Courts not to insist on attendance of public functionaries: Supreme Court

Holding that the trust and faith reposed in the judiciary should not be allowed to be frittered away, the Supreme Court in a recent decision [State of U.P. & Ors. v. Jasvir Singh & Ors.] has declared that directions by the Court for ensuring attendance of public functionaries in Courts should be exceptional and not the norm of the day. Holding that "requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly", the Supreme Court served an apt reminder to the Courts to exercise their powers with caution.

The Court inter alia observed as under;

6. The fact that the issue relating to increase of compensation is pending in appeals before the High Court in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by the Reference Court) as due to the respondents. The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before the High Court. If the High Court was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by the Division Bench of the High Court, to say the least, is improper and requires to be deprecated.

7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position .

9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self-regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety. 

11. In this context we may refer to the following observations of this court in State of Gujarat vs. Turabali Gulamhussain Hirani - 2007 (14) SCC 94 :

"A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-CBI or BSF or other senior officials of the Government. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."

12. On the facts and circumstances, the interim directions of the Division Bench of the High Court, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

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Cause of action in cases of medical negligence: Supreme Court examines

Called upon to examine the validity of the order of the National Consumer Disputes Redressal Commission which held that the consumer complaint filed by a Nurse alleging medical negligence on part of a doctor who had operated on her was in time, the Supreme Court in a recently reported decision [Dr. V.N. Shrikhande v. Mrs. Anita Sena Fernandes, AIR 2011 SC 212] took note of the Discovery Rule, as applicable in the United States, to hold that the cause of action in cases of medical negligence would arise when the patient first discovered the alleged negligence.

Holding that the complainant being an experienced Nurse and employed in the Government Hospital, "it was reasonably expected of her to have contacted" the doctor who performed the surgery on her. However her omission to do so and file a complaint after a significant lapse of time, was what factored in the judgment of the Court to hold the complaint being barred by time. In arriving at this conclusion, the Court examined the comparable position in other jurisdictions to declare the law applicable in India in the following terms;

18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. 

19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient’s body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient’s body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed:

“It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.”

Again, the Court observed: 

“We believe that the ‘discovery rule’ as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation.”

In Idaho, the Discovery Rule was invoked in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224. The facts of that case were that the plaintiff underwent a surgical operation in 1946. A sponge was left in the wound when the incision was closed. The same was discovered in the patient’s body in 1961. During the intervening period the patient sustained considerable suffering, during which she consulted various physicians. After reviewing numerous authorities at great length, the Court cast aside the earlier doctrine, adopted the Discovery Rule and observed:

“In reality, the ‘general rule’ has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”

The facts in Quinton v. United States, 304 F.2d 234 were that the wife of the plaintiff was given blood transfusion in a Government hospital in 1956. In June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered that wrong type of blood was given to her in 1956 and as a result she gave birth to a stillborn child. The Government sought dismissal of the action for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is governed by Federal law and not by local State law. The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence.

In Josephine Flanagan v. Mount Eden General Hospital LEXSEE 24 N.Y. 2d 427, the application of the rule of Discovery was considered in the background of fact that during the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff’s body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by Xray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed:

“The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmony with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff’s body, is patent. “It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the operation.” 

In the case before us, the danger of belated, false or frivolous claims is eliminated. In addition, plaintiff’s claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion. It rests solely on the presence of a foreign object within her abdomen. The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient’s body and undiscovered for a long period of time, retains its identity so that a defendant’s ability to defend a “stale” claim is not unduly impaired.

Therefore, where a foreign object has negligently been left in the patient’s body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice.” 

The proposition laid down in Flaganan’s case was reiterated in John D. Adams and Jeanette S. Adams v. New Rochelle Hospital Medical Center, 919 F.Supp.711.

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Revenue records do not create title in land: High Court

Holding that the law on this aspect was settled that the name of a person appearing on the revenue records pertaining to a land did not confer legal title of the land on the person, a Division Bench of the Calcutta High Court in a recent decision [Pashupati Das v. The Block Land and Land Reforms Officer & Ors.] set aside the decision of the West Bengal Land Reforms and Tenancy Tribunal which held to the contrary. The High Court declared that the entry in revenue records created only a rebuttable presumption and was not a categorical proof of the title, which could be established only in a civil court.

