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'We Will Suo Motu Stay Tribunals Reforms Act' : Supreme Court Tells Centre In NCLAT Member Justice Cheema's Plea
Srishti Ojha
16 Sept 2021 11:55 AM IST
Extremely upset with the manner in which the Central Government terminated the services of Justice Ashok Iqbal Singh Cheema as the Acting Chairperson of the National Company Law Appellate Tribunal, the Supreme Court on Wednesday orally said that it will suo motu stay the Tribunals Reforms Act 2021.The Tribunals Reforms Act 2021 has become a point of friction between the Supreme Court and...
Extremely upset with the manner in which the Central Government terminated the services of Justice Ashok Iqbal Singh Cheema as the Acting Chairperson of the National Company Law Appellate Tribunal, the Supreme Court on Wednesday orally said that it will suo motu stay the Tribunals Reforms Act 2021.
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.
A Bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli were hearing Justice Ashok Iqbal Singh Cheema's plea against his premature retirement as acting Chairperson of National Company Law Appellate Tribunal (NCLAT) on 10th September by Centre, whereas he was due to retire on 20th September as per his initial appointment order.
The Attorney General for India KK Venugopal told the bench today that the Government is prepared to treat the period from 10.09.2021 to 20.09.2021 as continuous service notionally in case of Justice Cheema.
However, the bench said that Justice Cheema might need to actually exercise the powers of Acting Chairperson, as he has reserved judgments in 5 cases(The Government has appointed another person as Acting Chairperson in the meanwhile).
"He has reserved 5 judgments. If you suddenly retire him, there will be a problem in re-hearing those cases. The way in which this order passed in awkward. How fair it is?", the Chief Justice of India asked the AG.
The Attorney General maintained that the Government has the powers to issue the order, as the recently passed Tribunals Reforms Act 2021 fixed the term of members as 4 years.
"Then we will have to suo motu stay your legislation", the CJI told the AG.
The AG then said that he is prepared to argue the matter on merits. The bench has passed over the matter to today afternoon, asking the AG to get instructions. The AG said that it will be awkward for the Government to remove the incumbent Chairperson to accommodate Justice Cheema.
Attorney General concedes later
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 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"
Background
Post Justice Cheema's retirement, Former Judge of Madras High Court Justice M Venugopal has been appointed as the Acting Chairperson of the NCLAT with effect from September 11th.
The Chief Justice of India NV Ramana had yesterday asked Attorney General KK Venugopal to get instructions regarding this petition.
"I am in advance telling you to appear tomorrow, it's regarding premature retirement of Justice Cheema as NCLT Chairman. It appears he has been replaced. The department has hurriedly on 11th of September made arrangements and he has been replaced by another gentleman, Justice M. Venugopal. I don't know how this is happening, what is this happening? I am not sure whether you have notice of this or not..."
Senior Advocate Arvind P Datar on behalf of Justice Cheema had submitted that "It is a very disturbing trend. I request you to put an end to it at the earliest. All the appointment letters are being issued now including Income Tax Appellate Tribunal, they are sending WhatsApp messages. Now whether the tenure is to be four years or five years, that Your Lordships will decide next week. Assuming it is four years for now, the letters read that the appointment shall be "until the age of 67 years or four years or until further orders, whichever is earlier". Like Justice Cheema, they are using "until further orders". There is no provision in the Act for this and without any kind of provision, they are simply terminating the people"
"The Chairman of NCLAT is retired on 10th evening without anything! His office ends on 20th. Its very unfortunate." Mr Datar had said during the mentioning.
"We should protect the respect of Judiciary. Please see they don't say 'whichever is earlier'" Mr Datar had said.
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
