SAT says it can hear appeals in absence of technical member

New Delhi, May 18 (Agency) The Securities Appellate Tribunal has said its bench consisting of the presiding officer and a judicial member have the powers to hear matters even in the absence of a technical member. The order comes after an issue was raised by markets regulator Sebi questioning the composition of the tribunal’s bench hearing the appeals filed before it. The regulator is of the view that the tribunal should not hear appeals till such time a technical member is appointed by the central government.

The tribunal was functioning with a presiding officer, a judicial member and a technical member. However, the technical member demitted office on March 31, 2021. Since then, the bench of the tribunal consists of the presiding officer and the judicial member. Sebi’s contention was that every bench must have at least one technical member and since there is no technical member now, the constitution of the bench is defective and orders passed by the bench would be ‘coram non judice’, as per an order passed by the tribunal on Monday.
The contention of the regulator was driven primarily by the proviso to section 15L(2)(b) of Sebi Act which stipulates that every bench must have at least one technical member as a mandatory provision. Similar assertion is being made by Sebi while filing their replies in other appeals.

Therefore, it has become imminent to decide this issue. Consequently, this tribunal is now enjoined to rule its own jurisdiction, SAT said in the order. ‘We are of the confirmed opinion that the functioning of the tribunal presently comprising of a presiding officer and a judicial member is not defective on account of non-availability of technical member and that the bench constituting the presiding officer and judicial member can proceed to hear and decide the appeals, etc which are filed before the SAT,’ the order said. Further, the tribunal said it has resolved the issue but the permanent solution is that central government should expedite and fill up the vacancy. A fourth post of a technical member was created through a notification in May 2019. No steps have been taken by the central government to fill up this vacancy, even though two years have elapsed, SAT noted. Further, the government knew that the only a technical member was going to retire on March 31, 2021. Till date, no steps have been taken to fill up the post whereas such steps should have been taken at least a couple of months before the retirement of the technical member, it added. While making amendments in the Act, care should be taken to resolve the discrepancy that may arise in the charging provision, the tribunal said.

The tribunal has requested the central government ‘to fill the vacancies at the earliest and also recommend to make necessary amendments and resolve the discrepancy in the charging section to the proviso under Section 15L(2)(b)’. ‘Today, Sebi has raised an objection. Tomorrow, a private litigant would raise a similar objection. It would be a never ending process. This issue needs to be resolved on the judicial side as well,’ SAT said. Accordingly, SAT has directed its Registrar to send a certified copy of this order to the Secretary, Ministry of Finance, Department of Economic Affairs, with a request to fill up the vacancies at the earliest and consider making appropriate amendments. Further, a copy of the order will be send to the Secretary General of the Supreme Court of India with a request to place the order before the Chief Justice lof India and, if desired, to treat this order as a public interest litigation and resolve the issue on the judicial side so that the matter is resolved once and for all from the highest court.