With the Supreme Court mentioning (SC) the removal order as ‘awkward’, the Union government agreed to allow justice Ashok Iqbal Singh (AIS) Cheema to continue as acting chairperson of the National Company Law Appellate Tribunal (NCLAT) until 20 September 2021. Justice Cheema had approached the apex court against the government’s decision to curtail his tenure 10 days before it was slated to end.
After taking instructions, attorney general (AG) KK Venugopal informed the bench led by chief justice NV Ramana that justice Cheema would be allowed to go to the office and pronounce judgements and the current acting chairperson, justice M Venugopal will be sent on leave.
Chief justice Mr Ramana replied saying, “The submission is accepted, and consequential orders will be passed. The current chairperson will be on leave till 20 September 2021. This order is in terms of facts and circumstances.”
On 11 September 2017, justice Cheema, a former judge of the Bombay High Court, was appointed judicial member of NCLAT. From 19 April 2021, he worked as acting chairperson of NCLAT and was expected to retire on 20 September 2021 when he turned 67. On 16 July 2021, the Union government communicated that he would continue on his post until 20 September 2021.
However, suddenly, on 10 September 2021, he received a communication informing him that his tenure had ended since he had completed four years in NCLAT. On 14 September 2021, the Union government appointed justice M Venugopal as acting chairperson of NCLAT. Since the retirement of justice SJ Mukhopadhaya on 14 March 2020, this is the third appointment of an acting chairperson for NCLAT.
Justice Cheema then approached the Supreme Court. In his plea, he contended that in anticipation that his tenure would be lasting till 20th September, he had taken leave from 31st August till 10th September with the object of ensuring that pending judgements are completed to pronounce them in the week starting from 13 September 2021.
“As a judge, when one has been imparting justice to others for the past almost 39 years, it is very hurting and disheartening to see that injustice has been done to one’s own self. Such authoritarian action, which is against the independence of the judiciary, can be taken even against others similarly placed,” he contended in his plea.
During the hearing, AG Mr Venugopal proposed allowing justice Cheema to retire as acting chairperson on 20th September. When chief justice Mr Ramana asked if the government is allowing justice Cheema to retire on 20th September, the AG replied, “Only on paper.”
Chief justice Mr Ramana then mentioned that justice Cheema has judgements that need to be pronounced at NCLAT, and the AG should know this.
When Mr Venugopal stated, “This will become awkward for the current chairperson”, chief justice Mr Ramana snapped, saying, “Your orders are also awkward, we have to say. You are responsible for this situation!”
Before being appointed as judge of the Bombay HC in 2013, Justice Cheema had served as registrar and then as secretary-general of the Supreme Court.
Over the past few weeks, the appointments and service conditions of members of tribunals under the Tribunal Reforms Act have been a contentious issue between the apex court and the Union government.
On 14 July 2021, the SC struck down the newly-inserted Section 184 of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 to the extent that it fixed the tenure of members and chairpersons of tribunals at four years.
Earlier this month, a special bench headed by chief justice Mr Ramana told the Union government that the Supreme Court is not keen on having a confrontation, but its patience was running out on delay in filling up vacancies at critical tribunals. Around 250 posts are lying vacant at various key tribunals, such as National Company Law Tribunal (NCLT), Debt Recovery Tribunal (DRT), Securities Appellate Tribunal (SAT) and Telecom Disputes Settlement and Appellate Tribunal (TDSAT).
The bench, also comprising justice DY Chandrachud and justice L Nageswara Rao, had said tribunals across the country are on ‘the verge of collapse’, and some are only working with one member, and cases are being adjourned by as much as a year.
The matter had remained unresolved since 2017 when the ministry of finance notified rules regarding qualifications, duration of tenure and composition of the search-cum-selection committees. The apex court struck this down in 2019.
The Union government made several attempts to introduce these rules, which were thwarted by the apex court, including the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance. Despite this, on 13 August 2021, the Tribunal Reforms Bill was passed in Parliament. On 16th August, the apex court termed the passing of the Bill as ‘serious’.
The Tribunal Reforms Act has provisions similar to the ones struck down by the Supreme Court. Justice Chandrachud even mentioned that the Tribunal Act is ‘virtually a replica of the provisions struck down by the court in the Madras Bar Association case.”
In August, the SC took cognisance at the behest of public interest litigation (PIL) filed by Congress leader Jairam Ramesh that alleged that the enactment was ultra vires of the government’s constitutional prerogatives.
The Tribunal Reforms Act dissolves eight tribunals, conferring their jurisdiction on high courts and civil courts. It also changes the procedure of the constitution of tribunals, granting the power of appointment and removal upon the search-cum-selection committee (SCSC). Further, a person below the age of 50 is ineligible for an appointment as chairperson or tribunal member. The selection committee is expected to recommend three names to the panel, a four-year term of members, and salary and terms of appointment the same as bureaucrats.