POWER AND FUNCTIONS OF PRESIDENT, REGISTRAR AND SECRETARY OF NATIONAL COMPANY LAW BOARD

[Mr. M. GOVINDARAJAN]

The Central Government, for the purposes of NCLT framed the ‘The National Company Law Tribunal Rules, 2016 (‘Rule’ for short) which came into effect from 21.07.2016.  Part II of the Rule provides for the power and functions of the President, Registrar and Secretary.

Functions of the President

Section 409 of the Companies Act, 2013 (‘Act’ for short) provides for the qualification of the President of NCLT.  The President shall be a person who is or has been a Judge of a High Court for five years and he shall not be disqualified for such appointment.   Section 412 of the Act provides the procedure for the appointment of the President.  Section 413 of the Act provide the term of office of President as five years. 

The powers of the President are of two types – one enumerated in the Act and the other enumerated in Rule 16.

General Powers

Section 418 (2) provides that the officers and other employees of the Tribunal shall discharge their functions under the general superintendence and control of the President. 

The first proviso to Section 419 provides that it shall be competent for the Members of the Tribunal authorized in this behalf to function as a Bench consisting of a single Judicial Member and exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may, by general or special order, specify.

The second proviso to Section 419 provides that that if at any state of the hearing of any such case or matter, it appears to the Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the President, or the case may be, referred to him for transfer to such Bench as the President may deem fit.

Section 419 (4) provides that the President shall, for the disposal of any case relating to rehabilitation, restructuring, reviving or winding up of companies, constitute one or more Special Benches consisting of three or more Members, majority necessarily being of Judicial Members.

Section 419 (5) provides that if the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it.

Functions under Rules

Rule 16 provides that the President shall, in addition to the general powers provided in the Act and in these rules, exercise the following powers, namely-

• Preside over the consideration of cases by the Tribunal;
• Direct the Registry in the performance of its functions;
• Prepare an Annual Report on the activities of the Tribunal;
• Transfer any case from one Bench to other Bench when the circumstances so warrant;
• To withdraw the work or case from the court of a member;
• Perform the functions entrusted to the President under these rules and such other powers as may be relevant to carry out his duties as head of the Tribunal while exercising the general superintendence and control over the administrative functions of the Members, Registrar, Secretary and other staff of the Tribunal.

Rule 19 provides that the President may assign or delegate to any suitable officer all or some of the functions required by the rules to be exercised by the Registrar.

Rule 63 provides that an appeal against the order of the Registrar shall be made within 15 days of the making of such order to the President of the Principal Bench and at other places to any Member of the Bench designated by the President.  The decision of the President shall be final.

Functions of the Registrar

Rule 2(21) defines the term ‘Registrar’ as Registrar of the Tribunal and includes such other office of the Tribunal or Bench to whom the powers and functions of the Registrar is delegated.

Rule 17 provides the functions of the Registrar.  The Registrar shall have the following functions, namely-

• registration of appeals, petitions and applications;
• receive applications for amendment of appeal or the petition or application or subsequent proceedings;
• receive applications for fresh summons or notices and regarding services thereof;
• receive applications for fresh summons or notices and for short date summons and notices;
• receive applications for substituted service of summons or notices;
• receive applications for seeking orders concerning the admission and inspection of documents;
• transmission of a direction or order to the civil court as directed by the Tribunal with the prescribed certificates for execution etc., and
• such other incidental or matters and the President may direct from time to time.

All adjournments shall normally be sought before the concerned Bench in court and in extraordinary circumstances, the Registrar may, if so directed by the Tribunal in chambers, at any time adjourn any matter and lays the same before the Tribunal in chambers.  Rule 90 (2) provides that when the sitting of a particular Bench is cancelled for the reason of inability of a Member of the Bench, the Registrar shall, unless otherwise directed, adjourn the cases posted before that Bench to a convenient date and the adjournment or posting or directions shall be notified in the notice board of the Registry.

The other functions of the Registrar as enumerated in the Rules are as follows-

• Rule 28(3) – The Registrar may for sufficient cause return the filed document for rectification or amendment to the party filing the same, and for the purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance;
• Rule 30 – On the admission of the appeal or petition or application, the Registrar shall, if so directed by the Tribunal, call for the records relating to the proceedings from any adjudicating authority and retransmit the same;
• Proviso to Rule 31 provides that the Registrar may at any time call upon the party to produce such further materials as he deems fit for satisfying himself about due authorization;

Functions of the Secretary

Rule 2(25) defines the Secretary as Secretary of the Tribunal and in the absence of Secretary, such other officer of the Tribunal to whom the powers and functions of the Secretary are delegated.

Rule 18(1) provides that there shall be a Secretary in the Principal Bench of the Tribunal, New Delhi.  Rule 18(2) provides that the Secretary shall, under the general superintendence and control of the President, discharge such duties and functions and exercise such powers as are prescribed under these rules and as assigned by the President from time to time.

Rule 18(3) provides that the Secretary shall-

• be in charge of the long term projects and initiatives of the Tribunal;
• supervise the divisions and sections of the Human Resources;
• prepare, monitor and manage budgetary allocations and financial managements of the Tribunal and the Benches;
• provide all necessary support in the day to day operations of the Tribunal;
• manage and supervise the facilities and administrative services of the Tribunal;
• co-ordinate with authorized representatives and other professionals in smooth functioning of the Tribunal;
• oversee information and communication technology and other technological facilities of the Tribunal;
• manage and facilitate communication and services of the Tribunal;
• manage, monitor and administer the public affairs and public safety provisions within the premises of the Tribunal; and
• supervise library and research wings of the Tribunal.