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(1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.
Comments
Ascertaining venue of arbitration
A conjoint reading of section 2(6) and section 20 leads to the conclusion that in the event, parties do not agree with regard to the place of arbitration, then they had the right to authorise any person including an institution for deciding the venue of the arbitration; Sanshin Chemicals Industry v. Oriental Carbons and Chemicals Ltd., AIR 2001 SC 1219.
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,—
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.
Comments
Jurisdiction of Civil Court
During pendency of arbitration, civil court has no jurisdiction to entertain petition and decide nature of objections raised therein. Questions can be raised before and decided by arbitrator; State of Jharkhand v. Himachal Construction Co. Pvt. Ltd., AIR 2006 NOC 249 (Jhar).
Power of the arbitrator to decide jurisdiction
The Arbitrator himself in exercise of power conferred on him by or under section 16 can decide the question whether or not the arbitration clause in question was scored out at the time of agreement between the parties and as such, whether or not he has jurisdiction to decide the matter or adjudicate the dispute; State of Orissa v. Surendranath Kanungo, AIR 2004 Ori 153.
(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and—
(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,
the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(6) Where, under an appointment procedure agreed upon by the parties,—
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,
a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.
(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to—
(a) any qualifications required of the arbitrator by the agreement of the parties; and
(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
(10) The Chief Justice may make such scheme1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.
(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.
(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice’’ in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India’’.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.
Comments
‘A party’—Meaning of
As per the Webiters Dictionary ‘A party’ in context of legal affairs is one of the litigants in legal proceeding, the plaintiff or defendant or a signatory to a legal instrument.
The Chambers Dictionary defines ‘a party’ as each of the individuals or groups concerned in a contract agreement, law suit, etc.
As per Oxford Dictionary the word ‘parties’ refers to a person or persons forming one side in an agreement or dispute.
Whartons Law Lexicon, 14th edition defines the word ‘parties’ as persons jointly concerned in any deed or act; litigants.
’Agreement’—Meaning of
As per Oxford Dictionary the word ‘agreement’ means an arrangement between the parties as to a course of action.
As per Wharton’s Law Lexicon ’agreement’ means a consensus of two or more minds in anything done or to be done.
Chambers Dictionary describes the word ‘agreement’ as a contract or term; a joint decision made after discussion.
Discretion for appointment of arbitrator
Exercise of discretion for appointment of same arbitrator even after forfeiture of right is improper; Suri Constructions v. State of Rajasthan, AIR 2006 Raj 53.
Scope
It is well settled that where an arbitrator is named in the arbitration agreement, the provisions of section 11 of the Act are not attracted and the court will not have jurisdiction to try and decide the petition filed by party for appointment of another arbitrator; Kamla Solvent v. Manipal Finance Corpn. Ltd., AIR 2001 Mad 440.
Under section 11, there is no provision fixing any time limit except under sub-section (5) which provides the time limit of 30 days from the receipt of the request from the party for appointment of an arbitrator. Under sub-section (6) no such time limit have been fixed. It is required under the procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment; Ansal Properties & Industries Ltd. v. Himachal Pradesh State Electricity Board, AIR 1997 Arb LR 11.
Existence of arbitration clause and validity of reference
The existence of the arbitration clause and the validity of reference shall only be decided by the Arbitrator. It is also within the domain of the Arbitrator to decide whether the claim of the petitioner has already been settled on full satisfaction; Navratandas & Co. (P) Ltd. v. Tata Iron & Steel Co., AIR 2006 Jhar 7.
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1. See Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, published in the Gazette of India, Extra., Pt. III, Sec. 1, dated 16th May, 1996.
(1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.
Comments
Number of arbitrators
The parties are at liberty to determine the number of arbitrators, but such number shall not be an even number. If the parties fail to provide for an odd number of arbitrators, the arbitral tribunal shall be constituted by a sole arbitrator; Sri Venkateshwara Construction Co. v. Union of India, AIR 2001 AP 284.
