Justice P.D.
Dinakaran Vs. Judges Inquiry Committee and another
J U D G M E N T
G.S. Singhvi, J.
1.
This
petition is directed against order dated 24.4.2011 passed by the Committee constituted
by the Chairman of the Council of States (Rajya Sabha) (for short, `the
Chairman') under Section 3(2) of the Judges (Inquiry) Act, 1968 (for short,
"the Act") rejecting the petitioner's prayer for supply of the details
and documents enumerated in paragraph 4(a) to (m) of application dated
19.4.2011 and objections raised by him to the jurisdiction of the Committee to
frame certain charges.
2.
Fifty
members of the Rajya Sabha submitted a notice of motion for presenting an
address to the President of India for removal of the petitioner, who was then
posted as Chief Justice of the Karnataka High Court, under Article 217 read
with Article 124(4) of the Constitution of India. The acts of misbehaviour
allegedly committed by the petitioner were enumerated in the notice, which was accompanied
by an explanatory note and documents in support of the allegations. For the sake
of convenient reference, the allegations contained in the notice of motion are
reproduced below:
I.
"Possessing
wealth disproportionate to known sources of income.
II.
Unlawfully
securing five Housing Board plots, in favour of his wife, and two daughters.
III.
Entering
into Benami transactions prohibited and punishable under the Benami
Transactions (Prohibition) Act, 1988.
IV.
Acquiring
and possessing agricultural holdings beyond ceiling limit under the Tamil Nadu Land
Reforms (Fixation of Ceiling on Land) Act, 1961.
V.
Illegal
encroachment on Government and public property to deprive dalits and the poor
of their right to livelihood.
VI.
Violation
of the human rights of dalits and the poor.
VII.
Destruction
of evidence during official enquiry.
VIII.
Obstructing
public servant on duty.
IX.
Repeated
undervaluation of properties at the time of registration of sale to evade stamp
duty.
X.
Carrying
out illegal construction in breach of Town Planning Law and planning permit.
XI.
Misuse
of official position to unlawfully secure property and to facilitate other
illegal acts for personal gain.
XII.
Abuse
of judicial office:
A.
To
pass dishonest judicial orders:
i.
Contrary
to settled principles of law to favour a few individuals or for his own unjust
enrichment, at the cost of the public exchequer and the country's natural
resources.
ii.
In
matters where he had personal and direct pecuniary interest to secure several properties
for his family.
B.
To
take irregular and dishonest administrative actions:
i.
for
constituting Benches and fixing Rosters of judges to facilitate dishonest
judicial decisions.
ii.
to
make arbitrary and illegal appointments and transfers." The explanatory note
appended to the notice of motion contained detailed facts which, in the opinion
of the signatories of the motion, supported the acts of misbehaviour alleged
against the petitioner.
3.
After
the motion was admitted, the Chairman constituted a Committee comprising Mr.
Justice V.S. Sirpurkar, Judge, Supreme Court of India, Mr. Justice A.R. Dave,
the then Chief Justice of Andhra Pradesh High Court and Shri P.P. Rao, Senior
Advocate.
4.
Before
the Committee could commence its proceedings, Mr. Justice A.R. Dave was elevated
to this Court and, in his place, Mr. Justice J.S. Khehar, the then Chief
Justice of Uttarakhand High Court was appointed as member of the Committee. In September,
2010, Mr. Justice Aftab Alam, Judge, Supreme Court of India was appointed as
Presiding Officer because Mr. Justice V.S. Sirpurkar recused from the
Committee.
5.
After
preliminary scrutiny of the material placed before it which included documents summoned
from Government departments and agencies/instrumentalities of the State and statements
of some persons recorded in the context of the allegation made against the petitioner,
the Committee issued notice dated 16.3.2011 requiring him to appear on 9.4.2011
to answer the charges. The notice was accompanied by a statement of charges and
lists of documents and witnesses. Each of the 14 charges enumerated in the notice
was supported by specific grounds with minute details and documents.
6.
Immediately
after receiving notice, the petitioner submitted application dated 7.4.2011 to
the Chairman with the prayer that a direction may be issued for supply of 10 documents
specified therein. By another application of the same date, the petitioner
sought audience of the Chairman. On the next date, i.e., 8.4.2011, he made a
representation to the Chairman with the prayer that order admitting notice of motion
may be withdrawn, order constituting the Inquiry Committee may be rescinded and
notice issued by the Committee may be annulled. Simultaneously, he raised an
objection to the appointment of Shri P.P. Rao as member of the Committee by
alleging that he was biased.
On 9.4.2011, the
petitioner sent a letter to the Presiding Officer of the Committee enclosing
therewith a copy of representation dated 8.4.2011 made to the Chairman and
requested that further proceedings may be deferred till the same was decided.
The petitioner's request was turned down by the Presiding Officer of the
Committee vide order dated 9.4.2011 and he was asked to file written statement of
defence latest by 20.4.2011. After 10 days, the petitioner submitted two
applications dated 19.4.2011 to the Committee. In the first application, he made
a request for supply of copies of about three dozen documents.
By the second application,
the petitioner raised several objections against the notice. One of his
objections was that the charges framed by the Committee are beyond the scope of
the notice of motion presented before the Rajya Sabha and that while framing
the charges, the Committee had taken into consideration the material which did
not form part of the notice of motion. Another objection taken by the
petitioner was that even before issuing notice under Section 3(4), the
Committee had, with the assistance of the advocate appointed under Section
3(9), made investigation into the charges and this was legally impermissible.
The petitioner also objected to the participation of Shri P.P. Rao in the
proceedings of the Committee on the ground of bias.
7.
