Special Reference No. 1 of 1983 [1983]
INSC 97 (17 August 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) PATHAK, R.S.
MUKHARJI, SABYASACHI (J)
CITATION: 1983 AIR 996 1983 SCR (3) 639 1983
SCC (4) 258 1983 SCALE (2)97
ACT:
Constitution of India, 1950-Article
317(1)-Scope of- Allegation of assault on the Chairperson by a Member of Public
Service Commission-Reference by President-Procedure to be followed-Supreme
Court Rules-order XXXVIIl rule 2- Scope of.
HEADNOTE:
The Chairperson of the Punjab Public Service
Commission made a complaint to the President of India alleging that a certain
member of the Commission had committed gross misbehaviour towards her by
slapping her on her face in the presence of three other members of the
Commission. In exercise of the power conferred by Article 317(1) of the
Constitution, the President had referred for consideration of this Court the
question whether on the ground of gross misbehaviour the member ought to be
removed from the office of Member of the Public Service Commission.
Certain persons who claimed to have knowledge
of the incident filed their affidavits. The Member's wife, who had also filed
an affidavit, alleged that the then Chief Minister was not happy with her
husband's appointment as a member of the Commission, that the Chairperson's
husband, who was running classes for training students for the Public Service
Commission examinations, wanted certain students of his to be favoured in these
examinations and that when her husband refused to accede to the request he was
falsely implicated in this incident.
It was contended on behalf of the Member that
before making the reference the President (1) ought to have referred the case
to a fact finding body to ascertain whether a prima facie case had been made out
for obtaining the report of this Court on the question of alleged misbehaviour
and (2) the function of this Court is limited to determining whether the person
concerned was guilty of misconduct of such a nature as would require his
removal from the office OF Member of the Public Service Commission.
HELD: on the facts of this case, obtaining a
preliminary opinion of yet another body would be needless duplication of work
and avoidable waste of public time and money. The power of the President to
make a reference to this Court under Article 317(1) is not subject to the
condition precedent that he must first have the facts examined by some other
body or authority. There is no justification for reading into the Article a
provision which is not to be found in it, especially a provision in the nature
of a condition precedent. The material before the President was of a kind and
nature enough to justify his opinion that a prima facie case existed for an
enquiry and report by this Court. [643 G-H, 644A, C-D] 640 (2) The enquiry
which this Court is required to hold is not into the limited question whether
the charge of misbehaviors was made out and whether the misbehavior was of such
a nature as to warrant his removal from office but is an enquiry into the facts
themselves and facts also so as to enable this Court to pronounce whether the
allegations levelled against the Chairman or Member were proved at all.
The purpose of this Article is to ensure
independence of the members and to give protection in the matter of their
tenure. Certain dignitaries of the State like Judges of this Court and High
Courts, the Comptroller and Auditor General and the Chief Election Com
missioner can be removed from their offices only in accordance with the
procedure prescribed in the relevant provisions of the Constitution.
In the case of Members of the Public Service
Commission a higher degree of protection is given by the elimination of
political pressures in the matter of their removal. While in the case of these
dignitaries removal on the ground of proved misbehaviour or incapacity depends
upon the will of the Parliament, any allegation of misbehaviour made against
members of the Public Service Commission has to be examined by this Court on
merits. It is impossible to accept that this Court in one case and the
Parliament in the case of others are entrusted by the Constitution with the
limited power of determining whether the facts found by some other body
establish misbehaviour in one case and misbehaviour or incapacity in those others.
Their function is to find upon facts and their duty is to pronounce whether the
facts found by them establish the charge of misbehaviour or incapacity as the
case may be.