In the present case, a contract between the two parties M and S provided that each party shall nominate one arbitrator and the two arbitrators shall then appoint an umpire before proceeding with the reference. S invoked arbitration clause and appointed an arbitrator under the agreement after the 1996 Act came into force. It was contended by the M that the arbitration agreement provided for the appointment of two arbitrators while section 10(1) of the 1996 Act does not envisage the appointment of an even number of arbitrators and that the only remedy in such a case was by way of suit and not by arbitration. The Supreme Court held that there is nothing in section 7 to indicate the requirement of the number of arbitrators as a part of the arbitration agreement. Thus the validity of an arbitration agreement does not depend on the number of arbitrators specified therein. The number of arbitrators is dealt with separately in section 10 which is a part of machinery provision for the working of the arbitration agreement. It is, therefore, clear that an agreement specifying an even number of arbitrators cannot be a ground to render the arbitration agreement invalid under the 1996 Act. In view of the term in the arbitration agreement that the two arbitrators would appoint an umpire, the requirement of section 10(1) was satisfied. In other words, the arbitration agreement was not for an even number of arbitrators and section 10(2) was not attracted. The arbitration agreement was deemed to be one providing for three arbitrators; M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd., AIR 1997 SC 605.
A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court—
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
Comments
Interim protection
A party or a person is entitled to interim protection if action of the other party is either in breach of the terms of the agreement or militates against equity, fair play or natural justice, otherwise not; Baby Arya v. Delhi Vidyut Board, AIR 2002 Del 50.
Pendency of any arbitral proceedings is not a pre-condition for an exercise of power by the court
Pendency of any arbitral proceedings is not a pre-condition for exercise of power by court. The court may grant interim relief before or during arbitral proceedings or at anytime after making of the arbitral award but before it is enforced; Globe Cogeneration Power Ltd. v. Sri Hiranyakeshi Sahkari Sakkere Karkhane Niyamit, AIR 2005 Kant 94.
Scope
Section 9 of the Arbitration and Conciliation Act, 1996, only deals with the interim measure by the court. Obviously it is not within the scope of this section to inquire into the claim and the counter-claim made by both the parties in regard to the custody of the articles beyond what has been admitted by the respondent; Narain Sahai Aggarwal v. Santosh Rani, 1997 (2) Arb LR 322.
(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
Comments
Appointment of Arbitrator
It is not duty of court to adjourn a matter to enable parties to report to court about appointment of Arbitrator and then make reference; Pawan Sharma v. Tarkeshwar Shah, AIR 2007 (NOC) 156 (HP).
Expression—First statement on the substance of the dispute
The expression ‘first statement on the substance of the dispute’ contained in sub-section (1) of section 8 must be contra-distinguished with the expression ‘written statement’. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of judicial authority that the party has waived his right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, the party cannot be said to have waived his right or acquiesced himself to the jurisdiction of the court; Rashtriya Ispat Nigam Ltd. v. Verma Transport Company, AIR 2006 SC 2800.
Jurisdiction of Civil Court
(i) The language of section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator; P. Anand Gajapathi Raju v. P.V.G. Raju (Dead), 2000 (4) SCC 539.
(ii) Mere existence of arbitration clause in agreement does not bar jurisdiction of Civil Court automatically; Mahesh Kumar v. Rajasthan State Road Transport Corporation, AIR 2006 Raj 56.
Power of Court to appoint Arbitrator
Power of Court to refer parties for arbitration would and must necessarily include, imply and inhere in it the power and jurisdiction to appoint Arbitrator also; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, AIR 2007 (NOC) 233 (Ker).
Scope and object
Scope and object of section 8 of the Arbitration and Conciliation Act, 1996 and section 34 of the Arbitration Act, 1940 is different. Therefore, these two respective provisions of different Acts have no application to deprive the party of the legitimate right to invoke section 8 of the Arbitration and Conciliation Act to have the matter relating to the disputes referred to arbitration, in terms of the arbitration agreement; Kalpana Kothari v. Sudha Yadav, AIR 2001 SC 404.
