CJIS STATEMENT TO THE BAR (on 20-07-1990)
In the beginning of May, 1990, some learned advocates of this Court drew my attention to certain newspapers about the audit report investigating the expenses incurred in furnishing the residence of a former Chief Justice of the Punjab & Haryana High Court, namely, Shri
V. Ramaswami, who is now a sitting Judge of this court. I was requested by the learned lawyers to take action suo-motu. The matter was mentioned more than one. On 1st May, 1990. I had received a communication from the editor of a magazine enclosing therewith a copy of April 90 issue of the magazine The Lawyers, stating that it contained the full text of the audit report of the Chandigarh Administration. Theyre after, the learned Attorney General, Sir. Soli Sorabjee, the former Attorney General, Sri Parasaran, Mr. Venugopal, the president of the Supreme Court Bar Association, and Dr. Y.S. Chitale, former President of the Supreme Court Bar association, also met me and drew my attention to these reports and expressed concern on the contents of the publications. The Union Minister of Law and Justice called on me and expressed the concern of the members of parliament about the alleged extravagance by Justice Ramaswami and the contents of the report, while working as the Chief Justice of the Punjab and Haryana High Court. Sharing their concern, I had told the Law Minister and have since assured the learned Attorney General and other members of the Bar that I would look into the matter.
Legally and constitutionally the Chief Justice of India, as such, has no right or authority to inquire into the conduct of a sitting Judge of the Supreme Court. However, the Chief justice of India, as the head of the Judicial Family has, I believe, the duty and the responsibility to maintain the judicial propriety and attempts to secure the confidence of the public in the working of the judicial process.
This was an unprecedented and an embarrassing situation. It called for caution and establishment of a salutary convention. If have obtained from the Chief Justice of Punjab and Haryana High Court the necessary papers.
There are three kinds of reports:
(i) Reports submitted by the Internal Audit Cell of the High Court:
(ii) Fact-finding Reports submitted by District and Sessions Judges (Vigilance) both of Punjab and Haryana; and
(iii) Reports and audit-paras submitted by the official of the Accountant Generals office to the High Court for reply. The reports and audit paras last mentioned seek clarifications and justifications in respect of the transactions which prime facie appeared to be irregular.
I have looked into it and then arrived at a certain tentative impression it is not necessary to recapitulate in detail, the alleged irregularities I understand from the authorities of the High Court that the officials involved in the alleged irregularities have been suspended and departmental inquiries have been instituted against them. The final result of these departmental inquiries is awaited. In the meantime, I took Brother Ramaswami into confidence and made known to him the contents of the audit reports with a view to ascertaining his position in relation to the disclosures made in the reports. He has given his version. I have also requested Brother Ramaswami to communicate his views to the Registrar, High Court of Punjab and Haryana so that the High Court may reply to the audit objections raised by the Government.
I understand that the High Court had directly sought Brother Ramaswamis clarifications with regard to certain audit objection and he has written to the officers of the High Court in this behalf. The proceedings, as mentioned before, against some of the officers of High Court on alleged irregularities are still pending. In respect of some of the irregularities which I have considered and the tendency of the departmental inquiries against the suspended officers, I am of the opinion that it would be appropriate to wait for a closer examination of the replies to the audit objections and the various queries submitted by the High Court to Brother Ramaswami before one can come to a final conclusion.
The processes initiated for unearthing facts relating to the alleged irregularities should be completed to determine whether rules have been breached. Have asked the Registrar of the Supreme Court to write to the Registrar of the High Court to complete the departmental inquiries that are to be conducted in respect of the alleged irregularities committed by the officers and employees of the High Court, and a report of the same should be forwarded to em. I have also personally requested the Chief justice of the Punjab and Haryana High Court in respect of the same. I have also directed the Registrar of the Supreme Court to write to the Accountant General (Audit}, Haryana (U. T. Sub-office) to come to a final opinion on the audit objections and determine whether any amount has been illegally or improperly with drawn and whether the advance taken by Brother Ramaswami under the rules, is justified or regularized. If have personally advised Brother Ramaswami to check if there had been any excessive drawings of account of salary, LTC etc., and if so, to voluntarily repay such drawings which are contrary to rules. It must be reiterated that the audit objections by the Government should also be expedited and disposed of I have directed the Registrar of this Court to so write to the appropriate Government to expedite the inquiry. Maturity requires that we do not jump to conclusion unless the facts are ascertained and the questions involved are decided.
The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and judges must, therefore, be obliged to live according to law. The law, procedure and the norms applicable in this case, enjoin that the expenses incurred by the Court for the Judges must be according to the rules, norms and the practice. No man is above law or the rules. The Judges either of the Supreme Court or of the High Courts and the Chief Justices are all subject to the rule of law and procedure like any other citizen of this country and must abide by the norms and regulation prescribed inasmuch as these and to the extent are applicable to them I always thought this was clear and needed no reiteration. We must, therefore, ensure that there is no conduct of the Judges, which affects the faith of the people that Judges do not live according to law. Judges cannot afford to be involved in disputes, which have to determine the question whether the Judges while functioning as Judges of Chief Justices have attempted to subvert the law either designedly or in utter negligence or recklessness.
In this matter, the questions involved are, namely,
(i) whether the Chief Justice was entitled to the expenses of his telephone at Madras because Chandigarh was declared a disturbed area;
(ii) Whether the Chief Justice was obliged to obtain leave to avail the facility of LTC;
(iii) Whether the Chief Justice was entitled to direct the cars to be taken to madras when he was on vacation from Chandigarh for the reasons mentioned by him;
(iv) Whether the silver maces ordered by the High Court have been done at the rate similar to the rate applied in respect of those supplied tot he Madras high Court, and
(v) Whether even though the Judges of the Punjab and Haryana High Court did not approve the idea of having maces for each individual Judge, the Chief Justice was entitled to direct the purchase of these maces. Theses are the matters on which interpretation of the rules or on the permission or relaxation of rules, certain consequences will follow, and if the Chief justice was not so entitled or these could not be sanctioned as has been done under the circumstances mentioned in the aforesaid objections and communications, reimbursement or recovery would be directed. These matters, therefore, will have to await adjudication by the appropriate authorities, namely, the Government and the sanctioning authorities dealing with audit objections, in respect of the permissions sought. Though one would like to think that there has been extravagance and ostentiousness but these by the selves do not involve determining questions of moral or legal impropriety of a judge functioning as a Judge in the Court.
But there are some other aspects involved in this matter, namely, the questions of not accounting for all the furnitures or items that were in the residence and office of the Chief Justice, the alleged replacement of superior quality items by inferior quality items, the missing items and the splitting up of the bills in order to have the sanction of the authorities or to conform to the rules, are the matters which are also pending determination and adjudication.
Involvement in any investigation on the conduct of a sitting Supreme Court Judge on such matters as aforesaid is embarrassing in the circumstances and the background in which these questions have arisen in the instant case. For one who should attempt to uphold the rule of law, it is embarrassing to be involved in such a dispute. But no final decision on this aspect can be arrived at until the investigations and inquiries are completed. I have, on these aspects after looking into the matter and the points involved, no doubt that those who aspire to uphold the rule of law must strive to live according to law and they necessarily expose the selves to the danger of perishing by law. I am aware and deeply conscious that in certain circumstances somebody may be a victim of certain situation. I was constrained, in those circumstances, to advise Brother Ramaswami to desist from discharging judicial functions so long as the investigations continued and his name was cleared on this aspect.
I wrote to Brother Ramaswami on 18th July 1990 rendering my aforesaid advice. I have also conveyed to him my anguish in tendering this advice and I have requested him to please be on leave until the investigations on the aforesaid conduct are completed.
On 18th July, 1990 after receipt of my letter, Brother Ramaswami has applied for leave for six weeks in the first instance with effect from 23rd July, 1990. I have directed the office to process his application for leave.
Since I had assured
the learned Attorney General, the Law Minister, the president of the Bar
Association and other that I will look into it, I thought I must covey to you
result of my looking into it.
THE JUDGES (INQUIRY) ACT, 1968 ( 51 OF 1968 ) to top
An Act to regulate the procedure for the investigation and proof of the misbehavior or incapacity of a Judge of the Supreme Court or of a high Court and for the presentation of an address by parliament tot he president and for matters connected therewith.
Be it enacted by parliament in the Nineteenth Year of the Republic of India as follow:-
1) Short title and commencement
(1) This Act may be called the Judges (inquiry) Act, 1968.
(2) It shall come into force on such date* as the Central Government may, by notification in the Official Gazette, appoint.
2) Definition In this Act, unless the context other wise requires,-
(a) "Chairman" means the Chairman of the Council of States;
(b) "Committee" means a Committee constituted under Section 3;
(c) "Judge" means a Judge of the Supreme Court or of the High Court and includes and Chief Justice of India and the Chief Justice of a High Court;
(d) "Prescribed" means prescribed by rules made under this Act;
(e) "Speaker" means the Speaker of the House of the People.
3) Investigation into misbehavior 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 that 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 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 justices 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 subsection (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 gourds 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.
(5) where it is alleged that the judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by such Medical Board as may be, appointed for the purpose by the Speaker or, as the case may be, the Chairman or, where the Committee is constituted jointly by the speaker and the Chairman, by both or them for the purpose and Judge shall submit himself to such medical examination within the time specified in this behalf by the Committee.
(6) The Medical Board shall undertake such medical examination of the judge as may be considered necessary and submit a report tot he committee stating therein whether the in capacity is such as to render the Judge unfit to continue in office.
(7) If the Judge refuses to undergo medical examination considered necessary by the Medical Board, the Board shall submit a report tot he Committee stating therein the examination which the Judge has refuse to undergo, and the committee may, on receipt of such report, presume that the Judge suffers form such physical or mental incapacity as is alleged in the motion referred to in subsection(1).
(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, therein its findings on each of the charges separately with such observations of the whole case as it thinks fit.
(3) The Speaker or the Chairman, or, where the Committee has been constituted jointly by the Speaker an the Chairman, both of the, 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 power of a civil court, while trying a suit, under the Code of Civil procedure, 1908 (5 of 1908), in respect of the following matters, namely-
(a) summoning and enforcing there attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on oath;
(d) issuing commissions for the examination of witnesses or documents;
(d) such other matters as may be prescribed
6) Consideration of report and procedure for presentations of an address for removal of Judge:
(1) If the report of the Committee contains a finding that the Judge is not guilty of any misbehavior or does not suffer from any incapacity, than no further steps shall be taken in either House of parliament interrelation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with.
(2) If the report of the committee contains a finding that the Judge is guilty of any misbehavior or suffers form any incapacity, then, the motion referred to in sub-section(1) of section 3 shall together, with the report of the Committee betaken up for consideration by the House or the Houses of Parliament in which it is pending.
(3) If the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124, or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then the misbehavior or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the president by each House of parliament in the same session in which the motion has bee adopted.
7) Power to make rules.
(1) There shall be constituted a Joint Committee of both House of Parliament in accordance with the provisions hereinafter contained for the purpose of making rules to carry out the purposes of this Act.
(2) The Joint Committee shall consist of fifteen members of whom ten shall be nominated by the Speaker and five shall be nominated by the Chairman.
(3) The Joint Committee shall elect its Chairman and shall have power to regulate its own procedure.
(4) Without prejudice to the generality of the provisions of sub-section
(1) the Joint Committee may make rules to provide for the following among other matters, namely:-
(a) the manner of transmission of a motion adopted in one House to the other House of Parliament;
(b) the manner of presentation of an address to the President for the removal of a judge;
(c) the travelling and other allowances payable to the members of the committee and the witnesses who may be required to attend such Committee;
(d) the facilities which may be accorded to the Judge for defining himself;
(e) any other matter which has to be, or may be, provided for by rules or in respect of which provision is, in the opinion of the Joint Committee, necessary.
(5) Any rules made under this section shall not take effect until they are approved and confirmed both by the Speaker and the Chairman and are published in the Official Gazette, and such publication of the rules shall be conclusive proof that they have been duly made.
THE JUDGES (INQUIRY) RULES 1969. to top
G.S.R. 2168 In exercise of the powers conferred by sub-section (4) of section7 of the Judges (Inquiry) Act, 1968 (51 of 1968), the Joint Committee constituted under sub-section (1) of that section, hereby makes of following rules, the same having been approved and confirmed by the Chairman of the Council of States and the Speaker of the House of the People, as required by sub-section (5) of that section, namely:-
(1) Short title and commencement (1) These rules may be called the Judges (Inquiry) Rules, 1969.
(2) They shall come into force on the date of their publication in the official Gazette.
Definition: In these rules, unless the context otherwise requires:-
(a) "Act means the Judges (Inquiry) Act, 1968 (51 of 1968);
(b) "Constitution" means the Constitution of India;
(c) "Form" means the form specified in the Schedule;
(d) "Inquiry Committee" means the Committee constituted under sub-section (2) of section3;
(e) "motion" means the motion admitted under sub-section (1) of section 3;
(f) "section" means a section of the Act;
(g) words and expressions not defined herein but defined in the Act have the meanings respectively assigned to them in the Act.
(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.
(1) Two members of the Inquiry Committee present at a meeting of th Inquiry Committee shall be the quorum for such meeting.
(2) No meeting of the Inquiry Committee shall be held unless a quorum is present.
(5) Service on the Judge of the charges framed against him:-
(1) The Inquiry Committee shall issue a notice, by registered post acknowledgement due, to the Judge in From I and shall enclose with the said notice;-
(a) a copy of the charges framed by it under sub-section (3) of section 3, and
(b) the statement of the grounds on which each such charge is based.
(2) if the notice referred to in sub-rule (1) is accepted by the Judge, the Inquiry Committee shall file with its records the postal acknowledgement, or where the postal acknowledgement has not bee received back, the registration receipt granted by postal authorities.
(3) If the Judge concerned omits or refuses to accept the notice referred, to in sub-rule (1) or, if he is not found a this last known address, the Inquiry Committee may order the Publication, in such manner as it may think fit, of a notice requiring the Judge to appear at a specified time and place to answer the charges framed against him.
(6) Objection to charges:- When the Judge appears, he may obect 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 misbehavior, 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 refuse, opposites, or is unable, to plead or desires that the inquiry should be made, the Inquiry Committee shall proceed with the inquiry.
(8) Effect of non-appearance:- If the Judge does not appear, on proof of service on him of the notice referred toin rule 5, or, upon publication of such notice, the Inquiry Committee may proceed with the inquiry in the absence of the Judge.
(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 finding of the majority of the members thereof.
(2) The Presiding officer of the Inquiry committee shall; -
(a) Cause its report to be prepared in duplicate,
(b) Authenticate each copy of the report by putting his signature there on, 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 tot he 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.
(3) A copy of the report of the Inquiry Committee, authenticated in the manner specified in sub-rule(2), shall be laid before each House of parliament.
(4) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is guilty of a misbehavior or that he suffers from an incapacity, but the third member thereof makes a finding to the contrary, the presiding officer of the Inquiry committee shall authenticate, in the manner specified in sub-sure (2), the finding made by such third member, in duplicate and shall forward the same along with the report submitted by him under section 4.
(5) An authenticated copy of the finding made by third member, referred to in sub-rule (4), shall also be laid before each House of Parliament.
(6) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is not guilty of any misbehavior or that he does not suffer from any incapacity and the third member thereof makes a finding to the contrary, the Inquiry Committee shall not disclose the finding made by such third member to parliament or to any other authority, body or person.
(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 (5 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 his choice
(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 misbehavior 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.
(12) Travelling and other allowances:-
(1) A members of the Inquiry Committee shall be entitled to travelling allowances for the journey from his usual place of residence to, and from, the place where any meeting of the Inquiry Committee is held and shall also be entitled to daily allowances in respect of tours undertaken by him in connection with any meeting of the Inquiry Committee.
(2) The travelling and daily allowances referred to in sub-rule (1) shall be payable at the rates admissible,-
(a) in the case of a member referred to in clause (b) of sub-section(2) of section 3, to a Judge of the Supreme Court;
(b) in the case of a member refereed to in clause (b) of sub-section (2) of section 3, to a Judge of a High Court; and
(c) in the case of a member referred to in clause (c) of sub-section (2) of section 3, to a Judge of a High Court.
(13) Travelling and daily allowances to witnesses:-
(1) Every witness, who is summoned to give evidence, or to produce a document or thing before the Inquiry Committee, shall be paid travelling and daily allowances at such rates as the Inquiry Committee may determine.
(2) In determining the rates of travelling and daily allowances under sub-rule (1), the Inquiry Committee shall have regard to the rates at which travelling and daily allowances are payable to witnesses who are summoned to give evidence or to produce documents before civil court in the State or Union Territory in which the witness gives evidence or produces any document or thing before the Inquiry Committee.
(14) Central Government to bear travelling and other allowances:-
The travelling and other allowances referred to in rules 12 and 13 shall be borne by the Central Government.
(15) Cost of medical examination etc:-
The costs of the medical examination of a Judge made under sub-section (5) of section 3, shall be borne by the Central Government.
(16) Adoption, passing the transmission of address:-
(1) Where the Inquiry Committee, or the majority of the members thereof, makes a finding to the effect that the Judge is guilty of any misbehavior or that the Judge suffers from an incapacity, the Secretary of the House of the People or the Council of State, as the case may be, shall prepare, in duplicate, an address in From II.
(2) A copy of the motion admitted under sub-section (1) of section shall be reproduced as an Annexure to such address.
(3) The Speaker, or in his absence the Deputy Speaker, or the Chairman, or in his absence the Deputy Chairman, as the case may be, shall fix a day for the consideration by the House of the People or the Council or States, as the case may be, of the address prepared under sub-rule (1), and such day shall be so fixed that the address may be supported by both Houses of Parliament in the same session
(4) The address, prepared under sub-rule (1), and the motion, shall be put to vote together in each House of Parliament.
(5) If the address referred to in sub-rule (1) is supported by a majority of the total membership of the House present and voting the address shall be transmitted, as expeditiously as possible, to the other House of Parliament with a message to the effect that the address had been so supported.
(6) The Secretary of the house of the People or the Council of States, as the case may be, I which the address is so supported, shall, before transmitting the address to the other House, make the following certificate on the top of the address, namely:-
"Certified that at a sitting of the House of the People/Council of States held on the, the under-mentioned address was supported by a majority or the total membership of the House and by a majority of not less than two-thirds of the members of the House Present and voting at such sitting.
(7) When the message referred to in sub-rule (5) is received by the House of the People or the Council of States, as the case may be, the Speaker, or in his absence the Deputy Speakers, or the Chairman, or in his absence the Deputy Chairman, as the case may be, shall fix a day for consideration of the address which has been supported by the other House and such day shall be so fixed that the address may be supported by both Houses of Parliament in the same session.
(17) Presentation of address to the President:-
(1) When the address is supported by each House of Parliament by the majorities specified in clause (4) of article 124 of the Constitution, the Speaker, or in his absence, the Deputy Speaker, and the Chairman, or in his absence, the deputy Chairman, shall separately prepare, in duplicate, the address as supported by both Houses of Parliament, and shall separately authenticate the same by appending thereon a certificate to the following effect, namely:-
"Certified that at a sitting of the House of the People/Council of States held on the,the address specified above was supported by the House of the People/Council of States by a majority of the total membership of the House and by majority of not less than two-thirds of the members of the House present and voting at such sitting."
(2) A copy of the address, as authenticated in the manner specified in sub-rule (1), shall be separately presented by the:-
(a) Speaker, or in his absence, the Deputy Speaker,
(b) Chairman, or in his absence, the Deputy Chairman, to the President as expeditiously as possible, and, in any case, before the expiry of the session in which the address is so supported.
(3) The duplicate copy of the authenticated address shall be kept in the House of the People or the Council of States, as the case may be, for its record.
(See rule 2 (c) )
(See rule 5 (1))
Judge, Supreme Court of India /High Court at .
WHEREAS a motion for presenting an address to the a President praying for your removal from your office as a Judge of the Supreme Court/High Court at.. has been admitted by the Speaker of the House of the People/Chairman of the Council of States;
AND WHEREAS the Speaker or the Chairman, or both, has/have constituted an Inquiry Committee with me, a Judge of the Supreme Court of India, as the presenting officer thereof for the purpose of making an investigation into the grounds on which your removal has been prayed for;
AND WHEREAS THE Inquiry Committee has framed charges against you on the basis of which investigation is proposed to be held;
You are hereby requested to appear before the said committee in person, or by a pleader duly instructed an able to anwser all material questions relating to the inquiry, on the . Day of ..atOclock in the forenoon/afternoon to answer the charges;
As the day fixed for your appearance is appointed for th final disposal of the charges leveled against you, you are requested to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.
Please take notice that in the event of any default in you appearance on the day a fore mentioned, the investigation into the grounds on which your removal has been prayed for shall be made in your absence.
Given under my hands this day
1) A Copy of the charges frmaed under sub-section (3) of section 3 of the Act.
2) Statement of grounds on which each charge is based.
Note:- Strike out the words which are not applicable.
(See rule 16 (1))
WHEREAS a notice was given of a motion for presenting an address to the President praying for the removal of Shri.. from his office as a Judge of the Supreme Court of India/High Court at.by .members of the House of the People /Council of States/both Houses of parliament (as specified in the Annexure A attached herewith);
AND WHEREAS the said motion was admitted by the Speaker of the House of the People/Chairman of the Council of States/both by the Speaker of the House of the People and the Chairman of the Council of States;
AND WHEREAS an Inquiry Committee consisting of:-
(a) Shria Judge of the Supreme Court of India,
(b) Shri., Chief Justice of the High Court at, and
(c) Shri, a distinguished jurist,
was appointed by the Speaker of the house of the People/Chairman of the council of States/both by the Speaker of the House of the People and the Chairman of the council of States, for the purpose of making an investigation into the gourds on which the removal of the said Shri.from his office as a Judge of the Supreme Court of India/High court athas been prayed for;
AND WHEREAS the said Inquiry Committee has, after an investigation made byit, submitted a report containing a finding to the effect that Shri.is guilty of the misbehavior/suffers from the incapacity specified in such report (a copy of which is enclosed and marked as Annexure B);
AND WHEREAS the motion a fore mentioned, having been adopted by the House of the People/Council of States in accordance with the provisions of clause (4) of article 124 of the constitution of India, the misbehaviour/incapacity of the said Shri is deemed, under sub-section (3) of section 6 of the Judges (Inquiry) Act, 1968, to have been proved;
NOW, THEREFORE, the House of the People/Council of States requests the President to pass an order for the removal of the said Shri.from his office as a Judge of the Supreme Court of India/High Court at..
Speaker/Deputy Speaker of the House of the People
Chairman/Deputy Chairman of the Council of States
Note; Strike out the words which are not applicable.
(See rule 16(2))
(A copy of the motion should be reproduced here)
(A copy of the report of the Inquiry Committee should be enclosed and marked
as Annexure B )
SUB-COMMITTEE OF JUDICIAL ACCOUNTABILITY vs. UNION OF INDIA to top
B. C. RAY, L.M. SHARMA , M. N. VENKATACHALIAH, J.S. VERMA AND S.C.AGRAWAL. JJ.
Writ petition (Civil) No. 491 of 1991 with Transfer Petition (Civil) No. 278 of 1991 with Writ Petition (Civil) Nos. 541:542 and 560 of 1991, D/- 29-10-1991.
Sub-Committee of Judicial Accountably, petitioner v. Union of India and others, Respondents.
Raj Birbal and others, Petitioners v. Rabi Ray and others, Respondents. (only a narration of the facts of the case and a summary of the ruling as given by all-India Reporter, are being reproduced Editor.
B. C. Ray, J. (for himself and on behalf of M. N. Venkatachaliah, J.S. Verma and S. C. Agrawal, JJ.) gave the majority view. He said: These writ petitions raised certain constitutional of Arts. 121 and 124 of the Constitution of India and of the "The Judges (Inquiry) Act, 1968" even as they, in the context in which they are brought, are somewhat unfortunate.
Notice was given by 108 members of the 9th Lok Sabha, the term of which came to an end upon its dissolution, of a Motion for presenting an Address to the President for the removal of Mr. Justice V. Ramaswami of this Court. On 12th March, 1991, the Motion was admitted by the then speaker of the Lok Sabha who also proceeded to constitute a committee consisting of Mr. Justice P. B. Sawant, a sitting Judge of this Court, Mr. Justice P. D. Desai, Chief justice of the High Court of Bombay, and Mr. Justice O. Chinnappa Reddy, a distinguished jurist in terms of S. 3(2) of the Judges (inquiry) Act, 1968.
The occasion for such controversy as is raised in these proceedings in there refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as "official service within the meaning of Para (B) (i) if part D of the II Schedule to the Constitution. It is said that without such a notification the two sitting Judges cannot take time off from their Court-work. The Union government seeks to justify its stand on its understanding that both the Motion given notice of by the 108 members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the Motion and constitute a Committee under the provisions of the Judges (Inquiry) Act, have lapsed with the dissolution of the 9th Lok Sabha.
Constitutional issues of some importance, therefore, arise as tot he constitutional and the legal position and status of a motion for the removal of a judge under a law made pursuant to Article 124(5) of the Constitution and as to whether the doctrine of lapse would apply to such a motion upon the dissolution of the Lok Sabha and whether, in view of the contention that such motions for removal, impeachment, etc, of the holders of high constitutional offices are in their very nature politically introduced, debated and decided in the House of Parliament and not elsewhere, the motion arising out of or relating to a motion of removal of a Judge in either House of Parliament is at all justifiable before Courts of law. It is also urged that even if these issues have some degree of adjudicative disposition and involve some justifiable areas, the Court should decline to exercise jurisdiction as its decision and its writ might become anfractuous in view of the fact that in the ultimate analysis, the final arbiter wither at all any Address is to be presented rests exclusively with the Houses of Parliament and which, are wholly outside the purview of the Courts.
Writ Petition No. 491 of 1991 is by a body called the "Sub-Committee on Judicial Accountability" represented by its conveyer, Sri Hardev Singh, a Senior Advocate of this Court. Petitioner-body claims to be Sub-Committee constituted by an "All India Convention on Judicial Accountability" "to carry forward the task of implementing the resolutions of the conventions." "Writ petition No. 541 of 1991 is by the Supreme Court Bar Association represented by its Honorary Secretary. The Bar Association seeks to prosecute this petition" "in the larger public interest and in particular in the interests of litigant public." "The two prayers common to both the petitions are, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the "The Judges (Inquiry) Act, 1968" and, secondly, that during the tendency of the proceedings before the Committee the learned Judges should be restrained form performing judicial functions and from exercising judicial powers.
Writ Petition No. 542 is by a certain Harish Uppal. This writ petition is more in the nature of a counter of the second prayer in the W. P. No.541/1991 and W. P. No. 491/1991. Petitioner Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial functions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the judges disposed of by the Houses of parliament which petitioner says should not delayed beyond 180 days the president may ask the judge concerned to re-cues (refuse?) from judicial functions
In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practicing Advocate, the constitutional validity of the Judges (Inquiry)Act, 1968 is challenged as ultra virus Arts. 100, 105, 118, 121, and 124(5) of the Constitution of India. it also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has lapsed with the dissolution of the 9th Lok Sabha. It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee. On the question of the validity of the Judges (Inquiry) Act, 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under S. 3 in the Speaker in his capacity as speaker of the House and subject tot he well-known and well-sealed principles of law, procedure and conventions of the Houses of Parliament and the statute does not depart from these principles. On the contrary the stature admits of a construction which accords with the powers and privileges of the Houses and that the Motion even at that stage of admission would require to be debated by the House. It is urged that if that be the construction, which the language of the statute admits, then there should be no vice of unconstitutionality in it. But if the statute is construed to vest such power exclusively in the Speaker, tot he exclusion of the House, the statute, on such Constitution would be unconstitutional as violative of Arts. 100(1), 105, 118 and 121 of the constitution.
Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself from High Court of Delhi, the Writ Petition (Civil No. 1061/1991 in the Delhi High Court where reliefs similar to those prayed for the Sri Khandelwal in W. P. (Civil) No. 560/1991 are sought. The prayer for transfer has not yet been granted; only the further proceedings in the High Court are stayed. But full-dress arguments in all these matters have been heard. It is appropriate that this writ Petition should also be formally withdrawn and finally disposed of along with the present batch of case. All that is necessary is to make a formal order withdrawing W. P. (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do.
Certain allegations of financial improprieties and regularities were made against Justice V. Ramaswami when he was the Chief Justice of the High Court of Punjab and Haryana. There were certain audit reports concerning certain items of purchases and other expenditure. The then Chief Justice of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared. Thereafter, a Committee of three Judges was constituted by then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court. The Committee tendered its advice to the Chief Justice. It noted that Justice Ramaswami had declined to acknowledge the jurisdiction of any Committee to sit in judgment over his conduct. The Committee, accordingly, abstained from an inquiry on the charges but, on an evaluation of the matter before it, expressed the view that as long as the charges of improper conduct involving moral turpitude were not established in the various Enquirer then pending the operation of the constitutional warrant appointing him a judge of the Court could not be interdicted.
Thereafter, in February, 1991, 108 members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Art. 124(4) of the Constitution read with the provisions of the Judges (Inquiry) Act, 1968. On 12-03-1991 the Speaker of the Lok Sabha in purported exercise of his powers under S. 3 of the said Act, admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for.
Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made, the term of the Ninth Lok Sabha came to premature end upon its dissolution. The petitioners question the legality of the Speakers order and assert that, at all events, the Motion had lapsed with the dissolution of the House. This contentions supported by the Union of India. They say that the effect of dissolution of the Ninth Lok Sabha is to pass a sponge across the parliamentary slate" and all pending motions lapse. The motion for removal, it is urged, is not exception.
We have heard Sri Shanti Bhushan, Sri Ram Jethmalani, Sri. P.P. Rao, Sri. R.K. Garg and Ms. Indira Jaising learned senior counsel in support of the prayers in Writ Petitions Nos. 491 and 541 of 1991 filed by the Sub-Committee on Judicial Accountability and the supreme Court Bar Association respectively, Sri. G. Ramaswamy learned Attorney General of the Union of India; Sri Kapil Sibal for the petitioners in Writ Petition No. 560/91 and transfer petition No. 278/91. Sri Harish Uppal, petitioner-in-person in Writ Petition No. 542/91 has filed his written submissions.
The arguments of the case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and tot he problems of justifiability of disputes arising there form. We shall refer to the arguments when we assess the merits of these contentions.
The contention surged at he hearing in support of the petitions which seek enforcement of Speakers decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summarized thus:
The motion for removal of the Judge moved by 108 members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a committee to investigate into the gourds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha. The general rule is that no House of Parliament can seek to bind its successor. All pending businesses at the time of dissolution of House lapse. A motion for removal of a Judge is just another motion and perishes with the expiry of the term of the earlier dissolution of House.
The question whether the motion for the removal of the Judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive Judge. No aspect of the matter is justifiable before Court.
The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political proves within the exclusive domain of the Houses of Parliament. The conduct of the Speaker in regulating the procedure and business of the house shall not be subject to the jurisdiction of any Court. The Speaker of the Lok Sabha in the exercise of his powers under the Judges (Inquiry) Act, 1968, acts in an area outside the Courts jurisdiction There is nothing in the Judges (Inquiry) Act, 1968 which detracts from this doctrine of lapse. On the contrary, the provisions of Act are consistent with this constitutional position.
Art. 124(5) pursuant to which the Judges (Inquiry) Act, 1968, is a mere enabling provision. Prior proof of misconduct is not a condition precedent before the bar under Art. 121 against the discussion of the conduct of Judge is lifted.
The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for investigation without the support of the decision of the House is ultra virus Articles 100(1), 105, 121 and the Rules made under Art. 118 of the Constitution.
The provisions of the Judges (Inquiry) Act, 1968 can be read consistently with the Constitutional Scheme under the aforesaid Articles. But if the provisions of the Act are so construed as to enable the speaker to exercise and perform those powers and functions without reference to and independently of the House, then the provisions of the Act would be unconstitutional.
The decision of the speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no opportunity, admittedly, was afforded tot he judge of being heard before the decision was taken.
The process of removal by means of a motion for address to the President is a political remedy. But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a Court comprising Judges sterling and unsullied reputation and integrity which is enforceable. This judicial remedy is independent of the Constitutional remedy and that the Court has jurisdiction to decide as to its own proper Constitution. In exercise of this jurisdiction it should examine the grounds of the alleged misbehavior and restrain the Judge from judicial functioning.
The Speakers decision is vitiated by mala fides and oblique and collateral motives.
The Supreme Court Bar Association and the Sub-Committee on judicial accountability the petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991, respectively, do not have the requisite standing to sue and the writ petitions are, accordingly, not maintainable at their instance.
At all events, even if the Speaker is held to be statutory authority acting under the Statute and no as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgement rendered and writ issued by this Court have the prospect of being anfractuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively with in the power of the House and the court would have no jurisdiction over that area.
(A) Constitution of India, Arts. 124, 118 Removal of Supreme Court Judge Motion by members of Parliament Does not lapse on dissolution of House of parliament Courts retain jurisdiction to so declare.
Judges (Inquiry) act (1968), S. 3.
Supreme Court Judge Removal Motion in House of Parliament Jurisdiction of Court.
The effect of Arts. 124(5) and 118 and Ss.3,4 of the Act is that the motion shall be kept pending till the committee constituted for the purpose of making an investigation into grounds on which the removal of Judge is prayed submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration. Only one motion is envisaged which will remain pending. No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported. The reason is that a law made by Parliament and binding on the House can provide against the doctrine of lapse. The law envisaged in Article 124(5) is parliamentary law which is of higher quality of efficacy than rules made by the House for itself under Article 118. Such a law can, and under the present statute does provide against the doctrine of lapse. Further, Art. 118 expressly states that each House of Parliament may make rules "for regulating, subject to the provisions of this Constitution". In the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude and operation of the Rules under Article 118. No question of repugnance could arise to the extent the field is covered by the law under Article 124(5). Such a view would indeed obviate some anomalies, which might otherwise arise. Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there. Section 3 applies to both the Houses of Parliament. The words "shall keep the motion pending" in S. 3 cannot have two different meanings in the two different contexts. It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse. Therefore the plea that such a motion lapses with the dissolution of the House of Parliament is not tenable. (Para 31)
The interpretation of the laws is the domain of the courts and on such interpretation of the constitutional provisions as well as the Judges (Inquiry) Act, 1968, it can be said that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare. (para 32)
(B) Judges (Inquiry) Act (1968), S. 3 Supreme Court Judge Removal Motion by members of Parliament Process up to point of admission of motion, constitution of committee and recording of findings by Committee Not proceedings in House of Parliament Matter up to that point cannot be said to remain outside the courts jurisdiction.
Constitution of India, Arts 124, 121.
Supreme Court Judge Removal Jurisdiction of Court.
B. C. Ray, J. (for himself and on behalf of M. N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ.) (Majority view): - The constitutional process for removal of a Judge up to the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the Act. Up to that point he matter cannot be said to remain outside the Courts jurisdiction. (Para 55)
Making of the allegation, initiation of the proceedings, investigation and proof of the misbehavior or incapacity of a Judge are governed entirely by the law enacted by Parliament under clause (5) of Art. 124and when that stage is reached, parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehavior or incapacity is moved for presentation of the address to the president in the manner prescribed. The matter not being before Parliament prior to this stage is also indicated by article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the president as provided later in Article 124(4). The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion. This indicates that the machinery for investigation and proof must necessarily be outside parliament and not within it. In other words ,proof which involves a discussion of the conduct of the Judge must be a body which is outside the limitation of Article 121. The word proved also denotes proof in the manner understood in our legal system i. e. as a result of judicial process. The policy appears to the that the entire stage up to proof of misbehavior or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside Parliament and not within it. If, this be so, it is a clear pointer that Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5). Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehavior or incapacity has been proved. The Judges (Inquiry) Act, 1968 enacted under Article 124(5) itself indicates that Parliament so understood the integrated scheme of Articles 121. 124(4) and 124(5). The general scheme of the Act conforms to this view. Some expressions used in the Act, particularly section 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted. Those expressions appear to have been used since the authority to entertain the complaint is Speaker/Chairman, the complaint is described as motion and the complaint can be made only by the specified number of members of Parliament. In substance it only means that the specified number of m. Ps. Alone can make such a complaint, the complaint must be made tot he Speaker/Chairman on receiving such a complaint if the Speaker/Chairman forms the opinion that there is a prima facie case for investigation, he will constitute the judicial committee as prescribed; and if the finding reached is guilty then the Speaker/Chairman commences the Parliamentary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted (Para 39)
L. M. Sharma, J. (Minority view):-
If the control of the House continues on the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdiction, which may result in issuance of contradictory directions. Besides, the Court cannot be expected to pass orders in the nature o step in aid, where the final result is beyond its jurisdiction. Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarrassing both for the highest judicial and legislative authorities of the country. The Constitution cannot be attributed with such an intention. Therefore, the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts. (Para 104)
(C) Judges (Inquiry) Act (1968), S. 3 Constitution of India, Arts. 124, 121, 118 Supreme Court Judge Removal Prior proof of misconduct in accordance with law made under Art. 124(5) Is condition precedent for lifting bar under Art. 121 against discussing conduct of Judge in Parliament Field relating to removal of Judge Covered by Art. 124 Rules made under Art. 118, not applicable.
Constitution of India, Arts. 124(5), 121, 118, 317.
Interpretation of Statutes Words "may" and "shall"
Per B. C. Ray (for himself and on behalf of M. N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ.) (Majority view):- In case of removal of Supreme Court Judge prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in parliament, Article 124(4) really becomes meaningful only with a law made under Article 124(5). Without such a law the constitutional schemes and process for removal of a Judge remains inchoate. (Para 55)
It is not the law enacted under Article 124(5), which abridges or curtails the parliamentary process or exclusivity of its jurisdiction but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indicated that the stage of clause (4) is reached and the process there under commences only when the alleged misbehavior or incapacity of the Judge is proved in accordance with the law enacted under clause (5)
It is only then that the need for discussing a Judges conduct in parliament arises and, therefore, the bar under Article 121 is lifted. In short, the point of time when the matter comes first before parliament in the Constitutional Scheme, Article 121 provides that the bar is lifted. The over view created difficulties by restricting discussion in Parliament on a motion, which would be before it. The suggestion to develop a convention t avoid discussion at the stage or to prevent it by any other device adopted by the Speaker after admitting the motion, does not appear to be a satisfactory solution or explanation. That this obvious situation could have been left unproved for and the field left to a convention to be developed later, while enacting these provisions with extreme care and caution in a written Constitution is extremely unlikely. This indicate that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliamentary process I c. when the misbehavior or incapacity is proved, the stage from the initiation of the process by making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5), in case the allegation is not proved, the condition precedent to invoke Parliaments jurisdiction under clause (4) does not exist, which is the reason for section 6 of 1968 Act saying so; and in case it is proved, the process under clause (4) commences, culminating in the result provided in it. (Paras 41, 42)
The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature connected with clause (4) relating to curtailment of a Judges tenure, clause (4) providing the manner of removal and clause (5) the pre-requisite for removal distinguished from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament. Article 124(5) does not, therefore, operate in the same field as Article 118 relating to procedure and conduct of business in Parliament. (Para 43)
If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) on ground of proved misbehavior or incapacity it presupposes that misbehavior or incapacity has been proved earlier. This is more so on account of the expression investigation and proof used in clause (5) with specific reference to clause (4). This indicates that investigation and proof of misbehaviour incapacity is not within clause (4) but within clause (5). Use of the expression same session in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i. e., investigation and proof which is to be interlay governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha. (Para 44)
The significance of the word proved before the expression misbehavior or incapacity in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the public Service Commission. The expression in clause (1) of Article 317 used for describing the ground of removal is The ground of misbehaviou while in clause (4) of Article 124, it is the ground of proved misbehaviour or incapacity. The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1), which provides for an inquiry by the Supreme Court on a reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by Parliament under clause (5) of Article 124. In view of the fact that the adjudication on the ground of misbehaviour under Article 317 (1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is re-informed by the addition of the word "proved" in Article 124 ( 4) the and requirement of law for this purpose under Article 124 (5). (Para 45)
Use of the word may in clause (5) of Art. 124 indicates that for the procedure for presentation of address it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the investigation and proof is to be governed by the enacted law. The word may in clause (5) is no impediment to this view. On the other hand, if the word shall was used in place of may in clause (5) it would have indicated that it was incumbent on Parliament to regulate even the procedure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. If the word may in Article 124(5) is given any other meaning that sub-Article would render itself, to be treated by parliament, as superfluous, redundant and otiose. The power to prescribe a procedure for the exercise of power under Article 124 (4) could otherwise also e available to be House. The law envisaged under Article 124(5) is not such a law; but one which would effectuate the constitutional policy and philosophy of the machinery for removal of Judges. The use of the word may does not, therefore, necessarily indicate that the whole of clause (5) is an enabling provision leaving it to Parliament to decide whether to enact a law even for the investigation and proof of the misbehavior or incapacity or not. (Paras 46, 47)
On scope of the law under Article 124(5), the idea of regulating procedure for (i) Presentation of the address; (ii) Investigation and proof of misbehaviour or incapacity admit of two possible options of interpretation. The idea of "presentation of the address" may be confined tot he actual presentation of address by both Houses of the Parliament; or may be held to cover the entire process from initiation by the motion in the House till the final act of delivery of the address. If the first view is correct the law under Article 124(5) would apply at the stage of investigation and proof of misbehaviour or incapacity and at the final stage of presentation of address after the motion is adopted by the both the Houses. The motion and its consideration and adoption by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article 118. This view is too narrow. By bridging in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect independence of the judiciary.
Second view is to be preferred. It enables the entire process of removal being regulated by a law of Parliament ensures uniformity and reduces chances of arbitrariness. Article 118 is a general provision conferring on each House of Parliament the power to make its own rules of procedure. These rules are not binding on the House and can be altered by the House at any time. A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122. (Paras 49, 50)
Article 124 (5) is in the nature of a special provision intended to regulate the procedure for removal of a Judge under Article 124(4) which is not a part of the normal business of the House but is in the nature of special business. It covers the entire field relating to removal of a Judge. Rules made under Article 118 have no application in this field. (Para 52)
Per L. M. Sharma, J. (Minority view):-
It is not permissible to read the Act consistent with the stand that the House is not seized of the motion and does not nave anything to do with the inquiry pending before the Committee, until the report is received.(Para 95, 96)
The parliament is in control of the matter from the very beginning till the end. By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the House is brought in control of the proceeding through its representative the Speaker or the Chairman. It has to be noted that "the ground of proved misbehavior or incapacity" is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard. (Para 100)
So long the statue enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdication of power. it is a case where Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be found. The House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If the on the other hand it is held that the Committee is an independent statutory body not subject to the control of the House directly or through the Speaker, the Act may be rendered unworkable. (Paras 101, 102)
(D) Judges (Inquiry) Act (1968), S. 3 Validity Act is constitutional and intra vires Removal of Supreme Court Judge Admission of motion and constitution of Committee for investigation of misbehaviour by Speaker of house of People Speaker does not act as part of House.
Constitution of India, Arts. 124, 118. 119.
The Speaker of House of People while admitting a motion for removal of Supreme Court Judge and constituting a Committee to investigate the alleged grounds of misbehavior or incapacity does not act as part of the House. The house does not come into the picture at this stage. The provisions of the judges (Inquiry) Act, 1968 are not unconstitutional as abridging the powers and privileges of the House. The Judges (Inquiry) Act, 1968 is constitutional and is inter vireos. (Para 55)
The mere fact that CJ. (5) of Art. 124 does not form a part of CJ. (4) Itself as appears to have been considered at one stage when the Constitution was being drafted does not reduce the significance or content of CJ. (5). It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that up to the stage of proof of misbehaviour or incapacity the field is covered by a law enacted by Parliament, the first part being covered by CJ. (5) and the latter by CJ. (4) with the only difference the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or incapacity had been proved by enacting a law to the purpose to make it more definite and consistent.
Similarly, use of word motion to indicate the process of investigation and proof in the Judges (Inquiry) Act, 1968 because the allegations have to be presented tot he Speaker does not make it motion in the House not withstanding use of that expression in S. 6 would not say that no further step is to be taken incase of a finding of not guilty. It only means that when the allegation is not proved, the Speaker need not commence the process under CJ. (4) which is started only in case it is proved. The Speaker is, therefore, a statutory authority under that Act chosen because the further process is parliamentary and the authority to make such a complaint is given to members of parliament. Moreover, the enactment under Art. 124 (5) cannot be a safe guide to determine the scope of Art. 124(5).
In view of the construction of the interconnection amongst Arts 118, 121, 124(4) and 124(5) the provisions of the Judges (inquiry) Act do not foul with the Constitutional Scheme. (Paras 47,48)
(E) Constitution of India, Art 124 Supreme Court judge Removal Admission of motion and constitution of Committee for investigation by Speaker of House of People Opportunity of hearing to Judge Not necessary.
Judges (Inquiry) Act (1968, S. 3.
Natural Justice Removal of Supreme Court Judge Admission of motion by Speaker of House of People Opportunity of hearing to Judge Not necessary.
When the Speaker of House of People admits the motion for removal of Supreme Court Judge under S. 3of the Judges (Inquiry) Act, a Judge is not, as a matter of right, entitled to such notice. The scheme of the statute and the rules made thereunder by necessary implication exclude such a right. But that may not prevent the Speaker, if the facts and circumstances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so. But a decision to admit the motion and constitute a Committee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the decision. (Para 58)
(F) Constitution of India, Art 124 Removal of Supreme Court Judge Inquiry into alleged misbehavour or incapacity of Judge Grant of interim relief of restraining Judge from functioning Judicially on initiation of process Not permissible.
Judges (Inquiry) Act (1968), S. 3.
Per B. C. Ray. J. (for himself and on behalf of M.N. Venkatachaliah, J.S. Verma and S. C. Agrawal JJ.) (Majority view):- During the stage of inquiry into alleged misbehavior or incapacity of Judge from discharging judicial functions cannot be granted. it is the entire Constitutional Scheme including the provisions relating to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect. There cannot be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in Cls. (4) and (5) of Art. 124 read with Art. 121. No authority can do what the Constitution by necessary implication forbids. Incidentally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of process under the Judges (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehavior or incapacity is proved in accordance with the provisions of the law enacted under Art. 124(5) and a motion for presetting an address for removal of the Judge on the ground of proved misbehavior or incapacity is made, because of the restriction contained in Art. 121, there cannot be a discussion about the judges conduct even in Parliament which has the substantive power of removal under Art. 124(4). If the Constitutional Scheme therefore is that the Judges conduct cannot be discussed even in parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is proved in accordance with the law enacted for this purpose, then it cannot be said that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the state for this purpose. The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehavior or incapacity is not contemplated it being alien to our Constitutional Scheme. (Para 61)
The question of propriety is, however, different from that of legality. The absence of a legal provision, like Art. 317 (2) in the case of a Mamber of Public Service Commission, to interdict the Judge faced with such an inquiry from continuing to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehavior or incapacity being proved till the process of removal under Art. 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during that period. That area is to be covered by the sense of propriety of the Judge himself and the judicial traditions symbolized by the views of the Chief Justice of India. it should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functioned during the interregnum. Since the Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice. The constitution while providing for the suspension f a Member of a Public Service Commission in Article 317 (2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional functionaries, namely, the Superior Judges and President and Vice President of India, facing impeachment. It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension. Propriety of the desirable course has to be viewed in this perspective. It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrassment to the learned Judge and to the institutionally a manner which is conducive to the independence of judiciary and should be Chief Justice of India be of the view that in the inters of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Art. 124(4), he would advise the Judge accordingly. It is further reasonable to assume that the concerned Judge would ordinarily abide by the advice of the Chief Justice of India. all this is, however, in the sphere of propriety and not a matter of legal authority to permit any Court to issue any legal directive tot he Chief Justice of India for this purpose (Para 62)
Per L. M. Sharma, J. :- The Supreme Court cannot pass order that the Judge of the Supreme Court sought to be removed should not be allowed to exercise his judicial powers. (Pare 106)
(G) Constitution of India, Articles 124, 32 Removal of Supreme Court Judge Admission of motion by Speaker of House of People Case of malafides against Speaker Require to be established on strong grounds Cannot be made out merely on ground of political affiliation of Speaker.
Judges (Inquiry) Act (1968), S. 3. (Para 64)
(H) constitution of India, Art, 32 Locus stand Motion in House of People for removal of Supreme Court Judge on ground of misbehavior etc. Important constitutional issues involved Petition against be members of Supreme Court Bar Association Maintainable. (Para 65)
(I) Constitution of India. Arts. 124, 32 Removal of Supreme Court Judge Motion in House of People Writ petition Declaration sought from Supreme Court that it does not lapse on dissolution of House Plea of infructuousness of judgment or writ of Supreme Court Held, occasion to consider such plea did not arise as Union Govt. has sought interpretation of legal position for regulating its action.
Judges (Inquiry) Act (1968), S. 3.
In the instant case the motion by members of parliament for removal of Supreme Court Judge on ground of misbehavior, etc. was admitted by the Speaker of House of People. The writ perition was filed for seeking declaration from Supreme Court that the motion does not lapse on dissolution of House of People. It was alleged that At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the court, any Judgement rendered and writ issued by Supreme Court have the prospect of being anfractuous in view of the undisputed constitutional position that, in the ultimate analysis, the to be taken into account for the purpose of considering this aspect. There cannot be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in CJs. (4) and (5) of Art. 124 read with Art. 121. No authority can do what the Constitution by necessary implication forbids. Incidentally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on intimation of process under the Judges (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehaviour or incapacity is proved in accordance with the provisions of the law enacted under Art. 124(5) and a motion for presenting an address for removal of the judge on the ground of proved misbehaviour or incapacity is made, because of there striation contained in Art. 121, there cannot be a discussion about the Judges conduct even in Parliament which has the substantive power of removal under Art. 124(4). If the Constitutional Scheme therefore is that the Judges conduct cannot be discussed even in Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is proved in accordance with the law enacted for this purpose, then it cannot be said that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statue for this purpose. The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehavior or incapacity is not contemplated it being alien to our Constitutional Scheme. (Para 61)
The question of propriety is, however, different from that of legality. The absence of a legal provision, like Art. 317 (2) in the case of a Mamber of Public Service Commission, to interdict the Judge faced with such an inquiry from continuing to discharge judicial functions pending the out come of the inquiry or in the event of a finding of misbehavior or incapacity being proved till the process of removal under Art. 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during the period. That area is to be covered by the sense of propriety of the Judge himself and the judicial tradition symoblised by the views of the Chief Justice of India. It should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functions during the interregnum. Since the Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice. The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 317 (2) in a similar situation has deliberately abstained from making such a provision incase of higher constitutional functionaries, namely, the Superior Judges and President and Vice-President of India, facing impeachment. It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension. Propriety of the desirable course has to be viewed in this perspective. it would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrassment to the learned Judge and to the institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Art. 124(4), he would advise that Judge accordingly. It is further reasonable to assume that the concerned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any Court to issue any legal directive to the Chief justice of India for this purpose. (Para 62)
Per L. M. Sharma, J. :- The Supreme Court cannot pass order that the Judge of the Supreme Court sought to be removed should not be allowed to exercise his judicial powers. (Para 106)
(G) Constitution of India, Articles 124, 32 Removal of Supreme Court Judge Admission of motion by Speaker of House of People Case of malafides against Speaker Require to be established on strong grounds Cannot be made out merely on ground of political affiliation of Speaker.
Judges (Inquiry) Act (1968), S. 3. (Para 64)
(H) constitution of India, Art, 32 Locus stand Motion in House of People for removal of Supreme Court Judge on ground of misbehavior etc. Important constitutional issues involved Petition against be members of Supreme Court Bar Association Maintainable. (Para 65)
(I) Constitution of India. Arts. 124, 32 Removal of Supreme Court Judge Motion in House of People Writ petition Declaration sought from Supreme Court that it does not lapse on dissolution of House Plea of infructuousness of judgment or writ of Supreme Court Held, occasion to consider such plea did not arise as Union Govt. has sought interpretation of legal position for regulating its action.
Judges (Inquiry) Act (1968), S. 3.
In the instant case the motion by members of parliament for removal of Supreme Court Judge on ground of misbehavior, etc. was admitted by the Speaker of House of People. The writ perition was filed for seeking declaration from Supreme Court that the motion does not lapse on dissolution of House of People. It was alleged that At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the court, any Judgement rendered and writ issued by Supreme Court have the prospect of being anfractuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the court would have no jurisdiction over that area. The Court would, therefore, decline to exercise its jurisdiction on grounds or in-fractiousness.
Held, the elements of in-fractiousness, it is suggested, arise in tow areas. The first is, as is posited, what should happen if the House of parliament choose to say that in there view the motion has lapsed? Would the Court then go into the legality of the proceedings of the House of Parliament and declare the decision of the House void?
The second area of the suggested source of in-fractiousness is as to the consequences of the position that the Houses of Parliament would, not-withstanding the report of the committee, be entitled to decide not to present an address to the President to remove the Judge. It is, it is said, for the House of Parliament to discipline the Government if the House is of the view that Government is guilty of an illegal inaction on the Speakers decision as ultimately the House has dealt with the Committees report.
On the first point there is and should be no difficulty. The interpretation of the law declared by the Supreme Court that a motion under S. 3 (2) of the Judges (Inquiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration. No argument based on an assumption that the House would act in violation of the law need be entertained. If the law is that the motion does not lapse; it is erroneous to assume that the houses of Parliament would act in violation of the law. The interpretation of the law is within the exclusive power of the Courts.
So far as the second aspect is concerned, what is now sought by the petitioners who seek the enforcement and implementation of the Speakers decision is not a direction to the Committee to carry out the investigation. Such a prayer may raise some issues peculiar to that situation. But here, the Union government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its actions on the Speakers decision. That understanding of the law is now found to be unsound.
All that is necessary to do is to deicer the correct constitutional position. No specific writ of direction need issue to any authority. Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve all that is necessary is to declare the legal and constitutional position and leave the different organs of the State to consider matters falling within the orbit of their respective jurisdiction and powers. (Para 70)
(J) Judges (Inquiry) Act (1968), Pre Scope Interpretation Consideration of entire background as aid to interpretation permissible per. L. M. Sharma, J.
Interpretation of Statutes Consideration of background of statutes. (Para 85)
(K) Constitution of India, Article 124 (4), (5) Removal of Supreme Court Judge Parliament is bound to follow Judges (Inquiry) Act (1968).
Judges (Inquiry) Act (1968). S. 3.
Per. L.M. Sharma, J. It cannot be said that even after the passing of the 1968 Act parliament can choose either to proceed according to the said Act or to act independently ignoring the same. Once the 1968 Act was enacted, parliament is bound to follow it, but earlier it was free to proceed as it liked. However, the exercise of power under CJ. (4) Could not be said to be conditionally the enactment of a law under CJ. (5). (Paras 88, 90)
SAWANT COMMITTEE REPORT to top
REPORT OF THE COMMITTEE APPOINTED UNDER THE JUDGES (INQUIRY) ACT.
