Delineating the procedure required to be followed when examining a reference relating to determination of allegations relating to misconduct, the Supreme Court in its recently reported Opinion on the Presidential Reference under Article 317 of the Constitution of India In Re. Mehar Singh Saini, Chairman, HPSC reflected at length on the practice and procedure on the issue.
Speaking through Justice Swatanter Kumar, a three-member Bench comprising of the Chief Justice of India himself, reflected the position of law in the following terms;
Historically, the constituent assembly debates reflect the desire of the framers of the Constitution to ensure complete independence, integrity and fairness in the country’s administration. Besides discernibly stating the privileges, functions and responsibilities of the three paramount pillars of the Indian Constitution, i.e. legislature, executive and judiciary, the Constitution also provided three instruments to ensure proper checks and balances in the functioning of the Government. These organs are the Supreme Court to ensure proper administration of justice, the Auditor General to maintain the purity of the country’s finances, expenditure and collection of taxes and lastly, the Federal Public Service Commission to maintain the purity and integrity of the country’s services.
The Constitution, in Part XIV, provides for establishment of the Union and State Public Service Commissions with the primary object of providing equal opportunity to the people of India in matters relating to appointment. Establishment of these Commissions is one of the important facets of the constitutional scheme. Public Service Commissions are expected to adopt a fair and judicious process of selection to ensure that deserving and meritorious candidates are inducted to the services of the State. This should not only be done but also appear to have been done. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows:
“1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions.”
A clear distinction has been drawn by the framers between service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Public Service Commission for the Centre and State Public Service Commissions for the respective States. This is not, in any manner, linked with the All India Services contemplated under Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission. The fact that the Constitution itself has not introduced any element of interdependence between the two, undoubtedly, points to the cause of Commission being free from any influence or limitation. The constitutional scheme contained in Articles 315 to 320 noticeably demonstrates not only the complete independence of the Public Service Commissions in discharge of their functions, but also ensures complete security and protection of tenure to its Chairman/Members. A very cumbersome process has been provided by the Constitution for the removal of the Chairman and Members of the Commission. This constitutional intent of ensuring autonomy is underscored by the fact that it is only where the Governor of the State makes a reference to the President of India, stating grounds of misbehaviour of Chairman/Member of the State Commission that the President may remove such a Chairman/Member but only after the Supreme Court of India, on a reference by the President under Article 317(1) of the Constitution, reports that the Chairman/Member ought to be removed on the ground of misbehaviour. Thus, the immunities enjoyed by the Chairman and Members of the Commission under the Constitution are far greater and cannot be impinged upon by the normal procedure of service law for dismissal of a civil servant under the Civil Services Rules for an alleged misconduct.
Higher the public office, greater is the responsibility. The adverse impact of lack of probity in discharge of functions of the Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of State. Most of the democratic countries in the world have set up Public Services Commissions to make the matter of appointments free from nepotism and political patronage. For instance the Conseil d’Etat in France, which is composed of the cream of the French Civil Service, has acquired considerable veneration for its capacity to police intelligently the complex administration of the modern state. Justice J.C. Shah in his report on the excesses of the Emergency, struck by the “unhealthy factors governing the relationship between ministers and civil servants”, recommended the adoption of droit administratif of the French model by the Government. He observed that the commitment of a public functionary should be to the duties of his office, their due performance with an emphasis on their ethical content and not to the ideologies, political or otherwise of the politicians, who administer the affairs of the State.
Great powers are vested in the Commission and therefore, it must ensure that there is no abuse of such powers. The principles of public accountability and transparency in the functioning of an institution are essential for its proper governance. The necessity of sustenance of public confidence in the functioning of the Commission may be compared to the functions of judiciary in administration of justice which was spelt out by Lord Denning in Metropolitan Properties Co. vs. Lannon (1968) 3 All ER 304) in following words:
“Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The Judge was biased.’”