The
applications made by the petitioner to the Committee were disposed of by two separate
orders dated 24.4.2011. By one order, the Committee virtually rejected the petitioner's
request for supply of the documents specified in paragraph 4 of the first
application. The Committee observed that documents mentioned at paragraph 4
(g.1), (g.2), (g.3), (g.6), (g.16) and paragraph 4(j) and 4(k) are not
available with it and the material on which the charges were based had already
been supplied to the petitioner.
The relevant portions
of the order passed in relation to the petitioner's demand for supply of
documents are reproduced below: "It may be stated at the outset that the
documents/materials at paragraph 4(g.l), (g.2), (g.3), (g.6), (g. 16) and
paragraph 4 (j) and 4(k) are not available with this Committee. None of the
documents/materials/information in the long list drawn up so laboriously is of
any relevance to the enquiry being conducted by this Committee or would serve
any purpose in the preparation/submission of the written statement of defence
to the charges served upon the judge. In case of some of the items in the list the
request to supply copies is plainly frivolous. All the materials on which the
charges are based are, as noted above, comprehensively served upon the applicant
along with the list of witnesses.
Now, taking up each
of the items in the list one by one the Committee is of the considered view that
the documents/materials enumerated at sub-paragraphs (a) and (b) of paragraph 4
have no relevance to the present enquiry: Further, from the materials on record
the Committee has reasons to believe that the Judge is already in possession of
a copy of the notice of motion. Nevertheless, just to satisfy the request, the
judge may be given copies of the notice of motion and the documents/evidence
submitted in its support. The document at sub-paragraph (c) is a public
document and there may be no objection to giving it to the Judge.
The document at sub-paragraph
(d) has no relevance to the inquiry before the Committee and the request for
its supply is disallowed. As to the item at sub-paragraph (e), the Inquiry
Committee has not framed any formal Rules. The procedure proposed to be adopted
by the Committee would be fully explained at the first sitting of the hearing, in
case there is the need to hold further hearings. The documents at sub-paragraph
(g) (1), (2), (3), (11), (12), (14) are inter-departmental letters of which no
copy can be given to the Judge. The rest of the materials at sub-paragraph (g)
(4), (5), (6), (7), (8), (9), (10), (13), (15), (16), (17), (18), (19), (20), (21),
(22), (23), (24), (25) and (26), have no 8 relevance to the filing of the
written statement and hence, the prayer for furnishing copies of those
documents is disallowed.
Regarding
sub-paragraph (h), if any additional document/ material/ information or an
additional witness is proposed to be used/ examined in support of the charges,
the list of additional documents/witnesses would be supplied to the applicant
in due course. The information sought in sub-paragraphs (i), (j), (k), (l) and
(m) are prima facie frivolous and are rejected. Having said all this, the
Committee would like to add that it has got nothing to hide and whatever documents/materials
are available with it are open to inspection. The applicant may inspect or
cause inspection of the documents available with the Committee during working
hours on any day."
By the second order, the
Committee rejected the preliminary objections raised by the petitioner to its jurisdiction
and the procedure adopted by it for framing the charges. The relevant portions
of the second order are extracted below: "In case the ground on which the
removal of the judge is sought is not incapacitation but misbehaviour it would be
incumbent upon the committee, before framing the definite charges against the
judge, to examine all instances of misbehaviour, apart from their nature and
magnitude. Further in case while examining a certain instance of misbehaviour the
Committee comes across materials indicating other instances of misbehaviour it
would be obligatory for the Committee to thoroughly follow those leads to the
other instances and to bring the full facts to light.
The procedure under Section
3 of the Judges (Inquiry) Act, 1968 envisages the commencement of proceedings with
the notice of motion sent by either the Speaker of the House of 9the People or
the Chairman of the Council of States followed by investigation at the instance
of the Committee. Next step in the sequence of procedure is the framing of
definite charges on the basis of which the investigation is proposed to be held.
Framing of definite charges is thus the foundation for the process of
participatory investigation. Sub-section (3) does not contemplate that the framing
of charges must necessarily be based only on the notice of motion and the material
sent therewith.
In order to enable the
Committee to frame definite charges, it would be within its powers to have preliminary
investigations made and then if need be, frame definite charges which would then
form the basis of the participatory investigation. The procedure as indicated above
would also be fair to the Judge as any spurious or unsubstantiated material
would get screened off in the process. It is following the above process that in
the instant case, the Committee deemed it fit not to include at least two of the
charges though they were so mentioned in the notice of motion. For the same reasons
it could also include some of the additional charges as the preliminary enquiry
indicated.
The power to conduct
investigation includes all incidental and consequential powers to sub-serve
that power. If the argument made on behalf the applicant is accepted it would
take the soul out of the provisions of section 3 of the Act and render the
investigation by the Committee completely ineffectual. The job of the Committee
is not to simply paraphrase the grounds in the notice of motion and to re-hash
the materials submitted before the House of the People or the Council of
States, as the case may be. A Committee consisting of a sitting judge of the
Supreme Court, a Chief Justice of the High Court and a distinguished jurist is not
a committee of draftsmen.
The second objection
that the misbehaviour of a Judge in order to constitute a basis for his removal
must relate to the conduct of the Judge in the discharge of his duties is equally
without substance. It amounts to saying that it does not matter if 10beyond the
Court hours a Judge is a thief in his personal life. The submission is fit only
to be taken note of and be rejected. The third objection relates to the
Committee's proceeding on April 9, 2011, when the petition submitted by the
applicant asking for time was put up before Mr. Justice Aftab Alam who rejected
it by the order passed on that date.
According to the
applicant, the order of that date is no nest because in the absence of the
other two members there was no quorum for the Committee's sitting. In this
regard it needs to be noted that the previous sitting of the Committee was held
on April 2, 2011 and on that date the Committee had made the following
resolution: "On the basis of the authorization made by Mr. Justice J.S.