(NEGLIGIBLE DELITIONS HAVE BEEN MADE BY THE EDITOR OF BOOK GONE AT LAST ? )
The committee, consisting of Mr. Justice P.B. Sawant of the Supreme Court, Mr. Justice
P. D. Desai, Chief Justice of Bombay High Court, and Mr. O. Chinnappa Reddy, a jurist and former judge of the Supreme Court initially narrated the facts and the circumstances leading to the appointment of the committee. (These are being omitted because these are adequately covered in the other texts used in this book).
It went on to say that the 9th Lok Sabha was dissolved on 12-03-1991. Though the Lok Sabha was dissolved, the Speaker continued in office till the first meeting of the 10th Lok Sabha as contemplated by the second proviso to Article 94 of the Constitution.
A copy of the Notification constituting the Committee together with the Notice of Motion dated 27-02-1991 including the explanatory note regarding evidence on the charges against Mr. Justice V. Ramaswami and the announcement made by the Speaker in the Lok Sabha on 12-03-1991were communicated to the Presiding Officer of the Committee (Mr. Justice P.B. Sawant). A few days later a copy of the audit observations as formulated taking into account the comments given by Justice V. Ramaswami and copies of annexures to the explanatory note accompanying the Notice of Motion and some other material made available tot he speaker by the signatory members of the Lok Sabha at the time of giving Notice of Motion were also forwarded to the Presiding Officer.
No request of the President of India was conveyed either to Mr. justice P.B. Sawant or Chief Justice P. D. Desai, to function as Members of the Inquiry Committee. Such a request was thought to be necessary if the time spent by the two judges in the performance of the functions as Members of the committee was to be treated as actual service within the meaning of paragraphs 11(b)(i) and 11(b) (ii) of part D of the Second Schedule of the Constitution of India read respectively with Section 2(b)(i) of the Supreme Court judges (Conditions of Service) Act and Section 2(c)(i) of the High Court judges (Conditions of Service) Act. On 16-04-1991 the Committees Secretary addressed the Department of Justice, among other things, for issuing Presidential Notifications to enable justice P.B. Sawant and Chief Justice P. D. Desai to function as members of the Committee. The Committee was scheduled to meet on 28-04-1991 to consider the situation arising from the want of a request by the President of Justice P.B. Sawant and Chief Justice P. D. Desai to function as Members of the Committee. On the evening of 25-04-1991 the Secretary General of the Lok Sabha forwarded to the Presiding officer a letter received from the Additional Secretary (Justice), Government of India, stating that Justice V.Ramaswami had made a representation tot he president of India raising a fundamental question regarding the validity of the constitution of the inquiry Committee, stressing in particular that on the dissolution of Lok Sabha on 12-03-1991 the Motion had lapsed, and therefore, all other matters arising out of the Motion had also lapsed. The letter further stated that the Ministry of Law had obtained the opinion of the Attorney General who had said that consequent upon the dissolution of the Lok Sabha, the Motion had lapsed and the inquiry before the Committee could not container. The Ministry of Justice did not offer their opinion or advice in the matter but contented themselves by intimating the Attorney Generals view to the Secretary General of the Lok Sabha and the Secretary General of the Lok Sabha in turn merely forwarded the letter of the Ministry of Justice without indicating what further action was proposed by them in the matter.
At the initial stage, the Committee secured the services of Mr. F.S. Nariman, Senior Advocate, Supreme Court, to assist the Committee. Sub-sequentially, the services of
Mr. Rajinder Singh, Senior Advocate and Mr. Raju Ramachandran, Advocate, were secured to assist the Committee in investigating the case.
A body styled as the Sub-Committee on Judicial Accountability filed Writ petition in the Supreme Court of India praying, inter alia, that the Union of India be directed to take immediate steps to aid the Inquiry Committee to discharge its functions under the judges (Inquiry) Act. they complained that the President had not issued the necessary Notification to treat the time spent by Justice P. B. Sawant and Chief Justice P. D. Desai as Members of the Committee as "actual service" within the meaning of the relevant provisions of the Constitution and the Supreme Court and the High Court judges (Condition of Service) Acts.
At its meeting held on 28-04-1991, the Committee considered the entire situation then obtaining and decided that for the time being they should not take any immediate steps to commence their work in view of the tendency of the case before the Supreme Court.
The Writ Petition filed by the Sub-Committee on Judicial Accountability (Writ Petition No. 491/91) was heard by the Supreme Court along with three other Petitions. A common judgement was pronounced by the Constitution Bench of the Supreme Court on 29-10-1991. The Supreme Court, by majority of 4 to 1, held, inter alia, that the Motion for presenting an address for the removal of the judge did not lapse with the dissolution of the 9th Lok Sabha and that the action of the Speaker in admitting the Motion and constituting the Committee was within his competence. The Court also upheld the virus of the judges (Inquiry) Act, 1968.
After the Supreme Court pronounced its judgement, the Ministry of Law and Justice communicated on 20-11-1991 tot he Secretary General of Lok Sabha the request of the President to Justice P. B. Sawant and Chief Justice P. D. Desai to function as Members of the Committee.
Within a few days thereafter on 26-11-1991, Mr. Atul Vig, Advocate of Justice Ramaswami, addressed a letter to the Presiding Officer of the Committee demanding that the entire materialon the basis of which the Honble Speaker of the 9th Lok Sabha admitted the Motion and constituted the Committee, be forwarded to him. He chose to add that in the event of his request no being granted, within a reasonable period of time, he would be left with no choice but to seek appropriate remedies. He further added that the request was without prejudice to his right to question both the constitution of the Committee and any proceeding under taken by the Committee thereafter. He sought to make it expressly clear by writing the letter that his client should not be deemed to have submitted to the jurisdiction of the Committee. A similar letter was again written by Mr. Atul Vig on 06-12-1991, reiterating that if he did not receive the material before the weekend, he would be left with no choice cut to move the Court of appropriate jurisdiction for a mandamus in that regard.
At the meeting held on 07-12-1991, the Committee considered the letters of Advocate Vig and although there was no obligation to furnish any documents to Justice Ramaswami until the framing of the charges, if any, the Committee decided to furnish to him copies of all documents received from the office of the Honble Speaker of the Lok Sabha. The Secretary of the Committee forwarded the said copies of documents to Mr. Atul Vig on 07-12-1991.
The next letter on behalf of Justice Ramaswami was by Mr. Ranjit Kumar, Advocate on 11-12-1991. He requested inspection of the original documents, copies of which had been supplied, on 07-12-1991. He also wanted two sets of copies of documents to be supplied, one for the use of his Senior Counsel Mr. Kapil Sibal and another for Justice Ramaswami. Mr. Kumar was informed on the same day that the originals of the documents had been called for and that he could take inspection on their receipt. On 24-12-1991 Mr. Kumar was informed that originals of documents were received and that he should inspect the documents from 26-12-1991 onwards. Inspection was accordingly taken.
The Committee met on various days from 29-11-1991 onwards and started the scrutiny of various documents already received. It asked for and obtained further documents from the High Court of Punjab and Haryana, the Chandigarh Administration, the office of the Accountant General, the Supreme Court of India, etc. On a careful scrutiny and consideration of the documents received from various sources and all other material aspects, the Committee framed 14 definite charges against Justice Ramaswami alleging variously conduct amounting to willful and gross misuse of office, willful and persistent failure or negligence in discharge of duties, habitual extravagance at he cost of public exchequer moral turpitude, using public funds for private purpose in diverse ways and bring the high judicial office into disrepute. The acts and omissions alleged in the charges collectively were stated to amount to misbehaviour within the meaning of Article 124(4) of the Constitution of India.
CHARGES to top
Briefly, the first charge was in respect of the alleged willful abuse by Justice Ramaswami of his powers and authority as Chief Justice of the High Court of Punjab and Haryana in unauthorisedly getting purchased from favoured dealers, items of furniture, furnishings and other articles value at more than RS. 13 lakh, far in excess of and wholly disproportionate to the requirements of the official residence and the office wing thereof and beyond the limits prescribed by the relevant rules for the residential portion of the official residence.
The Second charge related to the alleged purchase of 1637 sq. ft. of superior quality wall-to-wall carpet and foam for the conference room and extended office from a favoured dealer at excessive price by splitting bills, whereas in fact what was alleged to have been actually found at the residence was only 1130 sq. ft. of carpet and foam. Similarly, while the floor area of the other rooms, staircase and cover verandah was 2884 sq. ft only, total carpet of the size of 3527 sq. ft. was alleged to have been purchased and what was allegedly found was only 2884 sq. ft.
The third charge related to thirteen woollen carpets allegedly purchased for use in the High Court but found in the official residence of the Chief Justice. Out of them, four carpets were alleged to have been replaced. The purchases were from favoured dealers and by splitting bills.
The fourth charge was concerned with the alleged purchases from a favoured dealer of sofas, sofa chairs, center tables and corner tables under different vouchers by splitting bills, which purchases were wholly did proportionate to the requirements of the office wing of the official residence. Some of them were allegedly not used in the office wing be were found elsewhere in the official residence. The fifth charge was in respect of furniture and furnishings alleged to be missing when Justice Ramaswami handed over charge of his residence. The sixth charge related to six sofa chairs which were bought and paid for but were allegedly no actually supplied at the official residence on the dates of alleged purchase. They were alleged to have been surreptitiously brought into the official residence of Justice Ramaswami, a few days before he handed over charge of his residence. The seventh charge was in respect of the alleged purchase and supply of eighteen suit/attach cases and one brief case out of which six suit cases and a brief case were alleged to have been purchased and supplied around the time of Justice Ramaswamis sons marriage and six suit cases were allegedly purchased and supplied a few days before his appointment as judge of the Supreme Court of India. Out of the eighteen suit cases purchased and supplied, only thirteen were allegedly found at the residence when he handed over charge and none of them appeared to be recently purchased. The eighth charge related to the purchase of silver maces for the High Court of Punjab and Haryana at allegedly excessive price and without inviting quotations and by splitting the bills even though the judges of the High Court had opposed the purchase of the maces. The ninth charge related to the allegedly unauthorized reimbursement of telephone charges amounting to Rs. 76,150 on account of a telephone connection maintained at Justice Ramaswamis residence at madras for the period from October 1987 to November 1989.
The tenth charge was regarding alleged excessive expenditure on the telephone at the residence of the Chief Justice at Chandigarh during Justice Ramaswamis tenure. The amount involved was
Rs. 9.10 lakh. The eleventh charge was regarding the allegedly unauthorized taking, under the instructions of Justice Ramaswami, of two staff cars, from Chandigarh to Madras in May 1989 ostensibly for official purpose but in fact for Justice Ramaswamis private purpose. It was further alleged that Justice Ramaswami got reimbursed petrol charges in excess of what he was entitled to under the law by sanctioning the same. The twelfth charge related to the alleged unlawful expenditure involved in the visits of two Assistant Registrars of the High Court to Madras to take the said cars to Madras and bring them back. The two Assistant Registrars who went to Madras along with the said cars returned by air. Thereafter one Assistant Registrar again went to Madras by air to fetch the two cars back. The charge also related to ten trips by air from Chandigrh to Delhi, Delhi to Madras, and back by the principal Secretary to Justice Ramaswami involving an expenditure of RS. 21,000. All the trips were alleged to have been unlawfully made under the directions of Justice Ramaswami. The thirteenth charge related to the alleged creation of a forward group of officers in the High Court with a view to help Justice Ramaswami to carry out various unauthorized acts and the out of turn promotions/confirmations given to those officers by way of reward. The charge also alleged that Justice Ramaswami directed or permitted some officers to visit various places, outside the State, for his private and undisclosed purposes at the expense of the High Court. The fourteenth charge was in respect of the alleged willful breach of the Punjab and Haryana Financial Rules in regard to various acts of omission and commission alleged in the earlier charges. In the statement of grounds on which the charges were based, the names of witnesses proposed to the examined and documents proposed to be tendered in respect of the charges were indicated at the end of the grounds in support of each charge. It was also mentioned there that, if felt necessary, other documents and witnesses would be called in evidence.
The Committee, while formulating the charges, took notice of the charges as mentioned in the Notice of Motion, but it did not adopt or adapt all the charges. It framed charges after a scrutiny of all the relevant material available to it at the relevant time. for example, the Notice of Motion refers to purchase of items worth RS. 50 lakh for the High Court and for that purpose it relies upon the Report of the District judges (Vigilance). The said Report, however, did not deal at all with the purchases for the High Court but dealt only with the purchases made for the official residence of the Chief Justice. The charges formulated by the present Committee in regard to purchases are confined to the purchases for the official residence of Chief Justice. Again in the grounds in support of charge No. 5 of the motion, it has been stated that Mr. S. S. Virdi, Chief Engineer of the P.W.D., was responsible for purchasing air-conditioners and electrical equipment worth RS. 1,13,000 and providing the mat the residence of the chief Justice as the Chief Justice had favoured him in a case in the High Court to which the said Virdi was a party. The present Committee did not formulate any charge on the basis of the said allegation for want of material.
NOTICE to top
The charges together with the statement of grounds on which each of the charges was based were communicated to Justice Ramaswami along with the statutory notice under Section 3(4) of the judges (Inquiry) Act, read with Rule 5 of the Rules, on 14-01-1992. The notice issued to Justice Ramaswami requited him to appear before the Committee on 10-02-1992 either in person or through a pleader duly instructed and able to answer all material questions relating to the inquiry. He was also requested to produce on that day the witnesses upon whose evidence he relied and all documents upon which he intended to rely in support of his defence. He was also in formed that if he desired to present a written statement of defence, he could do soon or before
04-02-1992. He was requested to cooperate by presenting his written statement of defence and by appearing before the Committee on the prescribed date, since the Act provided for a period of three months only from the date of service of charges within which the report was to be submitted. He was also informed that the proceedings would be held in camera but the Committee would like to know whether he desired the proceedings to be conducted in public. He was further informed that the signatories to the Notice of Motion and/or their advocates would be permitted to remain present and watch the proceedings on the condition that no part of the proceedings would be divulged or published in any manner. It was made clear that anyone who applied in writing for permission to be present to watch the proceedings would, in the discretion of the Committee, be granted such permission subject to similar conditions. Copies of all documents of which copies could be made were sent along with the charge. In the case of the remaining documents, where it was not possible to give copies because of their volume, he was offered inspection of such documents, with due notice. All the statements made in the notice communicated to Justice Ramaswami were made in pursuance of decisions taken by the Committee at its various meetings before finalizing the charges and communicating them to Justice Ramaswami.
CORRESPONDENCE to top
Justice Ramaswami chose not to file a written statement of defence. Instead, on 21-01-1992 he addressed a letter to the Presiding Officer of the Committee in which he, inter alia, questioned the constitution of the committee and the authority of the Speaker to constitute the Committee. He levelled various allegations against the individual members of the Committee and finally stated:
"The present communication by me to you as Presiding Officer should not be construed as having my submitted to your jurisdiction. Indeed it is unthinkable that I would in the contest of what I have stated ever consider myself amenable to your jurisdiction".
This letter was followed by another letter dated 24-01-1992, the opining paragraph of which was as follows:
"As I have indicated in my letter on 21-01-1992 I have intention to submit to the jurisdiction of the Committee in the light of the circumstances already communicated to you".
After raising certain other issues, towards the end of the letter, he categorically stated: "I do not intend to submit to your jurisdiction." He questioned the procedure adopted by the Committee in framing charges and suggested that the Committee should have first held an inquiry, collected the documentary evidence, recorded the statements of witnesses and communicated the same to him before framing charges. He also told the Committee that if the Committee were to conduct the inquiry in the manner indicated by him in his letter he would, then, be in a position to consider whether or not he should submit to the jurisdiction of the Committee. He also added that in the event he chose to participate in the proceedings he would first have to cross-examine the Presiding Officer.
There was a third letter from Justice Ramaswami on 02-02-1992 by which, among other things, he required the Committee to accede to the demands indicated by him in his letter to enable him to choose whether to submit tot he jurisdiction of the Committee. He repeatedly used the words "in the event he chose to submit to the jurisdiction of the Committee" and reiterated the assertion in his letter that it was unthinkable that he would in the context of what he had stated ever consider himself amenable to jurisdiction of the Committee.
The Committee was not obliged to take notice of the letters and to answer the queries raised by Justice Ramaswami. Yet the Committee by its letter dated 27-01-1992 in reply to his letters of 21st and 24th January, 1992, inter alia, informed him that it was inappropriate for him to enter into correspondence with the Tribunal constituted to investigate his conduct. He was also informed that he may raise all the objections as he may have in his written statement of defence because all objections can only be (and will be) judicially considered by the Committee and deal with in accordance with law.
Justice Ramaswami not having appeared before the Committee and not having submitted his written statement of defence, the Committee, as stated earlier, is not obliged to answer the issues raised and allegations made by him in his various letters. Himself a judge of the highest Court in the Country Justice Ramaswami should have realised that it was improper for him to address letters to the Tribunal constituted to Enquirer into his conduct. The Constitution, and the Statute enacted in pursuance of the Constitutional directive contained in Article 124(5) of the Constitution, have entrusted the task of inquiring into the conduct of the judge to the Committee appointed by the Speaker and it was the duty of Justice Ramaswami, who has taken an oath to uphold the Constitution and the laws, to appear before the Committee, file his written statement of defence and raise therein whatever question he considered it necessary to raise. It was the duty, which he owed to the oath which he had taken, to the Court in which he was serving, to the institution of judiciary and tot he public who had reposed such great faith and confidence in the judges and, therefore, provided them various safeguards. instead, he chose to abstain from participating in the proceedings and to address letters to the Committee asserting that it was unthinkable for him to submit to the jurisdiction of the Committee and raising technical questions of procedure as well as making wild allegations and unwarranted insinuations against the Members of the Committee.
It is clear from various letters of Justice Ramaswami that he never has the intention of submitting to the jurisdiction of the committee and was interested only in raising different kinds of objections.
Justice Ramaswamis Counsel also addressed several letters tot he Committee in connection with the supply of copies of documents and inspection of documents, while all the time repeating that this letters should not be construed as submission to the jurisdiction of the Committee. That was the constant refrain of his letters.
The Committee explained the circumstances under which the Committee had no option but to proceed expert. It also made it clear that it would follow the principles of the Evidence Act as far as possible and be guided by the principles of natural justice. It was also made clear in the Order that the Committees duty was to investigate the truth or otherwise of the charges levelled against the learned judge and that the Counsel appointed to lead evidence before the Committee should take note of the said procedure.
OBJECTIONS to top
The Committee then dealt with some of the objections raised by Justice Ramaswami.
One of the objections related to he disqualification of individual Members of the Committee. He alleged that the Presiding Officer of the Committee and Chief Justice Desai were chosen by the Speaker himself and without referring the matter to the President of India and without the concurrence of the Chief Justice of India. He further alleged that the Presiding Officer being junior to him in seniority in the Supreme Court was disqualified. He also alleged that Mr. Madhu Dandavate who was the prime signatory to the Motion and the Presiding Officer hailed from the same State and that he was also an invitee at the Presiding Officers daughters wedding. He further alleged on the basis of a Press report that the Presiding Officer either directly or indirectly through his relations had been allotted a flat by Mr. A. R. Antulay, the then Chief Minister of Maharashtra in the "infamous" Pratibha Co-operative Society and that the presiding Officer had not explained the circumstances in which the said allotment was made. He also alleged that the presiding Officer was in close touch with certain political parties and its leaders as reported in a news item which appeared in Hindustan times and Times of India of December 19, 1992. He further alleged that the Presiding Officer, a couple of days before the retirement of Chief Justice K.N. Singh, had along with Justice O. Chinnappa Reddy, attended a cocktail dinner at the residence of Mr. P.P. Rao, who was the Petitioner in his capacity as the President of the Supreme Court Bar Association in the Writ Petition which supported the case of the Sub-Committee on Judicial Accountability in terms of which certain reliefs were sought against him (justice Ramaswami) as well as against the present Government.
His allegations against Chief Justice P. D. Desai, Member of the Committee, were that he was also chosen by the Speaker himself without reference to the President of India or the Chief Justice of India. he further alleged that at the time of Chief Justices Conference held after his (Justice V.Ramaswamis) appointment as judge of the Supreme Court which was presided over by Chief Justice E.S. Venkataramiah, Chief Justice Desai in the course of the Conference openly asked Chief Justice Venkataramain as to what he found in the (Justice Ramaswami) and others who were found eligible to be judges of Supreme Court which was found lacking in Chief Justice Desai. Chief Justice Desai was thus sore about all appointments made at that time and, therefore, he had disqualified himself when his concurrence to work on the Committee was sought. He also alleged that in a news item there was a report that Chief Justice P. D. Desai had incurred an expenditure of over Rs. 17 lakh as Chief Justice of the Bombay High Court for the renovation of his residential accommodation and if that was correct, Chief Justice Desai disqualified himself from conducting the inquiry since one of the charges levelled against him (Justice Ramaswami) was the squandering of public money as Chief Justice, with respect to the renovations made to his official residence while he was Chief Justice of Punjab and Haryana High Court. He also alleged that Chief Justice Desai had made large-scale renovations in the residential accommodation occupied by him both as Chief Justice of Himachal Pradesh High Court and of Calcutta High Court. He further said that no Chief Justice of the High Court was entitled to be a member of the Inquiry Committee and conduct the proceedings against a sitting judge of the Supreme Court and, therefore, the constitution of the Committee was illegal.
The other Member of the Committee, Justice O. Chinnappa Reddys credentials to be a member of the Committee were also questioned by him by alleging that the third Member of the Committee should be a distinguished jurist at the time of appointment and that Justice Reddy had not been credited with any written work on the basis of which he could be considered to be a distinguished jurist.
The Committee said the allegations in their entirety were baseless. The Presiding Officer (Justice P. B. Sawant) and Chief Justice P. D. Desai were contacted by the then Speaker on telephone and requested to serve on the Committee which he proposed to constitute under Section 3(2) of the Judges (Inquiry) Act, 1968. Both of them informed him that he should first approach the Chief Justice eof India and they could agree to serve on the Committee only after consulting the Chief Justice of India. Thereafter, both Justice P.B. Sawant and Chief Justice P. D. Desai spoke to the then Chief justice of India separately and the consent to be on the Committee was conveyed by both of them to the Speaker on telephone only after the Chief Justice of India conveyed that e had no objection against the acceptance of the assignment by them. it is also understood that the Speaker had approached the chief Justice of India for the purpose. It may be mentioned that the Act does not cast any obligation on the Speaker to consult either the Chief Justice of India or the President of India, nor is there any convention, which requires him to consult them before constituting the Committee. Neither Justice P.B. Sawant nor Chief justice, P. D. Desai knew the then Speaker personally before their appointment on the committee. There was no discussion with the Speaker or with any body else, either prior to the appointment of the committee or thereafter as regards anything connected therewith.
As regards the objection that the Presiding Officer being junior to Justice Ramaswami, could not be appointed on the Committee, it may be stated that all judges are equal in status and the Chief Justice is the first among equals. Besides, the provisions of Section 3(2) of the judges (Inquiry) act, 1968 do not prescribe that a judge of the Supreme Court on the Committee should be senior tot he one whose conduct is under investigation. The said provision gives power tot he speaker to nominate either the Chief Justice or any other judge of the Supreme Court. This has necessarily to be so, otherwise there would be no inquiry against the Chief Justice if ever such inquiry became necessary. Similar will be the situation if judges senior to the judge, whose conduct is under investigation for some reason, decline to be nominated.
As regards Shir Madhu Dandavates attendance a the presiding Officers daughters marriage reception on 02-12-1991, the presiding officer had sent invitation for the reception to everybody whom he knew and they included men and women from all walks of life irrespective of their political ideologies and affiliations the presiding Officer and his wife had called personally on Justice Ramaswami also to invite him to the reception as they had done in the case of other brother judges.
As regards the Presiding officers flat in Bombay, Justice Ramaswami has got his facts all wrong. Mr. Antulay has not allotted any flat to him any where including in the so-called "infamous" pratibha Co-operative Housing Society Limited. The Presiding officer is a member of the Fore-shore Co-operative Housing Society Ltd. which has constructed a building know as "Samata". The High Court and Supreme Court judges are members of the said society, an application was made to he Government to allot and to the Society. That application was pending disposal during which period the Chief Minister-ship changed hand thrice. Finally, the lease of land was granted when Mr. Antulay was the Chief Minister. no concession is given to the Society in lease-rent which is charged on the same scale as it is done to there Societies. As far as the Presiding officer knows, the lease-rent is on the basis of the market value although there is a restriction on transfer of flat and to that extent there is a discrimination against the Society compared to the other societies where there is no such restriction. The monthly out goings of the flat is Rs. 2500, which are likely to go up.
As regards the allegation that the presiding Officer was in close touch with certain political parties and its leaders, it is obvious that Justice Ramaswami has drawn this inference on the basis of certain news-item appearing in the Hindustan Times and the Times of India dated 09-12-1991 which suggested that the Inquiry Committee sought assistance of the Sub-Committee on Judicial Accountability (Sub-Committee for short) and some MPs, in gathering relevant material for the probe. The fact is that the Sub-Committee and two of the M Ps who are signatories to the Motion had requested the Committee to allow them to participate in the proceedings. To that, the Committee had replied by its first communication that at that stage they could only forward material in their possession relating to the allegations. Subsequently, they were informed that they would not be allowed to participate directly in the proceedings but they might assist the Counsel of the committee in the conduct of the proceeding. This correspondence between the Sub-Committee and the two MPs on the one hand and this Committee on the other was forwarded to Justice Ramaswamis Counsel. This should have clarified the position and shown to him that the newspaper reports were not correct.
As regards the attendance a the dinner a the house of Mr. P.P. Rao, Mr. Rao at the relevant time was the president of the Supreme Court Bar Association (SCBA for short). In his capacity as the president of the SCBA Mr. Rao was an invitee at the dinners hosted to the judges of the Supreme Court by the president of India. he was also an invitee whenever the judges of the Supreme Court gave dinners to welcome the new judges as well as to bid farewell to the retiring judges. On such occasions, all the judges of the Supreme Court are the hosts, justice Ramaswami has also been a host along with all other brother judges where Mr. Rao was an invitee. This being the relationship between the president of the SCBA and the Supreme Court judges, courtesy demanded that when the president of the SCBA hosted dinners in honour of the retiring judges they should not decline his invitation. At this dinners it was not only the Supreme Court judges but also many advocates of the Supreme Court are invited. Following the same convention, Mr. Rao had also given dinner on the occasion to the retired judge, Justice B. C. Ray. At this dinner judges of the Supreme Court and advocates were present. At such dinners, it is the choice of the host to serve what he deems proper and it is not obligatory on every guest to partake everything that is served. It may further be added that as explained by Mr. Rao himself, he was a party tot he Writ Petition in his then capacity as the president of SCBA do and appeared in it as the Counsel for SCBA as he was authorized by it to do so.
It is not at all correct that at the Chief Justices Conference Presided over by the then Chief Justice of India, Mr. E .S. Venkataramiah, Chief Justice P. D. Desai in the open Conference asked the Chief Justice as to what he found in Justice V. Ramaswami or others, who were found eligible to be judges of the Supreme Court, which was lacking in him and that he was sore at all the appointments made about that time. The Chief Justices Conference presided over by Chief Justice E. S. Venkataramiah was held on December 5-6, 1989. The subject relating to the appointment of judges of the Supreme Court of India could not be and was not on the Agenda of the Conference. No such subject could be and was, in fact, discussed, as alleged, in the said meeting. Chief Justice P. D. Desai had no occasion to and did not make the statement attributed to him in the said Conference. The Minutes of the conference, which faithfully record the proceedings of the said Conference, show that the said subject was not discussed nor any statement was made by Chief Justice P. D. Desai as alleged. It is inconceivable that a person holding a responsible position would ever make a statement such as the one attributed to Chief Justice P. D. Desai. It is pertinent to mention in this connection that Justice Ramaswami was not present during the deliberations of the conference at anytime. The allegation that Chief Justice P. D. Desai was sore about all the appointments made at that time is also wholly without foundation. It is not understood how a person holding the responsible position of Supreme Court judge would ever make such unsubstantiated allegations.