The conduct of the Chairman and Members of the Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of Public Service Commission is founded upon faith of the common man on its proper functioning. Constant allegations of corruption and promotion of family interests at the cost of national interest resulting in invocation of constitutional mechanism for the removal of Chairman/Members of the Commission erode public confidence in the Commission. Profs. Brown and Garner’s observation in their treatise French Administrative Law, 3rd ed. (1983) in this regard can be usefully referred to. They said “the standard of behaviour of an administration depends in the last resort upon the quality and traditions of the public officials who compose it rather than upon such sanctions as may be exercised through a system of judicial control.”
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A bare reading of Article 317 shows that the constitutional protection for the term of office of Chairman and Members of the Commission is provided to ensure independent functioning of the Commission. The working of the Commission and its Members has to be of impeccable integrity and rectitude. The object should be to provide the best persons from the available candidates for appointment in the State/Central cadres. This has to be done by adopting a judicious, fair and transparent method of selection, free of influence from any quarter in the Government or otherwise. That is why the framers of the Constitution clearly distinguished appointments to the Commission from appointments to the State Services or All India Services. The Members of the Commission cannot be subjected to regular departmental enquiries and can only be removed from their office by strictly complying with the provisions of Article 317 of the Constitution. This provision contemplates removal of the Member on two different grounds. First, where a Chairman or Member could be removed on the ground of misbehaviour by the President only after making a Reference to this Court and where this Court has given a report, after holding inquiry in accordance with the prescribed procedure, that the Chairman or the member ought to be removed on the grounds stated in that report. Second, by reason of automatic disqualification as provided under Article 317(3) and (4) of the Constitution. The President of India can act without any report from this Court in terms of Article 317 (3) and (4). Under Article 317(4), if the Chairman or Member of the Public Service Commission becomes interested or concerned in any agreement or in any profit thereof or commits any of the stated defaultss, then such Chairman/Member shall be deemed to be guilty of misbehaviour for the purpose of clause (1) of Article 317. Article 317 thus provides for a complete and composite procedure, which is to be adopted by the President of India, before a Chairman/Member of the Commission can be removed from his office.
Making Reference to this Court under Article 317(1) of the Constitution invokes the Reference/Advisory jurisdiction of this Court. In the scheme of the Constitution relating to this aspect, it is clear that before the Reference can be made to this Court, certain procedure is required to be satisfied. The Governor, acting on the advice of the State Government, would request the President for taking steps for removal of a Member in accordance with the provisions of Article 317(1) of the Constitution. There is requirement of proper application of mind by the President while making a Reference to this Court and it is but natural that Reference to this Court would be made only where the President is satisfied that a prima facie case of misbehaviour is made out.
In light of the above provisions, it is obvious that normally this Court would follow the prescribed procedure and record its findings only on the articles of charge referred to by the President. However, in some cases, the Court may take cognizance and examine the articles of charge which are incidental/explanatory to the articles of charge mentioned in the Reference. In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court.
Article 317(1) requires that the inquiry held by this Court is to be in accordance with the procedure prescribed in that behalf under Article 145 of the Constitution. Article 145 empowers the Supreme Court to make rules, with the approval of the President, for regulating generally the practice and procedure of this Court. In turn, Article 145(1)(j) specifically empowers the Supreme Court to frame Rules, with the approval of the President of India, to regulate the procedure for enquiries referred to under clause (1) of Article 317 of the Constitution. Of course, such rules have to be subject to any law that may be enacted by the Parliament. The Supreme Court has framed the following rules under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution:-
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A plain reading of these Rules clearly shows that no detailed procedure has been provided so far, as to how and in what manner the inquiry shall be conducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left to the discretion of this Court to follow a procedure which is in consonance with the language of Article 317(1), read with the above Rules and principles of natural justice. Inherent power of this Court is wide enough to enunciate such a procedure, with reference to the facts and circumstances of a given case, as Rule 6 of Order XLVII of the Supreme Court Rules specifically provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders, as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] (hereinafter referred to as ‘Reference 1 of 1983’) this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission.