Khehar and Mr. P.P. Rao, the Committee resolved that on April 9, 2011, the date
on which Mr. Justice P.D. Dinakaran is directed to appear and submit his response
to the charges, the Presiding Officer of the Committee, Mr. Justice Aftab Alam,
may fix the dates for further proceedings of the Committee."
The reason for the
resolution was that the frequent visits to Delhi, apart from personally taxing
to Justice Khehar tended to affect his work as the Chief Justice of the High
Court. Mr. P.P. Rao, similarly, had some other unavoidable commitment. It was,
therefore, felt that the applicant might submit his written statement of defence
in the presence of the Presiding Officer alone who would fix the dates for further
proceedings of the Committee.
It is true that the
petition filed on behalf of Mr. Justice P.D. Dinakaran on April 9, 2011, was put
up before the Presiding Officer of the Committee while he was sitting singly
and he passed an order on that petition in the presence of the counsel for the
applicant. Nevertheless, the draft order was sent, both to Justice Khehar and
Mr. P.P. Rao and it was formalized as the order of the Committee, only after incorporating
the suggestions made by the other two members and when it was finally approved by
all the three members. Consequently, the 11 copy of the order was given to the counsel
for the applicant only on April 11, 2011." The Committee also held that
the plea of bias raised against Shri P.P. Rao was an afterthought and was untenable.
We are not adverting to the reasons recorded by the Committee for arriving at
this conclusion because the petitioner had challenged the appointment of Shri
P.P. Rao as member of the Committee in a separate petition being Writ Petition
(Civil) No. 217 of 2011, which has since been disposed of.
8.
Shri
Basava Prabhu S. Patil, learned senior counsel appearing for the petitioner
placed before the Court a chart to show that the charges framed by the Committee
under Section 3(3) were not in consonance with the allegations contained in the
notice of motion presented by 50 members of the Rajya Sabha and argued that
charges No.3, 5, 13 and 14, which are not based on the allegations contained in
the notice of motion are liable to be quashed as without jurisdiction. Shri
Patil emphasised that the Committee's power to frame charges and make
investigation is limited to the allegations on which the notice of motion is
based and it does not have the jurisdiction to frame charges on other
allegations.
Learned senior
counsel also faulted the procedure adopted by the Committee by pointing out that
the investigation contemplated under Section 3(2) commences with the framing 12of
definite charges under Section 3(3) which are required to be communicated to the
concerned Judge under Section 3(4) and the power vested in the Committee under Section
5 can be exercised only for the purpose of making investigation under the Act
but, in the present case, the Committee started investigation even before
framing the charges, collected large number of documents and recorded
statements of some persons with the assistance of the advocate appointed under Section
3(9). Shri Patil then argued that by making investigation prior to the framing of
charges, the Committee has acted in violation of the scheme of the Act and the
petitioner has a bona fide apprehension that the investigation to be made hereinafter
will be an empty formality.
Shri Patil relied upon
the judgments of this Court in Sub-Committee on Judicial Accountability v. Union
of India (1991) 4 SCC 699, Sarojini Ramaswami v. Union of India (1992) 4 SCC
506 and Krishna Swami v. Union of India and others (1992) 4 SCC 605 as also the
judgments of the Kerala, Bombay and Allahabad High Courts in V. Padmanabha Ravi
Varma Raja v. Deputy Tahsildar, Chittur AIR 1963 Kerala 155, Mahendra Bhawanji
Thakar v. S.P. Pande, AIR 1964 Bombay 170 and Prem Prakash Gupta v. Union of India
AIR 1977 Allahabad 482 and argued that the minority view expressed by K.
Ramaswamy, J. in Krishna Swami's case on the interpretation of Sections 3 and 4
of the Act should be treated as law declared under Article 141 of the Constitution
because the majority did not express any view on the questions framed by the three-Judge
Bench.
Learned senior counsel
further argued that in the absence of any contrary view by the majority, the minority
opinion is binding on all including this Court unless the same is overruled by
a larger Bench. Shri Patil finally argued that violation of the mandate of
Section 3 has the effect of vitiating the proceedings of the Committee and,
therefore, the charges framed against the petitioner are liable to be quashed.
9.
During
the course of arguments in rejoinder, Shri Patil produced copy of order dated
11.5.2010 issued by the Central Government appointing Shri U.U. Lalit, Senior Advocate
of this Court to assist the Committee and argued that the same should be treated
as nullity being ultra vires the provisions of Section 3(9) which postulates
appointment of an advocate by the Central Government to conduct the case
against the Judge only when it is required to do so by the Speaker or the
Chairman. Learned senior counsel submitted that by getting an advocate appointed
for its assistance, the Committee has assumed the role of an adversary and it can
no longer be treated as an impartial body entrusted with the task of making
investigation into the grounds on which the petitioner's removal has been
sought from the office of the Chief Justice.
10.
Shri
U.U. Lalit, learned senior counsel appearing for the Committee relied upon
paragraph 69 of the judgment of the majority of the Constitution Bench in Sarojini
Ramaswami's case and argued that the Court cannot quash the charges at an intermediary
stage and it will be open to the petitioner to challenge the same in case the report
of the Committee is adverse to him and on a motion being passed by Parliament,
he is removed from the office. Shri Lalit then referred to Articles 121 and
124(4) and (5), the judgments in Sub-Committee on Judicial Accountability's case,
Krishna Swami's case and argued that for the purpose of framing charges under Section
3(3), the Committee is entitled to scrutinise the allegations contained in the
notice of motion and the supporting material and also make preliminary inquiry
to prima facie satisfy itself that the particular allegations need further investigation.
