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Make decision on NCLT tenure public: SC to govt
According to an affidavit filed by the Centre in September last year, about 200 posts were vacant across 15 tribunals.
The Supreme Court on Thursday directed the Centre to make public the decision taken by the committee headed by Chief Justice of India (CJI) NV Ramana on the issue of extending the three-year tenure of 23 members of National Company Law Tribunal (NCLT) to five years.
The Centre claimed confidentiality over the decisions taken by the three-member Committee comprising the CJI, justice Surya Kant, and the secretary, ministry of corporate affairs, and declined to disclose them to the petitioner, NCLT bar association, which approached the top court in March demanding the tenure of the 23 members be revised to five years.
A bench of justices JK Maheshwari and Hima Kohli said: “There can’t be so much secrecy over this document. Of what we have seen that you filed, there is no breach of confidentiality.”
The bench directed the Centre to file an affidavit by Friday, bringing on record the decisions by the committee in meetings held on March 20 and June 6, and supply a copy to the petitioners. The court will hear the matter on Monday.
The issues surrounding appointment of members in tribunals and their service conditions have of late emerged as a flashpoint between the judiciary and the executive with the top court repeatedly reproaching the central government over massive vacancies in tribunals across the country.
All tribunals should be abolished if the Union government cannot care enough to man them, an anguished court observed in March this year. In February, the top court imposed varying monetary fines up to ₹1.5 lakh on several states for not making appointments in the consumer courts within the fixed timeline.
In October last year, the bench reproached the Union government for creating an “imbroglio” over functioning of the tribunals and making “citizens suffer in the bargain”.
A CJI-led bench in August and September 2021 put the Union government in the dock over “making tribunals virtually defunct” by not filling up vacancies. The government is “emasculating tribunals” by not filling up vacancies in them, it said while hearing a separate bunch of cases. The CJI-led bench is also taking stock of appointments across various tribunals.
According to an affidavit filed by the Centre in September last year, about 200 posts were vacant across 15 tribunals.
On Thursday, Solicitor General Tushar Mehta, who appeared for the Centre, submitted to the court the two resolutions passed by the committee. But the bench observed that it would have been appropriate if the documents were filed in an affidavit. “It is a serious matter. If you go by statutory provisions, it goes against it. The Tribunal Reforms Act 2021 prescribes for tenure of four years,” it added.
Senior advocate Maninder Singh, appearing for the NCLT bar association, questioned the selective approach of the Centre. He told the court that in a separate matter concerning appointments to the Central Administrative Tribunals (CAT), the recommendations of the committee headed by a sitting Supreme Court judge were recorded in an affidavit by the Centre.
“That is why we are asking them to file an affidavit, so that it can be served to you,” the bench replied. “Whatever additional documents you have filed, serve it to the other side as well,” it then told Mehta.
The SG expressed reservations, and requested the bench to first look at the affidavit that will be filed, and then decide whether to share it with the other side. “It is a question of propriety and confidentiality. If the court feels it has to be shared, it is the court’s call. But as of propriety, we would not share. These are resolutions passed by CJI-headed committee and so we shared it only with the court,” the solicitor general submitted.
Mehta further contended that CAT appointments stood on a different footing. In the NCLT committee resolutions, there were other issues that may arise, which the court has to consider, he said.
The SG was possibly referring to the verification reports of the character and antecedents of the 23 members, which is key to determining a grant of extension. On June 14, the Centre issued an order revising the tenure of eight out of 23 members to five years from the date of joining or attaining the age of 65, whichever is earlier. The eight included two judicial members and six technical members.
Singh told the court that, since 2016, when NCLT came into existence, the term of members (judicial and technical) has been five years. The 23 members in question were appointed in 2019 with three-year tenures under a government notification. This executive order passed by the ministry of corporate affairs was challenged by the NCLT bar association. According to the petitioner, the last of the members appointed in 2019 will retire on July 3 this year.
On May 25, when the matter was last heard by the top court, the Centre said that the CJI-headed committee was still deliberating on the issue. Recording this submission, the court granted Centre time till June 15 to apprise it of the final recommendations.