Article 316 of the Constitution of India regulates appointment of Chairman and Members of a Public Service Commission. Proviso to Article 316(1) provides that, as nearly as may be, one half of the members of every Public Service Commission shall be persons who, at the dates of their respective appointments, have held office, for at least ten years, either under the Government of India or the Government of a State. In other words, one-half of the members of the Commission who are to be appointed by the Governor, should have held ‘public office’ for a period of ten years prior to their appointments and are normally termed as ‘official members’. However, it is not necessary for the remaining one-half of the members of the Commission to possess such qualifications or experience for appointment and they are termed as ‘non-official members’.
The power to remove a Chairman/Member of the Public Service Commission has been vested exclusively in the President. This power, under the scheme of the constitutional provisions, is to be exercised by the President only upon report of the Supreme Court that the conduct of the member is tantamount to misbehavior of the kind that justifies his removal from the office, except in cases specifically covered under Clauses (3) and (4) of Article 317. Upon a Reference from the President, the jurisdiction of the Court is, primarily, advisory inasmuch as the Court, in its report to the President, has to record a finding that the delinquent Chairman/Member is guilty of the misbehaviour complained of, which would justify his removal from the office. The articles of charge, which are referred to the Court by the President, are the very foundation of the reference proceedings. Reference jurisdiction, by its very nature, is jurisdiction of limited scope in contradistinction to original or appellate jurisdiction of the Supreme Court. For that reason, it may be difficult for the Court to hold that in exercise of its limited jurisdiction, the Court can frame such entirely new articles of charge which have no link, connection or are not even explanatory to the original charges stated in the Presidential Reference and try them as part of the inquiry being conducted by the Court under Article 317(1) of the Constitution. This will not be true where the charges are found to be linked, inter-dependent, explanatory or incidental to the main articles of charge referred by the President to this Court. This would depend upon the facts and circumstances of a given case, but it can be stated with some certainty that this Court can examine articles of charge, facts or evidence which were not before the President while making a reference to this Court. Such need may arise because of subsequent events, as a result of investigation or otherwise, and which have a direct connection to the matters in issue. Thus, the contention of the respondents that this Court can neither frame nor examine additional charges beyond, or in addition to, the articles of charge referred to in the Presidential Reference cannot be accepted as a proposition of law. The scope of inquiry by this Court is of a wide nature and has to be regulated by the procedure which may be prescribed by the Court in terms of the above stated provisions of law. In Reference 1 of 1983 referred by us supra, this Court also examined whether additional facts or grounds can be examined while holding an inquiry into the matters referred in the Presidential Reference and held as under:
“7. … The inquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office. The inquiry contemplated by the article is into the facts themselves and facts also so as to enable this Court to pronounce upon the question whether the allegations made against the Chairman or member are proved at all. The purpose of Article 317(1) is to ensure the independence of members of the Public Service Commissions and to give them protection in the matter of their tenure. The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by Article 124(4) which is made applicable to the Judges of High Courts, the Comptroller and Auditor-General of India and the Chief Election Commissioner by Articles 218, 148 and A 324(5) respectively. Members of Public Service Commissions are, in one sense, given a higher degree of protection by the elimination, as far as possible, of political pressures in the matter of their removal. Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament. It is impossible to accept that the Supreme Court in one case and the Parliament in the case of those others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others. Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity, as the case may be.”
We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had made a Reference under Article 317(1) of the Constitution relating to various aspects of misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission. The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of.
Thus, the charges were framed/approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi’s conduct was found to be misbehaviour of the kind which would justify her removal from the office. While dealing with the Reference on these facts and discussing the scope of the inquiry to be conducted by the Court in terms of Article 317 (1) of the Constitution, the dictum of this Court as stated in para 5 of the judgment in Reference No. 1 of 1983 (supra) was reiterated with approval as follows:
“5. The contours of enquiry when a reference is made by the President of India under Article 317(1) of the Constitution of India has been clearly drawn by this Court in Special Reference No. 1 of 1983 [1983] 3SCR639 . This Court therein has held that the President's prima facie satisfaction based on available materials was enough for making a reference to this Court under Article 317(1) of the Constitution of India and that there was no need for the President to obtain the opinion of any fact finding body before making a reference. The enquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehavior is made out and whether the misbehavior is of such a nature as to warrant the removal of the person from his office. The inquiry contemplated by the Article is into the facts themselves so as to enable the Court to pronounce upon the question whether the allegations made against the member are proved. This Court also indicated the procedure that could be conveniently followed when this Court is called upon to answer a reference under Article 317(1) of the Constitution of India.”
