Appeal, ADR and Adjudication
Section 29: Appeal to Appellate Tribunal
29(1).
The Board may pass an order or issue a direction under this Act.
Such order or direction may affect a person.
The affected person may feel aggrieved by the decision of the Board.
That aggrieved person may file an appeal before the Appellate Tribunal.
29(2).
A right of appeal may be exercised 29(1).
Such appeal must be filed within sixty days.
The sixty-day period is calculated from the date on which the order or direction is received.
The appeal must relate to the order or direction being challenged.
The appeal must be filed in the prescribed form & manner.
The appeal must also be accompanied by the prescribed fee.
29(3).
A situation may arise where the appeal is filed after expiry of the 60-day period.
In such a case, the Appellate Tribunal has the discretion to consider the appeal.
The Appellate Tribunal must be satisfied that there was sufficient cause.
The sufficient cause must explain why the appeal was not filed within the prescribed period.
Up the Appellate Tribunal may entertain the delayed appeal.
29(4).
An appeal may be filed before the Appellate Tribunal under 29(1).
Once such an appeal is received, the Appellate Tribunal is required to consider it.
Before passing any order, the Appellate Tribunal must give the parties to the appeal an opportunity of being heard.
After hearing the parties, the Appellate Tribunal may pass appropriate orders.
The Appellate Tribunal has the discretion to decide the nature of the order.
It may:
Confirm the order appealed against.
Modify the order appealed against.
Set aside the order appealed against.
29(5).
The Appellate Tribunal may pass an order in an appeal.
Every order passed by the Appellate Tribunal must be communicated.
A copy of the order must be sent to the Board.
A copy of the order must also be sent to the parties to the appeal.
29(6).
An appeal may be filed before the Appellate Tribunal under 29(1).
Once filed, the appeal must be taken up promptly.
The Appellate Tribunal is required to deal with the appeal as expeditiously as possible.
An effort must be made to conclude the appeal without unnecessary delay.
The Appellate Tribunal should endeavour/target to dispose of the appeal finally.
The target period for final disposal is six months.
The six-month period is calculated from the date on which the appeal is presented to the Appellate Tribunal.
29(7).
An appeal may be pending before the Appellate Tribunal under 29(6).
The Appellate Tribunal is expected to dispose of such appeal within six months.
A situation may arise where the appeal cannot be disposed of within this period.
In such a case, the Appellate Tribunal must account for the delay.
The Tribunal is required to record its reasons and these reasons must be recorded in writing.
The reasons must specifically explain why the appeal could not be disposed of within the six-month period.
29(8).
It is pertinent to note that the operation of Section 29 does not affect:
Section 14A of the Telecom Regulatory Authority of India Act, 1997.
Section 16 of the Telecom Regulatory Authority of India Act, 1997.
These provisions continue to apply independently.
Appeals under this section are to be dealt with by the Appellate Tribunal.
The Appellate Tribunal must follow a prescribed procedure while dealing with such appeals.
The procedure is to be laid down through rules.
29(9).
A further appeal may be filed against an order of the Appellate Tribunal.
Such order must be one passed under this Act.
In case such an appeal is filed Section 18 of the Telecom Regulatory Authority of India Act, 1997 shall apply.
Accordingly, the procedure, forum, and manner of appeal will be governed by section 18 of that Act.
This links the appellate framework under this Act with the existing mechanism under the TRAI Act.
Example: (Under both 29(8) & 29(9))
X Limited is a Data Fiduciary.
It is penalised by the Data Protection Board of India under the Digital Personal Data Protection Act, 2023.
Aggrieved by the order of the Board:
X Ltd. files an appeal before the Appellate Tribunal under section 29(1) of the Act.
While dealing with this appeal, the Appellate Tribunal follows the procedure prescribed under the rules framed under the DPDP Act.
In doing so, the Tribunal continues to exercise its powers without affecting:
Section 14A of the Telecom Regulatory Authority of India Act, 1997.
Section 16 of the Telecom Regulatory Authority of India Act, 1997.
Please note that both of the above sections continue to apply independently.
After hearing the appeal, the Appellate Tribunal passes an order confirming the penalty imposed on X Ltd.
X Ltd. still aggrieved, files a further appeal against the order of the Appellate Tribunal.
Such further appeal is governed by section 18 of the Telecom Regulatory Authority of India Act, 1997.
Accordingly, the forum, procedure, and manner of the further appeal are determined in accordance with section 18 of the TRAI Act.
29(10).
Appeals may be filed before the Appellate Tribunal under the provisions of this Act.
In dealing with such appeals, the Appellate Tribunal is expected to adopt a digital mode of functioning.
As far as practicable, the Appellate Tribunal should function as a digital office.
The receipt of appeals should be carried out digitally.
Hearings in respect of such appeals should also be conducted digitally.
The pronouncement of decisions should likewise be done through digital means.
Section 30: Orders passed by Appellate Tribunal to be executable as decree
30(1).
The Appellate Tribunal may pass an order under this Act.
Such order is not merely declaratory in nature and is enforceable.
It is executable as if it were a decree of a civil court.