As regards the allegation based upon a newspaper report that Chief Justice P. D. Desai had incurred an expenditure of over Rs. 17 Lakh as Chief Justice of the Bombay High Court for the renovation of his official residence, it is apparently made without verification of facts. There was no renovation as such of the official residence. Only necessary repairs, additions and alterations ere carried out by the State Government.
It is penitent to mention in this connection that under Section 22A of the High Court judges (Conditions of Service) Act, 1954, every judge is entitled without payment of rent to the use of an official residence in accordance with such rules as may, from time to time, be made in this behalf. Rule 22A of the High Court judges Rules, 1956, inter alia, provides that each judge, who avails himself of the use of an official residence, shall be entitled without payment of rent to the use of a furnished residence throughout his term of office and that no charge shall fall on the judge personally in respect of the maintenance of such residence. It is clear, therefore, that the maintenance of his official residence is not a matter within the discretion, or power, authority and jurisdiction of the Chief Justice. Since the property is owned by the State Government, it is for them to maintain it in a proper condition. In fact, in the Bombay Chief Justices House, the work of repairs, maintenance, etc. is being one by the Public works Department of the State Government and on the present occasion also the work was carried out by the said Department and not by the high Court.
The allegation that large scale renovations of the official residence occupied by Chief Justice P. D. Desai, when he was the Chief Justice of Himachal Pradesh High Court as well as of the Calcutta High Court, were made by him is also levelled without verification of facts. At both the places, the buildings which are used as official residences. Of the Chief Justice are owned and maintained entirely by Government. No major repair or renovation was carried out in the Chief Justices House in Shimla when Chief Justice P. D. Desai was in Himachal Pradesh. Neither Chief Justice P. D. Desai nor the High Court of Himachal Pradesh incurred any expenditure on repair or renovation of that House. So far as Calcutta is concerned, there was no official residence for the Chief Justice till Chief Justice Tevatia was transferred there sometime towards the end of 1987. The first floor of a Government owned bungalow was then earmarked as Chief Justices residence and was occupied by him. There was tenant on the ground floor who continued to occupy the same even after Chief Justice P. D. Desai was transferred to Calcutta in November 1988. Sometime thereafter the tenant vacated and possession was taken by the State Government. The tenanted portion of the property was in a damaged condition with considerable loss of fittings, fixtures and even doors, etc. After carrying out necessary repairs and alterations the possession of the said portion was handed over to the High Court a few months before Chief Justice P. D. Desai was transferred as Chief Justice of Bombay High Court. The repairs and alterations were effected in the said portion keeping in view the fact that it was an independent unit and should continue to remain as a completely independent unit. Besides being put to use as office portion, it was contemplated at one time to provide accommodation therein for visiting judicial dignitaries in case necessity the0reforearose and it was made ready for occupation accordingly. Only the office block in the said portion was used by Chief Justice P. D. Desai occasionally and for a short period only. Necessary repairs etc. were carried out in the first floor portion and in the servants quarters also a security guard room was constructed. The expenditure for carrying out all the necessary repairs, additions, alterations, etc., in the Chief Justices house, which is designated as office-cum-residence and is used as such, was incurred entirely by the State Government.
It may be mentioned that Justice Ramaswami has attempted to confuse the issue by trying to make it appear that the charge against him relates to renovation of the building used as the official residence of the chief Justice of Punjab and Haryans High Court. In fact, the expend true incurred on the construction of the new extension wing in the said building or on the repairs, if any carried out in the said official residence during his tenure, is not at all the subject matter of the inquiry. The charge against him relates to the alleged squandering of public money by him out of the grants placed at the disposal of the High Court for unauthorized purchase of items and articles such as furniture, furnishing, kitchenware, etc. and it has nothing to do with the renovation or repairs of the building by Government.
With regard to the allegation that Justice Chinnappa Reddy is not a distinguished jurist as there is no published work to his credit, may be stated that it is for the Speaker to from his opinion on the subject and it is not open to question by anybody else.
LEGAL POSITION to top
It is necessary and desirable that we should refer to the constitutional and statutory provisions and consider what is necessary to be proved and how.
Prior to the government of India Act, 1935, under the High courts Act, 1861, Section 4, and Section 102 of the Government of India Act, 1915, judges of High Courts in India held office during the "pleasure" of Her or His Majesty. That was departure from the position then obtaining in England where judges held office during good behavior. In England while tenure during pleasure was the ordinary tenure of Government servants, including those who belonged to the permanent Civil Service, tenure during good behavior was generally confined (with few exceptions) to persons holding judicial office. The words pleasure and good behavior in relation to tenure of office are terms of art, the difference between the two being that person holding an office during pleasure can be removed without any reason for has removal being assigned, whereas a person holding office during good behavior cannot be removed from his office, except for misconduct as would, in the opinion of a Court of Justice, justify his removal. For reasons best known to the Rulers of the day, judges of Indian High Courts were expressly declared by statute to hold office during pleasure. That was so until 1935. The Government of India Act, 1935 brought about a significant change. Section 220(2) of the government of India Act, 1935 provided that every judge of a High Court shall hold office until he attained the age of 60 years. Fixity of tenure was thus provided. However, proviso(b) to Section 220(2) enabled the removal of a judge from his office if the Judicial Committee of the Privy Council, on reference being made to them by His Majesty, reported that the judge, on the ground of misbehavior or of infirmity of mind or body, ought to be removed. By providing for the removal of the judge for misbehavior, the concept of tenure during good behavior was introduced.
Article 124(2) of the Constitution provides for the appointment of judges of the Supreme Court and declares that a judge of the Supreme Court shall hold office until he attains the age of 65 years. Similarly Article 217 of the Constitution provides for the appointment of judges of the High Courts and declares that a judge of the High Court shall hold office until he attains the age of 62 years. Clause (b) of the second proviso to Article 124(2) provides for the removal of a judge of the Supreme Court from his office in the manner provided in clause (4). Correspondingly clause (b) of the proviso to Article 217 provides for the removal of a judge of a High Court from his office in the manner provided in clause (4) of Article 124 for the removal of the judge of the Supreme Court. Article 218 stipulates that the provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation tot he Supreme Court with the substitution of references to the High Court for reference tot he Supreme Court Article 124 (4) states:
"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 misbehavior or incapacity".
Article 124(5) which is also relevant and important is as follows:
"Parliament may by law regulate procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a judge under clause (4)".
Article 125 deals with the privileges, allowances and rights in respect of leave and pension of Supreme Court judges while Article 22 (2) deals with the allowances and rights of High Court judges. The provisos to Article 125(2) and Article 221 (2) respectively prescribe that the privileges, allowances and rights in respect of leave and pension of a Supreme Court judge and the allowances and rights of a High Court judge in respect of leave and pension shall not be varied to their disadvantage after their appointment.
In 1968, Parliament enacted the judges (Inquiry) Act, the law contemplated by Article 124 (5) of the Constitution, to regulate the procedure for the investigation and proof of misbehavior or incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith. Section 3 (1) of the Act provides for the admission of a Motion or refusal to admit a Motion by the Speaker of the House of the People or, as the case may be, the Chairman of the Council of States, upon notice being given of a Motion for presenting an address to the President for the removal of a judge. The Notice is required to be signed if given in the House of the People by not less than 100 Members of that House of by not less than 50 Members of the Council of States if given in that House. The Speaker or, as the case may be, the Chairman, is entitled to consult such person, if any, as he thinks fit and to consider such material, if any, as may be available to him. Section 3(2) requires the Speaker or, as the case may be, the Chairman, to keep the Motion pending, if admitted, and to constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a judge in 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 justice 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. There are two provisos to Section 3 sub-sections (2) which are not relevant for the purposes of this case. Sub-sections (3) and (4) are important and they are as follows:
"(3) The Committee shall frame definite charges against the judge on the basis of which the investigation in proposed to be held."
"(4) Such charges together with a statement of the gourds 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."
Sub-sections (5), (6) and (7) provide for the medical examination of the judge where it is alleged that he is unable to discharge the duties of his office efficiently due to physical or mental incapacity and the allegation is denied. Sub-sections (8) and (9) are again important and are as follows:
"(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."
Section 4 of the Act is also important and may be usefully extracted here:
"4. Report of the 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 observations 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."
Section 5 invests the Committee, for the purpose of making the investigation under the Act, with the powers of a Civil Court while trying a suit under the Code of Civil Procedure in respect of summoning of witnesses etc. section 6(1) prescribes that if the report of the Committee is that the judge is not guilty of any misbehaviour or does not suffer from any incapacity, no further steps should be taken in either House of Parliament in relation to the report, and the Motion pending in the House shall not be proceeded with. Section 6(2) provides that if the report of the Committee contains a finding that the judge is guilty of any misbehaviour or suffers from any incapacity, then the Motion together with the report shall be taken up for consideration by the house in which the Motion is pending. Sub-section (3) of Section 6 provides that if the Motion is adopted by each House of Parliament in accordance with the provisions of Article 124 (4) or, as the case may be, in accordance with that clause read with Article 218, then the misbehaviour or incapacity of the judge shall be deemed to have been proved and an address praying for the removal of the judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the Motion has been adopted.
Section 7 deals with the Rule making power of a Joint Committee of both Houses of Parliament to carry out the purposes of the Act.
In exercise of the powers conferred by sub-section (4) of Section 7 of the judges (Inquiry) Act, rules have been made by the joint Committee constituted under Section 7 (1) of the Act. Rule 5 prescribes the manner of service of notice on the judge of the charges framed against him. Rule 6 enables the judge, when he appears, to object in writing to the sufficiency of the charges framed against him and, if the object in writing to the sufficiency of the charges framed against him and, if the objection is sustained, enables the Committee to amend the charge and give the judge a reasonable opportunity of presenting a fresh written statement of defence. Rule 7 prescribes the procedure to be followed where the judge admits or denies that he is guilty of any misbehaviour or that he suffers from any incapacity of if he refuses or omits or is unable to plead, or desires that the inquiry should be made. Rule 8 deals with the non-appearance of the judge and prescribes:
"If the judge does not appear, on proof of service on him of the notice referred to in rule 5, or, upon publication of such notice, the Inquiry Committee may proceed with the inquiry in the absence of the judge."
Rule 9 deals with the further procedure to be followed by the Committee in regard to the report of the inquiry. Rule 10 deals with the recording of evidence. Rule 11 deals with the facilities to be accorded to the judge for hi defence. The rest of the rules are not relevant for the purpose of the present inquiry.
So, we see that in the matter of conditions of service and removal from office, judges of the Supreme Court and the High Courts hold a special position under the Constitution. On the one hand the tenure and the conditions of service of judges of the Supreme Court and the High Courts are guaranteed by the Constitution and they cannot be removed from office except in the manner provided by the Constitution. On the other hand, every other civil servants barring the Comptroller and Auditor General of India, the Chief Election Commissioner and the members of the Public Service Commission, broadly, hold offices in terms of the law enacted by Parliament or by the appropriate legislature and in the absence of such law, in terms of the rules made by the President or the Governor, as the case may be, under the proviso to Article 309 of the Constitution, and, of course, subject to the rights given by Article 311 not to be dismissed or removed by an authority subordinate to the authority that appointed him and not to be dismissed or removed or educe in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Why are the judges placed in this privileged position, as it were and why is this special immunity given to them? The reason is obvious. The people, of India, speaking through the Founding Fathers of the Constitution, considered that for a proper and effective functioning of the apparatus of the State in a truly democratic fashion, it was a matter of fundamental importance and compelling necessity that the judiciary should before and independent and removed from the shadow of the legislative and executive wings of the State. The Founding Fathers invested vast powers in the judiciary which they considered indispensable if the State was to remain democratic instead of totalitarian, if the citizen was to be protected against authoritarian rule and against the infringement of the Fundamental Rights guaranteed to him by the Constitution, and if the people were to achieve the goals set forth in the preamble to the Constitution in a democratic fashion. The Supreme Court is invested with the power to issue writs or directions or orders in the nature of habeas corpus, mandamus, prohibition, quo-warrant and certiorari for the enforcement of the Fundamental Rights (Article 32) and for any other purpose (Article 139). The Supreme Court is specially entrusted with the power to enforce the Fundamental Rights guaranteed by the Constitution by making the right itself a Fundamental Right (Article 32). The Supreme Court is empowered in its discretion to grant special leave to appeal against any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or Tribunal in the territory of India (Article 136). The Supreme Court is also empowered to pass such decree, or make such order, as is necessary for doing complete justice in a matter pending before it (Article 142). The President can consult the Supreme Court and seek the Courts opinion if any question of law or fact has arisen or is likely to arise which is of a such nature and of such public importance, that the President considers it expedient to obtain the opinion of the Supreme Court (Article 143). The law declared by the Supreme Court is binding on all courts whit in the territory of India (article 141) and all authorities, civil and judicial in the territory of India re enjoined to actinide of the Supreme Court (Article 144). Truly it may be said perhaps that the Supreme Court of India is a Court which is second to none in the democratic world governed by the Rule of Law. The High Courts are also invested with the jurisdiction to issue to any person or authority including the Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warrant, certiorari or any of them for the enforcement of the Fundamental Rights or for any other purpose. These writs etc. may be issued to any person or authority including the Government (Article 226). Further, the high Courts also have general powers of superintendence over all Courts and Tribunals within their territorial jurisdiction (Article 277). Besides, both the Supreme Court and the High Courts have been declared to be the Courts of record with power to punish for contempt (Articles 129 and 215).
Invested as they are with such vast powers of adjudication, it is natural to expect the citizens and the State to resort to these Courts for the ultimate resolution of all questions of consequence. The observation of de Tocqueville made over a hundred and fifty years ago "scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question" is as true in India s it was then in the United States of America. One has only to peruse the reports of the cases decided by the Supreme Court of India to realize the range and the magnitude of the questions which they have decided in the course of the last 40 years or more. It was within the contemplation of the Founding Fathers of the Constitution that case of momentous significance, case of public and private importance, cases of citizens vs. states, States vs. States and States vs. Union and cases of the weak against the powerful, would come up for adjudication before these Courts and it was necessary and vitally important that the judiciary should be fearless and independent.
Such indeed was the great faith and confidence reposed by the Founding Fathers of the Constitution in the Supreme Court and the High Courts that their judges were given fixity of tenure, guarantee of conditions of service and immunity from removal from removal from the office except by following the cumbersome procedure enjoined by Articles 124(4) and (5) and the law enacted pursuant to the Constitutional directive in Article 124(5). It was in this fashion that the framers of the Constitution thought fit to secure the independence of the judiciary.
In interpreting Articles 124(4) and (5) and the provisions of the judges (Inquiry) Act and in considering any question related to the removal of a judge from office, it should never before gotten that it was to secure to the people of India fearless and independent judiciary that the judges of the superior Courts were accorded a special position in the Constitution and granted immunity from removal from office except by the process of impeachment. It may be noted that the word "impeachment" is not used in Articles 124 (4) and (5) but we have borrowed the word from other jurisdictions to describe the process of removal of a judge from office prescribed by Articles 124(4) and (5). The very vastness of the powers vested in the judiciary and the very immunity granted to them require on the one hand that judges should be fearless and independent and, on the other, that they should adopt a high standard or rectitude so as to inspire confidence in the public who may seek and who may want to seek redress in the Court. While it is necessary to protect the judges from motivated and malicious attacks, it is also necessary to protect the fair image of the institution of the judiciary from those judges who choose to conduct themselves in a manner as to blur that image.
Having noted the privileged position of judges in the constitutional structure, we may now proceed to consider what the expression "proved misbehavior" means. The word "misbehaviour" is not defined in the Constitution and rightly so because it was obviously thought undesirable to confine it to a strait-jacket formula. It is an expression, which has to respond to the "felt necessities" of the situation. It is no doubt antithetical to good behaviour. Indeed, the expression "misbehaviour" is not a stranger to statute law in India. we come across the word "misbehaviour" as far back as 1850 in the Public Servants (Inquiries) Act, 1850. Section 2 of which provides for the ordering of a formal and public inquiry if the Government is of the opinion that there are good grounds for making such inquiry into the truth of any imputation of misbehaviour by any person in the service of the Government. In the case of R. P. Kapur vs. Pratap Singh Kairon, (1964) 4 S.C.R. 204, the Supreme Court of India considered the argument that the word "misbehavior" in section 2 of the Public Servants (Inquiries) Act was vague and consequently the Act was unconstitutional. They repelled the argument and held:
"Misbehavior by a government servant would certainly mean a lapse by him from the proper standard of conduct in the discharge of his functions as a government servant; but the appellant argues that there was a at the date of the Act in 1850 no ascertainable standard of conduct and so neither the government nor its servants could know for certain what would amount to misbehavior. This argument seems to us to be misconceived. Even in the absence of any detailed instructions or directions as to how a government servant should act and conduct himself there could never be any manner of doubt that a government servant was expected and required to act honestly and not to use his position as a government servant for enriching himself or others. Every dishonest act of a government servant, including acts by which he uses his position for enriching himself or others would clearly amount of misbehavior. We are unable therefore to accept the appellants argument that the word misbehavior as used in Sec. 2 of the Inquiries Act is vague.
"It may be pointed cut in this connection that even if the appellant is correct in his argument that at the date of the Act in 1850 no ascertainable standard of conduct for government servants had been laid down this argument is not available to him after such standard was clearly laid down in the numerous Government Servants Conduct Rules. So far as the appellant himself is concerned he was at the date of the order made by Government in 1961 governed by the All India Services Conduct Rules, 1954. The attack on the validity of the Inquiries Act on the ground that the word misbehavior is vague must therefore fail."
That case had come up before the Supreme Court in Appeal from a judgement of the Punjab High Court reported in 1961 (63) Punjab Law Reported 280 in which Justice Grover speaking for himself and Chief Justice Khosla had observed:
"The word misbehaviour when employed in respect of holders of high offices has a well-understood and well-defined meaning according to the tradition and standards maintained by the members of a particular service or office."
In C. K. Daphtri vs. O. P. Gupta, AIR 1971 SC 1132, the Supreme Court appeared to think that the errors committed by a judge, even gross errors, cannot amount to misbehavior.
The word with which the civil servants in India are more familiar is "misconduct", a kinsman of "misbehaviour." The word :misconduct" may appear to the stronger and narrower than the word "misbehaviour" and it involves a higher degree of culpability. We do not, however desire to chase after the meaning of the word "misconduct" and proceed from there to discover the meaning of the word "misconduct" and proceed from there to discover the meaning of the word "misbehaviour". We would rather try to discover the meaning of the word "misbehaviour" itself. However, we may mention in passing tat the word "misconduct" received judicial consideration in Union of India vs. J. Ahmed, AIR 1979 S. C. 102 and in the matter of Maqbool Ali Khan, AIR 1958 Andhra Pradesh 116 (Full Bench) etc. In J. Ahmeds case, the Supreme Court after referring to the code of conduct under the all India Services (Conduct) Rules proceeded to state that the code of conduct was not exhaustive and that act or omissions other than those inhibited by the rules may well constitute misconduct. They also held that means area was not an essential misconduct, repeated acts may constitute misconduct. In Maqbool Ali Khans case, a Full Bench of the Andhra pradesh High Court pointed out that both in law and in ordinary speech, misconduct implied an act done, willfully with a wrong intention even if the act was not inherently wrongful. In another case, the High Court of Punjab held that misconduct was a generic term meaning wrong or improper conduct, misbehaviour, unlawful behaviour and conduct, and it did not necessarily imply corruption (AIR 1966 Punjab 175). In Madhav Singh Vs. State of Bombay, AIR 1960 Bombay 285, and Sharada Prasad vs. Divisional Superintendent, Central Railway, AIR 1961 Bombay 150, the High Court of Bombay held that misconduct reed not be confined to acts and omissions in the matter of employment and it may also be outside the course of employment.
In Daya Shankar vs. High Court of Allahabad, 1987 (3) SCC 1, the Supreme Court considered the case of a judicial officer (a Munsif) who had been found copying at a University examination and was charges with lowering his reputation for honestly and integrity and exhibiting an unworthy conduct wholly inconsistent with the dingily of the office which he occupied. He was found guilty and removed from service. The Supreme Court confirmed the removal from service observing. "The conduct of the petitioner is undoubtedly unworthy of a judicial officer. Judicial officers cannot have two standards, one in the Court and another outside the Court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy." This case shows that a judge may not depart from the high standard of rectitude expected of a judge even outside the court and he may be subjected to disciplinary action even for acts unconnected with his judicial duties.
The expression "proved misbehavior" in our Constitution has perhaps been borrowed from the Australian Constitution. Section 72(ii) of the Australian Constitution provides that the judges of the High Court and all the other Courts created by the Parliament shall not be removed except by the Governor General in Council on an address from both Houses of Parliament in the same session praying for such removal on the ground of proved misbehavior or incapacity. There is considerable literature in Australia on what is "proved misbehavior"
In the case of alleged misbehavior of Justice Murphy of the High Court of Australia, the Senate obtained the opinions of Dr. Griffith, Solicitor-General of the Commonwealth and of Mr. C. W. Pincus Q. C. President, Law Council of Australia. These opinions appear to have become quite celebrated and are quoted frequently. Relying upon Todds "Parliamentary Government in England" and Quick and Garrans "Annotated Constitution of Australian Commonwealth," Dr. Griffith stated:
"Misbehavior is limited in meaning in section 72 of the Constitution to matters pertaining to.
(1) judicial office, including non-attendance, neglect of or refusal to perform duties; and
(2) the commission of an offence against the general law of such a quality as to indicate that the incumbent in unfit to exercise the office.
Misbehavior is defined as breach of condition to hold office during good behavior. It is not limited to conviction in a court of law. A matter pertaining to office or a breach of the general law of the requisite seriousness in a matter not pertaining to office may be found by proof, in appropriate manner, to the Parliament in proceedings where the offender has been given proper notice and opportunity to defend himself"
Mr. Pincus, however, thought that the simple word "misbehavior" was used not to suggest the proof of an offence. He expressed his agreement with what was stated by Wrisley Brown in an article in Vol. XXVI Harvard Law Review at p. 684 and further observed:
Is the word misbehavior obscure? One is assisted, in construing it, by fact that it is the Justices of the High Court and of other courts who are being spoken of. It is, when one keeps the subject matter in mind, unlikely that it was intended to make judges who are guilty of outrageous public behavior, outside the duties of their office, irremovable. I suggest an example suggested by an American impeachment case: suppose a High Court judge took office as Patron of a political party, used the prestige of the office in making public addresses urging people to vote for that party, openly engaged in election campaigns as a speaker, promoting the partys policies and attacking those of the other side. Although such conduct would be by no means an offence and would, indeed, be free from blame if done of anyone other than a judge, surely it would justify removal. I do not say that Parliament would be obliged to remove such a judge merely that would constitute misbehavior giving rise to discretion to remove him. It would be misbehavior in a High Court judge, though not in an ordinary judge because it must lead to utter destruction of public confidence in the judicial ability properly to decide matters before him having a political flavor".
Wrisley Browns monograph in Vol. XXVI Harvard Law Review at page 684, on which Mr. Pincus relied, in our opinion, is both instructive and illuminating. Wrisley Brown, Special Assistant to the Attorney General, had conducted the original investigation, which resulted in the impeachment of Robert W. Archibald of the United States Commerce Court, and he was also designated by the Managers on behalf of the House of Representatives to assist in the trial of the case before the Senate. Writing on the subject, "The Impeachment of the Federal Judiciary" the author traced the British practice and then referred to Section 4 of Article II of the American Constitution which provides that the President, Vice-President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Noticing the conflict between two schools of legal thought, one school holding that only indictable offences were within the contemplation of this provision for impeachment, and the other holding that the commission of an offence in contravention of statute or against the precepts of the common law though, not indictable, was sufficient criterion for impeach ability, the author disagreed with both the doctrines as untenable upon principle or upon authority. He expressed the view:
"To determine whether or not an act or a course of conduct is sufficient in law to support an impeachment, resort must be had to the eternal principles of right, applied to public propriety and civil morality. The offence must be prejudicial to the public interest and it must flow from a willful intent or a reckless disregard of duty to justify the invocation of the remedy. It must act directly or by reflected influence react upon the welfare of the State. It may constitute an international violation of positive law, or it may be an official derelict on of commission or omission, a serious breach of moral obligate on, or other gross impropriety of personal conduct which, in its, natural consequences, tends to bring an office into contempt and disrepute.
While the offence must be committed during incumbency in office it need not necessarily be committed under color of office. An act or a course of misbehavior which renders scandalous the personal life of a public officers shakes the confidence of the people in his administration of the public affairs, and thus impairs his official usefulness, although it may not directly affect his official integrity or otherwise incapacitate him properly to perform his ascribed functions. Such an offence, therefore, may be characterized as a high crime of misdemeanor, although it may not fall within the prohibitory letter of any penal statute. Furthermore, an act which is not intrinsically wrong may constitute an impeachable offence solely because it is committed by a public officer. The official station of the offender may also to some extent, affect the imperishability of his offence. For example, a judge must be held to a more strict accountability for his conduct that should be required of a marshal of his court, and this discrimination in official responsibility permeates through all the gradations of official rank and authority."
Referring to Section 1 of Article III which provided that the judges, both of the superior and inferior Courts, shall hold office during their good behaviour, the learned author observed:
It was the policy of our organic law that the judiciary should be reasonably independent in the administration of justice. But it was intended that this independence should be an honest independence in the legitimate use of the judicial power. The fathers did not desire to grant the judges non-forfeitable life tenure, thereby placing the judiciary wholly beyond the sovereign power of the people. Such an indefeasible tenure, with irrevocable authority, would be highly incompatible with a representative form of government. Therefore, following the English custom, it was provided that the judges should hold their offices during good behavior.
Misbehavior is the antithesis of good behavior. Therefore, it is a breach of the condition subsequent upon which the judicial tenure rests. When a judge exercises the power and appropriates the emoluments of an office which he has thus vitiated, he defies the supreme law of the land. If he cannot be ousted until his conduct comes squarely within the teeth of the criminal laws, the constitutional provision fixing judicial tenure is little more than an idle play upon words. The proposition implies a monstrous vacuum in the polity of the nation.
A right without a remedy is an anomaly, which is violently abhorrent to our system of jurisprudence. Judicial office is essentially a public trust, and the right of the people to revoke this trust is fundamental. The process of impeachment must be their corresponding remedy".
Referring later to the impeachment process, he said:
It is remedial, but not vindictive. The safeguard of the State is its principal object, and the punishment of the individual is left exclusively to the courts of judicature. It is a disciplinary rather than a penal measure."
The author then proceeded to consider some of the cases of impeachment, which had arisen in the United States. in particular he referred to Archabalds case (48 Congressional Record, 9051). Article thirteen of the charges against judge Archibald was in the nature of "blanket count, charging a general course of misconduct which embodies all the various acts alleged in the other articles." The judge was convicted of article thirteen among other articles, and the author considered it:
".. fair to conclude from the vote on the thirteenth article that judges are impeachable for a general course of misbehavior embracing a series of acts that are subversive of judicial probity or propriety chiefly because of the persistency with which they are committed. this is not to be understood as a holding that many legal naught may, collectively, become a legal unit, but, rather, that a continuation of transactions which are not seriously irregular when standing alone may become component elements of a system of misconduct sufficient to support an impeachment."