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
Comments
Competence of Arbitrator
The arbitrator is competent to decide the objection on its own jurisdiction whether appointed as per the terms of the agreement within the provisions of section or appointed under the provisions of section 11; State of Jharkhand v. R.K. Construction (Pvt.) Ltd., AIR 2006 Jhar 98.
Enforcement of Foreign award and Domestic award—comparisons
In the present case, it is held by the court that comparison of the provisions of section 48 and section 34 of the Act shows that the grounds on which a domestic award can be challenged as also the grounds on which a party can resist enforcement of a foreign award are identical. Thus, as and when enforcement of the award is sought against the petitioner, it can resist the enforcement of the award on the same grounds on which it could have challenged the award under section 34 of the Act. Therefore, it cannot be said that the petitioner has no remedy of challenging the award; Jindal Drugs Ltd. v. Noy Vellesing Engineering, SPA, (2002) 2 Arb LR 323.
(1) In this Part, unless the context otherwise requires,—
(a) “arbitration” means any arbitration whether or not administered by permanent arbitral institution;
(b) “arbitration agreement” means an agreement referred to in section 7;
(c) “arbitral award” includes an interim award;
(d) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;
(f) “international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is—
(i) an individual who is a national of, or habitually resident in, any country other than India; or
(ii) a body corporate which is incorporated in any country other than India; or
(iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or
(iv) the Government of a foreign country;
(g) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;
(h) “party” means a party to an arbitration agreement.
Scope
(2) This Part shall apply where the place of arbitration is in India.
(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.
(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.
(5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.
Construction of references
(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.
(7) An arbitral award made under this Part shall be considered as a domestic award.
(8) Where this Part—
(a) refers to the fact that the parties have agreed or that they may agree, or
(b) in any other way refers to an agreement of the parties,
that agreement shall include any arbitration rules referred to in that agreement.
(9) Where this Part, other than clause (a) of section 25 or clause (a) of sub-section (2) of section 32, refers to a claim, it shall also apply to a counter-claim, and where it refers to a defence, it shall also apply to a defence to that counter-claim.
comments
International Commercial Arbitration: Scope of
Where at least one of the parties is an individual having nationality of another country other than India or a body corporate which is incorporated in any country other than India or an association or a body of individuals whose central management and control is exercised in any country other than India or the government of a foreign country, the same would be a case of international commercial arbitration. The respondent here in is a body corporate which is incorporated in a country other than India and therefore, in terms of the aforesaid definition the present admittedly is a case of international commercial arbitration; Dominant Offset Pvt. Ltd. v. Adamovske Strojirny A.S., 1997 (2) Arb LR 335.
(1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:-
(a) the Attorney-General of India, ex officio;
(b) the Solicitor-General of India, ex officio;
1[***]
(c) one member elected by each State Bar Council from amongst its members.
2[(1 A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3.]
3[(2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.
(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be :
PROVIDED that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.]
4[(3) The term of off ice of a member of the Bar Council of India elected by the State Bar Council shall-
(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election 5[or till he ceases to be a member of the State Bar Council, whichever is earlier;] and
(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:
PROVIDED that every such member shall continue to hold as a member of the Bar Council of India until his successor is elected.]
1. Clause (bb) omitted by Act 38 of 1977 sec. 3 (w.e.f. 31-10-1977).
2. Inserted by Act 60 of 1973 sec 5 (w.e.f. 31-1-1974)..
3. Substituted by Act 38 of 1977 sec 3 for sub-section (2) (w.e.f. 31-10-1979).
4. Inserted by Act 21 of 1964 sec.3
5. Ins. by act 60 of 1973 sec 5 (w.e.f. 31-1-1974).
(1) There shall be a Bar Council-
(a) For each State of Andhra Pradesh, Bihar, Gujrat, 1[Jammu and Kashmir], Madhya Pradesh 2[***], 3[***] 4[Karnataka], Orissa, Rajasthan and Uttar Pradesh, to be known as the bar Council of that State.