[644 F-H, 645 A-D] (3) There would be no
unfair advantage to either side if the questions of fact are decided by this
court straightaway. So long as the essential safe guards of a fair adjudication
are observed no grievance can be made that the facts which establish the charge
are found by the highest court and not by the lowest. [645 F-G] (4) (a) As
regards procedure, order XXXVlll rule (2) provides that while making an enquiry
into the matter referred to it by the President, this court has power to summon
witnesses and record their evidence. But having regard to the nature and gravity
of the matter, it would not be conducive to justice to decide the reference on
a consideration of affidavits only, because it would not be known at this stage
whether the allegation that the member was falsely implicated in the incident
is true or not. Those allegations cannot be adjudicated upon on a consideration
of the affidavits only. Having regard to the important nature of the question,
the parties whose interests are affected should be permitted to cross-examine
the opposing witnesses.
Again keeping in view the grave nature of the
allegations and counter allegations it will be impossible to consider in
isolation the evidence bearing directly on the alleged incident of slapping but
the entire evidence would have to be taken into account for deciding whether
the allegations against the member can be held to be proved. Therefore it is
only fair that an opportunity should be given to the member to prove that the
charge against him was false, inspired and motivated. [646E-H] (b) order
XXXVIII, Rule 2 of the Supreme Court Rules confers power on this Court to
summon and examine witnesses but it does not enjoin that 641 the evidence must
be recorded by this court itself. Although a provision like Order XLVII, Rule 6
which preserves the power of the court to act ex debito justiciae is not
incorporated in order XXXVIII, it has to be read in the latter Order to enable
this Court to pass proper orders in the interest of justice.
[648 E-H] Considering the overwhelming
commitments of this Court, the Court delegated the duty of recording evidence
to the District Judge with a direction that he should record evidence treating
the affidavits filed in this Court as examination in chief of the respective
witnesses and (2) that the evidence recorded should be limited to cross-
examination only of witnesses who had filed affidavits before this Court. [649
A-B]
ADVISORY JURISDICTION: Special Reference No.
1 of 1983.
(Reference under Article 317(1) of the
Constitution of India) G. L. Sanghi, S. K. Mehta, P. N. Puri and M. K. Dua for
Chairman, Punjab Service Commission.
Soli. J. Sorabjee, Bhagwant Singh, Advocate
General Punjab, S. K. Bagga for the State of Punjab.
F. S. Nariman, Anil B. Divan, Girish Chandra
and Mrs.
Sarla Chandra for Gopal Krishan Saini
(Defaulting Member) K. Parasaran, Attorney General, Miss A. Subhashini for
Union of India.
The order of the Court was delivered by
CHANDRACHUD, C.J.: This is the first Reference of its kind made by the
President of India to this Court under Article 317(1) of the Constitution. That
Article reads thus:
"317. Removal and suspension of a member
of a Public Service Commission.
(1). Subject to the provisions of clause (3)
the Chairman or any other person of a Public Service Commission shall only be
removed from his office by order of the President on the ground of misbehaviour
after the Supreme Court, on reference being made to it by the President, has,
on inquiry held in accordance with the procedure prescribed in that behalf
under 642 Article 145, reported that the Chairman or such other member, as the
case may be, ought on any such ground to be removed." Clause (3) of
Article 317, which confers power on the President to remove the Chairman or any
other member of a Public Service Commission for reasons mentioned in sub- clauses
(a), (b) and (c), is not relevant for our purpose.
Not only is this Reference the first of its
kind but the facts which have been referred to us for our consideration and
report are, shockingly, the first of their kind. We hope they will be the last of
their kind. The order of Reference recites those facts as follows:
"On 24.11.1982 at about 1300 hours Shri
Gopal Krishan Saini, Member, Punjab Public Service Commission, physically
assaulted Smt. Santosh Chowdhary, Chairman, Punjab Public Service Commission
inasmuch as he slapped her on the face in the presence of three other Members
of the Punjab Public Service Commission, namely, S/Shri H. S. Deol, M. S. Brar
and W.G. Lall and thereby committed gross misbehaviour." In exercise of
the power conferred by Article 317(1) of the Constitution, the President has
referred for consideration of this Court the question "as to whether Shri
Gopal Krishan Saini, Member of the Punjab Public Service Commission, ought, on
the ground of misbehaviour, to be removed from the office of the Member of the
Commission." We issued notice of the Reference to the five members of the
Commission, including the Chairperson Smt. Santosh Chowdhary and Shri Gopal
Krishan Saini who is alleged to have assaulted her. All of them have filed
their affidavits in these proceedings. Certain other persons who claim to have
knowledge of the incident or of its alleged background have also filed their
affidavits. Amongst them are: Dr. Vinod Gupta, Ujagar Singh, Avtar Singh, Hakam
Singh and Dr. Rasewat. An affidavit has also been filed by Shri Saini's wife,
the purport of which is that Shri Saini has been involved in this false
incident since the Chief Minister of Punjab, Shri Darbara Singh, was not happy
with his appointment as a Member of the 643 Punjab Public Service Commission.