The author then pointed out that none of the articles exhibited against judge Arch bald charged an indictable offence or even a violation of positive law. Indeed, he said, most of the specific acts proved in evidence were not intrinsically wrong, and would have been blameless if committed by a private citizen. The author finally concluded his article with an appreciation of impeachment as a measure of achieving judicial discipline and said:
"The impeachment prescribed by our Constitution weights well the evil to be redressed and adjusts and ordained relief to the occasion. It is the expression of the sober will rather than the restive whim of the people. It restrains judicial tyranny without overawing the authority of the courts. It regulates the conduct of the judges without disturbing the poise and balance of their judgments. It strikes directly at the judicial fault without destroying the judicial independence that is essential to the preservation of our constitutional jurisprudence. This great body of fundamental law must be maintained intact. It absorbs the changing needs of changing times yet does not change. Upon it the stability and the integrity of our institutions rest upon it our civil liberties depend. And without it our republican government could not long endure."
Mr. F. S. Nariman to whom we owe a deep debt of gratitude for his well-researched presentation of the constitutional and legal aspects, drew our attention, apart from the opinion of Dr. Griffith and Mr. Pincus and the monograph of Wristley Brown, to several cases and text books.
We will refer to a few of these cases which we consider are useful and informative.
In the case of Judge Stewart F. L Motte, Jr. (FLA 341 Southern Reporter, 2d Series 513), shortly after assuming the Bench, the judge received an air travel credit acrd which he used to incur an expenditure of approximately $2,000 in personal charges for various trips to different places. In that way, the judge used for his own personal purpose the credit card meant for official purpose. The charge was that the judge knew or must be presumed to have known that the charges on his air travel card would not be deducted from his salary. The explanation of the judge was that he thought that the charges would be deducted from his salary. He made restitution when he was discovered, and reimbursement was demanded. At the hearing, several Circuit judges testified and were ready to testify that the judge had a reputation for truthfulness and honesty. The Judicial Administration Commission who Enquirer into the matter did not accept the explanation of the judge and found that there was clear and convincing proof that the judge knew or must be presumed to have known that the charges on his air travel card would not be deducted from his salary .The Commission recommended the removal of the judge from office, for conduct unbecoming of a member of the judiciary . The conclusion of the Commission was influenced by the circumstances that the judges first made restitution in respect of charges made in 1975 and it was thereafter, on further discovery by the audit, that he made restitution in respect of charges made in 1968 and other years. Accepting the report of the Commission, the Supreme Court of Florida expressed the view that a judge should at all times observe a high standard of conduct which would promote public confidence in the independence and integrity of the judiciary. They said that judges:
" should not be subjected to the extreme discipline of removal except in instances where it is free from doubt that they intentionally committed serious and grievous wrongs of a clearly unredeeming nature. The judge should observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. He should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
In determining whether a judge has conducted himself in a manner which erodes public confidence in the judiciary, we must consider the act or wrong itself and not the resulting adverse publicity. Otherwise an unpopular, but correct, decision of a judge could be construed as eroding public confidence in the judiciary. On the other hand, if a judge commits a grievous wrong which should erode confidence in the judiciary, but it does not appear that the public has lost confidence in the judiciary, the judge should nevertheless be removed"
On the question of the standard of proof, the Commission made some interesting observations:
"The degree of proof required to discipline a judge is analogous to the require din disciplining an attorney. This degree of proof must be clear and convincing. There must be more than a preponderance of the evidence, but the proof need not be beyond and to the exclusion of a reasonable doubt Zachary v. State, 53 Fla. 94 43 So. 925 (1907) where this court reversed a judgment of disablement entered by a circuit court: state excel. Florida Bar v. Bass, 106 So. 2d 77 (Fla. 1958); Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970)".
Canon 2, of the Code of Judicial conduct, to which the Commission made a reference contains some general principles, which may be usefully extracted here. They are:
"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as character witness".
Judge La Mottes case establishes that monetary recompense does not necessarily "cure" unlawful financial gain and is not sufficient to obliterate "misbehavior".
In the case of Judge Harry E. Claiborne (Report 99-688, 99th Congress 2nd Session), the allegation against the judge was that he had filed a false return of Income Tax. The Committee on the Judiciary who reported the case observed that good behavior exacted of a judge, a high standard of public and private rectitude. Those entrusted with the duties of judicial office had the high responsibility of ensuring the fair and impartial administration of justice, which in large part rested on the public confidence in and respect for the judicial process. Erosion of that confidence by irresponsible, improper or unlawful conduct by judges violated the public trust and must not go unchecked by the congress whose constitutional duty was to redress instances of judicial misbehavior. The committee pointed out that judge Claiborne had taken an oath like all Federal judges and Justices, faithfully and impartially to discharge and perform all the duties incumbent on him. Implicit in the oath was the requirement that Federal judges and Justices must uphold and obey the constitution and laws of the United States.
In the case of Walter L. Nixon, Jr., a judge of the United States District Court for the Southern District of Mississippi (Report 101-36 of 101st Congress 1st Session) the question was whether the judge could be impeached for lying to federal investigators and giving false testimony under oath to a Federal grand jury. The facts alleged had nothing to do with the performance of any judicial functions by Judge Nixon. Even so, the Committee on Judiciary found him guilty of an impeachable offence. After referring to several other impeachment cases, they said:
"Thus from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offence has evolved to the position where the focus in now on public confidence in the integrity and impartiality of the judiciary. When a judges conduct calls into question his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust".
The Committee in conclusion observed that the impeachment process protected society by ensuring that those favored with high positions of public trust were held accountable for their actions. Federal judges enjoyed life tenure in office and that insulated them from political pressure. That, however, did not permit abuse of office.
In the case of Judge Alcee L. Hastings (Report 100-810,110th Congress 2nd Session), the Committee on Judiciary noted that historical antecedents of the impeachment process were rooted in hundreds of years of English and American experience and that impeachment was the ultimate means of preserving the constitutional form of government from the depredations of those in high office who abuse or violate the public trust . Quoting Alaxander Hamiltion who characterized impeachment "as a method of National Inquest into the conduct of public men", the Committee went on to observe that the impeachment process sought to protect the institutions of government by providing for the removal of persons who are unfit to hold positions of public trust.
The case of Richard A.Napolitano (317 F. Supp.79(1970)) is another useful case on the question of the conduct of a judge during the course of the inquiry. The judge, whose removal from the office of Cook Country Circuit judge had been ordered by Illinois Courts Commission moved the United Stated District Court, Illinois, to challenge his removal on the ground that it violated the Fifth Amendment because the charge was based on the exercise of his privilege against self-incrimination. The court while rejecting his contention, made the following observations:
"The spectacle of judge invoking the Fifth Amendment is not a pretty one, for a judge owes an obligation to cooperate in promoting enforcement of the law. Unwillingness to fulfil that duty, as shown by reluctance to aid in a grand jury investigation of suspected criminal activity, may properly be considered to be evidence of a disregard for this obligation. See In Re. Sarisohn, 27 A.D. 2d 466, 280 N.Y.S. 2d 237 247 (1967), revd. on other grounds, 21N.Y.2d 36,286 N.Y.S 2d 255, 233 N.E. 2d 276, holding that a judges refusal to answer questions at a removal proceeding constitutes causes for removal".
While we are not sure that refusal to answer questions in a removal or other proceeding or seeking constitutional protection for such refusal may by itself constitute a ground for removal, the least that can be said is that a judge against whom an inquiry is made is under an obligation to cooperate and not to raise petty-fogging objections to obstruct the inquiry.
We may in this connection with advantage refer to the case of Stephens Chandler vs. Judicial Council of the 10th Circuit of the United States (398 US 74) where the Supreme Court of the United Stated denied the motion of Stephen Chandler, the chief Judge of a United States District Court, for a mandamus against the Judicial Council. Stephen Chandler without ever appearing before the Judicial Council which he had the right ad opportunity to do, directly approached the Supreme Court for a mandamus. He gave as a reason that he was unwilling to "attend a hearing conducted by a body whose jurisdiction he challenged". The United States Supreme Court denied the motion observing:
".. parenthetically it might be noted that Clandler might have appeared in person, or by Counsel and challenged the jurisdiction of the Council without impairing his claim that it had no power in the matter".
There is a very useful discussion of the question of misconduct of judges and standard of proof in an article in the Chicago Kent Law Review by Chief Justice Ben F.Overton of the Supreme Court of Florida. He states that a Judicial Disciplinary Commission has the responsibility to enquire, when a judicial officer-
"(1) is charged with or convicted of a specific or minal offence;(2) wilfully violates statutes, rules, or ethical standards in carrying out his judicial duties ;(3) is guilty of conduct unrelated to his judicial duties which prejudices the judicial system;(4) needs correction of conduct which relates to deficiencies in the performance of his judicial duties; or (5) has a physical or mental disability that prevents him from carrying out his responsibilities".
Dealing with the question of misconduct in office and the standard of proof, he says:
" Wilful misconduct in office normally refers to cases where a judge has acted in bad faith while acting in his judicial capacity. Conduct prejudicial to the administration of justice refers to conduct that detracts from the public esteem in which the judicial office is held by reason of misconduct not related to the judges official duties. Ordinarily, the ground which constitutes conduct prejudicial to the administration of justice, or conduct that brings the judicial office into disrepute is considered to be a lesser offence than the charge of wilful misconduct in office.
"There are numerous examples of conduct which would constitute misconduct in office if committed by a judge which would not be considered proper subjects for disciplinary action if committed by legislative or executive officers.
"The standard of proof which is used by most commissions in finding judicial misconduct and by State Supreme Courts in their independent review of the evidence before the commission, is that the evidence of misconduct must be clear and convincing. Other courts, however, have concluded that the findings of the commission need be established only by a preponderance of the evidence.
So it is not merely when a judge acts in bad faith while acting in his judicial capacity but even when he misconduct himself in matters unrelated to his official duties so as to lower the public esteem of his judicial office, that a judge may be guilty of an impeachable to offence. The standard of conduct required of a judge is higher than that of others and what may be permissible in others may not be permissible in a judge.
We may wind up the discussion on the question of "misbehavior" with a reference to the report of the Federal Court of India on the charges against Justice S.P.Sinha of the Allahabad High Court which led to his removal. The judges of the Federal Court were required to inquire into the charges against Justice Sinha under the Government of India Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 and the India (Provisional Constitution) Amendment Order, 1948. The judges of the Federal Court found that charge No.1 against the judge were established in respect of the judges decision and conduct in connection with two cases referred to as the Padranna case and Murarilals case and that although only two instances of judicial misbehavior during a career of four years as a judge had been proved, " they are of such a nature that his continuance in office will be prejudicial to the administration of justice and to the public interest". The removal of the judge from office was advised and accordingly the governor-general removed Justice Shiva Prasad Sinha from his office as a judge of the High Court of Allahabad. Copies of the Report of the Federal Court to the governor-general of India and the Governor Sinha from office are annexed hereto as Annexures F and G. It appears, therefore, that deviation from the path of rectitude that would justify the removal of the judge from his office on the ground of judicial misbehavior should be such as would make his continuance in office prejudicial to the administration of justice and to the public interest.
The meaning of the word "proved" before the expression "misbehavior or incapacity" in clause (4) of Article 124 fell for consideration before the Supreme Court in Sub-Committee on Judicial Accountability vs. Union of India, (1991) 4 Supreme Court cases 699. It was there observed.
"The significance of the word proved before the expression misbehavior or incapacity in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission. The expression in clause (1) of Article 317 used for describing the ground of removal is the ground of misbehavior while in clause (4) of Article 124, it is, the ground of proved misbehavior of incapacity. The procedure for removal of a member of the Public Service Commission is also prescribed in clause(1) which provides for an inquiry by the Supreme Court on a reference made for this purpose. In the case of a judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause(5) of Article 124. In view of the fact that the adjudication of the ground of misbehavior under Article 317(1) is to be by the Supreme Court, in the case of a judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of the word proved in Article 124(4) and the requirement of law for this purpose under Article 124(5)".
One of the questions which has also to be considered by us in whether a judge of the Supreme Court can be removed for acts or omissions as judge of the High Court. It was suggested in one of the letters of Justice Ramaswami to the Committee that the Government of India must have enquired into his conduct as a judge of the High Court and cleared him before he was appointed to the Supreme Court. This has only to be stated to be rejected. The appointing authority does not clear a person of misbehavior nor can it grant immunity in respect of acts done prior to appointment to the Supreme Court . In fact, facts may come to light only after appointment to the Supreme Court and no one can claim immunity on the ground that the appointment authority must be deemed to have cleared him. There is nothing on record to show that in the present case allegations which are the subject matter of investigation by this Committee. This contention, therefore, has no foundation either in law or facts.
Apart from the afore mentioned aspect Article 124(4) of the Constitution cannot be interpreted as to confine it to the proved misbehavior as a judge of the Supreme Court. Such an interpretation would not only be not purposive but would also be destructive of the purpose and reduce the Article to an absurdity. It would lead to this absurdity that while a judge of the High Court, if he continues to be a judge of the High Court, may be removed from office for misbehavior, he cannot be removed if he is appointed to the Supreme Court. In other words, he may not be a fit person to continue as a judge of the High Court, but is good enough, to be a judge of the Supreme Court. Such an interpretation grant a blank immunity to all acts of the misbehavior prior to the appointment to the Supreme Court. It is worthy of note that Article 124 mentions as a ground for removal from office "proved misbehavior" and not "proved misbehavior in office. It is, therefore, not confined to judicial acts of the judge while in office as a judge of the Supreme Court but includes also acts other than judicial acts and acts before appointment as a judge of the Supreme Court, all of which acts amount to misbehavior. It should further be remembered that judges of the Supreme Court are, in the main, drawn from judges of the High Courts and that the offices of the judges of the Supreme Court and the High Courts are of the same generic character. Therefore, it could near have been intended that a person, who is fit to be removed from the office of the judge of a High Court, gains immunity on appointment to the Supreme Court and he may continue as a judge of the Supreme Court despite detection of deeds of misbehavior. Nor is there anything in principle against giving a purposive interpretation to Article 124(4). In all jurisdictions elsewhere, where judges are removable by impeachment, it is well settled that acts complained of need not be acts connected with the Judges judicial work but may well be acts outside his judicial work but may well be acts outside his judicial duties. If that be so, there is no reason why the acts complained of, should be confined to the period after his appointment as a judge and not before when he had held other judicial office. This position also appears to be well settled. In the matter of proceedings against judge Floyd Sarishon, 21 New York Reports, 2d Series, page 36, a judge of the Country District Court was removed from office on the ground of his misbehavior as a Justice of the Peace. There are other cases also.
( See 53 American Law Reports 882 at page 930). We are, therefore, of the view that on principle, and join an interpretation of Articles 124(4) and (5), a judge of the Supreme Court may be removed from office on the ground of proved misbehavior while he was judge of High Court. The word "misbehavior" is not limited to misbehavior in the office presently held but may in appropriate case extend to misbehavior in earlier judicial office.
We may also refer to the case of Govinda Menon vs. Union of India, AIR 1967 SC 1274. A member of the Indian Administrative Service who was working as Member of the Board Of Revenue also held the statutory post of commissioner of Endowments under the Hindu Religious and Charitable Endowments Act. On account of some alleged misconduct in the performance of his statutory duty under the Hindu Religious and Charitable Endowments Act, he was suspended from service and disciplinary proceedings under the All India Services (Disciplinary and Appeal) Rules were instituted against him. He raised an objection contending that the disciplinary proceedings against him as a Member of the Indian Administrative Service were incompetent in respect of his acts or omissions while performing statutory functions under the Hindu Religious and Charitable Endowments Act. The Supreme Court overruled his objection holding that the rules did not say that the disciplinary proceedings were competent only in respect of acts or omissions committed in the discharge of duties or in the course of employment as a Government servant. It was open to the Government to take disciplinary proceeding against the officer, in respect of his acts or omissions, which constitute a reflection upon his reputation for integrity of good faith or devotion to duty as a member of the Service. The Court said:
"In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may from the subject-matter of disciplinary proceedings. In other words, it the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is nor reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to any activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission had some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subjected to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could from the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the Service".
One submission suggested in favor of Justice Ramaswami was that unlike the Chief Justice of a High Court, a judge of the Supreme Court has no duty to perform involving the administration of funds and, therefore, any acts or omissions, of which he may be considered guilty in regard to administering funds in his charge when in the High Court, need not be treated as misbehavior disentitling him to continue as a judge of the Supreme Court since he is no longer occupying the position where he has to adminser funds. This appears to us to be a wholly unsustainable submission. What the submission really means is that once the Chief Justice of a High Court is elevated to the Supreme Court he will have no opportunity to deal with funds and so why worry about what he did when he had the opportunity. The points is not that at all. What the Constitution and the Judges (inquiry) Act are concerned with is whether the judge is guilty of such acts of misbehavior as may render his continuance in office prejudicial to the administration of justice and the public interest; whether he may or may not have an opportunity late no indulge in a particular type of misbehavior is irrelevant.
One of the questions mooted was whether there could be any misbehavior institutions where monetary recompense would effectively set matters right. Mr Nariman suggested that where monetary recompense is possible and there may not be dishonest intention, there is no misbehavior. We are inclined to agree broadly but we would hasten to add that mere monetary recompense is not enough if the person intentionally committed serious and grievous wrongs of a clearly unredeeming nature and offered recompense only when discovered. In such a situation, dishonest intention cannot be ruled out when the act was committed. It must be borne in mind that acts of criminal misappropriation and criminal breach of trust under the Indian Penal Code are generally capable of being compensated in terms of money but monetary recompense has never been accepted as a defence to a prosecution for criminal misappropriation or criminal breach of trust. The illustration to Section403, Indian Penal Code, makes it clear that temporary misappropriation is also criminal misappropriation.
There is then the question of standard of proof which we think should not present us with any great difficulty. It is true that in some of the Australian and American precedents, the Tribunals enquiring into the conduct of judges have refused to adopt the yardstick of proof beyond reasonable doubt applied in criminal cases. For example, the Commission of Inquiry headed by Sir Harry Talbot Gibbs (former Chief Justice of Australia) enquiring into the charges against Mr.Justice Angelo Vasta, a judge of the Supreme Court of Queensland, held that the proceedings before the commission were not criminal proceedings, the Commissioners were not required to determine the criminality of the judges behavior to observe that the degree of satisfaction must, of course, vary according to the gravity of the fact to be proved.
In America, "clear and convincing proof" is required. We have already quoted from the article of Chief Justice Overton of the Supreme Court of Florida in Chicago-Kent Law Review (supra) and from the proceedings of the Supreme Court of Florida in La Mottes case (supra) and convincing proof "was explained as something more that a preponderance of the evidence but not proof beyond and to the exclusion of a reasonable doubt". Elsewhere it has been said that "clear and convincing" evidence means that measure or degree of proof which will produce in the mind of trier of facts, a firm belief of conviction as to the allegation sought to be assessed. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal".
We think tat the concept of clear and convincing evidence, delectable though it may be, introduces needless sophistication and refinement. The impeachment proceeding is, in the strict sense, sui generis, neigther civil nor criminal in nature. The gravity of the charge against a judge of the Supreme Court or a High Court, the uniqueness of impeachment proceedings, and the forbidding consequence if the charges are held proved, make it practical, sage and necessary to insist upon a high degree of proof. That degree of proof is, in our view, proof beyond reasonable doubt without any further refinement. The Constitution, the judges (Inquiry) Act and the Judges (Inquiry) Rules, gives us an indication, however slight it maybe, that an inquiry under the Act is thought to share the nature of quasi criminal proceedings. The word "investigation" usually associated with criminal cases is used both in Article 124(4) of the Constitution and the judges (Inquiry) Act. The Committee is required by Section 3(3) of the Act to frame definite Charges against the judge on the basis of which the investigation is proposed to be held. Section 6 uses thee words guilty and not guilty. Rule 7 of the judges (Inquiry) Rules talks of plea,guilty and not guilty all of which are ordinary associated with criminal proceedings do inform us of the quasi criminal nature of the proceedings.
In fact, as far back as 1870, the Privy Council issued a Memorandum on the removal of Colonial judges where it described the proceedings for removal as quasi criminal.
In India, the Supreme Court has always taken the view that the charge of a corrupt practice in the course of an election must be treated as quasi criminal in character and it has to be proved beyond reasonable doubt. Prudence dictates such as rule and it would be an error to draw a conclusion of guilt on a grave charge on balance of probabilities. In departmental inquiries, however, the Supreme Court has accepted preponderance of probabilities and not proof beyond reasonable doubt as the requisite standard of proof. But we cannot possibly equate a departmental proceeding with a solemn proceeding for impeachment of a judge of the Supreme Court or a High Court. We are convinced that reason and prudence require that we adopt the higher standard of proof, that is, proof beyond reasonable doubt, in a proceeding for the removal of a judge of the Supreme Court or a judge of a High Court.
On a consideration of the constitutional and statutory provision, keeping in view the vast powers and jurisdiction vested in the judges of the Supreme Court and the High Courts and the special status given to them under the Constitution and the consequent high standard of rectitude expected of them, taking into account the need for a fearless and independent judiciary who at the same time must command the confidence of the public, regardful of the need for judicial immunity and a along with it the need to protect the State and the public from spoliation and delinquency by judges, and in the lights shed by other jurisdiction elsewhere judges, as in India, are held in esteem and are removable only by the impeachment process, we are of the view that:
The word "misbehavior", as applicable to judges of the Supreme Court and the High Courts, in the context of Articles 124(4) and (5) and other relevant provisions of the Constitution, means conduct or a course of conduct on the part of a judge which brings dishonor or disrepute to the judiciary as to shake the faith and confidence which the public reposes in the judiciary. It is not confined to criminal acts or to acts prohibited by law. It is confined to acts which are contrary to law. It is not confined to acts connected with the judicial office. It extends to all activities of a judge, public or private.
The act or omission must be wilful. The wilful element may be supplied by culpable recklessness, negligence, disregard for rules or an established code of conduct. Even though a single act may not be wilful, series of acts may lead to the inference of wilfulness.
Monetary recompense would not render an act or omission any the less misbehavior if the person intentionally committed serious and grave wrongs of a clearly unredeeming nature and offered recompense when discovered.
Misbehavior is not confined to conduct since the judge assumes charge of the present judicial office. It may extend to acts or omissions while holding prior judicial office, if such act or omissions makes him unworthy of holding the present judicial office.
The standard of proof is proof beyond reasonable doubt and not a balance of probabilities.
The misbehavior must be held proved accordingly by the Inquiry Committee constituted under the judges (Inquiry) Act.
The judge against whom an inquiry is being held is under a constitutional obligation to co-operate with the inquiring authority and not to raise petty-fogging objections to obstruct the inquiry in which case an adverse inference may be legitimately drawn against him.
We may now proceed to consider the charges collectively and individually. The 14 charges revolve round the concluding allegation at the end of the charges that the conduct of Justice Ramaswami reflected in the charges amounts to willful and gross misuse of office, willful and persistent failure or negligence in discharging duties, habitual extravagance at the cost of the public exchequer, moral turpitude by using public funds for private purpose in diverse ways and bringing the high judicial office into disrepute and that these acts individually and/or collectively amount to misbehavic within the meaning of Article 24(4) of the Constitution.
FINANCIAL RULES AND INSTRUCTIONS to top
While considering the charges, it is useful and necessary to bear in mind certain financial regulations. Ex. 122 is a letter dated 7-3-1968 from the Deputy Financial Adviser to the Government of India to the Chief Commissioner, Chandigarh, which shows that the Punjab Financial Rules and Regulations applicable in the State of Punjab are applicable to the High Court of Punjab and Haryana. This is also the evidence of the Accountant General, Witness No.21.
The Punjab Financial Rules, Volume I, Chapter I, contains definition of certain expressions used in the said Rules. Rule 1.15 defines the expression Controlling Officer to mean a head of department or other departmental officer who is entrusted with the responsibility of controlling the incurring of expenditure and/or the collection of revenue by the authorities subordinate to the department. In relation to receipts and expenditure under any head of account, this term denotes Government employees designated as such in Appendix C to the Punjab Budget Manual. Rule 1.23 defines the expression "Head of Department" to mean, in relation to receipts and expenditure, under any head of account the authority shown as such in Appendix C to the Punjab Budget Manual. In the Punjab Budget Manual, the Chief Justice of Punjab and Harayana High Court is designated as one of the Heads of the Department under the major sub-major head "Administration of Justice".
It is apparent that the Chief Justice is to be regarded as Head of Department so far as the grants allotted to the High Court of Punjab and Haryana are concerned.
The committee then quoted extensively from the Punjab Financial Rules that Financial propriety was a must; that every Government employee was expected to exercise the same vigilance in respect of expenditure incurred from public money as a person of ordinary prudence would exercise in respect of the expenditure of his own money.
It said some of these principles expressly laid down in so many terms in the Punjab Financial Rules were readily seen to be sound general principles which had to be observed by every one in whatever authority entrusted with the power to expend public funds, irrespective of any rule or regulation to that effect. Observance of these principles is necessary for the survival of any public institution. A single or occasional deviation from principles, if demanded by the urgency of the situation and the public interest, may be pardonable but a persistent and determined deviation from the principles intended to gain personal advantage, leading to the legitimate inference of a wilful conduct, cannot be overlooked.
Charge No.1 to top
The first charge, as already mentioned, relates to the unauthorized purchase of furniture, furnishings and other articles, () far in excess of and wholly disproportionate to the requirements of the official residence and the office wing thereof and (ii) beyond the limits prescribed by the relevant rules for the residential portion of the official residence. The further allegation is that all the purchases were made by obtaining quotations from the same set of dealers, on the same day, and purchasing them from favored dealers. The financial rules were flouted and bills were split to circumvent the limit prescribed for effecting the purchases without Govt. sanction.
The charge makes a distinction between furniture, furnishings and articles purchased for the office portion of the residence and those purchased for the residential portion of the official residence of the Chief Justice. This distinction is necessitated because the rules prescribe a ceiling for the value of articles purchased for the residential portion of the officia! Residence while there is no such ceiling on the value of articles purchased for the office portion.
Section 22A of the High Court judges (Conditions of Service) Act, 1954 prescribes that every judge shall be entitled without payment of rent to the use of an official residence in accordance with such rules as may, from time to time, be made in that behalf. Section 24 invests the Central Government with the power to make rules to carry out the purposes of the Act and in particular provides for making of rules in respect of "use of official residence by a judge" under sub-section(1) of Section 22 A. Rule 2A of the High Court judges Rule, 1956 as amended from time to time, provides that every judge who avails himself of the use of an official residence shall be entitled without payment of rent to the use of a furnished residence throughout his term of office, Rule2B of the same rules prescribes the value of furnishings(including electrical appliances) provided free of rent in an official residence allotted under Section 22A of the Act. In the case of the Chief Justice of a High Court, other than of the Delhi and Punjab and Haryana High Courts, the value is not to exceed Rs.5,000 more than the scale provided to a Cabinet Minister". Rule 4 of the Ministers Residence Rules, 1952 ( as in force during the period 1987-89) provided that the value of furniture and electrical appliances provided free of rent in a residence allotted to a Minister other than a Deputy Minister, shall not exceed Rs.38,500. Explanation (1) to the rule states that the value of furniture and electrical appliances supplied for use in the portion of the residence, set apart for office purpose, shall not be taken into consideration for the purpose of the limits specified in the sub-role. Explanation (2) further provides that for every article of furniture or electrical appliance provided in such residence, in excess of the limit specified in sub-rule(1), a Minister shall be liable to pay rent at the same rates as applicable to Government servants together with the departmental charges.