5(b) For the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, Mizoram and Arunachal Pradesh;]
(c) For the State of Kerala and the Union territory of 6[Lakshadweep], Minicoy and Amindivi island to be known as the Bar Council of Kerala;
7 [(cc) For the 8[State of Tamil Nadu] and the Union territory of Pondicherry to be known as the Bar Council of Madras.
9[(ccc)For the State of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli and Daman and Diu to be known as the Bar Council of Maharashtra and Goa;]
10[(d) for the State of Punjab and Haryana, and the Union territory of Chandigarh to be known as the Bar Council of Punjab and Haryana;
(dd) For the State of Himachal Pradesh to be known as the Bar Council of Himachal Pradesh.]
(e) For the State, of West Bengal and the 11[Union territory of Andaman and Nicobar Islands], to he known as the Bar Council of West Bengal; and
(f) For the Union territory of Delhi, to be known as the Bar Council of Delhi.
(2) A State Bar Council shall consist of the following members, namely: -
(a) In the case of the State Bar Council of Delhi, the Additional Solicitor-General of India, ex officio; 12[in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate-General of each of the States of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of the state council Bar of Punjab and Haryana, the Advocate-General of each of the States of Punjab and Haryana, ex officio;] and in the case of any other State Bar Council, the Advocate-General of the State, ex officio;
13[(b) In the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council, with all electorate exceeding, five thousand but not exceeding ten thousand, twenty members, and in the case of a State Bar Council with an electorate exceeding ten thousand, twenty five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council:]
14[Provided that as nearly as possible one-half of such elected members shall, subject to any rules that may be made in this behalf by the Bar Council of' India, be persons who have for at least ten years been advocates on a Slate roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the persons has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926).]
15[(3) There shall be a Chairman and a Vice-Chairman of' each State Bar Council elected by the Council in such manner as may be prescribed.
(3-A) Every person holding office as Chairman or as Vice-Chairman of any State Bar Council immediately before the commencement of the Advocates (Amendment) Act. 1977, shall, on such commencement, cease to hold office as Chairman or Vice-Chairman as the case may be:
Provided that every such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman as the case may be, of each State Bar Council, elected after the commencement of the Advocates (Amendment) Act, 1977, charge of the office.]
16(4) An advocate shall be disqualified front voting at all election under sub-section (2), or of being chosen as, and for being a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may he made an electoral roll shall be prepared and revised from time to time by each State Bar council.
(5) Nothing in the proviso to subsection (2) shall affect the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1904 but every election after such commencement shall he held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso.]
17[(6) Nothing in clause (b) of sub-section (2) shall affect the representation of elected members in any State Bar Council as constituted immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), until that State Bar Council is reconstituted in accordance with the provisions of this Act.]
1. Ins. by Act No. 60 of 1973, sec. 4 (w.e.f. 31-1-1974).
2. The word "Madras" omitted by Act No. 26 of 1968. sec. 3 and Sch.
3. The word "Maharashtra" omitted by the Dadra and Nagar Haveli (Civil Courts and Miscellaneous Provisions) Regulation 1963 (8 of 1963) sec.12 (w.e.f. 1-7-65
4. Subs. By the Mysore state (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1974. for Mysore (w.e.f. 1-11-1973).
5. Subs. By the Act No. 69 of 1986 sec. 19 for clause (6) as earlier amended by Act 81 of 1971 sec. 34 and Act 34 of 1986 sec. 16 (w.e.f. 20-2-1987).