Learned senior counsel
emphasised that investigation into the allegations of misbehaviour levelled
against a Judge of the High Court or the Supreme Court is a serious matter and
before framing definite charges under Section 3(3), the Committee is duty bound
to carefully scrutinise the allegations contained in the notice of motion along
with other material and then decide whether there exists sufficient ground for framing
the charges. Shri Lalit submitted that the investigation envisaged under
Section 3(3) is participatory investigation and it has nothing to do with the
preliminary inquiry, which can be made by the Committee for satisfying itself whether
the particular allegation made against the Judge constitutes an act of
misbehaviour and warrants framing of charge.
Learned senior
counsel further submitted that the Committee is not obliged to frame charges
with reference to each and every allegation contained in the notice of motion and
if after making preliminary inquiry, the Committee feels satisfied that the particular
allegation cannot be termed as an act of misbehaviour, then it has the
discretion to not frame charge with reference to such allegation. Learned senior
counsel emphasised that in this case, the Committee has framed charges after
objectively considering the allegations contained in the notice of motion
together with the explanatory note and the material made available or received by
it from various sources as also the statements of some persons recorded in the course
of preliminary inquiry and the allegation of bias levelled by the petitioner is
wholly unfounded.
He submitted that impartiality
of the Committee is evinced from the fact that even though, the notice of motion
contained allegations that the petitioner had passed judicial orders for
extraneous reasons, manipulated constitution of the Benches and made arbitrary
appointments and transfers of the staff of the High Court, charges have not been
framed on these allegations. Shri Lalit submitted that all the charges framed against
the petitioner except charge No.14 have direct nexus with the allegations
contained in the notice of motion and the explanatory note appended thereto.
Learned senior 16counsel
argued that even though charge No.14 is not exactly relatable to what has been stated
in the notice of motion, inasmuch as the allegation contained under the heading
"disproportionate pecuniary resources" speaks of celebration of the
marriage of the petitioner's daughter at Bangalore with extreme opulence, the
charge relates to non-payment of bills of the rooms booked at Madras Race Club
and the electricity and illumination expenses, this minor deviation should not
be made a ground for recording a conclusion that the Committee has acted beyond
its jurisdiction. Shri Lalit controverted the argument of Shri Patil that the
view expressed in the minority opinion of Justice K. Ramaswamy in Krishna
Swamy's case should be treated as the law laid down by this Court under Article
141 of the Constitution by pointing out that the majority had specifically disagreed
with K. Ramaswamy, J.
11.
Shri
P.P. Malhotra, learned Additional Solicitor General referred to the preamble
and Section 3 of the Act and argued that the Committee can certainly make a
preliminary inquiry and even record statements of persons in connection with
the allegations for the purpose of prima facie satisfying itself about the necessity
of making further investigation. Shri Malhotra relied upon the judgment of this
Court in H.N. Rishbud v. State of Delhi (1955) 1 SCR 1150:AIR 1955 SC 196 and argued
that the provisions 17contained in the Act do not impose any embargo on the making
of preliminary inquiry by the Committee as a prelude to the framing of charges
under Section 3(3).
12.
Shri
Prashant Bhushan, learned counsel for the intervenor submitted that the
Committee constituted under Section 3(2) is vested with the power to devise its
own procedure for the purpose of making investigation and no exception can be
taken if a preliminary inquiry is made for the purpose of framing definite
charges against the Judge. Shri Bhushan further submitted that in the absence
of statutory bar, the Committee can seek assistance of an advocate and the Central
Government did not commit any illegality by appointing Shri U.U. Lalit, Senior Advocate
to assist the Committee. Learned counsel invited the Court's attention to the report
of the Inquiry Committee headed by Mr. Justice P.B. Sawant, which had inquired
into the allegations of misbehaviour levelled against Justice V. Ramaswami to
show that the Committee had taken the assistance of S/Shri F.S. Nariman and
Rajender Singh, Senior Advocates and Shri Raju Ramachandran, Advocate.
13.
13.
We have considered the respective arguments. The questions which need
determination by the Court are: 18 (1) Whether the Committee constituted under Section
3(2) is entitled to make preliminary inquiry for the purpose of framing charges
under Section 3(3). (2) Whether the Committee can seek assistance of an
advocate for the purpose of framing the charges. (3) Whether the charges framed
against the petitioner are ultra vires the allegations contained in the notice
of motion presented by 50 members of the Rajya Sabha. For deciding question
Nos. 1 and 2 which are interlinked, it will be useful to notice the provisions
of Articles 121, 124(4) and (5) and 217(1) of the Constitution as also the provisions
of the Act and the Judges (Inquiry) Rules, 1969 (for short, "the
Rules"), which are as under: "
Restriction on
discussion in Parliament-No discussion shall take place in Parliament with
respect to the conduct of any Judge of the Supreme Court or of a High Court in
the discharge of his duties except upon a motion for presenting an address to the
President praying for the removal of the Judge as hereinafter provided. 124. Establishment
and Constitution of Supreme Court-(4) A Judge of the Supreme Court shall not be
removed from his office except by an order of the President passed after an address
by each House of Parliament supported by a majority of the total membership of that
House and by a majority of not less than two-thirds of the members of that
House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehaviour or incapacity.(5)
Parliament may by law regulate the procedure for the presentation of an address
and for the investigation and proof of the misbehaviour or incapacity of a
Judge under clause (4). 217. Appointment and conditions of the office of a
Judge of a High Court-(1) Every Judge of a High Court shall be appointed by the
President by warrant
under his hand and seal after consultation with the Chief Justice of India, the
Governor of the State, and, in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of the High Court, and shall hold office,
in the case of an additional or acting Judge, as provided in Article 224, and
in any other case, until he attains the age of sixty-two years: Provided
that-(a) xxx xxx xxx (b) a Judge may be removed from his office by the
President in the manner provided in clause (4) of article 124 for the removal
of a Judge of the Supreme Court;
The Judges (Inquiry)
Act, 19683. Investigation into misbehaviour or incapacity of Judge by Committee.-(1)
If notice is given of a motion for presenting an address to the President
praying for the removal of a Judge signed,- (a) In the case of a notice given
in the House of the People, by not less than one hundred members of that
House;(b) In the case of a notice given in the Council of States, by not less
than fifty members of that Council, then, the Speaker or, as the case may be, the
Chairman may, after consulting such persons, if any, as he thinks fit and after
20considering such materials, if any, as may be available to him either admit
the motion or refuse to admit the same. (2) If the motion referred to in sub-
section (1) is admitted, the Speaker or, as the case may be, the Chairman shall
keep the motion pending and constitute as soon as may be for the purpose of
making an investigation into the grounds on which the removal of a Judge is
prayed for, a Committee consisting of three members of whom- (a) one shall be
chosen from among the Chief Justice and other Judges of the Supreme Court; (b) one
shall be chosen from among the Chief Justices of the High Courts; and (c) one
shall be a person who is in the opinion of the Speaker or, as the case may be, the
Chairman, a distinguished jurist: Provided that where notices of a motion referred
to in sub- section (1) are given on the same day in both Houses of Parliament, no
Committee shall be constituted unless the motion has been admitted in both Houses
and where such motion has been admitted in both Houses, the Committee shall be constituted
jointly by the Speaker and the Chairman: Provided further that where notices of
a motion as aforesaid are given in the Houses of Parliament on different dates,
the notice which is given later shall stand rejected.