Thus, we see that the Chief Justice of the High Court of Punjab and Haryana was entitled to the use of an official residence without payment of rent and he was also entitled to be provided with furniture and furnishings (including electrical appliances) not exceeding Rs.38,500 for the residential portion of the official residence. The value of furniture or electrical appliances provided for the office portion of the residence was not to be taken into account for the purpose of the limit of Rs. 38,500. If the value of the furniture and the electrical appliances supplied for use in the residential portion of the official residence exceeded Rs.38,500 the Chief Justice was obliged to pay rent for the excess at the prescribed rates.
Justice Ramaswami assumed office as Chief Justice of the High Court of Punjab and Harayana on 12-11-1987 and almost immediately embarked upon what was described by one of the Counsel as a "spree" of purchase of furniture, furnishings and other articles for the official residence of the Chief Justice which consisted of a residential portion and an office portion which is described by witnesses as "extension wing". Broadly, the residential portion consists of four bed rooms with attached bath, kitchen, drawing and dinning rooms, while the office portion of the residence consists of the Chief Justices office, the Private Secretarys office, a conference room and a toilet. Before the construction of the "extension wing", the Chief Justice was using a part of the present residential portion as his office but it does for office purpose. The purchases of furniture and furnishings were in addition to the furniture and furnishings already at the residence of the Chief Justice.
The Committee considered two lists (Exs. 12B and 12C) of items of furniture, furnishings and other articles purchased and provided at the residence of Justice V.Ramaswami, said to have prepared by Shri S.S.Dogra (W. No. 43), Court Officer of High Court of Punjab and Haryana and certified by him as "verified as per record maintained in C.O.Section." It held them to be genuine.
Justice V.Ramaswami handed over possession of the residence and the articles therein on 17-2-1990. At the time of the handing over, Justice Ramaswami was himself present in the house. A list of the articles found at the residence, in both the office and residential portions, was prepared by the officers of the High Court Registry and duly signed by the persons who were present at that time including Mr. Basudev Sharma (W. No.30), authenticity of the list (Ex. 15 Colly.) is not and cannot be disputed. The said articles mentions in detail the room in whch each of the articles was found. A report was also prepared by Registrar R.K.Nehru (W. No.16) recording the handing over of the articles mentioned in the said list. The report was signed by Basudev Sharma (W.No.30), Narinder Nath (W.No.46), M.D.Sharma (W.No.2), Gainchand Sharma (W.No.38), Inderpal Singh (W.No.12) and Virendra Shahi, all employees of Punjab and Haryana High Court.
The evidence discloses that the building was in the custody in Justice Ramaswami until he handed over charge on 17-2-1990. In fact, there was no protest either by Justice Ramaswami, who was present at the tie of handing over charge or by his Private Secretary who signed the list, that the building was not in his custody, and therefore there was no point in peparing such alist and he was not responsible for the articles which may or may not be found in the building. An attempt was made to suggest to one or two witnesses that Justice Ramaswami did not keep the house in his custody. The very fat that Justicie Ramaswami came all the way from Delhi to Chandigarh to hand over charge of the house and the articles in the house, clearly establishes that the house was in the custody of Justice Ramaswami until 17-2-1990; otherwise, there was no need for Justice Ramaswami to go to Chandigarh merely to hand over charge of the house formally. Since the building was in the custody of Justice Ramaswami until 17-2-1990; it is safe for us 6o proceed on the basis that the articles found in the residential and office portions of the building as per the list Ex. 15 (Collectively), were used respectively for private and office purposes.
Even a cursory glance at the items found in different rooms, as shown in the list Ex.15 (Collectively), reveals that there were seven airconditioner (with stabilizers), three sofa sets, six sofa chairs, six dressing tables, four study tables, four double beds, one single bed, five Godrej almirah, six geysers, one dining table with eight chairs, and eight extra chairs, nine other chairs, bed-side tables, wall clocks, a refrigerator, a color T.V., a T.V.-V.C.R. cabinet, pedestal fans, suit/attache cases, brief case, kitchen articles including crockery and cutlery, articles of bed linen such as blankets, bedsheets, pillow covers, pillows and quilts, towels, carpets, curtains and various sundry articles found I the residential portion of the Chief Justices official residence. In the office portion, there were six sofa sets, three air-conditioner with stabilizers, table of different sizes, sofa chairs, ordinary chairs and several other sundry items.
We will first refer to the articles found in the residential portion of the official residence of the Chief Justice on 17-2-1990 when charge was handed over. It is sufficient for us to mention at this stage that the Kitchen utensils found in the kitchen, correspond to the Kitchen articles purchased from M/s. Jain Glass House (Item 1 of list Ex. 12C) on 13-11-1987 for Rs.9,824 under purchase note Ex.223 and bill Ex.223A and the kitchen items purchased again from M/s. Jain Glass House for Rs.620 ( Item 3 of list Ex. 12 C) in December 1987 under purchase note Ex.231 and bill Ex. 231A. Kitchen items (Item 3 o list Ex.12C) purchased in February 1988 correspond to the items bought under purchase note Ex.234 and bill Ex. 234A for Rs.632. The Mixi-Grinder-Jucier found in the residence on 17-2-1990 was purchased (Item 9 of list Ex.12B) on 16-11-1987 for Rs.1,946 under purchase note Ex. 227 and bill Ex.227A. A water filter (Item 14 of Ex.12B) was purchased on 21-2-1988 for Rs.2,973 under purchase note Ex.221 and Receipt Ex.221A. One T.V-V.C.R. cabinet (item 35 of Ex.12B) found in the bedroom was purchased on 22-11-1988 for Rs.4,996. Four pedestal fans (Item 51 of list Ex.12B) were purchased for Rs.4,056 on 28-3-1989. They were found in bedroom No.1 and in bathroom at the entrance. It will be straightaway noticed that many of these items e.g., kitchen utensils, mixer grinder, water filter, could hardly be categorized as furnishings or electrical appliances contemplated by the High Court judges Rules and the Ministers Residence Rules. But for our purpose, we may assume in favor of Justice Ramaswami that they could be so categorized. The value of the items which has been mentioned in this paragraph is Rs.25,047.
We have yet to take into account the value of Air-Conditioners, the entire furniture found in the residential portion, i.e., drawing room, dinning room and the four bedrooms (sofa sets, sofa chairs, dressing chairs with stools, beds, bed-side chairs, easy chairs, other chairs, dinning table with chairs), carpets, curtains, bed linen (bed sheets, bed covers, pillow cases, mattresses), towels, etc.
Eight air-conditioners were purchased for Rs.1,39,432 on 30-3-1988. The eight air-conditioners are mentioned in the list, Ex.12B, prepared by Mr.S.S.Dogra, of the items purchased and provided at the residence of Justice Ramaswami during his tenure of office. As mentioned earlier, at the bottom of the list there is a certificate by Mr.Dogra "verified as per record maintained in the C.O.Section." The entry in the list relating to the eight air-conditioners. Out of these eight air-conditioners, seven air-conditioners were found in the residential portion of the Chief Justices official residence on 17-2-1990, one in each of the four bedrooms, one in the dinning room, and two in the drawing room. The value of the seven air-conditioners found in the residential portion alone is Rs.1,22,003 which is more than three times the permissible ceiling under the rules.
Innumerable quilts, mattresses, bed sheets, bed covers, pillows, pillow covers and blankets were purchased for the residence of the Chief Justice. Some of the purchase notes and bills are Exs, 59,114,216,216A,217,218,219,222,24,224A,225,226,230 and 233. On 17-2-1990 when charge was handed over, 14 blankets, 30 bed sheets, 11 mattresses, 9 bed covers, 24 pillows, 19 pillow covers and 10 quilts were found in the different bed rooms. The total cost of the bed linen purchased for the residence of Chief Justice during the tenure of Justice Ramaswami, comes to Rs.28,785. The total cost of the towels(96) and napkins (several dozens) purchased for the residence of the Chief Justice during the tenure of Justice Ramaswami was about Rs.11,000. Thus the total cost of the bed, bath and table linen purchased during the tenure of Justice Ramaswami, comes to Rs.39,785. The cost of these items alone exceeds by a few hundred rupees the permissible ceiling under the High Court judges Rules read with Ministers Residence Rules.
This leaves us with the furniture, the carpets, the curtains and other sundry articles. In Ex.P-15(collectively) we have the articles found in the drawing room, the dinning room, the four bed rooms and the kitchen on 17-2-1990 listed separately. In the dinning room, there were one glass topped dinning table with eight chairs and eight extra chairs. This dinning table with eight chairs was purchased on 25-9-1989 for Rs.45,795 from Salwan and Co. under purchase note Ex.104 dated 5-10-1989 and bill Ex.150. The entry relating to the dinning table and eight chairs is at page 71 of the Stock Register, Ex.84. The purchase note Ex.104 recites that the Chief Justice had desired that one dinning table carved with thick glass top along with eight chairs of teak wood, may be provided tot he official residence immediately and proceeds to state that the dinning table and chairs were purchased accordingly. The purchase note was prepared by Inderpal Singh, Assistant Court Officer (W.No.12), on 5-10-1989, countersigned by other officers in the High Court including Registrar R.K.Nehru and sanctioned by Justice Ramaswami himself on 5-10-1989. The value of this single item alone exceeded the value of the total furniture and electrical appliance that the Chief Justice was entitled to have under the rules. This is without taking into account the eight extra chairs which were found in the dinning room.
Ex.P.15 (collectively) also shows that there were, (1) three sofa sets complete, (2) six sofa chairs extra, (3) three wooden centre tables, (4) two glass-topped centre tables, (5) two glass-topped peg tables, (6) one wooden peg table and (7) one glass-topped side table in the drawing room.
We find that two three-seater sofa sets, one centre table and one corner table were purchased under advance bill Ex.159 on 2-2-1989 for Rs.58,909. Another two three-seater sofa sets, one centre table and one corner table were purchased on 2-2-1989 under advance bill Ex. 159 for Rs.58,509. Another two three-seater sofa sets, one center table and one corner table were purchased for Rs.58,509 under advance bill Ex.160 on 4-2-1989. Yet another two three-seater sofa set, six sofa chairs, one centre table and one corner table were purchased for Rs.58,509 under advance bill dated 3-2-1989, Ex.161. One three-seater sofa set, six sofa chairs, one teak wood Center table and one corner table were purchased for Rs.59,430 under Ex.162, advance bill dated 6-2-1989. Thus we find that nine three-seater sofa sets and several sofa chairs, centre and corner tables were purchased under advance bills Ex.Nos.158,159,160, 161 and 162,. The corresponding purchase notes are marked collectively as Ex.57. These nine three-seater sofa sets, according to the recitals in the documents, were purchased for the office portion of the Chief Justices residence. In addition, two sofa sets were purchased on 11-1-1989 for Rs.48,919 under purchase note Ex.108 and bill No.3027 dated 11-1-1989. According to the recital in the purchase note, the sofa sets provided at the residence of the Chief Justice presented a shabby look and therefore the Chief Justice desired that two new sofa sets may be provided immediately. According to the further recital, the Chief Justice himself went round the furniture shops and selected the two sofa sets. The purchase note was prepared by Mr.Suresh Mahajan (W.No.17)and countersigned among others by Registrar R.K.Nehru. The payment was sanctioned by the Chief Justice himself on 11-1-1989. One more sofa set was purchased under purchase note Ex.213 dated 8-3-1989 for Rs.14,051. Another sofa set and two center tables were purchased on 11-1-1989 for Rs.27,789 under purchase note Ex.58. Thus, in all 12 sofa sets were purchased. Three sofa sets were found in the drawing room, five in the conference room and one in the office room of the Chief Justice. Three have been accounted for elsewhere, i.e., the conference room and the office of the Chief Justice and the least expensive sofa sets were used in the residential potion, the three sofa sets found in the drawing room would be worth at least Rs.48,919(ex.108) plus Rs.14,051(Ex.213) i.e., total Rs.62,970. This does not take into account the cost of the six sofa chairs and side tables with glass top and the other smaller items of furniture. We may safely conclude that the items of furniture in the drawing room alone are nearly double the value of furniture and appliances permissible to the Chief Justice under the rules.
We then have the furniture in the bed rooms. In the four bed rooms, there were in all six dressing tables, four easy chairs, four study tables, two bed side tables, five Godrej almirahs, five peg tables, four double beds and one single bed. The four dressing tables with stools were purchased for Rs.15,092 under bill Ex.154 dated 29-2-1998. The four study tables were purchased for Rs.7,175 under purchase note Ex.214 and the five study chairs were purchased for Rs.4,750 also under purchase note Ex.214. Two out of four easy chairs were purchased under purchase note Ex.211 for a sum of Rs. 5,828. The cost of three Godrej almirahs was noted by Witness No.2 Mohan Dutt Sharma in list Ex.12A as Rs.3,016, Rs.2,959 and Rs.3,571. According to his evidence he was able to obtain this information from the bills, vouchers, etc., in the High Court records. Thus the total cost of the various items of furniture in the four bed rooms works out to over Rs.42,000. It is thus easy to see that the cost of the furniture in the four bed rooms alone in excess of Rs.38,500, the limit prescribed for the entire residence.
Then we have the carpets and curtains. Details regarding size of rooms, lobby etc., in the official residence of the Chief Justice, (both the residence and officer portions) are given in the Report dated 27-3-1990 of the District judges (Vigilance). We may mention here that a Committee of judges of the High Court had constituted a sub-committee consisting of the District judges (Vigilance) of Punjab and Haryana to go into the correctness of the bills and the cost of the articles purchased or the residence of the Chief Justice, to find out whether there were any shortages and whether the price paid was comparable with the market price. The Sub-Committee sub-committed its Repot (Ex.22) on 27-3-1990. From the Report, we gather that the floor area of the office portion (extension wing) was 1,130 sq.ft. and the floor area of the residential portion (including staircase and lobby) was 2,884 sq.ft. We also have it in evidence that the new office wing at the Chief Justices official residence became ready for use in March, 1989. It is, therefore, possible to conclude readily that the carpets purchased in 1987 and 1988 for the residence of the Chief Justice could only have been for the residential portion and not for the new office wing. Wall to wall carpet to the extent of 342.73 sq.ft. was purchased on 10-12-1987 for Rs.17,112.24 under purchase note Ex.4. Wall to wall carpet to the extent of 370 sq.ft. was purchased for Rs.18,484.61 under purchase note Ex.2. Wall to wall carpet to the extent of 397.94 sq.ft. was purchased on 22-2-1988 for Rs.19,883.44 under purchase note Ex.193. Wall to wall carpet to the extent of 716.66sq.ft. was purchased on 19-3-1988 for Rs.14,215.51 under purchase note Ex.194. Wall to wall carpet to the extent of 261.78sq.ft. was purchased on 10-3-1988 for Rs.13,078 under purchase note Ex.203. Wall to wall carpet to the extent of 366.30sq.ft. was purchased on 11-3-1988 for Rs.18,299.77 under purchase note Ex.204. Wall to wall Carpet to the extent of 371.08 sq.ft. was purchased on 10-3-1988 for Rs.18,538.56 under purchase note Ex.206. Wall to wall carpet to the extent of 296.91 sq.ft. was purchase on 10-3-1988 for Rs.14,833.15 under purchase note Ex.208 and wall to wall carpet to the extent of 360 sq.ft. was purchased on 15-2-1988 for Rs.17,985.02 under purchase note Ex.215. The total extent of carpet purchased under the purchase notes just mentioned 3,527 sq.ft. which is 643sq.ft. in excess of what was actual required. We note here that except in the case of two items against which nothing is noted, in regard to the other item of carpet, it is mentioned in the stock register that they are provided at the residence of the Chief Justice or at the office of the residence of the Chief Justice. What was the office of the Chief Justice at that time is also part of the residential portion now. The total cost of the wall to wall carpet found in the residential portion and purchased under Exs.2,4,193,194,203,204,206,208 and 215 is Rs.1,52,465.30. We may also mention here that the office portion (extension wing) was carpeted with wall to wall carpet of 827 sq.ft. purchased for Rs.50,784 under purchase note Ex.76, and 810 sq.ft. wall to wall carpet purchased for Rs.49.740 under purchase note Ex.103. Thus, the total extent of carpet purchased for the new office wing was 1,637 sq.ft. and its cost was Rs.1,00,524.
In addition to the wall to wall carpet found in the residential portion of the Chief Justices residence, it was also found that there were several loose carpets in the residential portion of the Chief Justice residence. There were two carpets of the size of 9x 12 and 6 x 9 in the drawing room and a dozen carpets of the size of 5x3,6x4, 6x4, 6x4, of 5x3, 6x4,6x3, 10x8,6x9,10x8, 6x4and 6x9 kept in one of the bed rooms on 17-2-1990 when possession was handed over. It was noted that the last two carpets(6x4 and 6x9) were old carpets. We may mention here that two loose carpets, one of the size of 9x12and another of the size 6x9were found in the conference room and the office of the Chief Justice in the new extension wing on 17-2-1990. Three woollen carpets, one of the size 9x12 and two of the size of 6x9 were purchased under purchase note Ex.56 for Rs.51,145. One carpet of the size 6x9was purchased under purchase note Ex.63 for Rs.27,736.91. Four carpets, two of the size 8x10 and two of the size 4x6, were purchased under purchase note Ex.55 for Rs.55,037. Altogether 13 new loose carpets were purchased under these four purchase notes on 15-3-1989. We may consider the carpets purchased under the purchase note Ex.56 as carpets purchased for the office portion (extension wing) in view of the sizes of the carpets. The remaining loose carpets which were found in the residential portion on 17-2-1990 are of the value of Rs.96,003.91. We may also notice here that the purchase notes mention only one 6x9 carpet as purchased for the office of the Chief Justice at the residence. All the other loose carpets are mentioned as purchased for the High Court. This statement is untrue since they were found in the residential portion of the official residence. The reason for showing them as having been purchased for the High Court for use in the High Court is not far to seek. By the time these carpets were purchased, wall to wall carpets had already been fixed in the entire office portion at the official residence. It was, therefore, not possible to show that they were purchased for use in the office portion at the residence. The whole exercise was in the nature of a facade in that although the carpets were meant for being used in the residential portion, they were shown as having been purchased for use elsewhere, i.e., High Court.
Under purchase note Ex.3 dated 8-2-1988 curtain cloth was purchased and 23 curtains got stitched for a total cost of Rs.5,711.50. Under purchase note Ex.5 dated 8-2-1988 curtain cloth was purchased and 41 curtains got stitched for a total cost of Rs.7,292. Under Ex.6 curtain cloth was purchased on 14-3-1988 and 40 curtains got stitched for a total cost of Rs.6,040. Thus, 104 curtains were got prepared for Rs.19,043.50. We further find from Ex.12B that 185 meters each of curtain cloth and lining cloth were purchased and together with the stitching and fixing charges, the cost came to Rs.26,892. It appears that the same were purchased for the office portion at the official residence. Similarly, we find from the purchas note Ex.54 dated 11-3-1989 that curtain cloth together with the lining cloth was purchased and the total cost inclusive of the stitching and fixing charges came to Rs.30,490.50. The purchase note shows that the material was purchased fort he office portion of the official residence of the Chief Justice. On 17-2-1990, when possession was handed over, there were altogether 229 curtains out of which 70 where in the four bed room and 72 in the drawing room. It may not be possible to work out precisely the total cost of 142 curtains found in the four bed rooms and in the drawing room. However, it is legitimate to draw an inference that the total cost of those curtains could not have been less than Rs.19,043.50. We have arrived at this conclusion by taking into consideration the fact that the cost of 23+41+40=104 curtains (i.e., the curtain cloth, the lining cloth, the stitching and fixing charges ) provided between 8-2-1988 and 14-3-1988 is Rs.19,043.50. Looking at the matter from another angle, even assuming that approximately 1/3rd of the total cost of Rs.76,425 for 229 curtains found in the official residence is apportion able to the cost of curtains found in the residential portion, the cost of curtains provided in that portion would work out to Rs.25,000, which is not less than but in excess of Rs.19,043.50.
Thus, we see that the cost of the kitchenware and other items mentioned in para 125 above alone came to Rs.25,047. The cost of the bed, bath and table linen mentioned in para 128 above, viz., Rs.39,785 alone exceeded the limit of Rs.38,500. The cost of the furniture in the dining room taking only the value of the dining table and eight chairs, i.e., Rs.45,795, and excluding other articles, as mentioned in para 129 above, was also more than the limit prescribed by the rules. The cost of the furniture in the drawing room, i.e., Rs.62,790 as shown in para 131 above was more than one and half times the value of the total furniture and appliances to which the Chief Justice was entitled. The value of the furniture in the bed rooms which was over Rs.42,000 as shown in para 132 above alone was also more than the prescribed limit for the entire house. The cost of the air-conditioners in the residential portion was, as shown in para 127 above, Rs.1,22,003 which is more then three times the total value of furniture and appliances permisible to the Chief Justice, under the rules. The value of the wall to wall carpets and the loose carpets and curtains found in the residential portion of the official residence of the Chief Justice on 17-2-1990 was Rs.1,52,465 plus Rs.96,003.91 plus Rs.19,043.50 as found in paras 133, 134 and 135 above. The total value thus adds up to Rs.2,67,512.41, which is about seven times the total value permissible under the rules.
The discussion above leads to the conclusion that the value of the articles (kitchenware, linen, furniture, furnishings and electrical appliances) purchased for and found in the residential portion of the official residence of the Chief Justice, on 17-2-1990, when possession was handed over, was not less than Rs.6,00,000, which is about 16 times the limit permissible under the rules. We have not taken into account several sundry items such as bedside tables, peg tables, wall clocks, heat converters, lawn chairs, garden umbrellas, suit cases, attache cases and so on. By no stretch of imagination Justice Ramaswami was entitled to purchase furniture, furnishings etc. on such large scale out of the funds at his disposal by way of grants in favor of the High Court. Justice Ramaswami should be presumed to know the relevant rule prescribing the ceiling on the value of the furniture and furnishings including electrical appliances permissible for use in the residential portion of his official residence. Thus purchases were made willfully, in breach of law, with a view to gain a personal advantages by way of use of the said excess articles, without ever intending to pay for such user.
There is no evidence to show that the excess expenditure incurred on purchasing these items was sanctioned or authorized by he concerned government. Those articles were also not supplied by Govt. as a special case out of their funds. Those cases may stand on a different footing. On the other hand, as will be shown hereafter, they were all purchased by Justice Ramaswami himself or under his direction and sanctioned by him out of the Public funds at his disposal without special or general sanction of the competent authority.
One of the suggested defences was that if Justice Ramaswami exceeded the prescribed limit, he could be asked to pay rent for whatever was purchased for and used in the residence in excess of the limit. In our view, such a defence, in the circumstances of this case, is not permissible at all. In the first place, as found earlier, Justice Ramaswami made unauthorized purchases on such a lavish scale, knowingly and willfully, far in excess of the statutory limit from out of the funds at his disposal to gain personal advantage by user of the articles gratis. In the next place, this is not a case where out of an existing stock of articles of furniture, furnishings, etc. The articles were supplied to him by the authorities for his use at his request last place, having regard to the purchases on such a large scale, diversion of all those items or articles for use by other judges of the High Court, who were already provided with the furniture and furnishings would not be possible. Their use in the near future is also not reasonably possible, even assuming that judges to be newly appointed may have to be provided with furniture, furnishings, etc. by putting them to any alternative use. We must also take notice of the fact that neither when the items were purchased and used nor subsequently when the audit objections were raised nor even later has Justice Ramaswami offered to pay rent for the excess furniture, furnishings and appliances purchased and used by him in the residential portion of the official residence of the Chief Justice.
It cannot also be overlooked in this connection that there has been a reckless and willful disregard of the financial discipline which Justice Ramaswami was expected to observe as Head of the Department No. justification whatever can be found for the breach of the relevant provisions of the Punjab Financial Rules which govern the expenditure out of public funds placed at the disposal of the High Court and under his control. In such a situation, an offer of payment or recovery of rent much later could not be pleaded even as an extenuating circumstance.
We may now proceed to consider the value of the articles purchased and found in the office portion (extension wing) of the official residence of the Chief Justice on 17-2-1990 when possession was handed over. Broadly, there were one conference room, one office room for the Chief Justice and one room for the Secretary to Chief Justice. There were five compete sofa sets, eight sofa chairs, four centre tables, four corner tables, two pedestal fans two peg tables and two split units(air-conditioner) in the conference room. There were one sofa set, office table, one revolving chair, two air-conditioners with stabliziers, three centre tables, two corner tables and other sundry items in the office of the Chief Justice. In the private Secretarys office, there was one air-conditioner with stabilizer, one refrigerator, three Godrej almirahs and several other miscellaneous items of furniture. The conference room and the office room of the Chief Justice has wall to wall carpeting and there was also one loose carpet of the size of 9x 12 and another loose carpet of the size 6 x 9 . The cost of the two new air-conditioner out of four in the office portion alone is approximately Rs.33,000. The cost of six sofa sets and then ten sofa chairs which were purchased under Ex.57(colly) comes to Rs.1,40,000 excluding the value of the three sofa sets purchased under Ex.57(colly) which have been taken into account while dealing with the residential portion. The will to wall carpeting and the loose carpets found in the conference room and in the office room of the Chief Justice are of the value of (as already mentioned in the earlier discussion) Rs.3,25,000. This expenditure on furnishing just the new office wing at the residence may appear excessive. However, it appear from one of the purchase notes, which is part of Ex.57(colly), that the design for furniture was provided by the Chief Architect after a high level meeting attended also by the Chief Engineer. Further, so far as expenditure on furniture, furnishings, etc., for the office portion is concerned, the rules do not prescribe a limit. The expenditure, of course, has to be reasonable and not disproportionate to the requirements of the situation. The evidence also shows that some of the judges had made a demand that the limit for the furniture and furnishings in their office portion should be Rs.40,000 or even Rs.75,000, but Justice Ramaswami fixed it as Rs.25,000. There is no evidence whether there was old furniture, furnishings etc. of any noticeable value in addition to the newly purchased furniture, in the office portion. However, an expenditure on the scale of about Rs.3,25,000 for new furniture and furnishings in the office portion of the Chief Justices residence could possibly have been avoided by observing economy and financial discipline.
Whoever had initiated a purchase note, after passing through the hands of the various officer, the amount was invariably sanctioned on these purchase notes by the Chief Justice himself except in the few cases where the amount involved were small. As already noticed, the Registrar originally had the power to sanction purchase or articles up to the value of Rs.1,000 and this was subsequently raised to Rs.3,000. In the case of a large number of purchase notes, the recital was that the Chief Justice had desired the purchase of the articles concerned, and in some cases, there was the further recital that the Chief Justice and the Registrar had gone round the shops and selected the articles to be purchased.
Having regard to the large number of purchase notes containing the recitals that the Chief Justice had desired the purchase of the particular articles and the large purchases which had been sanctioned by the Chief Justice himself, we have no hesitation in drawing the conclusion that the purchases were made at the instance of the Chief Justice and with his full concurrence and knowledge.
Some of the purchase notes contain the further recital that the Chief Justice had personally visited the shops and selected that articles to be purchased. In some of the purchase notes, the Registrar also is said to have accompanied the Chief Justice. An attempt has been made to show that the Chief Justice did not visit the shops though the Registrar might have visited the shops. The proprietors of the two major suppliers, namely, M/s. Salwan and Co., and M/s. Krishna Carpet Co., stated that the Chief Justice had never visited the shops but the Registrar did. These witnesses were obviously under the impression that they were shielding the Chief Justice by saying so, though we see nothing wrong in the Chief Justice visiting the shops and choosing the furniture and the carpets, particularly when such heavy amounts were being spent on them. We do not think that any false recital about the visit of the Chief Justice and the Registrar to the shops would have been made in the purchase notes as their was at that stage, no need to make any such false statement particularly when the purchase notes were to be placed before both the Registrar and the Chief Justice for their approval. The said recitals were in fact approved by them. We find that the Chief Justice and Registrar did visit the shops as mentioned in the contemporaneous documents.
