'Attorney General Solved The Problem', Says Supreme Court As Centre Agrees To Reinstate Justice Cheema As NCLAT Chairperson Till Sep 20
The Attorney General on Thursday informed the Supreme Court that the Central Government has agreed to reinstate Justice Ashok Iqbal Singh Cheema as the Acting Chairperson of the National Company Law Appellate Tribunal till September 20 to enable him to pronounce the pending judgments.Justice Cheema had filed a writ petition in the Supreme Court aggrieved by the order issued by the Centre...
The Attorney General on Thursday informed the Supreme Court that the Central Government has agreed to reinstate Justice Ashok Iqbal Singh Cheema as the Acting Chairperson of the National Company Law Appellate Tribunal till September 20 to enable him to pronounce the pending judgments.
Justice Cheema had filed a writ petition in the Supreme Court aggrieved by the order issued by the Centre to terminate his services with effect from September 10, although he was expecting a term till September 20 in terms of his original appointment order. He is attaining the retirement age of 67 years on September 20.
The Attorney General for India KK Venugopal said that the termination order was issued as the recently passed Tribunals Reforms Act 2021 fixed the term of members as 4 years (Justice Cheema was appointed as NCLAT member on September 11, 2017). Therefore, the AG maintained the Government had the power to issue the termination order.
Nonetheless, the AG said that the Government was prepared to treat the period of 11.09.2021 till 20.09.2021 as continuous service notionally for Justice Cheema for the purposes of his retiral benefits.
However, the bench led by the Chief Justice of India NV Ramana insisted that Justice Cheema should be allowed to actually officiate the powers of his office till September 20, as he has reserved judgments in 5 cases.
The bench also warned that it will suo motu stay the Tribunals Reforms Act 2021. It may be recalled that the Tribunals Reforms Act 2021 has become a point of friction between the Supreme Court and the Central Government, as the Court is unhappy that the Act has been passed with the very same provisions which were struck down in the Madras Bar Association case.
Following the strong remarks from the bench, the Attorney General requested for a pass-over to get instructions.
When the matter was taken again after 30 minutes, the Attorney General conceded to allow Justice Cheema officiate as the Acting Chairperson for the remaining days, and said that the present incumbent will be asked to proceed on leave.
"I have taken instructions. Petitioner said he took leave from August 31st to 10the September to write judgments & pronounce them before 20th. So he may be reinstated for purpose of pronouncing judgements & existing Gentleman will be asked to go on leave", the AG said.
Recording this submission, the bench disposed of the petition.
"The Attorney General solved the problem. We thank you for this", the CJI said after the case was disposed.
The bench, also comprising Justices Surya Kant and Hima Kohli, noted in the order as follows :
"The learned Attorney General fairly considered that there's no objection to allow prayer c and also to allow petitioner to deliver his judgements up to September 20th. Once prayer c is accepted, consequential directions will be passed. In view of above submissions writ petition is disposed of"
Case Details:
Justice Cheema, a former judge of the Bombay High Cort, was appointed as a Member (Judicial) in NCLAT on September 11, 2017. In January 2021, the Central Government had revised Justice Cheema tenure as judicial member in NCLAT till his attaining 67 years of age or until further orders, whichever is earlier.
Justice Cheema has been officiating as an Acting Chairperson of NCLAT from April 19, 2021. He was due to retire on September 20th on attaining the age of 67 years.
According to the petitioner, the Central Government sent him a communication suddenly on 10th September notifying that it was his last day as his tenure of 4 years has ended.
It has been pointed out that Justice Cheema's appointment was done under the Tribunal Rules 2017 which were struck down by Supreme Court in 2019. According to that judgement in the case of Roger Mathew, those already in service were to be governed by their parent act. Therefore, Appointments made prior to the 2017 Rules were to governed by the parent Acts and Rules which established the concerned Tribunals, according to which Justice Cheema was to retire at the age of 67 years, on September 20, 2021.
However, it is under the new Tribunals Reforms Act 2021 that the tenure of 4 years is being implemented by the Centre in the present case. Section 5 of the Act, fixes the tenure of the Chairperson and Member to a tenure of four years.
On July 14 this year, the Supreme Court struck down the provisions in the Tribunal Reforms Ordinance which had fixed the term of members as 4 years and which had held fixed the minimum age of appointment of members as 50 years. (Madras Bar Association case IV)
However, the very same provisions are included in the Tribunals Reforms Act.
The validity of this provision and constitutional validity of Tribunals Reforms Act, 2021 is already in challenge before the Supreme Court in pleas filed by Madras Bar Association and former Union Minister Jairam Ramesh.
Section 5 of the impugned Act is challenged in so far as it fixes the tenure of the Chairperson and Member to a "manifestly short tenure" of four years and adversely impacts judicial independence.
"Section 5 also runs against the directions of this Hon'ble Court to fix the tenure of appointees for at least five years as held in Rojer Mathew," the plea has stated.
Case Title: Justice(Retired) Ashok Iqbal Singh Cheema v. Union of India | WP(c) No.1027/2021
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