IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.218 OF 2011
Justice P.D. Dinakaran ... Petitioner
Versus
Judges Inquiry Committee and another ... Respondents
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.
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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.
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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:
a) 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.
b) 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:
a) for constituting Benches and fixing Rosters of
judges to facilitate dishonest judicial decisions.
b) 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.
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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.
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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
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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.
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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
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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
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the 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
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beyond 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 non est 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
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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
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of 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
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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.
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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
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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
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counsel 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
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contained 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. We have considered the respective arguments. The questions which
need determination by the Court are:
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(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:
"121. 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
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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, 1968
3. 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
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considering 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.
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(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;
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(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, 1969
3. 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
23
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.
11. 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).
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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
26
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
27
submitted 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.
28
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
29
allegations 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).
30
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
31
person 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
32
petitioner 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
33
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
35
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.
Non payment 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
37
ignored 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.