To apply the rule of strict construction to the language of Article 317(1) of the Constitution to the extent that the Court cannot examine any facts, records or extended charges, would defeat the object of this provision and the constitutional intent. While it may be possible to argue that Presidential Reference in such cases is not an omnibus Reference which will include each and every misbehaviour of all time, it will not be possible to accept the argument that the allegations stated in the Presidential Reference stricto sensu can be examined by this Court and nothing else. Keeping in view the stature of the Commission, it is important to understand the message behind the provision and the intendment of enacting Articles 316 to 318 of the Constitution. The Constitution has assigned a definite stature to the Commission and has provided special methodology and procedure for removal of its Chairman/Member(s) from their respective offices. The message behind this constitutional scheme may stand frustrated if the argument advanced on behalf of the respondents is accepted. This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme Court being the highest Court of the land, its vitality is a national imperative. The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference.
Another facet of the same issue is the nomenclature of the proceedings before this Court while conducting an inquiry in terms of Article 317(1) of the Constitution. The proceedings prima impression is may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. Keeping in mind the constitutional protections available to the Chairman and Members of the Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission. The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. In the case of Ram Kumar Kashyap (supra), this Court while upholding the order of suspension of the very respondents in the present case, passed by the Governor in exercise of the powers vested under Article 317(2) of the Constitution, held as under:
“9. It will be useful to refer to a judgment of this Court in Reference under Article 317(1) of the Constitution of India, In re wherein it was held that the position of a Chairman or a member of a Public Service Commission cannot be equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under Article 317.
The relevant observations were made at para 9:
“9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent’s defence.”
Therefore, principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services.
The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis. That may be one of the reasons that the framers of the Constitution opted not to give power of removal of Chairman/Member of the Commission to any other person except the President of India, and that too, on the basis of a report of this Court. Further, the procedure for removal has neither been stated in the Constitution in detail nor has this Court framed any elaborate rules in exercise of its power under Article 145 of the Constitution. The nature of the proceeding is such that it may become necessary for the Court to adopt a procedure befitting the facts and circumstances of a given case. Thus, we also have no hesitation in rejecting the contention of the respondents that the burden of proof applied to such cases has to be ‘beyond reasonable doubt’. In fact, we need not deliberate any further on this point in view of the fact that this Court in the case of Smt. Joshi (supra) also took the same view, the reasoning whereof we adopt with respect and refer to paragraph 15 of the judgment which reads as under:
“15. Learned counsel for Respondent 3 argued as if this reference was a criminal trial and the charge against the respondent has to be proved beyond reasonable doubt. Learned counsel for the Public Service Commission submitted that these proceedings were neither in the nature of a criminal trial nor in the nature of the service dispute, but that it was a question of an inquiry into the conduct of a member of the Public Service Commission who was expected to maintain the highest standards of integrity. This Court in Reference under Article 317(1) of the Constitution of India, In re while answering Special Reference No. 1 of 1983 had noticed:
“9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent’s defence.”
Further in para 143, this Court held as under :
“143…As we have indicated in the beginning, what we are concerned with is the appreciation of the evidence of PW 15 examined before us in the light of his cross-examination, the other evidence and in the light of his prior statement contained in Ext. 53. So viewed, it is really a question of believing or disbelieving the evidence of PW 15 given before us. We are not dealing with a prosecution and in that context the alleged confession of a co-accused. We are on a fact finding enquiry based on the evidence before us and the probabilities of the case."
The above reasoning persuades us to follow the law enunciated in the aforereferred cases and take the view that the content and nature of the proceedings before this Court under Article 317(1) is sui generis and the Court can evolve its own procedure in consonance with the principles of natural justice to suit the facts of a given case and to ensure that ends of justice are achieved and there is no abuse of the process of Court.
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