The Bench examined the position of law in the following terms;

We are very much surprised to read the order passed by the learned Tribunal below whereby and whereunder it has been held by the learned Tribunal that irrespective of the order of the Civil Court as the writ petitioner’s name was not recorded in the revisional settlement record of rights and thereafter in the L.R. settlement, his application should be rejected. The entry in the record of rights only has a presumptive value and a rebuttable presumption so far as possession is concerned. It does not vest any title of the property to the recorded person. Since the writ petitioner set up a case of declaration of his title by decree of a Civil Court, the findings of the learned Tribunal below is contrary to the provision of law.

It is a settled law that entry of the record of rights does not vest any title over the property. Reliance is placed to the judgment passed in the case Narasamma and Ors. –Vs.- State of Karnataka and Ors. reported in 2009(2) ICC 669 (SC) wherein earlier judgment of Jattu Ram vs. Hakam Singh and others was relied upon which was reported in 1993(4) SCC 403. It is held that the revenue record cannot create any title. In the case Suraj Bhan vs. Financial Commissioner and others reported in 2007(6) SCC 186, the Court held “it is well settled that an entry in revenue records does not confer title on a person whose name appears in the record of rights. it is settled law that entries in the revenue records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land revenue and no ownership is conferred on the basis of such entries. So far as the title to the properties is concerned, it can only be decided by a competent Civil Court.” Same view has been reiterated by the Apex Court in the case Narain Prasad Agrawal (Dead) by L.Rs –Vs.- State of Madhya Pradesh reported in 2007(4) ICC (SC) 105. Very recently in the case Fagruddin (Dead) L.Rs –Vs.- Tajuddin (Dead) L.Rs reported in 2010 (1) ICC (S.C) 457, the Apex Court reiterated the said proposition of law, relying upon Suraj Bhan (supra) and Narayan Prasad Agarwal (supra).

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Media reporting and contempt of court: The law revisited

The freedom of press, resulting in publication of events and comments relating to sub judice matters, often is a scourge of contempt proceedings before the courts. The Delhi High Court in a recently reported decision [Nehru Memorial Museum & Library Society v. Dr. N. Balakrishnan 2010 (174) DLT 12] discussed the convergence of these two aspects to hold that mere reporting of court proceedings by media would not tantamount to contempt. The High Court further held that it was for the Court itself to decide whether the publication constituted contempt and the same could not be raised by a party.

The Court inter alia observed as under;

3. The contention of the learned counsel for the petitioner is that as per settled law the trial by press is a contempt of court, as it is an attempt to overreach the Court and influence the decision of the Court. According to the counsel, the entire tenor of the newspaper report was that the petitioner in the contempt petition has been greatly wrong and the respondent's so-called crave for justice has to be completed so that he gets justice. It is also submitted that there was no reference in the newspaper report that the matter was being heard on day-to-day basis.

4. Reliance was placed by the petitioner on the following three judgments:

1. In re P.C. Sen, AIR 1970 SC 1821.

2. M.P. Lohia Vs. State of WB, (2005) 2 SCC 686.

3. Rao Harnarain Singh Vs. Ghumani Ram Arya, AIR 1958 Punjab 273.

5. I have heard the submissions of the learned counsel appearing on behalf of Dr. N. Balakrishnan who has also referred few decisions in support of her client.

6. C.K. Thakker's Law lexicon defines 'public domain' as “domain that has no restrictions upon dissemination of information within or from it; the existence of any legal rights to intellectual property in that information does not remove such information from being in public domain”. The 1971 Act was passed with the express intent of bringing the contempt law more in line with widening trends of the freedom of expression.

7. The amendment of Section 13 of the present Contempt of Courts Act in 2006, adding 'truth' as a defence, the scope of what constitutes 'contempt' has been limited even further Section 13 of the present Act also contains a bar against imposing a sentence even where there is a technical contempt unless there has been a substantial interference with the due course of justice.

8. Section 4 of the Contempt of Courts Act, 1971 is relevant to the present case. It rules out of the definition of 'contempt' any fair and accurate report of a judicial proceeding or any stage whereof.

