Enforcement Directorate & Ors. ..Respondents. .... Ms. Sunita Pant,, i/b. M/s. Thakore Jariwala & Asso., for Petitioner. Mr. D. Khambata, A.S.G., a/w. Mr. A.S. Rao, for Respondent Nos. 1 to 3. .... CORAM : V.C. DAGA & S.J. KATHAWALLA, JJ. DATE : 19TH JULY 2010. P.C. By this Notice of Motion, the Petitioner has sought the following reliefs: “ (a) That appropriate orders and directions be passed in the matter directing Respondent no.3 to take steps for the purpose of constitution of appropriate Appellate Tribunal for FERA and for directions that the said Tribunal to hear the Petitioner’s Application for restoration of Appeal as preferred by the Petitioner before it, being Exhibit-B to the Affidavit in support of the present Notice of Motion. (b) That further appropriate orders and directions be passed in the matter directing Respondent no.3 to take steps to ensure that a Bench of the Tribunal is available regularly to take up and hear not only the 2 Petitioner’s Appeal, but also all other Appeals as pending.” 2. The circumstances under which this Notice of Motion is taken out by the Petitioner are as follows :- 3. The above Writ Petition is filed by the Petitioner challenging the order dated 3rd July 2007 passed by the Appellate Tribunal for Foreign Exchange (ATFE), New Delhi, directing the Petitioner to deposit 50% of the penalty amount levied on the Petitioner. 4. By an order dated 12th February 2008, this Court passed an order that the Appeal filed by the Petitioner before the Tribunal shall not be dismissed for non-deposit of the amount. 5. On 3rd November 2009, the Petitioner was not able to appear before the Appellate Tribunal. On that day, the Appellate Tribunal dismissed the Appeal filed by the Petitioner on the ground that the Petitioner had failed to deposit 50% penalty amount, pursuant to its order dated 3rd July 2007. According to the Petitioner, the Tribunal dismissed the Appeal filed by the Petitioner in view of the incorrect statement made by the Advocate for the Respondents on 3rd November 2009, to the effect that the High Court has not passed any order in the above Writ Petition. 3 6. Thereafter, the Petitioner moved an application before the Appellate Tribunal to set aside the said order dated 3rd November 2009. The said application came up for hearing on 19th January 2010, 27th January 2010, 4th February 2010 and 15th March 2010. However, the application filed by the Petitioner is not heard till date, since the Bench has not been constituted. The Petitioner has, therefore, taken out the above Notice of Motion seeking the aforestated reliefs, since not only is the Petitioner’s appeal pending before the Appellate Tribunal, but a large number of appeals are also pending disposal. 7. In view of the aforestated state of affairs, we requested the Learned Additional Solicitor General to look into the matter. The Learned Additional Solicitor General has pursued the issue with the Government of India, Ministry of Law and Justice, Department of Legal Affairs and has tendered a copy of the Office Memorandum dated 8th July 2010 received from Shri M. K. Sharma, Joint Secretary and legal Adviser. By the said Office Memorandum, Shri Sharma, has recorded that the Foreign Exchange Management Act (FEMA), 1999 is administered by the Ministry of Finance, Department of Economic Affairs, but the administrative control of the ATFE is with the Ministry of Law and Justice, Department of Legal Affairs, which is also responsible for 4 appointment of Chairperson and Members of the ATFE. Mr. Sharma has also set out the procedure followed for filling up the vacancies in the post of Chairperson and Members in ATFE. 8. With regards to the post of Chairperson of the ATFE, it is stated that the post was earlier held by Shri O.P. Nahar, whose date of retirement from the post was 13th November 2009. Letters were issued on 4th September 2009 to the Registrars in Supreme Court, High Courts and Ministries/Departments of the Government of India, to suggest names of eligible persons for appointment to the said post. The post was inter-alia advertised in the Employment News dated 19th-25th September 2009. The last date for receiving the applications was 15th October 2009. A total of 73 applications were received within the due date. 16 applications were received after the due date. The proposal was forwarded for consideration to the Appointments Committee of the Cabinet (ACC), headed by the Hon’ble Prime Minister on 20th January 2010. The proposal was returned by the Secretariat of the ACC vide their letter dated 20th May 2010. In response thereto, proposal containing additional information was again submitted vide their letter dated 30th June 2010 for their consideration. It is further stated that after retirement of Shri O.P. Nahar as Chairperson with effect from 13th November 2009, the 5 additional charge for the post of the Chairperson was given to Shri R.N. Potdar, the then senior-most Member who has also retired on 17th January 2010. Thereafter, the