(3) The Committee shall
frame definite charges against the Judge on the basis of which the
investigation is proposed to be held. (4) Such charges together with a
statement of the grounds on which each such charge is based shall be
communicated to the Judge and he shall be given a reasonable opportunity of
presenting a written statement of defence within such time as may be specified
in this behalf by the Committee. 21(8) The committee may, after considering the
written statement of the Judge and the medical report, if any, amend the
charges framed under sub-section (3) and in such a case, the Judge shall be given
a reasonable opportunity of presenting a fresh written statement of defence.
(9) The Central Government may, if required by the Speaker or the Chairman, or both,
as the case may be, appoint an advocate to conduct the case against the Judge.
4. Report of Committee.-
(1) Subject to any
rules that may be made in this behalf, the Committee shall have power to
regulate its own procedure in making the investigation and shall give a
reasonable opportunity to the Judge of cross-examining witnesses, adducing
evidence and of being heard in his defence. (2) At the conclusion of the investigation,
the Committee shall submit its report to the Speaker or, as the case may be, to
the Chairman, or where the Committee has been constituted jointly by the Speaker
and the Chairman, to both of them, stating therein its findings on each of the charges
separately with such observation on the whole case as it thinks fit.
(3) The Speaker or
the Chairman, or, where the Committee has been constituted jointly by the
Speaker and the Chairman, both of them, shall cause the report submitted under
sub-section (2) to be laid, as soon as may be, respectively before the House of
the People and the Council of States.5. Powers of Committee.-For the purpose of
making any investigation under this Act, the Committee shall have the powers of
a civil court, while trying a suit, under the Code of Civil Procedure, 1908, in
respect of the following matters, namely:-(a) summoning and enforcing the attendance
of any person and examining him on oath;(b) requiring the discovery and
production of documents; 22(c) receiving evidence on oath;(d) issuing
commissions for the examination of witnesses or documents;(e) such other
matters as may be prescribed.
The Judges (Inquiry)
Rules, 19693. Presiding Officer--The member chosen under clause (a) of
sub-section (2) of Section 3 shall preside over the meetings of the Inquiry Committee,
or, in his absence, the member chosen under clause (b) of sub-section (2) of section
3 shall preside over the meetings of the Inquiry Committee.6. Objection to charges.--When
the Judge appears, he may object in writing to the sufficiency of the charges framed
against him and if the objection is sustained by the majority of the members of
the Inquiry Committee, the Inquiry Committee may amend the charges and give the
Judge a reasonable opportunity of presenting a fresh written statement of
defence.7. Plea of Judge.—
(1) If the Judge
admits that he is guilty of the misbehaviour, or suffers from the incapacity, specified
in the charges framed against him under sub-section (3) of section 3, the
Inquiry Committee shall record such admission and may state its findings on
each of the charges in accordance with such admission.(2) If the Judge denies
that he is guilty of the misbehaviour, or suffers from the incapacity, specified
in the charges framed against him under sub-section (3) of section 3, or if he
refuses, or omits, or is unable, to plead or desires that the inquiry should be
made, the Inquiry Committee shall proceed with the inquiry.9. Report of the
Inquiry Committee.-(1) Where the members of the Inquiry Committee are not unanimous,
the report submitted by the Inquiry Committee under section 4 shall be in accordance
with the findings of the majority of the members thereof.
(2) The presiding
officer of the Inquiry Committee shall- (a) cause its report to the prepared in
duplicate,(b) authenticate each copy of the report by putting his signature
thereon, and (c) forward, within a period of three months from the date on which
a copy of the charges framed under sub-section (3) of section 3 is served upon
the Judge, or, where no such service is made, from the date of publication of
the notice referred to in sub-rule (3) of rule 5, the authenticated copies of
the report to the Speaker or Chairman by whom the Committee was constituted, or
where the Committee was constituted jointly by them, to both of them:
Provided that the
Speaker or Chairman, or both of them (where the Committee was constituted jointly
by them), may, for sufficient cause, extend the time within which the Inquiry
Committee shall submit its report.10. Recording of evidence.-(1) The evidence
of each witness examined by the Inquiry Committee shall be taken down in
writing under the personal direction and superintendence of the presiding
officer thereof and the provisions of the Code of Civil Procedure, 1908 (V of
1908), shall, so far as may be, apply to the examination of any witness by the
Inquiry Committee.(2) A copy of the evidence, oral and documentary, received by
the Inquiry Committee shall be laid before each House of Parliament along with
the report laid before it under section 4.