6. Subs. by Act 34 of 1973 sec. 5.
7. Ins. By Act No. 26 of 1968 sec. 3 and Sch.
8. Subs by the Madras State (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1970. (w.e.f. 14-11969).
9. Subs. By Act No. 18 of 1987 sec. 21 for clause (ccc) as initially ins. by Regulation 8 of 1963 sec. 12 and relettered by Act 26 of 1968 sec. 3 and Sch. ans subsequently amended by Act 60 of 1973 sec. 4
10. Subs. By Act 53 of 1970 sec 24 for clause (d) (w.e.f. 25-1-1971).
11. Subs. By Act 81 of 1971 sec 34 for Union Territories or Tripura and the Andaman and Nicobar Islands (w.e.f. 21-1-1972).
12. Ins. By Act 60 of 1973sec 4 (w.e.f. 31-1-1974).
13. Subs. by Act 60 of 1973 Sec. 4 for clause (b) (w.e.f. 31-1-1974)
14. Ins. By Act 21 of 1964 sec 2 (w.e.f.16-5-1964).
15. Sub-section (3) subs. by Act 107 of 1976 sec.3 (w.e.f. 13-9-1976) and again subs. by Act 38 of 1977 sec. 2 (w.e.f. 31-10-1977).
16. Ins. By Act, 21 of 1964 sec. 2 (w.e.f. 16-5-1964).
17. Sub-clause (6) ins. by Act 60 of 1973 sec. 4 (w.e.f. 31-1-1974).
[(1)] In this Act, unless the context otherwise requires,-
(a) "advocate" means an advocate entered in any roll under the provisions of this Act;
(b) "appointed day", in relation to any provision of this Act, means the day on which that provision comes into force;
(c) 2[***]
(d) "Bar Council" means a Bar Council constituted under this Act;
(e) "Bar Council of India" means the Bar Council constituted under section 4 for the territories to which this Act extends;
(f) 3[***]
(g) "High Court", except in sub-section (1) 4[and sub-section (1A)] of section 34 and in sections 42 and 43, does not include a court of the Judicial Commissioner, and, in relation to a State Bar Council, means,-
(i) in the case of a Bar Council constituted for a State or for a State and one or more Union Territories, the High Court for the State;
(ii) in the case of the Bar Council constituted for Delhi, 5[the High Court of Delhi];
(h) "law graduate" means a person who has obtained a bachelor's degree in law from any university established by law in India;
(i) "legal practitioner" means an advocate 6[or vakil] of any High Court, a pleader mukhtar or revenue agent;
(j) "prescribed" means prescribed by rules made under this Act;
(k) "roll" means a roll of advocates prepared and maintained under this Act;
(l) "State" does not include a Union Territory;
(m) "State Bar Council" means a Bar Council constituted under section 3;
(n) "State roll" means a roll of advocates prepared and maintained by a State Bar Council under section 17.
7[(2) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir or in the Union Territory of Goa, Daman and Diu, shall, in relation to that State or that territory, be construed as a reference to the corresponding law, if any, in force in that State or that Territory, as the case may be.]
1. Section 2 renumbered as sub-section (1) thereof by Act 60 of 1973, sec. 2 (w.e.f. 31-7-1974).
2. Clause (c) omitted by Act 107 of 1976 sec 2 (w.e.f. 15-10-1976.)
3. Clause (f) omitted by Act 60 of 1973 sec 3 (w.e.f. 31-01-1974.)
4. Ins. by Act 60 of 1973 sec. 3 (w.e.f. 31-1-1974.)
5. Subs. by Act 60 of 1973 sec. 3 for the High Court of Punjab (w.e.f. 31-1-1974.)
6. Subs. by Act 107 of 1976 sec. 2 for vakil or attorney (w.e.f. 15-10-1976).
7. Ins. by Act 60 of 1973 sec. 3 for vakil or attorney (w.e.f.15-10-1976.)
1. Short title, extent and commencement
(1) This Act may be called the Advocates Act, 1961.
1[(2) It extends2 to the whole of India]
(3) It 3[shall, in relation to the territories other than those referred to in sub-section (4) come into force] on such date4 as the Central Government may, by notification in the Official Gazette, appoint, and different dates3 may be appointed for different provisions of this Act.