additional charge was given to Ms. Vijay Laxmi, the senior-most Member, who is continuing till date. 9. With regards to the post of Member (I), Shri Sharma states that Shri R.N. Potdar has retired from the post on 17th January 2010. The process of appointment of a Member in his place has commenced from 28th October 2009. The bio-datas of the applicants are being scrutinized. A sitting Hon’ble Supreme Court Judge has been nominated to function as Chairperson of the Selection Committee. Steps are being taken to convene a meeting of the Selection Committee. After the retirement of Shri R.N. Potdar, on 27th January 2010, the additional charge has been given to Ms. Vijay Laxmi. Shri M.A. Khan Yusufi, Joint Secretary and Legal Adviser, Department of Legal Affairs has also been appointed as a Part-time Member from 18th December 2009 (forenoon), who is still continuing. 10. With regards to Member (II), Shri Sharma states that the post is held by Ms. Vijay Laxmi whose 5 years term will expire on 27th October 2010. The post has been advertised in the Employment News dated 5-10th June 2010. The last date for 6 receiving the applications was 15th July 2010. 11. Shri Sharma has in the said Office Memorandum also stated that action to fill up the above posts of ATFE has been taken in a timely manner and there is no slackness or delay on the part of the Department. The functioning of ATFE has not been adversely affected for want of appointment of Chairperson or Members. 12. From the contents of the above Office Memorandum, it appears that the Government of India, Ministry of Law and Justice, Department of Legal Affairs has been taking steps to fill up the vacancies to the post of Chairperson and Members two to three months’ prior to the date of retirement of the existing Chairperson/Members and are, therefore, unable to fill up vacancies immediately upon the retirement of the Chairperson/Members. In view thereof, admittedly as of date, Ms. Vijay Laxmi, Member (II), is required to hold additional charge of Chairman, ATFE as well as Member (I), ATFE. The Department has been compelled to appoint the Joint Secretary and Legal Adviser, Department of Legal Affairs as a part-time Member of ATFE with effect from 18th December 2009 (forenoon). These facts go to show that the statement made in the Office Memorandum by Shri Sharma stating that action to fill up the vacant posts of ATFE are being taken in a timely manner and that 7 there is no slackness or delay on the part of the Department, is incorrect. 13. Under the circumstances, in our view, the Department should start the process of filling up the vacancies in the ATFE atleast one year prior to the date of retirement of the existing Chairperson or any Member of ATFE. This will ensure that the post of Chairperson/Member will be filled in, immediately upon the retirement of the existing Chairman/Member. The statement in the Office Memorandum that the functioning of the ATFE has not been adversely affected for want of appointment of Chairperson or Member, is also incorrect, in view of the facts set out in the present case, inter alia showing that the matters had to be adjourned on 19th January 2010, 27th January 2010, 4th February 2010 and 15th March 2010, on the ground that the Bench had not been constituted. In fact, in a large number of matters, we have been informed by the litigants as well as the Advocates appearing on their behalf that they have no other alternative but to approach this Court for reliefs since the ATFE is not functioning regularly for want of Members. The objective behind establishing Tribunals in the Country to decide matters arising out of the provisions of various Statutes, is to make speedy justice available to the citizens of the Nation. Not only is the said objective defeated when the 8 vacancies arising in the Tribunals are not filled up in a timely manner but the same also causes manifest injustice to the citizens who may be required to seek urgent orders in their matters and who also have to face grave harm and prejudice, apart from the inconvenience caused merely because the vacancies in the Tribunals are not filled up immediately upon the retirement of its existing Chairman/Members. 14. In view thereof, we pass the following order :- (i) The Government of India through its Ministry of Law and Justice, Department of Legal Affairs shall fill up the vacancies of the Chairman as well as Member (I) of ATFE at the earliest but not later than twelve weeks from the date of this order. (ii) The Government of India through its Ministry of Law and Justice, Department of Legal Affairs shall, in future, start the process of filling up the vacancies to the post of the Chairperson and Members of the ATFE atleast one year prior to the date of retirement of the existing Chairman or any existing Member of ATFE. (iii) The Notice of Motion is accordingly, disposed of in terms of the above order. However, there will be no order as to costs. [ S.J. KATHAWALLA, J. ] [V.C. DAGA, J.]