Facilities to be
accorded to a Judge for his defence.-(1) Every Judge for whose removal a motion
has been admitted shall have a right to consult, and to be defended by, a legal
practitioner of this choice. 24 (2) If the report of the Inquiry Committee contains
a finding that the Judge referred to in sub-rule (1) is not guilty of any misbehaviour
or does not suffer from any incapacity, then the Central Government shall
reimburse such Judge to the extent of such part of the costs of his defence as
the Inquiry Committee may recommend."
14.
Since
the provisions of Articles 121 and 124 have already been interpreted by the Constitution
Benches in Sub-Committee on Judicial Accountability's case and Sarojini
Ramaswamy's case, it is not necessary for us to repeat that exercise except
making an observation that in view of Article 217(1)(b), that interpretation
will be equally relevant in the matter of removal of a Chief Justice or Judge
of the High Court.
A plain reading of
Article 124(4) and clause (b) of Article 217(1) makes it clear that a Judge of
the Supreme Court or the High Court cannot be removed except by an order of
President passed after an address by each House of Parliament supported by a
majority of the total membership of that House and by a majority of not less than
two-thirds of the members of the House present and voting has been presented to
the President in the same session for such removal on the ground of proved
misbehaviour or incapacity. Article 124(5) lays down that Parliament may by law
regulate the procedure for the presentation of an address and for investigation
and proof of the misbehaviour or incapacity of a Judge under clause (4).
15.
Section
3(1) of the Act lays down that if notice of motion is given by the prescribed
number of members of the Lok Sabha or the Rajya Sabha, as the case may be, for
presenting an address to the President with the prayer for removal of a Judge then,
the Speaker or, as the case may be, the Chairman can either admit the motion or
refuse to admit the same and for this purpose, he has the discretion to consult
any person as he may think fit and consider the material which may be made
available to him. Section 3(2) lays down that once the notice of motion is
admitted, the Speaker or, as the case may be, the Chairman has to keep the same
pending and constitute a Committee for the purpose of making an investigation
into the grounds on which the removal of a Judge is sought.
Section 3(3)
envisages framing of definite charges by the Committee for the purpose of making
an investigation. Section 3(4) lays down that the charges framed by the
Committee together with a statement of the grounds on which each charge is
based shall be communicated to the Judge, who is then entitled to a reasonable
opportunity of filing a written statement of defence. Rule 2(c) read with Rule 5
prescribes the format and procedure to be followed for communication of the charges
to the Judge. Section 3(8) contemplates amendment of charges by the Committee. This
exercise can be undertaken after considering the written statement of the Judge.
If the charges are amended, the Judge has to be given opportunity to present a
fresh written statement of defence. Section 3(9) envisages appointment, at the
instance of the Speaker or the Chairman, as the case may be, of an advocate to
conduct the case against the Judge. Section 4(1) gives power to the Committee to
regulate its own procedure in making the investigation.
The exercise of this
power is subject to the rules, if any, made in that behalf and subject to
compliance of the rules of natural justice which means that the Judge is given reasonable
opportunity of cross-examining witnesses, adducing evidence and of being heard in
his defence. In terms of Section 5, the Committee has the powers of a civil court
in respect of the matters enumerated therein, i.e., summoning and enforcing the
attendance of any person and examining him on oath; requiring the discovery and
production of documents; receiving evidence on oath; issuing commissions for the
examination of witnesses or documents and such other matters, as may be
prescribed. Section 4(2) read with Rule 9 envisages completion of inquiry
within three months from the date of service of charges upon the Judge and
submission of report to the Speaker or, as the case may be, to the Chairman.
If the Committee is
jointly constituted by the Speaker and the Chairman, the report is required to
be submitted to both of them. Rule 9(2) empowers the Speaker or the Chairman, as
the case may be, to extend the time within which the Committee is required to submit
report. After the report is 27submitted to the Speaker or the Chairman, the
same is required to be laid before the Lok Sabha and the Rajya Sabha.
16.
An
investigation into the allegation of misbehaviour or incapacity of a Judge is
an extremely serious matter. The members of the Lok Sabha or the Rajya Sabha
are men of wisdom. They would submit a notice of motion for presenting an
address to the President of India for removal of a Judge only when they are prima
facie satisfied that there exists tangible material warranting an investigation
into the allegation of misbehaviour or incapacity of the Judge.
When a motion is
submitted, the Speaker or the Chairman, as the case may be, is not bound to
admit the same as a matter of course. He may, after consulting such persons he may
think fit and considering the material, if any made available to him, take decision
on the admission of motion. In a given case, he may refuse to admit the motion.
However, if the
motion is admitted, the statute requires that the Speaker or the Chairman, as
the case may be, shall keep the same pending and constitute a Committee
consisting of one from among the Chief Justice and other Judges of the Supreme
Court, one from among the Chief Justices of the High Courts and a distinguished
jurist for making an investigation into the grounds on which the removal of a
Judge is sought.
17.
Since
the members of the Committee are well versed in law and procedure, the legislature
has designedly given substantial degree of freedom to the Committee to regulate
its own procedure in making the investigation subject, of course, to the rules,
if any, made in that behalf. A conjoint reading of Section 3(4), (8) and second
part of Section 4 makes it clear that while making the investigation, the Committee
has to act in consonance with the rules of natural justice. The Committee is
required to communicate the charges framed under Section 3(3) together with a
statement of the grounds on which the charges are based to the Judge, give
reasonable opportunity to him to present a written statement of defence, to
cross-examine the witnesses examined in support of the charges, to produce
evidence and to be heard in his defence.