5[(4) This Act shall, in relation to the State of Jammu and Kashmir6 and the Union territory of Goa, Daman and Diu, come into force on such date7 as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and different dates may be appointed for different provisions of this Act.]
1. Subs, by Act 60 of 1973, sec. 2, for sub-section (2) (w.e.f. 31-1-1974).
2. The Act has been extended to
The Union territory of Dadra & Nagar Haveli by Regulation 8 of 1963.
The Union territory of Pondicherry by Act 26 of 1968, sec. 3 and Sch.
3. Subs, by Act 60 of 1973, sec. 2 (w.e.f. 31-1-1974).
4. The following are the Notifications by which different dates have been appointed for different provisions of this Act:-
Notification Date Provisions
S.O. 1870, dated 7th August, 1961 16-08-61 Chapters I, II and VII.
S.O. 2790, dated 24th November, 1961 01-12-61 Chapter III and sub-section (2) of section 50.
S.O. 2919, dated 13th December, 1961 15-12-61 Sub-section (1) of section 50.
S.O. 297, dated 24th January, 1962 24-01-62 Section 51 and 52.
S.O. 958, dated 29th March, 1962 29-03-62 Section 46,
S.O. 50, dated 4th January, 1963 04-01-63 Section 32 and Chapter VI [except section 46, sub-section (1) and (2) of section 50, section 51 and 52.]
S.O. 2509, dated 31st August, 1963 01-09-63 Chapter V
S.O. 63, dated 7th June 1968 in the Union territory of Pondicherry 10-06-68 Chapters I, II and III, section 32, Chapters IV, V, VI, VII and VIII.
S.O. 1500, dated 5th April, 1969 01-06-69 Sections 29, 31, 33 and 34 of Chapter IV .
G.S.R. 84(E), dated 21st February, 1979 01-06-69 in the Union territory of Goa, Daman and Diu Except section 30.
5. Sub-section (4) ins. by Act 60 of 1973, sec, 2.
6. 1-8-1986 vide G.S.R. 1946(E), dated 15-7-1986 (except section 30) the Act is enforced in the State of Jammu and Kashmir.
7. 1-6-1979, vide G.S.R. 84(E)/1979, (except section 30) the Act is enforced in Goa, Daman and Diu.
The Indian High Courts Act, 1861 (commonly known as the Charter Act) passed by the British Parliament enabled the Crown to establish High Courts in India by Letters Patent and these Letters Patent authorised and empowered the High Courts to make rules for advocates and attorneys (commonly known as Solicitors). The law relating to Legal Practitioners can be found in the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926).
After Independence it was deeply felt that the Judicial Administration in India should be changed according to the needs of the time. The Law Commission was assigned the job of preparing a report on the Reform of Judicial Administration. In the mean while the All India Bar Committee went into detail of the matter and made its recommendations in 1953. To implement the recommendations of the All India Bar Committee and after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendation relate to the Bar and to legal education, a Comprehensive Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
The Bill seeks to implement the recommendations of the All India Bar Committee made in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendations relate to the Bar and to legal education.
The main features of the Bill are, -
(1) The establishment of an All India Bar Council and a common roll of advocates, and advocate on the common roll having a right to practice in any part of the country and in any Court, including the Supreme Court;
The integration of the bar into a single class of legal practitioners know as advocates;
The prescription of a uniform qualification for the admission of persons to be advocates;
The division of advocates into senior advocates and other advocates based on merit;
The creation of autonomous Bar Councils, one for the whole of India and on for each State.
Following the recommendations of the All India Bar Committee and the Law Commission, the Bill recognised the continued existence of the system known as the dual system now prevailing in the High Court of Calcutta and Bombay, by making suitable provisions in that behalf: It would, however, be open to t he two High Courts, if they so desire, to discontinue this system at any time.
The Bill, being a comprehensive measure, repeals the Indian Bar Council Act, 1926, and all other laws on the subject.