It is also alleged that the Chairperson's husband was running classes for
training students for the Public Service Commission Examinations, that he
wanted certain students of his to be favoured in those examinations and that on
the failure of Shri Saini to oblige him, his wife, the Chairperson, has
involved Shri Saini into a false charge. The Chief Minister of Punjab has filed
an affidavit denying the allegations made against him.
In pursuance of the notices issued by this
Court, the Attorney-General of India and the Advocate-General of Punjab
appeared in these proceedings.
Shri Nariman, who appears on behalf of Shri
Saini whose conduct we are called upon to inquire into, contended that before
making this Reference, the President should have obtained the opinion of a
fact-finding body for his prima facie satisfaction that a case was made out for
obtaining a report from this Court on the question of the alleged misbehaviour
of Shri Saini. According to counsel, this Court cannot, through the medium of a
Reference, be called upon to discharge functions which ordinarily fall within
the jurisdiction of a trial Court, civil or criminal. The danger of such a
procedure is said to be that if we hold that the incident is proved, Shri Saini
will automatically be held guilty by a criminal Court of the charge of assault
and he will have to suffer a decree for damages in a civil court.
Counsel says that under Article 317(1), the
limited function of this Court is or ought to be to determine whether the facts
found upon by an independent fact-finding body show that the person concerned
is guilty of misconduct and, secondly, whether the misconduct is of such a
nature as to require his removal from the office of Member of the Public
Service Commission.
We are unable to accept these submissions.
The power of the President to make a reference to this Court under Article
317(1) is not subject to the condition precedent that he must first have the
facts examined by some other body or authority. That Article provides that the
Chairman or any other member of a Public Service Commission can only be removed
from his office on the ground of misbehaviour after the Supreme Court on a
Reference made to it by the President reports that the Chairman or such other
person ought to be removed on any such ground. There is no justification for
reading into the Article a provision which is plainly not to be 644 found in
it, especially a provision in the nature of a condition precedent. Besides, the
documents annexed to the Reference and indeed the fact that those documents are
so annexed would show that the President was satisfied prima facie that the
allegations made against the Member of the Public Service Commission require to
be inquired into by us.
Annexed to the order of Reference are a reply
of Shri Saini to the allegations made against him and the statements of the
three Members of the Commission, Shri H. S. Deol, Shri M. S. Brar and Shri W.
G. Lall. These four statements are Annexures II, III, III-A and III-B
respectively to the Reference. It is on the basis of this material that the
President has made the Reference. The material is of a kind and nature enough
to justify the President's opinion that a prima facie case exists for an
inquiry and report by this Court. In these circumstances, obtaining a
preliminary opinion of yet another body would be needless duplication of work
and avoidable waste of public time and money.