9. In Vijay S. Mallya Vs. Bennett Coleman and Co. decided on 10th March 2010, the Bombay High Court held that an article published under the title “Senior Citizen Takes on 'Bullying' Builder Drags Him to Court over Revdevpt Deal” which detailed the bullying tactics of one of the parties in an ongoing proceeding was held to be not contempt in view of the fact that everything stated therein was based on the pleadings in the pending court proceedings. In fact, the story was based on information supplied by one of the parties and no attempt was made even to secure the comments of the rival party. The Court held “On going through the said paragraph 19 (of the reply) it is crystal clear that the newspaper reporting is based on the documentary (sic) as well as pleadings which form part of the court proceedings. In our view, therefore, it cannot be said that the said reporting was not accurate and bona fide as the reporting is made on the basis of the record placed before the court in the pending proceedings…”. The court went on to add that the media is required to show some restraint particularly in criminal matters where life and liberty would be involved.

10. Even in respect of a murder trial in Sushil Sharma Vs. State (Delhi Administration) & Ors., 1996 Crl. LJ 3944, has repelled the charge of contempt with respect to media reports based on the charge-sheet praising prosecution witnesses and referring to the public desire to hang the offender as also publishing results of the DNA test results which were part of the police investigation. This Court held that “in all these news items press has stated as a matter of fact what has been placed on court record by the prosecution and what is happening in the society after the murder of Naina Sahni. By publishing the news items including reporting of demonstrations, views of some of the people and the evidence filed on record including DNA expert report the press has stated what has come on record. There is no criticism of any of the evidence in any manner. It is more a case of propriety than contempt. In fact people at large have a right to know in order to be able to take part in such like proceedings. The right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under the Constitution of India.

11. In Narain Das Vs. Government of Madhya Pradesh and Ors., AIR 1974 SC 1252, ruled that an unfavourable projection of one of the parties in a pending litigation merely affected the reputation of that party and did not amount to contempt. In Reliance Petrochemicals Ltd Vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd and Ors, AIR 1989 SC 190, the broadening and deepening dimensions of the Right to Freedom of expression were recognized as was the case in S. Rangarajan Vs. P. Jagjivan Ram, (1989) 2 SCC 574. Institutions cannot be hypersensitive about comment even pertaining to pending proceedings. In Re Lonrho plc and others, (1989) 2 All ER 1100 and Schering Chemicals Ltd v. Falkman Ltd, (1981) 2 All ER 321 even tendency was held to be “a matter to be judged with a view to a clear and present danger to the one or the other identifiable interest in an ongoing proceeding, such as whether it would affect the conduct of witnesses or deter any party from pursuing the remedy.” The possibility of a professional judge being influenced was held to be far more remote.

12. In the Rao Harnarain Singh case (supra), the daily declaration of a newspaper that the accused in a case were rapists and killers was seen as inimical to their right of due process. M.P. Lohia’s case (supra) is the only post –1972 judgment relied upon by the petitioner which was not a case on contempt of court however, the publishing of an interview of the victim family without any attempt to take the view of the other side when the later was facing criminal charges that would affect his life and liberty was deprecated by the court.

13. In the judgment of the European Court of Human Rights in the celebrated case of Sunday Times v. The United Kingdom. “It is true that if the Sunday Times article had appeared at the intended time distillers might have felt obliged to develop in public, and in advance of any trial, their arguments on the facts of the case; however the facts did not cease to be a matter of a matter of public interest merely because they formed a background to pending litigation. By bringing to light certain facts, the article might have served as a break on speculative and unenlightened discussion.”

14. I have gone through the submissions advanced by the parties also the records of the proceedings and have given the careful consideration to the matter. I am of the opinion that no case is made out to exercise the contempt jurisdiction due to following reasons:

a) The mere newspaper write up raising the grievance and giving the opinion does not by itself amount to trial by media. The right to speech and expression envisaged under the constitution also includes right to express the opinion in media. The times have changed and the media has very active role to play in the country. There are cases of more heineous nature and of utmost importance wherein the media tries to delve into the areas which the parties litigating may find objectionable. But it would be incorrect to draw the inference that the said thing would amount to trial by media by itself or the court is going to be influenced by such things. Thus, I feel that the present case do not fall in the area of the trial by media itself on the reason that the publication and comments which appeared in the newspaper report being the part of judicial proceedings and the matter was being argued in open Court by referring various documents. It was also a matter of fact that Dr. Balakrishnan was suspended on 30.4.209 and charge-sheet was issued against him on 22.6.2009 and the matter was not finalised for more than one year. Therefore, this Court is of the considered opinion that no case of contempt under Sections 11 and 12 of the Contempt of Courts Act, 1971 against Dr. Balakrishanan has been made out.

b) The contempt jurisdiction is exercised by the court wherein there is deliberate or willful disobedience of the orders of the court or in anything which undermines the majesty of the court. The mere newspaper report or write up raising some grievance in the opinion of this court will not enable this court to exercise the contempt jurisdiction.