There is nothing in
the Act or the Rules, which inhibits the Committee from making preliminary inquiry
for the purpose of prima facie satisfying itself that the allegation contained
in the notice of motion warrants framing of one or more charges against the
Judge. The use of the expression "definite charges" in Section 3(3)
gives a clear indication that before framing the charges, the Committee must
apply mind to the allegations contained in the notice of motion and the
accompanying material for the purpose of forming an opinion that a case is made
out for framing charge.
The statute does not contemplate
that the Committee should frame charges against the Judge with reference to all
the 29allegations enumerated in the notice of motion or the accompanying
statement without even prima facie looking into the nature of allegations and
satisfying itself that there is justification for framing the particular
charges. It will be naove to contend that the Committee has no discretion in
the matter of framing charges. Rather, the Committee is duty bound to carefully
scrutinise the material forming part of the notice of motion and then frame
definite charges.
The Committee can
also receive other material which may support or contradict the allegations
enumerated in the notice of motion. In an appropriate case, the Committee can
require any person including the one who may have supplied material to the members
of the Lok Sabha or the Rajya Sabha, as the case may be, to give clarification
on any particular point or make available authentic copies of the documents.
The Committee can
also call upon such person to file affidavit or make a statement and summon him
at the stage of investigation so that the Judge may get an opportunity to
cross-examine him. In our view, Shri U.U. Lalit is right in his submission that
the investigation contemplated under Section 3 is a participatory investigation
in which the Judge against whom charges are framed is entitled to full
opportunity to defend himself and there is no bar against making of preliminary
inquiry by the Committee as a prelude to the framing of definite charges under
Section 3(3).
18.
As
a corollary to the above discussion, we hold that the procedure adopted by the Committee
cannot be faulted on the ground that it made preliminary inquiry before framing
charges against the petitioner and relied upon the material received from
various sources and recorded statement of some persons. If we were to accept
the submission of Shri Patil that before framing definite charges, the
Committee cannot make preliminary inquiry, then it would have been obliged to
frame charges with reference to all the allegations including those relating to
the judicial orders passed by the petitioner and administrative power exercised
by him in the capacity of the Chief Justice and this could easily be construed as
a direct encroachment upon the independence of the judiciary.
19.
Although,
reference to Section 3(9) of the Act in the order passed by the Central
Government for appointment of Shri U.U. Lalit, Senior Advocate to assist the Committee
appears to be wholly unnecessary because that section contemplates appointment
of an advocate to conduct the case against the Judge, if the Central Government
is ordained to do so by the Speaker or the Chairman, or both, as the case may
be, this flaw in the order is not fatal to the proceedings held so far because
in exercise of the power vested in it to regulate its procedure the Committee
could suo motu seek assistance of an advocate.
The Committee constituted
under Section 3(2) consists of one 31person chosen from among the Chief Justice
and other Judges of the Supreme Court, one from among the Chief Justices of the
High Courts and one distinguished jurist. In the very nature of their
functioning, the Chief Justice or the Judge of the Supreme Court and the Chief
Justice of the High Court cannot on their own make investigation and assume the
role of the prosecutor. The same is true of the distinguished jurist appointed under
Section 3(2)(c). They would always need assistance of a person who possesses a
legally trained mind.
That person has to
assist the Committee in various matters including recording of evidence. The
Judge against whom the investigation is made is entitled to seek assistance of
an advocate and there is no likelihood of any prejudice being suffered by him if
the Committee seeks assistance of an advocate for effectively discharging the
functions entrusted to it under the Act. Therefore, we do not think that the
petitioner is entitled to seek annulment of the proceedings of the Committee on
the ground that the Central Government had wrongly invoked Section 3(9) for appointing
Shri U.U. Lalit, Senior Advocate to assist the Committee.
20.
Before
proceeding further, we may consider it appropriate to deal with an ancillary submission
made by Shri Basava Prabhu S. Patil, who was supported by Shri A. Sharan,
senior counsel, who appeared on behalf of the 32petitioner in Writ Petition
No.217 of 2011 that the opinion expressed by K. Ramaswamy, J. in his dissenting
judgment in Krishna Swamy's case should be treated as the law declared by this Court
because majority of the Constitution Bench did not deal with the questions
formulated in order dated February 27, 1992 passed by the 3-Judge Bench.
In this context, it is
apposite to note that majority of the Constitution Bench had expressly
disagreed with the exposition of law made by K. Ramaswamy, J. This is evinced
from paragraph 27 of the judgment, which is extracted below: "27. We add
that on a reconsideration of the matter in the light of the exposition of law
made by Brother K. Ramaswamy in his separate opinion circulated to us, we regret
our inability to concur with him in the area of his disagreement. On the points
decided by us, leaving open the points which do not arise at this stage for our
consideration for the reasons we have given, preferring to follow the salutary practice
of not deciding any question, much less a constitutional one, unless it is
necessary to do so, we would prefer to reserve our opinion on the remaining
questions for the occasion, if any, in the future when they arise for
decision." Therefore, we do not find any merit in the submission made by the
learned senior counsel for the petitioner.
21.
We
shall now take up the third question. According to Mr. Basava Prabhu S. Patil,
learned senior counsel for the petitioner, 4 of the 14 charges framed by the Committee,
i.e., charge Nos. 3, 5, 13 and 14, which are extracted below are beyond the
scope of the allegations enumerated in the notice of motion: "CHARGE NO.3 (RECEIVING
OF GIFTS AND ADVANCES UNILATERALLY ON A REGULAR BASIS) Mr. Justice P.D. Dinakaran,
further charge against you is that after your elevation as a Judge of the High
Court you, your wife and daughters and mother-in-law have been recipients of advances
and gifts both in the form of money and valuable property in a regular way.