The Notes on clauses explain, whenever necessary, the various provisions of the Bill.
Act 25 of 1961
The Advocate Bill was passed by both the Houses of Parliament and it received the assent of the President on 19the May,1961 and it become The Advocates Act,1961 (25 of 1961).
Where any decree or order has been made or passed by any Court (other than a High Court) in any suit or proceeding before the establishment of a Tribunal being a suit, or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, and no appeal has been preferred against such decree or order before such establishment and the time for preferring such appeal under any law for the time being in force had not expired before such establishment such appeal shall lie - (a) to the Central Administrative Tribunal, within ninety days from the date on which the Administrative Tribunal (Amendment) Bill, 1986, receives the assent of the President, or within ninety days from the date of receipt of the copy of such decree or order, whichever is later, or
(b) to any other Tribunal, within ninety days from its establishment or within ninety days from the date of receipt of the copy of such decree or order, whichever is later.
(1) Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whether on it is based is such that it would have been, if it has arisen after such establishment within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal :
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
(2) Every suit or other proceeding pending before a court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation or society being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal :
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
Explanation : For the purposes of this sub-section "date with effect from which jurisdiction is conferred on a Tribunal", in relation to any local or other authority or corporation or society, means the date with effect from which the provisions of sub-section (3) of section 14 or, as the case may be, sub-section (3) of section 15 are applied to such local or other authority or corporation or society.
(3) Where immediately before the date of establishment of a Joint Administrative Tribunal any one or more of the States for which it is established, has or have a State Tribunal or State Tribunals all cases pending before such State Tribunal or State Tribunals immediately before the said date together with the records thereof shall stand transferred on that date to such Joint Administrative Tribunal.
Explanation : For the purposes of this sub-section, "State Tribunal" means a Tribunal established under sub-section (2) of section 4.
(4) Where any suit, appeal or other proceeding stands transferred from any court or other authority to a Tribunal under sub-section (1) or sub-section (2), - (a) the Court or other authority shall, as soon as may be after such transfer, forward the records of such suit, appeal or other proceeding to the Tribunal; and
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an application under section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.
(5) Where any case stands transferred to a Joint Administrative Tribunal under sub-section (3), the Joint Administrative Tribunal may proceed to deal with such case from the stage which was reached before it stood so transferred.
(6) Every case pending before a Tribunal immediately before the commencement of the Administrative Tribunals (Amendment) Act, 1987, being a case the cause of action whereon it is based is such that it would have been, if it had arisen after such commencement, within the jurisdiction of any Court, shall together with the records thereof, stand transferred on such commencement to such Court.
(7) Where any case stands transferred to a court under sub-section (6), that Court may proceed to deal with such case from the stage which was reached before it stood so transferred.
(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and decided whether to sit in public or in private.
(2) A tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments as may be advanced.
(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely : (a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or, documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(i) any other matter which may be prescribed by the Central Government.
(1) A Tribunal shall not admit an application, - (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where - (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation : For the purpose of this sub-section, "order" means an order made - (a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation or society owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation or society referred to in clause (a).
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government.
(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.
(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise direct by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.
A Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and, for this purpose, the provisions of the Contempt of Court Act, 1971 (70 of 1971), shall have effect subject to the modifications that - (a) the references therein to a High Court shall be construed as including a reference to such Tribunal;
(b) the references to the Advocate-General in section 15 of the said Act shall be construed, - (i) in relation to the Central Administrative Tribunal, as a reference to the Attorney-General or the Solicitor-General or the Additional Solicitor-General; and
(ii) in relation to an Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States, as a reference to the Advocate-General of the State or any of the States for which such Tribunal has been established.
(1) Save as otherwise expressly provided in this Act, Administrative Tribunal for a State 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 civil service of the State or to any civil post under the State;
(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation or society or other body as is controlled or owned by the State Government at the disposal of the State Government for such appointment.