16. It is well settled that the contempt jurisdiction is the special jurisdiction and the court has to itself form the opinion that it is contempt of the court and not upon the insistence of any party. In Re: Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413, it has been observed by the apex court that it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.

17. The judgment referred by the learned counsel for the petitioner is on different facts. Hence, the same is not applicable to the facts and circumstances of the present case.

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Practice and procedure before Election Tribunals: Supreme Court reviews

The Supreme Court in a recent decision [Kalyan Singh Chouhan v. C.P. Joshi] discussed the procedure to be adopted by the Election Tribunal for determining the challenges to the election. In as much as the decision discusses the practice and procedure in this regard in great details, we are extracting the relevant portions for the benefit of our readers.

The Court inter alia observed as under;

10. In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing the issues while trial of an election petition encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word ‘trial’ includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed by two riders : firstly, the procedure prescribed in CPC is applicable only “as nearly as may be”, and secondly, the CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.

11. In Harcharan Singh v. S. Mohinder Singh & Ors., AIR 1968 SC 1500, this Court considered the application of doctrine of equity and substantial justice etc. in election law and came to the conclusion as under :-

“The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. …… The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.”

12. Similarly in Jyoti Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983; this Court held as under :- 

“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is sure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. ……We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute.”

13. In Chanda Singh v. Ch. Shiv Ram Varma & Ors., AIR 1975 SC 403, this Court held as under:-

“A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step.”

14. During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue. Before the court permits the recounting, the following conditions must be satisfied:

(i) The Court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting  of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes;

(iv) An opportunity should be given to file objection; and

(v) Secrecy of the ballot requires to be guarded. 

(Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966 SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR 1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors., AIR 2004 SC 541; Chandrika Prasad Yadav v. State of Bihar & Ors., AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar Singh & Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder Pal Singh & Anr., (2007) 1 SCC 341).

15. In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected.

16. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that “as a rule relief not founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518.)

17. This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under: 

“It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet…….. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.”

18. This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR 2009 SC 1103, held as under:

“The object and purpose of pleadings and issues is to ensure that the litigants come to trial with All issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue…….. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.”

19. In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court observed: 

“It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.”

20. Order XIV Rule 1 CPC reads: 

“Issues arise when a material proposition of fact or law is affirmed by the party and denied by the other.”

Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed. (Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535; Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969 SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693).

21. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide : Sayad Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App. 4 (PC).]

22. In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740, this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. While deciding the said case, this Court placed a very heavy reliance on the judgment of the Privy Council in Siddik Mohd. Shah v. Saran, AIR 1930 PC 57.

23. There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mis-trial and the proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164; Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental Insurance Co. Ltd., AIR 2009 SC 2177).

24. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration.

25. In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a Constitution Bench of this court while dealing with a similar issue observed as under:

“It would be convenient if we take a simple case of an election petition whether the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under Section 100. Section 100(1)(a),(b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d), it would be noticed that what the election petitioner has to prove is not only the existence of one or the other of the grounds specified in clauses (i) to (iv) of Section 100(1)(d), but it has also to establish that as a result of the existence of the said ground the result of the election insofar as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election insofar as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of Section 100(1)(d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under Section 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100(1)(d)(iii), the result of the returned candidate’s election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100(l)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition.”

26. In T.A. Ahammed Kabeer v. A.A. Azeez & Ors., AIR 2003 SC 2271, this Court dealt with the judgment of the Constitution Bench observing:

“We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh v. Genda Lal, AIR 1964 SC 1200, has met with criticism in some of the subsequent decisions of this Court though by Benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh case (supra) has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh (supra) is binding on us. Analysing the majority opinion in Jabar Singh case (supra) and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under: 

(1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate.

(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.

(3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed.

(4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.

(5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or recounting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of subclause (iv), and not sub-clause (iii) of clause (d) of sub-section (1) of Section 100 of the Act.”

Have a look at the decision.

