The Central government on Thursday informed the Supreme Court that it has agreed to allow former acting chairperson of National Company Law Appellate Tribunal (NCLAT), Justice AIS Cheema to continue in office till September 20, the date on which he was slated to retire before the Centre had curtailed his service by ten days.
Attorney General (AG) KK Venugopal told a Bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli that Justice Cheema will be allowed to go to office until September 20 to deliver pending judgments and he will also receive retiral benefits based on that date, Bar and Bench reported.
The current chairperson M Venugopal will be asked to go on leave until then, the AG added.
“It was said he took leave to write judgments. So we have decided that he will be allowed to go to office and pronounce judgments, the current chairperson Justice Venugopal will be sent on leave,” the AG told the Court.
The top court accepted the submission and said it will pass orders to that effect.
“The submission is accepted and consequential orders will be passed. Current chairperson will be on leave till Sept 20. This order is in terms of facts and circumstances,” the Court said.
The Court was hearing a plea by Justice Cheema against the government’s decision to curtail his tenure as judicial member of NCLAT by ten days before it was slated to end on September 20.
When the matter was taken up for hearing today, Attorney General KK Venugopal, appearing for the Central government initially said that Justice Cheema will be allowed to continue in office “on paper” till September 20 and will receive consequential retiral benefits.
However, he will not be allowed to go to office.
Cheema’s counsel, Senior Advocate Arvind Datar said that he must be allowed to go to officer till September and deliver pending judgments.
CJI Ramana also agreed stating,
“He has judgments which needs to be pronounced. You are a senior counsel and you know this.”
“This will become awkward for the current chairperson,” submitted the AG.
Justice M Venugopal, a former Madras High Court judge, replaced Justice Cheema as acting chairperson of the NCLAT with effect from September 11.
“Your orders are also awkward. We have to say you are responsible for this situation,” the Court said.
The AG then sought time to take instructions and the Court deferred the hearing for few minutes.
When the matter was taken up again, the AG said that the Centre has agreed to Cheema’s plea to allow him to go to office to deliver judgments.
Justice Cheema, a former judge of the Bombay High Court was appointed judicial member of NCLAT in September 11, 2017 and was functioning as its acting Chairperson since April 19, 2021.
He was expected to continue in the post till his retirement on September 20. Cheema turns 67 on September 21, the age of retirement of NCLAT members.
He had also received a communication from the Centre on July 16 stating that his tenure will be upto September 20.
However, as per the plea, he later received a communication on September 10 stating that his tenure has come to an end since he has completed 4 years as NCLAT member.
This period of four years is as per the new Tribunal Reforms Act, 2021 which says that a member of NCLAT shall hold office for four years or till he/ she attains the age of 67 whichever is earlier.
In his plea before the top court, Cheema contended that he had in anticipation that his tenure would be lasting till September 20, taken leave from August 31, 2021 till September 10, 2021 so as to write pending judgments and pronounce them in the week starting from September 13, 2021.
The petition stated that the Central government has issued the communication, illegally and erroneously, curtailing the petitioner’s tenure, out of obsession to not give a tenure of more than 4 years to NCLAT members.
Justice Cheema also submitted that it was “hurting to be treated like this after rendering unblemished service of about 39 years in judiciary”.
Cheema had served as Registrar and thereafter Secretary General of the Supreme Court of India before he was appointed a judge of the Bombay High Court in 2013 where he served till he retired in 2016.
Cheema submitted that he has filed the present petition not only for regaining his honour, “which has been thrown to the winds, but also for the honour of the entire judiciary and its independence, which is very necessary for the able functioning of a democracy.”
The service and retirement conditions of tribunal members under the Tribunal Reforms Act has been a contentious issues for the last few weeks between the Supreme Court and the Central government.
This is because many of the provisions of the law run contrary to the mandate of the Supreme Court judgment regarding tenures of service of tribunal members.
The Supreme Court had on July 14 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 (Ordinance) to the extent that it fixed the tenure of members and chairperson of tribunals at 4 years.
The top court had ruled that Section 184(11) of the Finance Act, which prescribes a tenure of four years for members, was contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India as well as the judgment of the apex court in the Madras Bar Association III case.
“Consequently, the declaration of this Court in para 53(iv) of (the judgment in) Madras Bar Association-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier,” the Supreme Court had ordered.
However, as per Section 5 of the new Act, the term of office of the Chairperson of a tribunal shall be four years or till the person attains age of 70, whichever is earlier. Similarly, for members of tribunals, the tenure has been prescribed as four years or till he/she attains 67 years, whichever is earlier.
It is this tenure of 4 years which the Centre has sought to implement in Justice Cheema’s case.