The argument that in a reference under
article 317(1) this Court ought not to embark upon an examination of facts and
that its function is limited to determining whether the person concerned is
guilty of misbehaviour and whether the misbehaviour is of such a nature as to
justify his removal is in direct opposition to the plain words of article
317(1). That article provides that, subject to the provisions of clause (3),
(i) the Chairman or any other member of a Public service Commission can be
removed from his office only by the order of the President on the ground of
misbehaviour and (ii) the order of removal can be passed after the Supreme
Court has on inquiry reported to the President that the Chairman or the member
of a Public Service Commission is guilty of misbehaviour and ought to be
removed from his office on that ground. The inquiry which this Court is
required to hold is not into the limited question whether, on the basis of
facts found by the President, the charge of misbehaviour is made out and
whether the misbehaviour is of such a nature as to warrant the removal of the
person from his office. The inquiry contemplated by the article is into the
facts themselves and facts also so as to enable this Court to pronounce upon
the question whether the allegations made against the Chairman or member are
proved at all. The purpose of article 317(1) is to ensure the independence of
members of the Public Service Commissions and to give them protection in the
matter of their tenure. The Judges of the Supreme Court can be removed from
their office only in accordance with the procedure prescribed by article 124
(4) which is made applicable to 645 the Judges of High Courts, the Comptroller
and Auditor- General of India and the Chief Election Commissioner by articles
218, 148 and 324 (5) respectively. Members of Public Service Commissions are,
in one sense, given a higher degree of protection by the elimination, as far as
possible, of political pressures in the matter of their removal. Any allegation
of misbehaviour made against them has to be examined by the Supreme Court on
merits unlike the allegations made against those others whose removal on the
ground of proved misbehaviour or incapacity depends upon the will of the
Parliament. It is impossible to accept that the Supreme Court in one case and
the Parliament in the case of those others are entrusted by the Constitution
with the limited power of determining whether the facts found by some other
body establish misbehaviour in one case and misbehaviour or incapacity in those
others. Their function is to find upon facts and their duty is to pronounce whether
the facts found by them establish the charge of misbehaviour or incapacity, as
the case may be.
The apprehension expressed by the learned
counsel that the finding recorded by this Court will automatically decide the
fate of a prosecution or of a civil suit for damages is real but, that is as it
ought to be. No grievance can legitimately be made that an examination and
assessment of facts is made by this Court instead of being made by a Magistrate
or a Munsif. If a full opportunity is given to the parties to prove and rebut
the facts in issue as in a regular trial. it is an idle complaint that the
evidence has been examined and found upon by the Supreme Court and not by a
court of first instance. If, after giving a full opportunity to both the sides,
the Supreme Court comes to the conclusion that the facts alleged are
established, the conviction or a decree for damages may follow as a matter of
course. But then, a contrary finding by this Court will equally seal the fate
of those proceedings. There is, therefore, no unfair advantage to either side
if the questions of fact are decided by this Court straightway. If the
essential safeguards of a fair adjudication are observed, no grievance can be
made that the facts which establish the charge of misbehaviour are found by the
highest Court of the land and not by the lowest.
The question which then arises before us is
as regards the procedure which this Court should adopt in a Reference made by
the President under Article 317 (1) of the Constitution. That Article provides
that an inquiry has to be held by this Court in accordance 646 with the
procedure prescribed in that behalf under Article 145. Article 145 provides, to
the extent material, that subject to the provisions of any law made by
Parliament, the Supreme Court may, from time to time, with the approval of the
President, make rules for regulating the practice and procedure of the Court.
Sub-clause (j) of Article 145 (1) confers power on this Court to make rules for
regulating inquiries under Article 317 (1). Order XXXVIII of the Supreme Court
Rules, 1966 contains rules regulating references under Article 317 (1). Rule 1
of Order XXXVIII mentions the persons to whom notice of the reference is
required to be given. Rule 2, which is in point, provides that "the Court
may summon such witnesses as it considers necessary." This rule shows that
while making an inquiry into the matter referred to it by the President, this
Court is entitled to summon witnesses, which obviously is for the purpose of recording
their evidence. In other words, while dealing with a reference under Article
317(1). this Court has the power to summon witnesses and record their evidence.