The flow of these
gifts and advances that regularly come to you, your wife, daughters and mother
in law, seemingly from certain relatives, friends and associates is completely
one sided and unilateral. There is hardly, if any at all, gift or advance made by
you in favour of any of your donors. It may also be stated that practically in
all cases, there is an apparent connection between the gifts and advances coming
to you, your wife, daughters and your mother in law and acquisition of valuable
and expensive property by you and your family members or any major expenses undertaken
by you, your wife or daughters.
In charge No.1 it is stated
that these gifts and advances are nothing but your income from undisclosed sources.
Even otherwise, the receipt of large sums and valuable properties as gifts on a
regular basis and completely unilaterally is a gross abuse of the
constitutional office held by you and amounts to judicial misdemeanour and
misbehaviour. (Details of gifts and advances are given in the Ground to this
Charge.) 34 CHARGE NO.5 (TAKING HORTICULTURE LOANS ON FALSE GROUNDS) Mr.
Justice P.D. Dinakaran, further charge against you is that agricultural loans
were taken from Allahabad Bank, George Tower Branch, Chennai by you and your wife
Dr. (Mrs.) Vinodhini Dinakaran and further at your instance and for your
benefit also in the names of the four bogus companies, namely, M/s Dear Lands
India Pvt. Ltd., M/s Canaan Gardens Pvt. Ltd.,
M/s Amudham Gardens
Pvt. Ltd. and M/s Amirtham Gardens Pvt. Ltd. The professed purpose of the loans
was to develop horticulture at the Kaverirajapuram lands but actually neither
the ostensible applicants (the four companies) nor the professed purpose was
true and correctly stated. The object and purpose of the loan was first to launder
the money derived from your undisclosed and illegitimate sources (see charge no.1)
and second to misappropriate the amount of subsidy granted by the National
Horticulture Board to the extent of 20% of the eligible project cost that came
as part of the scheme of the loan. The loans were obtained by giving incorrect and
false information on a number of issues on the basis of which the bank would
grant loan besides misrepresenting the very purpose of the loans.
The records show that
even though the falsehood of the statements and declarations made in the loan applications
became evident at an early stage, nevertheless the bank authorities proceeded to
grant the loans, apparently under the undue influence exercised by you by
misusing your position as a judge of the Madras High Court. The loans were not
taken for development or promotion of horticulture at the Kaverirajapuram lands
is evident from the fact that in all cases repayment of the loans were largely
made within a period of four to eight months from the grant of the loans even
though under the scheme the repayment would start from the fourth year and
would be over by the end of the eighth year.
Even though the subsidy
by the National Horticulture Board would constitute last instalment for the
repayment of the loan, the amounts of subsidy were released within eight months
and long before the last instalments for the repayment of the loans were
due.From the records it is evident that the procurement of the loans did not constitute
an honest and bona fide transaction but the loans were taken, at your instance and
for your benefit for undisclosed and illegal purposes.
The procurement of
the bank loans was thus an act of gross misconduct and abuse of your position
as a judge of the High Court. CHARGE NO.13 (OMMISSION TO FILE WEALTH TAX
RETURNS)Mr. Justice P.D. Dinakaran further charge against you is that you in your
own individual capacity and as the de facto beneficiary of the assets created
in the hands of the benamidars and your wife (See Charge Nos.1 & 2) despite
being in possession of assets (assets in the nature of huge balance of cash in hand,
urban land, and house properties) and deemed assets, failed to file Wealth Tax returns
and pay appropriate Wealth tax in respect of such assets, which were clearly
exigible to Wealth Tax, such failure to heed a statutory requirement under the
law being an omission unbecoming your status of a high constitutional authority
and amounts to misconduct.
CHARGE NO.14 (NON
PAYMENT OF BILLS) Mr. Justice P.D. Dinakaran further charge against you is that
you did not pay the bills of Madras Race Club for booking 11 rooms and for electricity
and illumination charges for the wedding reception of your daughter Amudhaporkodi
on 20.12.2008. The charge is that though the bookings were made by Mr. Kaliya
Perumal a member of the club, it was for the use and occupation by your instance
for your guests/friends etc. And hence, it is you who is liable for making
payment to the 36 club. The club bills remained unpaid at least till October,
2010. Nonpayment of these bills despite considerable efflux of time is
unbecoming of a judge and amounts to misbehaviour on your part."
22.
Although,
the language of charges No.3, 5 and 13 and the grounds forming part of these charges
are not exactly identical to the allegations contained in the notice of motion,
but if the same are read with the explanatory note, it becomes clear that all
these charges are founded on the details contained in paragraphs (i) to (iii)
of the explanatory note. However, we do not consider it proper to discuss in
detail the substance of the charges framed against the petitioner because the investigation
being made by the Committee is at a preliminary stage and any observation by
this Court may prejudice the cause of the petitioner. At the same time, we have
no hesitation in holding that by framing charges No.3, 5 and 13, the Committee
did not traverse beyond the scope of the allegations.
23.
No
doubt, charge No.14 does not have direct traces in the allegations contained in
the notice of motion and the explanatory note, but this minor deviation does
not warrant quashing of all the charges and it will be open to the petitioner
to contend before the Committee that charge No.14 should be 37ignored because
the same is not founded on the allegations contained in the notice of motion or
the explanatory note.
24.
In
the result, the writ petition is dismissed.
..........................................J.
[G.S. Singhvi]
...........................................J.
[Chandramauli Kumar Prasad]
New
Delhi
August
26, 2011.
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