Under the rules the Chief Justice was entitled to sanction purchases up to Rs.60,000 at a time and if the amount exceeded Rs.60,000, the sanction of the Govt. had to be obtained. This rule was honored more in its breach, than in its observance. In the case of purchases of several items of furniture at the same time, the bill would invariably be split into two or more bills, so that the amount of each bill did not exceed Rs.60,000. Ex.57 (collectively) is a striking example where one large bill was split into five bills, one for Rs.59,430, and four bills of Rs.58,509 each. Similarly, one large bill for purchase of wall to wall carpet for the extension wing was split into two ills, Exs.76 and 103 for Rs.50,784 and Rs.49,740 respectively. The total cost of the 26 maces came to over Rs3,50,000 and in order to circumvent the rule, a separate bill was made for each of the maces. The practice is undoubtedly reprehensible. In his evidence Mr.Bajwa stated that it was an old practice prevalent in the High Court and in his opinion there was no splitting up and what had been done was in accordance with the past practice and the instructions of the Registrar. Mr.Raghubir Singh, Accountant General, Jammu and Kashmir, with additional charge of the Accountant General, Haryana and the Union Territory of Chandigarh (W.No.21), deposed that although the practice of splitting up the bills with a view to bringing the purchase of the concerned article or items within the prescribed limit was irregular. It was prevalent in a few other Government office also. Thus, although there was a violation of the concerned rule, it does appear that there was a practice of splitting of bills in the High Court and elsewhere and what was done in these cases was pursuant to such practice. There is another aspect of the matter which also requires to be considered. All these purchases were expected to be made after inviting or obtaining quotations. A perusal of the purchase notes shows that when ever an article of furniture was purchased quotations were obtained from the same dealers, namely, M/s. Salwan and Co., Salve Furniture and New Selection Furnishes. Whenever carpets were to be purchased, quotations were obtained from thee same three dealers, namely, M/s. Krishna Carpet Co., M/s. Cottage Emporium and M/s. Handloom Emporium. For the purchase of furniture, M/s. Salwan and Co., was invariably chosen. For the purchase of carpets, M/s. Cottage Emporium in 1988 ad M/s. Krishna Carpet Co. in 1989 were invariably chosen. An interesting feature of these quotations in that while a few of them bore dates, a large number of them were undated. From the evidence of witness No.28 the Proprietor of Salve Furniture and witness No.29 Partner of New Selection Furnishers, it is easy to conclude that quotations were obtained merely as a matter of formality. Witness No.28 was not in a position to state who had given some of the quotations on his behalf. He admitted that he could not write quotations and that he would take the help of neighboring and his business had decreased since 1985. He also stated that he visited the shop once in two days or so. It appears from his evidence that he was not doing any real business those days. Witness No.29 was unable to say that he ever supplied any furniture to the High Court. From the purchase notes in the present case, we do not se that any single item of furniture was ever purchased from his shop. Coming to the purchase of carpets, it is evident from the evidence of witness No.6, Arun Kapoor, that Cottage Emporium is another front for the same dealer. He admitted in his Sukla kapoor were partners of Krishna Carpet Co., while himself and Neeta Kapoor wife of Ramesh Kapoor were the partners of Cottage Emporium. Witness No.31, Vijay Kumar Khanna, manager of the Handloom Emporium, stated that they did not have any agency for the Modi carpets but they were yet giving quotations for Modi carpets. It was for the Modi carpets that they did given quotation in the present case. From the evidence, it is readily seen that no genuine attempt was made to obtain quotations from different dealers, whether it was furniture or carpets that were being purchased. There were a large number of dealers of both furniture and carpet in Chandigrah. Yet all quotations were obtained from the same set of dealers. The obtaining of quotations was reduced to a farce despite the fact that the amounts involved in the purchases were large. That the quotations were being obtained from the same set of dealers, could not have possibly escaped the attention of the Chief Justice, since the purchase notes mentioned the names of the persons from whom quotations had been obtained. Several purchases were effected on the basis of quotations obtained on the very day of purchase from the same set of dealers on some occasions. Further, all the purchases were made at the instance of Justice Ramaswami or under his direction and in some case he had taken personal interest in the purchases in as much as he had also visited the shops to choose the articles. In some cases purchases were effected even before quotations were obtained. All these circumstances taken together lead to a legitimate inference that he was aware f the fact that the quotations were not genuine. This shows that there was willful disregard of the procedure required to be followed under the relevant rules before effecting purchases on such a large scale and this was with his connivance.
It also appears from the evidence that large amounts were paid as advance to dealers Ex.57 (collectively) shows that a sum of about Rs.2,95,000 was paid to M/s. Salwan and Co. by way of advance for the purchase of items covered by those purchase notes without any apparent justification for the same. Besides, large sums were paid in cash on occasions towards price of articles purchased, viz., purchase notes Exs. 55, 56, 62, 63, 76, 193 etc. The relevant provisions of the Punjab Financial Rules were thus violated to that extent.
We, therefore, find that Justice Ramaswami, in willful abuse of his powers and authority as Chief Justice of the High Court of Punjab and Haryana, got purchased in violation of the rules, items of furniture, furnishings, and electrical appliances, far in excess of and wholly disproportionate to the requirements of and far beyond the limits prescribed for the residential portion. The principles of financial discipline regulating expenditure by Heads of Department were totally ignored. The rule prescribing a limit of Rs.38,500 towards the cot of furniture, furnishings and appliances to be made available to a Chief Justice in the residential portion of his official residence was knowingly and willfully ignored. No separate or special sanction was obtained from competent governmental authorities from such excess purchases. Furniture, etc. of the value of more than Rs.six lakh, that is, at least 16 times the limit, was unauthorisedly purchased by him out of the public funds, viz., contingent grant of the High Court at his disposal. This was to the personal advantage of Justice Ramaswami who had the benefit of its use without paying or ever intending to pay for such user. The far too extravagant and wasteful expenditure on furniture, furnishings and electrical appliances at his official residence and the manner in which the purchases of furniture and carpets were effected from the same favored dealers without obtaining genuine quotations and, therefore, without ascertaining whether the price paid was fair and reasonable, sometimes against advance bills and against cash payments in large sums, and in disregard of the financial and rules were such as to bring dishonor and disrepute to the judiciary so as to shake the faith and confidence which the public repose in the institution. In regard to the office portion also, the excessive expenditure could possibly have been avoided by observing economy and financial discipline.
On a consideration of all the relevant material, the oral and documentary evidence and the circumstances of the case, we hold the first charge proved as found above and to that extent only.
Charge No.2 to top
Charge No.2 is, in particular concerned with the purchase of wall to wall carpet without any genuine quotations and at excessive price by splitting bills. It is alleges that 1,637 sq. ft. of carpet was purchased of the office portion when only 1,100 sq. ft. was required and 3,527 sq. ft. was purchased of the residential portion when only 2,884sq.ft. was required. It is also alleged that the foam underlay was purchased at the rate of Rs. seven per square foot when the market rate was Rs. three per square foot. Our discussion under charge No.1 covers most of the grounds of charge No.2 also, except that relating to excessive price and excess purchase. So far as alleged excess purchase is concerned, there is bound to be some wastage depending on the shape of the room while fixing wall to wall carpet. Justice Ramaswami could not be expected to take measurement and monitor the carpeting to see that the carpet purchased was fully utilized. So far as excessive price is concerned, it appears that J.K. Matting House gave a quotation a year later for wall to wall carpet at the rate of Rs.32.50 sq.ft., as against the price of Rs.52.50 per sq. ft. paid to M/s Krishna Carpet Co., and for the foam underlay Rs. three sq. ft. as against Rs. Seven per sq.ft. paid to the M/s. Krishna Carpet Co. Mr. Krishna Pal Singh partner of the J.K. Matting House was examined as witness No.127 and he stated that his quotations were for locally made carpet and foam and that he did not have any idea as to what was the rate for Modi wall to wall carpet and U-foam. His evidence is, therefore, unhelpful and there is no evidence to prove that excessive price was actually paid for the wall to wall carpet and the foam underlay. All that can be said is that there was no ascertainment whether the price paid was fair and reasonable. Charge No.2 is, therefore, proved to the extent only that the purchases were made from favored dealers after procuring quotations which were not genuine in willful disregard of the rules as concluded on charge No.1.
The rest of the charge, viz., excess purchase and excessive price is not proved.
Charge No.3 to top
Charge No.3 relates to the purchase of 13 woolen carpets from M/s. Krishna Carpet Co. and the alleged replacement of four of them by carpets of inferior quality. The charges also alleges that the carpets were purchased allegedly for the use in the High Court but were actually found at the residence. The charge also alleges the procurement of false quotations including a quotation from M/s. Cottage Emporium, Chandigarh, which had closed down earlier and splitting of bills. Our discussion under charge No.1 covers most of the grounds under charge no.3. With regard to alleged replacement of four carpets, we find it difficult on the evidence to hold the charge proved. The partner of M/s Krishna Carpet Co., who gave statement before the District judges that the carpets shown to him at the residence of the Chief Justice were not supplied by him and that they were of inferior quality, did not choose to stick to his statement before us. There is no other positive evidence about the quality of the carpets found at the residence on 17-2-1990. In the circumstances, the evidence of Chowkidar Rabeen Kumar (W.No.26) is irrelevant to the charge of sub-situation of the carpets and we cannot say that this pat of the charge is proved beyond doubt. In fact in view of our finding on charge No.1 viz., that 13 new carpets were actually found in the official residence on 17-2-1990, the evidence of Rabeen Kumar on this point is rendered unacceptable. In regard to the allegation that all the carpets were purchased allegedly for the use in High Court, we have already dealt with the same under charge No.1. The allegation in this charge that the quotation dated 7-2-1989 for carpets obtained from M/s. Cottage Emporium was false because the said firm had closed down earlier than the date of quotation is not substantiated. There is no convincing evidence that the firm had closed down as alleged. This, however, does not detract from our finding that the quotation obtained from the said firm was not genuine as found under charge No.1. in view of our finding under charge No.1 that there was a practice of splitting the bills, we find that pat of the present charge which alleges purchase of the carpets by splitting the bills to circumvent the rules is also not sustainable. Thus, as discussed above, this charge is proved to be extent only that 12 loose carpets, which were falsely shown as having been purchased for use in the High Court were found in the residential portion on 17-2-1990 when the possession was handed over by Justice Ramaswami and that they were meant for being used in the said portion. The rest of the charge is held not proved.
Charge No.4 to top
Charge No.1 alleges that : (a) between 2-2-1989 and 6-2-1989 several items of furniture were purchased from M/s. Salwan and Co., a favored and handpicked dealer, under five different vouchers, four out of which were each of Rs.58,908 and one was of Rs.59,430, (b) the device of splitting up the purchases into five different vouchers was effected for circumventing the rules which limited the authority to sanction purchases up to Rs.60,000 at a time, (c) for the said purchases Justice Ramaswami had visited many shops and made the selection without obtaining genuine quotations from any dealers, (d) advance payment was made for the said purchase under his sanction, (e) the purchases accordingly effected were disproportionate to the requirement of the new office wing in the official residence and (f) articles mentioned in the list (Schedule B to the charge) were not used for the said new office wing but were found elsewhere.
Our discussion under charges No.1, 2 and 3 covers most of the grounds of this charge also and the findings thee recorded , so far as may be, are relevant under this charge as well. We have found that several items of furniture were purchased from M/s. Salwan and Co., a favored and handpicked dealer, under five different vouchers as stated in the charge without obtaining genuine quotations. We have further found that the purchases were effected after Justice Ramaswami visited many sops and made selection personally. We have also found that advance payment was made for some purchases under his sanction. The excessive purchases could possibly have been avoided keeping in view the consideration of economy and financial rules.
We find from the evidence that nine sofa sets were purchased under the above mentioned five different vouchers. However, only five sofa sets were found in the conference room and one sofa set and chairs were fund in the office of the Chief Justice. This shows that at least three sofa sets and chairs were in excess of the requirement of the office portion. The remaining sofa sets and chairs were not used in the office portion. We therefore , find the charge No.4 is also proved to the extent indicated above.
Charge No.5 to top
Charge no.5 alleges that several articles mentioned in Schedule C
purchased for use at the residence of the Chief Justice during his tenure were
missing and were got removed by Justice Ramaswami. The first two items are wall
to wall carpet. We noticed while discussing charge No.1 that while 3527 sq.ft.
of carpet was purchased for the residential portion, the area carpeted was only
2884 sq.ft. Again, wile 1637 sq.ft. carpet was purchased or the office portion,
the carpeted area was only 1100 sq.ft. The excess constitutes the first two of
the missing items. We have already found under charge No.1 that there is bound
to be some wastage depending on the shape of the room. Justice Ramaswami could
not be expected to take measurements himself and monitor the carpeting to see
that the carpet purchased was fully and properly utilized. Items 3 and 4 of
Schedule C are not in fact missing as may be verified from the list of articles
found in the house on 17-2-1990. The other articles in Schedule C
such as kitchen articles, curtains, bed sheets and towels are not articles of
which Justice Ramaswami could be expected to keep track. We have, however, not
considered the five suit cases under this charge as they are considered
separately under chare No.7. We find that charge No.5 is not proved except as
regards the five suitcases which matter is considered separately.
Charge No.6 to top
Charge No.6 alleges that six sofa chairs, bought ad paid for, were not
supplied at that time but were surreptitiously brought into the house on the
night of 9/10 February 1990 so as to make it appear that they were already
there. This charge rests on the evidence of Kesar Singh (W.No.57), the C.R.P.F.
guard stationed t the residence that night and the entry made by him in the duty
register. The witness admitted in his evidence that he did not make the entry
immediately but made it only net morning after consulting his superior officers.
The duty register is not ordinarily used for making such entries. He also
admitted that he entries made that day are the only entries of that nature and
there are no other entries of similar nature in the duty register. We hold that
the evidence is too shaky on which to base any finding. This charge is held not
Charge No.7 to top
Charge No.7 relates to
the purchase of 18suit/attache/brief cases and the disappearance of five of them
and the replacement of the remaining. Besides, it is also alleged that five suit
cases were purchased near about the time of Justice Ramaswaamis appointment as
judge of the Supreme Court of India, for his private use and size suit case and
one VIP briefcase use. These purchases were made by him or as desired by him.
One briefcase and three pure leather suit cases were purchased respectively on
13-11-1987 and 4-12-1987 (Ex.12B and Ex.191).. On 11-4-1989, an American
Tourister suitcase was purchased under purchase note Ex.67. Thereafter, between
12-5-1989 and 31-5-1989, one American Tourister suit case, two VIP suit cases
and one VIP brief case were purchased under purchase notes Ex.64,65,66 and 68.
Justice Ramaswamis sons marriage was celebrated at Coimbatore on 5-7-1989 which
event is not so near in point of time as to conclude the said purchases were
made for his personal benefit. On 25-7-1989 another big VIP suit case was
purchased under purchase note Ex.69. Between 3-10-1989 and 6-10-1989 two big
American Tourister suit cases, one Aristocrat suit case(big), one Aristocrat
suit case (small), one Safari suit case and one VIP suit case were purchased
under purchase notes Exs. 70,71 and 72. Purchase note Ex.72 dated 4-10-1989
while the purchase notes Exs. 70 and 71 are dated 6-10-1989. These purchase
notes show that Justice Ramaswami had desired that the purchase be made
immediately and one of the purchase notes, i.e., Ex.70 mentioned that the three suitcases
described there, were to be provided to Justice Ramaswami for office use and the
other two viz., Exs. 71 and 72 mentioned that the three suit cases described
there were to be provided to him. By the tie of preparation of purchase notes,
the suit cases had already been purchased. What is significant here is that
Justice Ramaswami assumed charge as a judge of the Supreme Court on 6-10-1989
and there could be no possible urgency to purchase the six suit cases for any
official purpose on 3-10-1989 when they were purchased. If any suit cases were
necessary to carry papers, already a large number of suit cases and trunks had
been purchase. There were as many as seven trunks in the residence of the Chief
Justice when he handed over charge on 17-2-1990 and 12 suit/attache/briefcases
had already been newly purchased during his tenure. This great hurry in
purchasing the suit cases on the very eve of his departure from Chandigarh to
assume charge of his new office at Delhi assumes significance. This mean that
the said six suit cases were obviously purchased by Justice Ramaswami for his
personal use out of public funds. From the various purchases, we find that as many as 18 suit
cases (inclusive of a brief case and attache case) had been purchased during the
tenure of Justice Ramaswami for use at his residence. When Justice Ramaswami
handed over charge of the house on 17-2-1990, thee were altogether 13 suit cases
in the house. We do not have a precise description of the suit cases in the
house and we are therefore unable to say whether or not they were the very suit
cases purchased during the tenure of Justice Ramaswai. We will, however, assume
so in his favor. Even so, it is found that five newly purchased suit cases on
the eve on the departure of justice Ramaswami to Delhi to assume charge as judge
of the Supreme Court. In the absence of any explanation, it is not unreasonable
to conclude that five brand new suit cases were not returned and remained with
him. The said act of retention of five bags cannot but be willful and wrongful
in nature. We find charge No.7 proved to the extent that (i) six
suit cases were and (ii) five newly purchased suit cases have been willfully
retained by him for his personal benefit. On the evidence, however, we are not
in a position to say whether other suit cases have been replaced. Charge No.7 is
held proved to the above extent only.
Charge No.8 to top
Charge No.8 relates to purchase of maces from M/s P.Orr & Sons Ltd., Madras. According to the charge; the maces were purchased knowingly at excessive prices and without inviting quotations. The maces were also purchased without assessing the silver content thereof and by splitting the bills to circumvent the rules. The charge also alleges that the maces245 were purchased in spite of the opposition from the other judges on the ground that the same were unnecessary. The expenditure for the said maces was further made from the Contingent Grant which was impermissible. The charge also alleges that in purchasing the maces, the rules of economy were flouted and wasteful expenditure was incurred without the authority of law. Mr. (now Justice) A.L.Bahri, who was Registrar of the High Court at the relevant time in 1998, deposed that he was asked the Chief Justice to prepare Ex.1 which are the minutes of the meeting of the judges of the High Court. The minutes were prepared according to the instructions of the Chief Justice though the witness was not himself present at the meeting. According to the minutes, at the meeting of the judges held on 13-11-1987. "The matter regarding use of maces by mace bearer of each Court were considered and it was decided to have maces for all Courts. The matter of having High Courts own Emblem was considered and it was decided that action be taken in this behalf. Under the orders of the Chief Justice, the minutes were circulated to all the judges of the High Court but all of them returned it without signing the same. Thereupon, Registrar Bahri put u the following note (Ex.1A) to the Chief Justice for his orders:
"If approved, the accompanied minutes of the meeting of the Honble judges held on November 13, 1987, be placed on record as it is, (unconfirmed).
ORB. The matter may be processed and resubmitted in the
meeting of the Honble judges.Submitted for orders as at A or B above" The Chief
Justice put his signature under the note saying " A Yes." It is clear therefore
that there was no recorded decision approved b all the judges. In such an event
one would expect the Chief Justice either to put the matter before the judges
again or to drop the proposal. However, the Chief Justice adopted the peculiar
course of keeping on record the unconfirmed minutes and yet acting upon the
decision subsequently. As later events show, he decided to go ahead with the
purchase maces. It has come in the evidence of the Registrar Mr. R.K.Nehru
(W.No.16) that some months thereafter, on 3-6-1988, Justice Ramaswami instructed
him to put up a note (Ex.77) for the purchase of maces from M/s. P.Orr & Sons
Ltd. Justice Ramaswami also informed him that he had already talked to the said
firm for the supply of maces. Twenty five maces for the judges and one mace for
the Chief Justice were eventually purchased at the rate of Rs.3,500 per mace for
the judges and Rs.14,800 for the Chief Justice as per the purchase note (Ex.82)
dated 5-2-1988. The Chief Justice it seems was anxious to have the maces ready
for use on the occasion of246 the Independence Day Celebration on 15-8-1988.
There is some controversy whether all the judges used the maces at the
Independence Day celebrations, but to our minds, that is immaterial. The
outstanding fact remains that all the judges had returned the minutes of the
meeting without signing and the Chief Justice himself kept quite for about seven
months as if he idea of introducing the maces had been dropped on account of the
want of concurrence of the other judges of the High Court. The total amount
spent on maces exceeded Rs.3,50,000 thousand and one wonders what pressing need
there was to incur such novel and wasteful expenditure. The Chief Justice, it
seems, was anxious to introduce the traditions and practices followed in the
Chartered High Court, (one of which is the Madras High Court to which he
belonged originally). From the evidence of the Accountant General Raghubir Singh
(W.No.21) as well as from his Inspection Report (Ex.117) and the photocopy of
the telex message dated 1-9-1990 (Ext.118) received from the Accountant General,
Tamil Nadu, by the Additional Deputy Controller and Auditor General of the
office of the Comptroller and Auditor General of India, it is found that even
two years later i.e., in 1990 the Madras High Court itself had purchased maces
at the rate of Rs.2,000 each. The said maces, of course, we made of wooden core,
copper or brass sheet work plate with silver. As against that, the order placed
by Justice Ramaswami as the Chief Justice of Punjab and Haryana High Court was
for silver maces (three piecesscrew type), which even by the standards of the
Chartered High Court like Madras High Court was unnecessary and extravagant.
Justice Ramaswamis comments on this subject on the audit objection as extracted
in Ex.117 is as follows: "Ata full Court meeting of the Honble judges on
13-11-1987 the proposal to follow the practice in the Madras High Court over a
century was discussed, and though one of the judges doubted the need for it,
none of the others spoke anything against it. Maces signified a symbol of
judicial convention. The concept of cost-benefit formula cannot apply where it
concerns the tradition and dignity of the high institutions and offices It was a
matter for the Chief Justice to decide M/s. P. Orr & Sons Ltd., at Madras is
still the only known company that traditionally makes judges maces.. 25 maces
were ordered for keeping in view the future increases in the number of judges.