A procedural issue which was debated before
us is whether we should pronounce our opinion on the allegations made against
Shri Saini on the basis of the affidavits only or whether we should permit the
parties to cross-examine persons who have filed their affidavits. Considering
the nature and gravity of the matter referred to us, we are of the opinion that
it will not be conducive to justice to decide the Reference on a consideration
of the affidavits only. We do not know at this stage whether the allegation
made by Shri Saini that he has been falsely involved into the particular
incident by reason of certain other matters and at the instance of certain
other persons, is true or not. But those allegations cannot be adjudicated upon
on a consideration of the affidavits only. The credibility of witnesses who
depose to facts is a matter which bears directly on the adjudication of those
facts. And the best method of testing whether a witness is a person of credit
is to subject him (or her) to cross-examination. The credit of a witness can be
shaken (and, ironically, sometimes established) by cross-examining him and
indeed, section 146(3) of the Evidence Act specifically permits the cross-
examination of a witness in order "to shake his credit by injuring his
character". Bearing in mind the impact of our findings on a future trial,
civil or criminal, relating to the question referred to us, the repercussions
of our findings on the parties concerned and the fact that the matter referred
to us is one of public importance which transcends the immediate private
interests of the parties who have made allegations and counter-allegations
against one another, we are of the view that 647 parties whose interests are
directly affected by these proceedings, that is to say the Chairperson Smt.
Santosh Chowdhary and Shri Gopal Krishan Saini ought to be permitted to
cross-examine opposing witnesses who have filed their affidavits.
There was a sharp difference between the
rival views submitted before us as to the nature and scope of the evidence
which we should allow the parties to lead. It was contended by Shri Sorabjee
who appears for the Government of Punjab and by Shri G.L. Sanghi who appears
for the Chairperson that evidence should be allowed to be led only on the
question whether the incident of slapping took place as alleged and not on any
other matter. It was urged by these learned counsel that we are only concerned
to determine whether Shri Saini slapped the Chairperson and not with the events
antecedent to the assault or which are said to furnish the motive for the
alleged false implication of Shri Saini. On the other hand, it was contended by
Shri Nariman that the case of his client is that he has been falsely implicated
into the charge of assault because he had incurred the wrath of the Chief
Minister of Punjab and the hostility of the Chairperson's husband and that, it
would be impossible for him to prove his case unless he is allowed to
cross-examine witnesses on those aspects of the matter.
Counsel contends that if he could satisfy us
that there was a conspiracy to involve his client falsely or that there were
reasons for so involving him, we will be loathe to hold that the alleged
incident is proved. Shri Nariman's submission must be accepted in the
circumstances of the case. It will be impossible to consider in isolation the
evidence bearing directly on the incident which is alleged to have taken place
on November 22, 1982. The entire evidence, admissible and relevant, shall have
to be taken into account for the purpose of deciding whether the allegation
against Shri Saini can be held to be proved. We are not pronouncing at a stage
upon the admissibility or relevance of any particular piece of evidence, which
shall have to be done after the entire evidence is before us. All that we do
now is to say that we cannot prevent Shri Saini, against whom a grave charge
has been made, from proving that the charge is false and motivated. One of the
questions which is bound to arise in this matter, as it arises in matters of
similar nature, is as to why the complainant should make a false allegation
that she was slapped, courting trouble and involving her own status and
respectability. The answer to that question has to be furnished by the person
who is called upon to meet the allegation that he slapped her. Answers on
questions of fact cannot be made in courts 648 of law in a vacuum. There has to
be evidence to justify those answers. Therefore, it is only fair that an
opportunity should be given to Shri Saini to prove his case that the charge
against him is false, inspired and motivated. We only hope that this
opportunity will not be exploited by Shri Saini to fight a political battle,
against the Chief Minister or to engage in a duel with the Chairperson's
husband. In the ultimate analysis, after the dust raised by these accusations
and counter-accusations has settled down, the fundamental question which this
Court will have to answer is: Did Shri Saini slap the Chairperson or not ? She
says he did. He says he did not. And on the contrary, according to him, it is
she who raised her hand to beat him when he tried to ward off the blow. He says
that this occasion was exploited by interested parties to involve him in a
false charge, out of personal malice and hostility.
