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SC raps Centre, NCLAT chief to be reinstated

At the core of the matter is a legal battle surrounding a recent legislation on appointments to tribunals that overwrites several judgments of the apex court
An SC bench, led by Chief Justice of India NV Ramana, observed that it is the government that is responsible for such an “awkward situation”. (Burhaan Kinu/HT PHOTO)
Updated on Sep 17, 2021 02:22 AM IST
By Utkarsh Anand, Hindustan Times, New Delhi

The Supreme Court on Thursday forced the Union government to reinstate the acting chairperson of the national company law appellate tribunal (NCLAT) for another four days while sending the man currently holding this position on leave till September 20.

In a dramatic turn of events, the government was nudged to issue a fresh appointment letter to justice Ashok Iqbal Singh Cheema, who was sent off hurriedly on September 11 instead of September 20, when he would have reached the retirement age of 67. The top court rejected the government’s suggestion that Cheema be retained as NCLAT’s acting chairperson “only on paper”.

At the core of the matter is a legal battle surrounding a recent legislation on appointments to tribunals that overwrites several judgments of the apex court.

Justice M Venugopal, who was appointed the acting chairperson of NCLAT by the government after unseating justice Cheema, will be sent on leave till September 20, and he will come back as the acting chairperson once again on September 21.

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A bench, led by Chief Justice of India NV Ramana, observed that it is the government that is responsible for such an “awkward situation” and that any more insistence on its authority to pass such orders by citing the 2021 Tribunal Reforms Act would compel the court to suo motu (on its own motion) stay the new legislation.

“Your (government’s) officers cannot wake up at seven in the morning and decide to throw out anyone from the tribunal...if the government thinks it can do whatever it likes then we will also have to do something...we will suo motu stay your legislation,” the bench, which also included justices Surya Kant and Hima Kohli told attorney general (AG) KK Venugopal.

The court was hearing justice Cheema’s petition in which the retired judge questioned the manner in which he was removed on September 11 by issuing a letter when he was due to retire on September 20.

On Wednesday, too, the top court reproached the Centre while hearing a bunch of cases relating to vacancies across the tribunals and a challenge to the Tribunal Reforms Bill, which was passed by both the Houses in the recent monsoon session of Parliament. Observing that it is “very, very unhappy”, the court on Wednesday said that in a democratic country governed by the rule of law, the government cannot assert its authority to reject the names recommended by selection committees, headed by the judges of the top court, for appointments to various tribunals.

When the hearing on Justice Cheema’s petition commenced on Thursday, Venugopal, representing the Centre, said that the government is willing to consider justice Cheema’s “deemed continuance” till September 20 and he will be treated to have retired on September 20 but that this would only be “on paper”.

“He will be given all the benefits but he cannot continue since we have already appointed another acting chairperson. How can we remove that person? This gentleman (Cheema) will be deemed to continue on his post only on paper. We cannot put him back. It will be very awkward,” the AG told the bench.

But the bench was unimpressed with this submission. “The way you removed him was also very awkward. And what do you mean by ‘only on paper’. Once he is allowed to continue, all consequential benefits will have to follow. This gentleman has five judgments to deliver and you suddenly removed him,” it told Venugopal.

This made the AG assert that the letter to remove justice Cheema was written under the 2021 Act which has overwritten the previous judgments of the Supreme Court. “The new Act gives such authority to the government,” added the law officer.

“Then, we will suo motu stay your 2021 legislation,” retorted the bench while giving AG some time to consult the officers in the government and revert.

Around 15 minutes later, when Venugopal returned, he conceded. “I have taken instructions in the matter that he (Cheema) can be reinstated for delivering judgments and the other gentleman can go on leave.”

The court then commended Venugopal’s efforts and recorded his undertaking in its order that justice Cheema will be reinstated till September 20 with all consequential benefits and the incumbent acting chairperson shall go on leave during this period.

On Wednesday, the apex court took an adverse view of the government’s argument that it had the authority to select only a few names or even reject all the names recommended by the selection committees, which are headed by the judges of the top court.

“If the government has the last laugh, what is the sanctity of the selections made by us after conducting interviews?... We are very, very unhappy with the way in which things are going on and how the government has been acting,” a special bench, comprising CJI Ramana, justices Dhananjaya Y Chandrachud and L Nageswara Rao, told the AG on Wednesday.

“You cannot deny access to justice. How can people be left in the lurch? This is the problem everywhere. We are waiting very patiently. You have to make appointments to the tribunals...tell your government,” said the bench, giving the government two weeks to make appointments to the tribunals and specify wherever appointments cannot be made.

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