For the purpose of execution:
The Appellate Tribunal is vested with authority and shall have all the powers of a civil court.
30(2).
An order may be passed by the Appellate Tribunal under this Act.
Even though the Appellate Tribunal itself has the power to execute its orders, an alternative mechanism is provided.
The Appellate Tribunal may choose to transmit its order to a civil court.
The civil court must be one having local jurisdiction.
Once transmitted, the civil court is required to execute the order.
The execution is to be carried out as if the order were a decree passed by that civil court.
Section 31: Alternate Dispute Resolution
A complaint may be filed before the Board.
Upon such filing , The Board may form an opinion about the nature of the complaint.
The Board may consider that the complaint is capable of being resolved through mediation.
In such a case, the Board may issue a direction to the parties concerned.
The direction requires the parties to attempt resolution of the dispute through mediation.
The mediator may be one mutually agreed upon by the parties.
Alternatively, the mediator may be appointed in accordance with any law currently in force in India.
Section 32: Voluntary Undertaking
32(1).
A proceeding may be pending before the Board under section 28.
At any stage of such proceeding, the Board may consider an alternative course.
The Board may accept a voluntary undertaking.
Such voluntary undertaking may be offered by any person.
The undertaking must relate to observance of the provisions of this Act.
Acceptance of the undertaking is at the discretion of the Board.
32(2).
A voluntary undertaking may be given under 32(1).
Such undertaking may include a commitment to take certain actions.
The action must be taken within a time period determined by the Board.
The undertaking may also include a commitment to refrain from taking certain actions.
The undertaking may combine both types of commitments.
Therefore , it includes action and restraint.
The Board may also require that the voluntary undertaking be publicised.
Publicising the undertaking may form part of the terms accepted by the Board.
32(3).
A voluntary undertaking may have been accepted by the Board.
After accepting such undertaking, the Board may consider changes to its terms.
The Board has the power to vary the terms of the voluntary undertaking.
Such variation cannot be done unilaterally.
The consent of the person who gave the voluntary undertaking is mandatory.
Only after obtaining such consent can the terms of the voluntary undertaking be varied.
32(4).
Once a voluntary undertaking is accepted, it has a legal effect.
The acceptance acts as a bar on further proceedings.
The bar applies to proceedings under the provisions of this Act.
The bar is limited to matters covered by the contents of the voluntary undertaking.
Proceedings cannot be initiated or continued on those same matters.
However, this bar is not absolute.
An exception exists in cases covered by 32(5).
In such cases, proceedings may still be initiated or continued despite the voluntary undertaking.
32(5).
A situation may arise where the person fails to adhere to any term of the voluntary undertaking.
Such failure is treated seriously.
The failure is deemed to be a breach of the provisions of this Act.
Before taking action, the Board must give the person an opportunity of being heard.
After providing such opportunity, the Board may proceed further.
The further action must be taken in accordance with the provisions of section 33.
Section 33: Penalties
33(1).
An inquiry may be conducted by the Board.
Upon reaching conclusion of the inquiry, the Board must form an opinion.
The opinion must be that there has been a breach of:
The provisions of this Act or the rules made under this Act.
The breach must be of a significant nature.
Before taking any penal action, the Board must give the person concerned an opportunity of being heard.e.
After hearing the person, the Board may impose a monetary penalty.
The monetary penalty must be one specified in the Schedule to the Act.
33(2).
When deciding the amount of monetary penalty, the Board must make a considered assessment.
The assessment must take into account multiple relevant factors.
The Board shall have regard to the following matters:
(a).
The nature, gravity and duration of the breach.
(b).
The type and nature of the personal data affected by the breach.
(c).
Repetitive nature of the breach;
(d).
The breach may have resulted in some benefit to the person.
The Board must examine whether the person gained any advantage because of the breach.
The advantage may be in the form of a financial or other gain.
The Board must also consider whether the person avoided any loss due to the breach.
Avoiding a loss can be treated similarly to making a gain.
(e).
After the breach occurred, the person may have taken corrective steps.
The Board must examine whether any action was taken to mitigate the effects of the breach.
Mitigation refers to steps taken to reduce harm or adverse consequences.
The Board must consider how promptly such mitigating action was taken.
The timeliness of the response is a relevant factor.
The Board must also assess the effectiveness of the action taken.
Effective mitigation may reduce the severity of the penalty.
(f).
The Board must assess the amount of monetary penalty proposed to be imposed.
The penalty must be proportionate to the breach committed.
Proportionality requires that the penalty is not excessive or arbitrary.
The penalty must also be effective in achieving its purpose.
(g).
The Board must consider the consequences of imposing the penalty.
This includes assessing how the monetary penalty will affect the person.
The impact may be financial in nature.
It may also affect the person’s operations or ability to function.
The Board must take into account whether the penalty would be unduly harsh.
Section 34: Crediting sums realized by way of penalties to Consolidated Fund of India
Monetary penalties may be imposed by the Board under this Act.
All sums realised in this manner must be accounted for.
The amounts collected must be credited to the Consolidated Fund of India.
The Board does not retain the penalty amounts.