In fact, in the audit held for the period ending 30-8-1988, no objection is
taken now when the audit was convinced of justification earlier... One cannot
help observing a chief justice who comes from a Chartered High Court with the
benefits of its many-sided time, honored experience to another High Court with
no similar background has to be wary to leave that hut untraced and its
backwardness inside and out as it is.". We find from the explanation of Justice
Ramaswami that although he has tried to justify the purchase of maces on the
ground that he came from247 a Chartered High Court where there was a
tradition of carrying maces, he has not explained as to why he found it
necessary to purchase maces with full silver metal content when the Madras High
Court itself was purchasing maces with wooden core with either copper or brass
sheet plated with silver. The cost of the latter mace was only Rs.2,000 as late
as in June 1990. We are, therefore, of the view that the purchase of maces with
full silver content at the rates in question was a wholly novel, irregular and
wasteful expenditure, against the Financial Rules prescribing economy of
expenditure by Heads of Department. Assuming that Justice Ramaswami was
justified in going in for the purchase of the said aces in spite of the
opposition from the other judges, we are not satisfied that the expenditure on
this scale was at all necessary and in conformity with the financial discipline
As far as the splitting of the bills for the purchase of the maces is concerned,
we have already held that the splitting was done as a matter of practice and
therefore, no particular fault could be found with splitting of the bills for
the purchase of maces. We, however, find no substance in the allegation that the
quotation was called from only from M/s. P. Orr & Sons Ltd. from Madras. It has
come in evidence that there was no other firm either in Chandigarh or elsewhere
which was manufacturing such maces. There is also no evidence to show that the
price charged by the said firm was excessive and was not justified by the silver
contents of the maces. The only evidence on record is of the prices for the
maces purchased for Punjab and Haryana High /Court and the pries of the maces
purchased for the Madras High Court. /The prices of the maces for the madras
High Court are not comparable with the price of the present maces in view of the
differing nature and content of the metal. But we find that the novel and
irregular expenditure on the maces was incurred out of the Contingency Grant
without obtaining the sanction of he appropriate Government, which was necessary
in view of the Financial Rules. As regards Justice Ramaswami"s contention on the comments
extracted above that no objection was raised in the previous years audit to the
expenditure on the maces an, therefore, it ought to be taken to have been
cleared by the Accountant General, we find that the said contention has no
merit. The matter has been clarified by the following question and answer in the
evidence of Raghubir Singh, the Accountant General (W.No.21):-Questions:Your attention is drawn to the following observation made in
the last paragraph of the Inspection Report:The fact that an objection had not
been raised by audit on earlier occasions does not preclude scrutiny of any
transaction in a subsequent audit. Was the transaction relating to purchase of
maces not notices or was it cleared as regular in the previous audit
Our audit is a percentage
audit, that is to say, we offer our remarks only on such of the financial
transactions as we choose to comment on. Therefore, the earlier inspections
party which had examined the financial transactions of the Punjab and Haryana
High Court in the previous years had not chosen to scrutinize this particular
financial transaction. However, if because of any reasons, the audit party
during the subsequent visit wishes to examine any transaction undertaken during
the previous year, it is open to it, to do so. It is open in rare cases to
subject to audit once again those transactions which were commented upon during
the course of the previous audit. In this case, however, this question does not
arise because this transaction was not commented upon by the previous audit
party." In view of the above evidence, Justice Ramaswamis
explanation cannot be accepted. In view of the foregoing discussion, this chare is proved to
the extent only that Justice Ramaswami incurred wasteful expenditure of a novel
and irregular nature, involving a large sum of over Rs.3,50,000 without
concurrence of the other judges of the Punjab ad Haryana High Court, while
ordering and sanctioning the purchase of financial discipline and in breach for
the rules regarding drawal of funds from the Contingency Grant for the said
Charage No.9 to top
We may now consider charge No.9 which relates to the reimbursement of charges for the telephone at the private residence of Justice Ramaswami at Madras during the period when he was Chief Justice of the High Court of Punjab and Haryana, with an official residence at Chandigarh with two telephone connections. The material allegation are: (i) that there reimbursement was obtained without separating private calls from official calls and local calls from S.T.D calls and without production of original bills or receipts, (ii) that the amount reimbursed included also the rental charges for the said telephone connection and payment twice over for a part of the period inclusive of the period when he w was a judge of the Madras High Court ad (iii) that the reimbursement was sought to be justified on four different ground at different point of time. There is not dispute that the Chief Justice was entitled to have a telephone installed t his official residence at Chandigarh and make an unlimited number of calls. In connection with the charges for the Madras telephone, Justice Ramaswami drew from the Contingent Grant of the High Court of Punjab and Haryana, cash sums of Rs.9,822 on 20-5-1988, Rs.13,713 on 14-7-1988, Rs.3,658 on 5-9-1988, Rs.1,366 on 3-8-1988, Rs.18,279 on 23-8-1989, Rs.3,194 on 4-10-1989 and Rs.26,118 on 4-10-1989, making a total of Rs.76,150. Payment of these amounts in every case was sanctioned by Justice Ramaswami to himself. All these payments were received by him in cash and are supported by receipts issued by Justice Ramaswami. The rules do not provide for an official residence at Madras for the Chief Justice 249 of the High Court of Punjab and Haryana or for a telephone at the private residence of the Chief Justice at Madras. The reason for the claim for reimbursement of telephone charges for the telephone at Madras was initially given in a note dated 2/3-12-1987 (part of Ex.13 (colly.)) by the Private Secretary to the Chief Justice to the following effect:- "The Honble Mr. Justice V.Ramaswami, Chief Justice, is having telephone No.413003 at His Lordships residence at Madras. At present His Lordship is maintaining two houses-one at Madras and the other at Chandigrh. His Lordship has desired that the bill in respect of the telephone installed at His Lordships residence at Madras may be paid by the High Court of Punjab and Haryana till His Lordship ceases to maintain his house at Madras." The Officer who dealt with the note apparently entertained a doubt whether the payment could b properly made. He, therefore, suggested that in order to ensure that thee was no complication in future, it would be expedient to obtain the report of the Audit Superintendent of the High Court at the very outset. This, however, never happened and no action was taken on the suggest that the report of the Audit Superintendent should be obtained. AT the next stage, we have the endorsement dated 30-5-1988 on a note (Ex.19A) of Mr. B.N. Vohra, Secretary (Administration) to the Chief Justice stating: "The Honourable C.J. happens to visit Madras and stays there at his residence where the telephone 413003 (old) and new 316122 has been installed. From there His Lordship has to contact the officers of this court in connection with official business telephonically. Hence the excess use of S.T.D in connection with the official business." The endorsement was made "BY ORDER" which meant that it was the order of the Chief Justice. The next stand taken by him in the course of his letter dated 18-12-1988 addressed to the Administrator, Union Territory of Chandigarh (Ex.139 colly.), was that since under some instructions of the Central Govt. Officers including I.A.S Officers, who stayed in areas notified or declared as disturbed areas (such as Union Territory of Chandigarh and State of Punjab) were entitled to the said privileges, viz., the retention of the residence earlier occupied or allotted to them at any place of their prior posting and also telephonic facility at Govt. expense, he considered himself to be eligible to those privileges. He, therefore, requested that he should be allowed the facility of rent-free accommodation at both the places, viz., Madras and Chandigarh, and also the telephone facility so as to have liaison with the members of his family at Madras. The last stand taken by Justice Ramaswami in the course of his letter dated 2-3-1990 addressed to the Administrator of the Union Territory of Chandigarh (Ex.139 colly), after his elevation to the Supreme Court, was similar. He reiterated that Central Government officers including the 250 I.A.S Officers were entitled to the aforementioned privileges and proceeded to state that in view of Rule 2 of the High Court jduges rules, 1956, he considered himself to be eligible to those privileges. He asserted that it was only with a view to apprising the Administrator tat he had written his previous letters, "lest there be any objection later from any quarters" and that "for claiming of such a privilege no sanction was necessary from any quarters." Since he was no longer the Chief Justice of the Punjab and Haryana high Court, he requested the Administrator to get remitted to him a sum of Rs.56,329 towards rent for the period from 12-11-1982 to 5-10-1989 at the rate of Rs.2,500 p.m. for his Madras residence. Thus, it is calear from this letter that even as late as aon that day, he was asserting his claim not only for the reimbursement of expenses for telephone at his residence at Madras but also the rent for the said residence. As regards his first stand, all that needs to be stated is that having instructed his Secretary to put up a note for reimbursement of telephone charges including rental of the telephone maintained at his residence at Madras, the matter was not pursued further, apparently because it was apprehended that there may be some objection to the reimbursement of the said amount to him. However, the claim was not forsaken since five months thereafter another attempt was made to revive the claim by directing the Secretary to put up an endorsement on an office note for recovery of the amount and he actually got himself paid different amounts on different dates, as stated earlier. The claim based on the ground that Justice Ramaswami was entitled to the reimbursement since the telephone at his Madras residence was being used to contact the Officers of the High Court in connection with official business when he happened to visit and stay at Madras in this private residence is unsustainable. It may be stated that the endorsement of the Secretary on the note, Ex.19A, which was made under the order of the Chief Justice, does not mention the source of authority which could justify the claim for reimbursement. Apart from the fact that such source was not mentioned, neither under the High Court judges(Conditions of Service) Act nor under the High Court Judges Rules, there is such a provision. Assuming that it became necessary for him to contact the Officers of the Registry for official business, while in Madras, a trunk call could have been claimed against bills. Even if S.T.D facilities were availed of for the said purpose, it was necessary to maintained detailed particulars about the calls put through and to justify the claim on the basis of those particulars. Furthermore, such a claim could be, if at all, justified only during the period Justice Ramaswami was actually in Madras, either vacating or other wise. The claim for rental charges of the telephone at Madras, under no circumstances could be justified. The telephone was being maintained at Madras for private use and rental charges therefore could not, on any ground whatsoever, be recovered from the High Court. 251 Then comes the claim for facility of rent-free accommodation at both the places, i.e., Madras and Chandigarh and incidentally also of the telephone facility at Madras, advanced in the letter dated 18-12-1988, on the ground of his being required to have a liaison with the members of his family at Madras. In the absence of any rule, order as special sanction, Justice Ramaswami was not justified in claiming that he was entitled to the maintenance of a rent-free residence at Madras with telephone facility. The claim based on Chandigarh and Punjab having been declared disturbed area and similar facility having been extended to other government officers, is also contained in the letter dated 18-12-1988 addressed to the Administrator of the Union Territory of Chandigarh (Ex.139 colly.). The letter advances the claim, as earlier pointed out, on thee ground of the State of Punjab and the Union Territory of Chandigarh having been declared as disturbed area and on some alleged instructions of the Central Government as regards officers posted in the disturbed areas maintaining their residence earlier occupied or allotted to them at any place before their posting in disturbed areas on the same terms and conditions with telephone facility. Still later comes another letter dated 2-3-1990 (Ex.139 colly.) in which reliance was placed on Rule2 of the High Court Judges Rules and the Notifications alleged to have been issued in regard to I.A.S officers posted in areas declared or notified as disturbed areas being entitled to such privileges. These two letters also form the basis of the explanation which he gave in answer to the objections of the Accountant General. Both these letters make a vague reference to some Government instructions and Notifications. It will be seen at once that the reasons given in letter to the Administrator, besides being an after through as regards claim for reimbursement of telephone charges, were also meant to advance a further claim for maintenance of rent-free residence at Madras. This is not the basis of the claim either in the note dated 2/3-12-1987 or in the endorsement dated 30-5-1988. Substantial amount had already been drawn before Justice Ramaswami thought of the at least of the reasons, namely, that officers of the Central Government were being provided with telephone facility at the places where they were originally working, if they were transferred to the disturbed areas. It does not appear that he made any enquiry about the existence of any instruction or Notification before sanctioning to himself reimbursement of the telephone charges. That is the least one would expect him to do before he sanctioned a pecuniary advantage to himself. In fact, there is no instruction or Notification as suggested in the letters of Justice Ramaswami to the Administration. The Secretary of the Committee was directed by our Order to write to the Home Secretary, Government of India, to find out whether there were any such instructions or Notifications and whether the three officials whose names were mentioned by Justice Ramaswami in answer to the Accountant Generals objections, namely, Mr.K.Banerjee, Mr.Ashok Pradhan and 252 Mr.V.N. Singh, were in fact allowed this facility. The reply of the Home Secretary (Ex.244) is as follows: "(1) There was no rule/order/instruction/notification or circular entitling the members of the Indian Administrative Service and the Indian Police Service of A.G.M.U (erstwhile UT) cadre posted in Punjab ad Chandigarh between November 1987 and November 1989 to retain their residence along with free telephone facility at the official cost at the place of their earlier posting outside Punjab and Chandigarh. (2) As per records available in this Ministry none of the three officers, namely, Mr. K. Banerjee, Mr. Ashok Pradhan and Mr. V.N. Singh were allowed his facility by this Ministry. It seems that these officers were allowed residential facility in Delhi through local arrangement between Delhi Administration and Chandigarh Administration. "As regards Mr.Gurcharan Singh, I.P.S, he was retaining accommodation provided by Directorate of Estates during his posting as I.G.P, Chandigarh from 6-3-1989 to 10-1-1991. The said accommodation has so far not been regularized by the Ministry of Urban Development and the matter is still under consideration. There was thus no basis for the claim of Justice Ramaswami advanced on this ground. It needs to be mentioned at this stage that on 11-10-1991, after his elevation to the Supreme Court, Justice Ramaswami addressed a letter to the Secretary (Justice), Government of India, enclosing a Demand Draft dated 10-10-1991 for Rs.76,150 in favor of the Registrar, Punjab and Haryana High Court, being the refund of the amount which he had reimbursed to himself on account of maintaining an additional telephone at Madras while he was the Chief Justice of Punjab and Haryana High Court. The said Demand Draft was returned to Justice Ramswami under the cover of dated 21-10-1991 since it was drawn in favor of the Registrar of Punjab and Haryana High Court and was meant clear as the outstanding dues of the said High Court. The Private Secretary to Justice Ramaswami thereafter sent the said Demand Draft under the cover of his letter dated 23-10-1991 to Registrar, Punjab and Haryana High Court. The question which arises for considerations is, whether on the facts and in the circumstances of the case, the refund of the sum of Rs.76,150 has any bearing on the proof of the charge under consideration. The audit objection in this connection was raised for he first time at the time of internal audit on 12-1-121989. By the Accountant Generals office, the objection was raised on 5/12-3-1990. Still, however, Justice Ramaswami reiterated his entitlement to the payment of the amount in his letter to the Administrator written on 18-12-1988 and 2-3-1990. The last mentioned letter was written after his appointment as judge of the Supreme Court and in the said letter, the justification for reimbursement of telephone charges incurred at Madras was specifically set out. Not only253 that but in offering his comments on Audit Memo dated 5/12-3-1990, which were forwarded vide letter dated 7-7-1990, he objected to the right of the Accountant General to raise the issue on the ground that the claim was "accepted" by the earlier audit. This assertion reveals his attitude not to pay the amounts. Even after the matter concerning the financial irregularities received publicity and the order dated 20-7-1990 of the Chief Justice of India and the Report of the Three judges Committee of Supreme Court dated 6-11-1990 were made, no offer for, nor actual reimbursement, was made. The refund came 11 months after the Report of the Three Judges Committee of the Supreme Court. Can a refund made under such circumstances absolve Justice Ramaswami of the charge under this head? The circumstances aforementioned leave no doubt that Justice Ramaswami had reimbursed himself of the telephone charges incurred at his private residence in Madras knowingly and willfully that he as not entitled to the same. We say knowingly and willfully because at the very first stage, a doubt about his entitlement thereto was raised by the Registry of the High Court itself. Besides, in order to cover up the payment which he ordered to be made to himself, he sought to refy upon certain non-existent Circulars or Notifications and also made an attempt to protect himself by writing to the Administrator of Chandigarh Administration later so as to clothe the illegal payment with an apparent attempt to get ex post facto sanction for the same from the competent governmental authority, and, in the process, invoked the applicability of a rule which had no relevance under the circumstances obtaining in the present case. He should have, in the ordinary course, sought advance clearance from the concerned authority before helping himself from out of the public funds at his disposal. He instead made use of the public money placed at his disposal for his personal benefit urging this long interval, contrary to law. This he did, having known that he was not entitled to the same and made no gesture whatever of reimbursing the amount for long thereafter and till he was, in all probability, left with no alternative but to refund the amount. On the facts and in the circumstances of the case, the conclusion is inevitable that Justice Ramaswami intentionally committed serious and grievous wrong of a clearly unredeeming nature and, under such circumstances, the subsequent reimbursement of the amounts is of no avail. One of the stands adopted by Justice Ramaswami in his comments on the audit objection was that the Accountant General had already accepted the claim for reimbursement of charges for the telephone at Madras in as much as no objection was raised in the previous audit and therefore it was not correct to reopen the issue at the time of he next audit. There is no substance whatever in this stance in view of the clarification of the Accountant General referred to in the course of our discussion in paragraph 176 under charge No.8. The other allegations which form the subject-matter of this charge relate to the non-production of original bills or receipts and payment twice over254 for a part of the period of recovery of the amount inclusive of the period when justice Ramaswami was a judge of the Madras High Court. As regards the non-production of original bills and receipts, we find from the record of the High Court that photocopies of some of the bills were produced. For each payment, Justice Ramaswami himself executed a receipt and, therefore, even if the original receipts for payment made to the Telephone Department were not produced, no doubt can be raised about such payment having been made to the said department. As regards the payment twice over, sufficient explanation has been offered by Justice Ramaswami in his comments on the audit note and he has also therein stated that necessary adjustments might be made. In light of these circumstances, in our opinion, these allegations have no substance. This charge is thus proved beyond reasonable doubt to the extent that Justice Ramaswami unauthorizedly sanctioned to himself, out of the Contingency Grant of the High Court, reimbursement in the sum of Rs.76,150 on different dates between 20-5-1998 and 4-10-1989 in respect of the telephone charges incurred at his private residence in Madras without separating private calls from official calls and local calls from S.T.D calls, that the reimbursement to the extent of the rental charges was wholly unjustified and unauthorized since the telephone was being maintained by him for his own private use at his residence in Madras and that none of the grounds on which the reimbursement was sought to be justified, was legal and valid. The fact that Justice Ramaswami refunded the amount already recovered by him after its retention for his personal benefit over a period of time, has no bearing on the proof of this charge since he had intentionally and knowingly committed serious and grievous wrong of a clearly unredeeming nature and the subsequent reimbursement, in the a said circumstances, is of no avail. The rest of the allegations covered by this ground are not sustained.
Charge No.10 to top
Charge No.10 alleges the excessive and abnormal scale of expenditure by Justice Ramaswami on the telephone at the official residence at Chandigarh amounting to an abuse of the facility. During the period from 12-11-1987 to 6-10-1989, when Justice Ramaswami was the Chief Justice of the High Court of Punjab and Haryana, the telephone charges in respect of the telephone installed t the official residence at Chandigarh amounted to Rs.9.10 lakhs. This meant that the expenditure was on a scale of Rs.39,000 per month, i.e., Rs.1,300 per day. The predecessor of Justice Ramaswami had incurred an expenditure of Rs.38,000 for the period from February 1985 to February 1987. In other words, the expenditure incurred by the predecessor on the telephone for two years was roughly about the same as the expenditure incurred by Justice Ramaswami in one month. The stand of Justice Ramaswami in the comments offered to the audit memo, inter alia, was that he was in the habit of attending to the entire.255 administrative work at his residence instead of in the High Court and consequently a lot of S.T.D. calls were made from the telephone at his residence by himself and by the Officers of the Registry. Another explanation suggested to witnesses was that the State of Punjab was passing through turbulent days and it was necessary for the Chief Justice to keep in touch with Judicial Officers in the State constantly, both a view to tone up their morals and to superintend their work. It was mentioned that one Judicial officer had been killed and another received serious gun shot injuries. There is some force in the suggested explanations. Even so, the expenditure appears to us to be excessive. However, in view of the want to clear evidence with regard to the use of the telephone for his personal purposes, it is not possible to hold beyond reasonable doubt that Justice Ramaswami obtained any personal gain. Charge No.10 is, therefore, held not established beyond reasonable doubt.
Charge No.11 to top
Charge No.11 alleges he taking of two staff cars from Chandigarh to Madras for alleged official purpose but in truth for a private purpose and the unnecessary expenditure incurred in connection therewith by the High Court. The material allegations are that: (i)as regards one of the staff cars attached to Justice Ramswami, he got reimbursed petrol charge in excess of what he was entitled to under the law by sanctioning the same; (ii) in respect of the other car he did not pay the prescribed charges for using the same and the entire cost of petrol etc. had to be borne by the High Courtunder his sanction; (iii) no log book was maintained for the said car for the journey from Chandigarh to Madras and back and aso for the local use t Madras and other places; (iv) the cars were sent to Madras several days before he reached there and they returned to Chandigarh several days after he came back to Chandigarh and (v) there was thus unauthorized reimbursement of the petrol charges for the car attached to him and the illegal incurment of expenditure for the other car out of the Contingency Grant of the High Court pursuant to the sanction accorded by him. Under the High Court Judges (Conditions of Service) Act, every judge including Chief Justice is entitled to the use of a chauffeur driven staff-car and 150 liters of petrol per month. Car bearing NoCHK-5959 was a staff car belonging to the High Court of Punjab and Haryanna. Under the order of Justice Ramaswami both the cars with the drivers wee taken from Chandigarh to Madras. The cars left Chandigarh driven by the respective driver Amritalal (W.No.35) and Baljit Singh (W.No.33) on 2-5-1989. It may be noted here that the marriage of the Chief Justices son was celebrated at Coimbatore in the State of Tamil Nadu, on 5-7-1989. Two Assistant Registrars of the High Court, Rabindr Khanna (W.No.() andS. Bhandair (W.No.42) were directed to go in the two cars. The two Assistant Registrars returned by air to Chandigrah on 28-5-1989. Both the cars continued to remain at Madras and they were used by the Chief Justice and the members of his family at Madras. In the case of one of the cars, a local driver at Madras was asked to drive the same as the driver from Chandigarh was not familiar with the roads at Madras. That car was also taken out of the city of Madras to go out somewhere, but we do not have any precise evidence as to the place or places where it was taken. Both the cars returned to Chandigarh from Madras on 5-8-1989, that is to say, after being kept at Madras for nearly two and half months. One of th eAssistant Registrars Rabinder Khanna went by air from Chandigardh to Madras to bring the cars back and accompanied they from Madras to Chndigarh. The two trips of Rabinder Khanna to Madras and the trip of Bhandair to Madras in connection with the taking of the cars and fetching them back were treated as official and their expenses including the air fare were met by the High Court. The DA of both the Assistant Registrars and the drivers was also met from the Contingent Grant of the High Court. Similarly, all the expenditure incurred on the two cars towards the petrol and repairs of the Madras trip was also met by the High Court of Punjab and Haryana from its Contingent Grant. No log book was also maintained for the two cars. These are the facts about which there is not dispute. In an explanation furnished by Justice Ramaswami to the Accountant General he stated that he had necessarily to requisition car CHF-3 (to be continued)
IN THE SUPREME COURT OF INDIA
WRIT PETITION NO. 149 OF 1992.
In the matter of :-
Shri Krishanaswamy Petitioner
Union of India & Ors. Respondents
In the matter of:-
Supreme Court Bar Association,
Tilak Marg. New Delhi
Through its Hony. Secretary. Applicant
PETITION FOR IMPLEADMENT
The Honble the Chief Justice of India and the Companion Justice of the Supreme
Court of India at New Delhi.
The humble petition of the above named applicant most respectfully
1) That the applicant namely Supreme Court Bar Association has come to know that through the above mentioned petition the writ petitioner who is a member of Parliament belonging to the ruling party, seeks to stall the ongoing inquiry into the charges framed against Honble Mr. justice V. Ramaswami under the judges Inquiry Act, 1968 and thereby frustrate the impeachment proceedings initiated in the larger public interest and to restore the faith of the people in the apex Court. In the unlikely events of the writ petition being admitted and eventually allowed it would unsettle, settled proposition of law and would cause enormous and irreparable damage to the credibility of constitutional institutions and functionaries. Instead of seeking a straight forward review of the Constitution Beanch decision given in a batch of writ petitions including the writ petition filed by the Supreme Court Bar Association, since reported in (1991) 4 S.C.C. 699, the writ petitioner has resorted to the indirect course of filing a fresh writ petition under Art. 32 which is not maintainable ex-facie for obvious reasons. The writ petitioner does not have even locus standi in the subject mater. Moreover he has a more effective remedy available to him in Parliament as and when the motion for impeachment was introduced on the basis of the report, if any, of the Committee constituted under the 1968 Act. the applicant Bar Association has recognized locus standi to contest the said writ petition vide (1991) 4 S.C.C. 699 at page No. 760. Para 116. The Association seeks implement as a respondent in the aforesaid writ petition, as it is deeply interested in the purity of administration of justice, independence of the judiciary and rule of law and also on resisting impediment to the ongoing Enquirer into the Judges, conduct.
2) The Association has decided to move the application in the larger public interest and in particular in the interest of litigant public whose confidence in the institution of judiciary and the Honble Supreme Court of India sustains the entire system.
3) At its meeting held on 04-03-1992, the Executive Committee of the Supreme Court Bar Association resolved as follows:-
"Resolved that an application on behalf of the Supreme Court Bar Association for implement as respondent be filed in W. P. No. 149 of 1992 (Krishnaswamy vs. U.O.I.) Resolved further that the president and secretary of the Supreme Court Bar Association are authorized to appear in the matter."
4) Since the inception, the applicant Association have been taking an active part in all the activities for the preservation of independence of judiciary whenever occasion arose, be it suppression of Judges, or assault on the community of lawyers or any other issue affecting the functioning of the Court in the manner envisaged by the constitution of India.
5) The petitioner Association is of the firm view that it is of paramount importance that justice should not only be done but also seen to be done. The Constitution provides for an independent judiciary, which is a basic feature of the Constitution and visualizes that persons of unimpeachable integrity and honesty alone will be appointed as Judges of the Court. Only such Judges can inspire and sustain the confidence on the people in the administration of Justice. It is natural for the applicant Association to feel agitated whenever any doubt is raised with regard with regard to the ability or integrity of a Judge of the apex Court to render justice.
6) Most unfortunately, for the first time in the history of this Honble Court serious allegations of financial irregularities have publicly been made against one on the sitting Judge viz., Honble Mr. Justice V. Ramaswami all thought they relate to the period when His Lordship was the Chief Justice of the Punjab and Haryana High Court prior to his elevation tot he apex Court. Newspapers and magazines with vide circulation have published them. The allegations are based on the notes and audit reports of the Audit Branch of the Punjab and Haryana High Court. No reply to these allegations has yet been given either by the Honble Judge or any other person on his behalf with the result that the members of the Bar, in particular, are greatly agitated about the matter. The people of India re eager to know the truth of these allegations. Instead of revealing the truth or allowing the Committee to ascertain the truth, the writ petitioner has thought it fit to approach this Honble Court to frustrate the inquiry altogether. Ever since the disclosure of the alleged irregularities in the press, the members of the Association wanted all doubts to be cleared with regard to Honble Mr. justice V. Ramaswami for which they met in the General Body and passed various resolutions.
7) That the applicant Association filed Writ Petition (Civil) No. 541 of 1991 (Supreme Court Bar Association vs. U.O.I.) for the following reliefs:-
(i) issue a writ of mandamus or any other appropriate writ or direction directing Respondent No. 1 to immediately take all necessary steps to enable the Inquiry Committee to discharge its functions under the Judges (Inquiry) Act, 1968;
(ii) issue appropriate writ, order or direction restraining Respondent No. 2 from discharging any judicial functions or exercising judicial powers till the conclusion of the proceedings initiated under the Judges (Inquiry) Act, 1968; and
(iii) pass such other or further order or orders as the Honble Court may deem fit and proper in the facts and circumstances of the case.
8) After the Constitution Bench delivered its judgment reported in (1991) 4 SCC 699 the applicant Association once against took up the matter with Honble the Chief Justice of India and impressed upon him not to allocate judicial work to Mr. Justice V. Ramaswami, the president of the Association wrote a letter to the Chief Justice of India dated 28-11-1991 the relevant portion of the letter is as follows:-
"Having regard to the paramount need to ensure observance of norms of propriety,
I request you to find a desirable solution to avoid embarrassment to the learned Judge
And to the Institution in a manner which is conducive to the independence of Judiciary
And advise the Judge appropriately.
I would like to make it clear that we are not concerned with the merits of the allegations
At all but only with the propriety of a Judge continuing to discharge judicial functions
When the Statutory Committee of Investigation is about to commence its proceedings.
I request you to act immediately in public interest."
9) The General Body of the Supreme Court Bar Association again considered the issuer in its General Body meeting held on 04-02-1992 and passed the following resolution:-
"The Bar Association expresses its deep shock and anguish at the fact that Justice
V. Ramaswami is continuing to discharge judicial functions even after a charge sheet containing as many as 14 serious charges has been served upon him by the inquiry committee of judges and despite the advice of the Chief Justice of India said to have been tendered, Justice V. Ramaswamis conduct in not voluntarily withdrawing from the Bench is affecting the prestige and credibility of the apex Court. The Constitution Bench of the Court in the case of the Sub-Committee on Judicial Accountability has expressed the view that merely because there is not provision providing for an automatic suspension of the judge facing impeachment, it does not mean that he should continue to discharge judicial functions during there inquiry against him. The Bench has further said that it is for the Chief Justice to take appropriate action to save the institution from embarrassment. This Association notes with regret that the Chief Justice has not been able to take a decision as yet on this question. Resolved that this association hereby urges upon the Chief Justice not to assign judicial work to Justice Ramaswamy in order to save the Supreme Court from public ridicule and dishonor."
10) When the General Body again re-assembled on 11-02-1992 and decided to hold a secret ballot in respect of the following requisition of 07-02-1992:-
"We the following members of the Supreme Court Bar Association humbly request and bring it to your notice that the so-called resolution attributed to be a passed by the 114 members present and voting on Tuesday 4th February, 1992, is not the collective opinion of the whole Bar. We further request, that we the following signatories are of the considered view that in the light of the decision by this Honble Court on the issue (about the assignment of work to Honble Mr. justice V. Ramaswami) the lawyer community has no other option to them but to respect the said judgment. the proposed resolution calling for non-assignment of work to the Honble Judge is absolutely uncalled for an is actuated and motivated by a group of members of a particular political affiliation which is highly deplorable.
We most humbly request that no cognizance be taken of the so called resolution which is not a clear reflection of the view of the members of this Bar."
11) The resolution of the General Body dated 04-02-1992 was upheld in the secret ballot held on 13-02-1992 and the proposed requisition signed by 200 members of 07-02-1992 was rejected by 99 votes.
"The proceedings of the secret ballot held on 13-02-1992 is given hereunder:-
"The polling began at 11.30 A.M. and closed at 4.30 P.M. The counting of ballot were taken immediately thereafter and Mr. Mahabir Singh, Chairman announced the following results:-
Total votes polled 701
Total invalid votes 22
Total valid votes polled 679
Against resolution 389
In favour of the resolution 290
The proposed requisition signed by 200 members dated 07-02-1992 was rejected y 99 votes."
12) The aforesaid development which took place in Supreme Court Bar Association clearly shows that the Bar is determined to play a decisive role in the matter as the continued discharge of judicial functions by Honble Mr. Justice V. Ramaswami is causing serious embarrassment to all concerned and seriously eroding public confidence in the apex Court.
13) It is submitted that since the issues raised in the writ petition will affect the Judiciary, the applicant is interested to take part in the proceedings and to oppose the writ petition filed by Mr. krishnaswamy, M.P. Therefore, it would be in the interest of justice that the applicant be allowed to be imploded as respondent in the aforesaid writ petition and allowed to oppose the maintainability as well as merits of the writ petition and thereby assist this Court.
It is, therefore, most respectfully prayed that this Honble Court may be pleased to:-
(i) pass an order imploding the Supreme Court Bar Association, the applicant herein, as respondent No 3 in the aforesaid writ petition;
(ii) pass such further or other order or orders as this Honble Court may deem fit and proper in the circumstances of the case.
Settled by Drawn and filed by
(P.P.RAO) (ASHOK KUMAR SRIVASTAVA)
Sr. Advocate. Hony.
Secretary Supreme Court Bar Association. New Delhi. Date; 07-03-1992
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I. A. NO. ------------- OF 1992
WRIT PETITION NO.--------OF 1992
In the matter of:- Petitioner
Union of India & Ors. Respondents
1. Ashok Kumar Srivastava, son of Shri R. N. P. srivastava, dead and resident of 046, Supreme Enclave, Mayur Vihar I, Delhi, do hereby solemnly affirm and declare as under:-
1. That I am the Hony. Secretary of Supreme Court Bar Association and under the Rules of the Association I am the Chief Executive Officer of the Bar Association and as such I am competent to swear this affidavit.
2. That I have prepared the accompanying application for implement in pursuance of the Resolution of the Executive Committee dated 04-03-1992 of the Association and contents of the application are based on the records of the Association, which I believe to be true.
Solemnly affirmed at New Delhi this 7th day of March 1992.