The Ministry of Corporate Affairs (MCA) on Thursday notified the rules for investigating complaints against judges of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT).
The MCA has notified rules on the National Company Law Tribunal and National Company Law Appellate Tribunal (Procedure for investigation of misbehavior or incapacity of Chairperson, President, and other Members) Rules, 2020 wherein provisions related to Committee for investigation of complaints, Judge to conduct an inquiry, Suspension of Member, etc. has been elaborated.
The rules provide for a committee that will be chaired by the cabinet secretary and shall include the secretaries of corporate affairs and the department of legal affairs, to investigate any written complaints referred by the government.
The rules laid down shall be applicable to the President, Technical and Judicial Member of NCLT and the Chairperson, Judicial and Technical Member of the NCLAT.
However, the scope of application is limited to the members of the Tribunal and does not extend to the sitting judge of the High Court who has been appointed as the Member, President, or the Chairperson of The NCLT or NCLAT.
Firstly, a written complaint has to be filed with the Central Government clearly alleging definite charges of misbehavior or incapacity in performing the functions associated with his office. The role of the Central Government remains limited to making a “preliminary scrutiny” of the complaint.
If upon preliminary scrutiny the Central government considers it necessary to investigate the allegations, the complaints along with the supporting documents are transferred to a committee.
As per the rules, the Committee is chaired by the Cabinet Secretary and shall also include Secretaries of Corporate Affairs and the Department of Legal Affairs. Further, the Committee is empowered to devise its own methods and procedures such as recording of evidence of complaint and collecting relevant material for inquiry.
The findings of the committee are then submitted to the President as early as possible and are to be done within a period specified by the president.
If the President holds the opinion that there exist reasonable grounds for making inquiry into the truthfulness of the allegation of incapacity and misbehavior of a member, a reference is to be made to the Chief Justice of India requesting him to make a nomination of a Supreme Court Judge who shall conduct the inquiry.
An order is then passed by the President appointing the Judge nominated by the CJI for the purpose of conducting an inquiry of the matter.
The Articles of charges against the member along with a statement of imputations; Statement of witness (if any); and Material documents relevant to the inquiry.
The appointed Judge must complete the inquiry within the time specified by the President.
Further, under the prescribed rules the Principle of Natural Justice is adhered to and the member is given an opportunity of presenting a written statement of defense within the prescribed time.
In situations where physical or mental incapacity causing the inability to discharge duties of the office is alleged, and the member denies such allegations, a Medical Examination is conducted. If the member refuses to undergo the medical examinations, the Medical Board would submit a report to the Judge stating the details of the examination which the member refused. The Judge has the authority to then presume that the member was suffering from such alleged physical or mental incapacity.
The Central Government, as well as the members, are allowed to present their case to the Judge by appointing an advocate of their choice.
Keeping in view the gravity of the case, the member of the tribunal against whom the inquiry is ongoing and the Final order is yet to be passed, may be suspended by the Central government with the concurrence of the CJI.
The MCA’s intent of balancing the rights of the accused members along with the rights of the complainant is truly reflected in the Rules framed. The process established by law to inquire about the truthfulness of allegations of incapacity and misbehavior seems fair, just and reasonable along with adherence to Due Process of law and Principles of Natural Justice.
However, the only concern that remains unaddressed is the non-address of possibility and redressal mechanism in case of any prejudice or bias carried out against such members during the inquiry process.
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