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TMI Blog2015 (9) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3 is that it was issued by a Bench of the Adjudicating Authority constituted under Clause (b) of Sub-Section (5) of Section 6 of the PMLA which did not have a Judicial Member. As per the Petitioner- University, a bare reading of Sections 6, 8 and 11 of PMLA read with Regulations 21 and 22, would reveal that the Respondent No.3 discharges judicial function exercising judicial powers. As a judicial mechanism under PMLA, the Respondent No.3 is vested with the powers of a Civil Court as provided under the Code of Civil Procedure, 1908, in matters enumerated under Section 11 of the PMLA and Regulations 21 and 22. Thus, the proceedings before the Respondent No.3 are deemed to be judicial proceedings within the meaning of Sections 193 and Section 228 of the Indian Penal Code, 1860, and, therefore, such proceedings by natural corollary ought to have the trappings of a Court which can only be achieved by the presence of a Judicial Member. As per the Petitioner-University, this was all the more essential considering the far-reaching consequences that would flow from the adjudication of the Respondent No.3 having regard to the serious charge of the Enforcement Directorate against the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority with one or two Members as he may deem fit. This provision that prescribes the quorum, does not mandate that one of the Members of the Adjudicating Authority must necessarily be a Judicial Member. The Learned Central Government Counsel submits that there is a distinction between the words "Adjudicating Authority" appearing in Sub- Section (1) and "a Bench" appearing in Sub-Section (5) of Section 6 of the PMLA and Sub-Clauses thereunder. Reference was also made to Sub-Sections (7) and (13) of Section 6 with which we need not delay ourselves as it appears to be irrelevant for the purpose of deciding this Writ Petition. 6. I have carefully considered the rival submissions of the Learned Counsel for the parties, records produced before me and the citations placed at the bar. 7. On a bare reading of Section 6 and Sub- Sections thereunder, I find substance in the submission of the Learned Central Government Counsel that there is no mandate that a Bench to be constituted by the Chairperson of the Adjudicating Authority under Sub- Section (5) of Section 6, must necessarily have one Member who is a Judicial Member. Sub-Sections (1) and (2) of Section 6 prescribes the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted "as the Chairperson of the Adjudicating Authority may deem fit". This provision, in my view, is quite distinct from Sub-Section (3) of Section 6 as it is quite obviously an omnibus provision prescribing the composition of the "Adjudicating Authority". 10. In Tamil Nadu Generation and Distribution Corporation Limited (supra) in which reliance was placed upon Kihoto Hollohan vs. Zachillhu and Others : 1992 Supp (2) SCC 651, it has been held as under:- "59. In view of the aforesaid categorical statement of law, we would accept the submission of Mr Nariman that the tribunal such as the State Commission in deciding a lis, between the appellant and the respondent discharges judicial functions and exercises judicial power to the State. It exercises judicial functions of far-reaching effect. Therefore, in our opinion, Mr Nariman is correct in his submission that it must have essential trapping of the court. This can only be achieved by the presence of one or more judicial members in the State Commission which is called upon to decide complicated contractual or civil issues which would normally have been decided by a civil court. Not only the decisions of the State Commission have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative Members are chosen from amongst those who have some background to deal with such cases." [underlining mine] 13. In my considered opinion, what emerges from the above with certainty is that in a case where serious questions of law and fact arise, as in the present case, it is essential that one of the Members of the Bench constituted under Clause (b) of Sub-Section (5) of Section 6 of PMLA by the Chairperson of the Adjudicating Authority should be a Judicial Member as he "with his judicial experience would, by virtue of his specialised knowledge, would be better equipped to dispense with speedy and efficient justice". This appears to be import of the words "as the Chairperson of the Adjudicating Authority may deem fit". 14. It is an admitted position that the post of a Judicial Member under Respondent No.3 is still lying vacant and that the impugned show cause notice was issued and the order under challenge passed in the absence of such a Member. Apart from what have been observed earlier, in a proceeding of the present kind, where orders were passed ..... 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