Both the accuser and the accused must have an
equal opportunity to prove their respective cases. It must also be remembered
that Article 317 was enacted in order to give protection to the members of the
Public Service Commissions in regard to their removal from office and not as a
disability.
Having seen that witnesses shall have to be
summoned and allowed to be cross-examined by the opposite party the next
question which we have to decide is whether we should have the evidence
recorded in our presence or whether we can and should appoint some responsible
delegate for doing so.
Order XXXVIII, Rule 2 of the Supreme Court
Rules, 1966 provided that this Court may summon such witnesses as it considers
necessary. This provision confers the requisite power on this Court to summon
and examine witnesses, but nothing contained therein can be read to mean that
after deciding which witnesses should be summoned and examined, evidence must
be recorded by this Court itself. Order XLVII, Rule 6 of the same Rules
provides that nothing contained in the Rules "shall be deemed to limit or
otherwise affect the inherent powers of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the
Court. This provision, like its counterpart in statutes like the Code of Civil
Procedure (Section 151) or the Code of Criminal Procedure (Section 482), does not
create or confer any new power but preserves the power of the Court to act ex
debito justiciae. Though a provision like Rule 6 of Order XLVII of the Supreme
Court Rules is not specifically incorporated in Order XXXVIII of those Rules,
it, shall have to be read in the latter Order in order to enable this Court to
pass proper orders in the interest of 649 justice. Considering the overwhelming
commitments of this Court for the time being (and in the foreseeable future),
it is regretfully inexpedient that the evidence should be recorded by this
Court itself. No useful purpose will be served by expending our own time in
recording the evidence of various witnesses except for the advantage of seeing
and hearing the witnesses. The balance of convenience requires that we should
forego that advantage and delegate the duty of recording evidence. Accordingly,
we direct that evidence in this Reference will be recorded by a learned
Additional District and Sessions Judge, Delhi, who will be nominated by the
learned District and Sessions Judge, Delhi. The nomination may be made before
August 22,1983.
We cannot confer any power on the learned
Judge so nominated for recording evidence, to decide on the admissibility or
relevance of any particular piece of evidence. The learned Judge will,
therefore, record the evidence which the parties lead before him, within the
constraints of the following guidelines:
(1) The affidavits filed in this Court will
be treated as the examination-in-chief of the respective witnesses.
(2) The evidence to be recorded by the
learned Judge will be limited to the cross-examination of witnesses who have
filed affidavits before us. In other words, no person who has not filed an
affidavit in this Court will be examined or cross-examined as a witness, except
with the leave of this Court.
(3) Witnesses who have filed affidavits in
this Court may be summoned or requested by the learned Judge to attend his
Court for the purpose of cross-examination. The proceedings will normally be
held in Delhi. Evidence may, however, be recorded at any other place if the
learned Judge considers it necessary or convenient.
The mere fact that the evidence of any
particular witness is recorded by the learned Judge will not conclude the issue
as regards the admissibility or relevance of that evidence. All questions
regarding admissibility and relevance of the evidence so recorded will be
decided by this Court during the hearing of the Reference.
We hope that all parties concerned will take
care to avoid putting frivolous or scandalous questions to witnesses and will
afford 650 the necessary co-operation to the learned Judge for an expeditious
termination of the proceedings before him.
The parties shall appear before the learned
Additional District and Sessions Judge nominated by the learned District and
Sessions Judge, Delhi, on Monday, September 5, 1983, at 11.00 a.m., for
obtaining further directions in the matter. The recording of evidence will
commence on Monday, September 12, 1983 and shall proceed from day to day until
the entire evidence is over. We expect that the recording of evidence will be
over by September 30, 1983. In case it is not over by that date, the learned
Judge may write to the Registrar of the Supreme Court for extension of time.
The evidence will be transmitted to the Registrar (Judicial) of this Court
immediately after the entire evidence is recorded.
P.B.R.
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