Investigation Rules for Cases against NCLT Judges Notified by MCA

On July 28, 2020, the Ministry of Corporate Affairs (MCA) had notified rules for investigating complaints against the judges of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT).

These rules are called 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.

The procedural rules state that  a committee shall submit its findings to the President of India. The President is authorised to refer the matter to the Chief Justice of India.

He can further request the CJI to nominate a Judge of the Supreme Court to conduct an enquiry proceedings in cases that indicate misbehavior or incapacity of the concerned Member.

The procedure for the investigation of the complaints

The procedure laid down in the said rules is as under:

Submission of the complaint to the Central Government

First of all, a written complaint has to be filed with the Central Government. The complaint must  clearly specify the charges of misbehaviour alleged against any Member.  The  incapacity of a Member, to perform any functions associated with his/her office also comes under the scope of complaint.

The Central Government shall, after the receipt of the written complaint make preliminary scrutiny of such complaint.

Committee to investigate complaints against a Member after preliminary scrutiny.

1. If the Central government deems it fit to probe the allegations after its preliminary scrutiny then it shall place the complaint before a Committee along with supporting material (as available).
2. The committee must comprise of the following members.
   • Cabinet Secretary (Chairman)
   • Secretary of Ministry of Corporate Affairs (Member)
   • Secretary of Department of Legal Affairs, Ministry of Law and Justice (Member)
3. The Committee shall follow its own procedure and method of investigation.
4. The Committee shall submit its findings to the President of India within the period specified by him.

The Role of the President of India

The President of India can refer the matter to the Chief Justice of India if he is of the opinion that there are reasonable grounds for making an inquiry into the truth of the complaint.

• The President of India shall, by order, appoint a Judge of the Supreme Court nominated by the Chief Justice of India for the purpose of conducting the inquiry.
• He shall also forward  the copy of all the relevant material of the case to the appointed Judge.

The role of the Judge of the Apex Court

1. The Judge of the Apex Court shall conclude the inquiry, within such time as may be prescribed by the President of India
2. The Judge is not bound by the procedure  laid down by the Code of Civil Procedure, 1908 (CPC) but he/she has to follow principles of natural justice.
3. The judge shall have the flexibility to regulate his/her own procedure, including fixing of the place and time of inquiry.
4. The Judge shall submit his/her report to the President of India stating therein his/her findings and the reasons, with such observations on the whole case as he/she thinks fit after concluding his/her investigation.

Right of the Member of the Tribunal

• The Member concerned shall be given an opportunity of presenting a written statement of defense within such time as may be specified in this behalf by the Judge.
• Where the Central Government has appointed an advocate to present its case before the Judge, the Member concerned shall also be allowed to present his/her case by an advocate chosen by him/her.

Medical Test of the Member of the Tribunal

• Where it is alleged that the Member concerned is unable to discharge the duties of his/her office efficiently due to any physical or mental incapacity and the allegation is denied by the Member, the Judge of the Apex Court conducting the inquiry, may arrange for the medical examination of the Member by a Medical Board. 
• The Member concerned shall present himself/herself to such medical examination within the time specified in this behalf by the Judge.
• The Medical Board shall undertake the necessary medical examination of the Member and then submit a report to the Judge of the Apex Court, stating therein whether the incapacity is such as to render the Member unfit to continue in office, or not.
• If the Member refuses to undergo the medical examination stipulated by the Medical Board, then the Board shall submit a report to the Judge specifying the details of the examination which the Member has refused to undergo.
•  On receipt of such report the Judge may presume that the Member suffers from such physical or mental incapacity as is alleged in the complaint.

Suspension of the Member of the Tribunal

• The Judge of the Apex Court conducting an inquiry against the Member of the Tribunal, may communicate a reference before the Central Government, to suspend the Member of the Tribunal, pending such inquiry.
• On the receipt of such reference, the Central Government may, with the concurrence of Chief Justice of India suspend such Member for the time being.
• Due consideration is given to the gravity of the charges against the Member while passing such suspension orders.
• The rules have a provision for granting subsistence allowance if the Member of the tribunal is suspended.