(2) The State 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 and corporations or societies controlled or owned by the State Government :
Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this 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 Administrative Tribunal for a State 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, 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 to recruitment, to any concerning 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 (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] 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.
(4) For the removal of doubts it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.
(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 services, being, in either case, a post filed 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 to 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 controlled 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 society owned or controlled by Government, not being a local or other authority or corporation or society controlled 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 dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of local or other authorities or corporations.
(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) or clause (b) 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.
On ceasing to hold office, - (a) the Chairman of the Central Administrative Tribunal shall be ineligible for further employment under the Government of India or under the Government of a State;
(b) the Chairman of a State Administrative Tribunal or a Joint Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman or Vice-Chairman or any other Member of the Central Administrative Tribunal or as the Chairman of any other State Administrative Tribunal or Joint Administrative Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(c) the Vice-Chairman of the Central Administrative Tribunal shall, subject to the other provision of this Act, be eligible for appointment as the Chairman of that Tribunal or as the Chairman or Vice-Chairman of any State Administrative Tribunal or Joint Administrative Tribunal but not for any other employment either under the Government of India or under the Government of a State;
(d) the Vice-Chairman of a State Administrative Tribunal or a Joint Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of that Tribunal or as the Chairman or Vice-Chairman of the Central Administrative Tribunal or of any other State Administrative Tribunal or Joint Administrative Tribunal but not for any other employment either under the Government of India or under the Government of a State;
(e) a Member (other than the Chairman or Vice-Chairman) of any Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman or Vice-Chairman of such Tribunal or as the Chairman, Vice-Chairman or other Member of any other Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(f) the Chairman, Vice-Chairman or other Member shall not appear, act or plead before any Tribunal of which he was the Chairman, Vice-Chairman or other Member.
Explanation : For the purposes of this section, employment under the Government of India or under the Government of a State includes employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation or society owned or controlled by the Government.
(1) The Chairman, Vice-Chairman or other Members may, by notice in writing under his hand addressed to the President, resign his office :
Provided that the Chairman, Vice-Chairman or other Member shall unless he is permitted by the President to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) The Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the President on the ground of proved misbehavior or incapacity after an inquiry made by a Judge of the Supreme Court in which such Chairman, Vice-Chairman or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehavior or incapacity of the Chairman, Vice-Chairman or other Member referred to in sub-section (2).
(1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairmen or, as the case may be, such one of the Vice-Chairmen as the appropriate Government may, by notification, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy enters upon his office.
(2) When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the appropriate Government may, by notification, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.
(1) A person shall not be qualified for appointment as the Chairman unless he - (a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of Vice-Chairman;
(c) Omitted
(2) A person shall not be qualified for appointment as the Vice-Chairman unless he - (a) is, or has been, or is qualified to be a Judge of a High Court; or
(b) has for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or
(bb) has, for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member.
(3) A person shall not be qualified for appointment as a Judicial Member unless he - (a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of the service for at least three years.
(3-A) A person shall not be qualified for appointment as an Administrative Member unless he - (a) has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(b) has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India. and shall, in either case, have adequate administrative experience.
(4) Subject to the provisions of sub-section (7), the Chairman, Vice-Chairman and every other Member of the Central Administrative Tribunal shall be appointed by the President.
(5) Subject to the provisions of sub-section (7), the Chairman, Vice-Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State.
(6) The Chairman, Vice-Chairman and every other Member of a Joint Administrative Tribunal shall, subject to the terms of the agreement between the participating State Government published under sub-section (3) of section 4, and subject to the provisions of sub-section (7) be appointed by the President after consultation with Governors of the concerned State.
Explanation : In computing, for the purposes of this section, the period during which a person has held any post under the Central or a State Government, there shall be included the period during which he has held any other post under the Central or a State Government (including an office under this Act) carrying the same scale of pay as that of the first mentioned post or a higher scale of pay.
(7) No appointment of a person possessing the qualifications specified in this section as the Chairman, a Vice-Chairman or a Member shall be made except after consultation with the Chief Justice of India.
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