Disciplinary proceedings need not await criminal prosecution: High Court

Holding that it was not obligatory on the part of Disciplinary Committee to await prosecution of the delinquent, the Delhi High Court in a recently reported decision [TALLURI SRINIVAS v. THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA 2010 (174) DLT 537] has declared that the disciplinary proceedings can be continued even while the criminal prosecution is in vogue. Deciding in the context of the disciplinary proceedings initiated by the Institute of Chartered Accountants of India against one of the auditors who was an accused for having signed audited balance sheets of Satyam Computer Services Limited, the High Court held that the Institute could carry out its proceedings without requiring to await the culmination of criminal proceedings. 

The High Court summed up the law in this regard as under;

31. Before proceeding to discuss the contentions of the counsel for the parties, it is necessary to recapitulate the current legal position as regards the continuation of disciplinary proceedings when a criminal trial on the same charges is pending.

32. The question whether the disciplinary proceedings can be allowed to proceed when a criminal trial is pending on the same charges has invariably arisen in the domain of service law. The cases discussed hereinafter will show that the context invariably has been of an employee facing disciplinary proceedings over a set of charges, which are either similar or identical to the charges forming the subject matter of a criminal trial in which such employee is the accused.

33. In Delhi Cloth & General Mills Ltd. v. Kushal Bhan AIR 1960 SC 806, it was acknowledged that it was not a principle of natural justice “that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.” However, it was observed by the Supreme Court that “if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.”

34. In Tata Oil Mills Co. Ltd. v. Workmen AIR 1965 SC 155, it was held to be “desirable” to stay the domestic enquiry pending final disposal of the criminal case. In Jang Bahadur Singh v. Baij Nath Tiwari AIR 1969 SC 30, it was held that “the initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.” In Kusheshwar Dubey v. Bharat Coking Coal Ltd. AIR 1988 SC 2118, the Supreme Court after analyzing the case law found that “it is neither possible nor advisable to evolve a hard and fast strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.” In the facts of that case, it was found that since the “criminal action and the disciplinary proceedings are grounded upon the same set of facts”, the disciplinary proceedings should have been stayed. 

35. In Nelson Motis v. Union of India AIR 1992 SC 1981, it was held that the disciplinary proceedings could be continued even after the employee had been acquitted by the criminal court since the standard of proof was different. Moreover, the Court found that the subject matter of the disciplinary proceedings in that case was not exactly the same as in the criminal case.

36. In State of Rajasthan v. B.K. Meena (1996) 6 SCC 417, the State Government issued a memo of charges in regard to the allegation that the Respondent had misappropriated public funds while working as Additional Collector-cum-Project Director, District Rural Development Agency, Jaipur in the year 1989. An FIR had been registered in relation thereto on 12th March 1990. The Respondent had been arrested on 26th March 1990. After responding to the articles of charges in the disciplinary proceedings, the Respondent filed a petition before the Central Administrative Tribunal, Jaipur challenging the disciplinary proceedings. The CAT stayed the disciplinary proceedings. Thereafter the State of Rajasthan revoked the order of suspension and reinstated him. The Respondent thus amended his petition before the CAT and asked for the stay of the disciplinary enquiry. The CAT stayed the disciplinary proceedings pending the conclusion of the criminal trial. The Supreme Court reversed the CAT's order. After analyzing the relevant case law, it observed as under (SCC @ p.422-423):

“14. It would be evident from the above decision that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast Rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.”

37. The other factor on facts which weighed with the Supreme Court in B.K. Meena was that (SCC @ p. 423):

“The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The respondent has already disclosed his defence in his elaborate and detailed statement filed on 9.2.93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise - a speculator reason. We cannot accept it as valid.”

The further factor that weighed with the Supreme Court was that the standard of proof in the disciplinary proceedings and that in the criminal trial would be different. It must be mentioned here that the observations in para 14 in B.K. Meena were heavily relied upon by Mr. Srinivasan, learned Senior counsel for the Respondent No. 1 ICAI to urge that the disciplinary proceedings may be stayed only where there are criminal cases involving questions of grave nature of both fact and law. He urged that in the present case there were no grave questions of law, which have been shown by the Petitioners to be involved in the criminal proceedings that warranted stay of disciplinary proceedings.

38. In Depot Manager APSRTC v. Mohd Yousuf Miya, the APSRTC initiated disciplinary proceedings against the Respondent driver on the ground that he had caused an accident in which a cyclist died. Prosecution was also launched against the driver under Section 304, Part II of the IPC in the criminal court. The High Court stayed the departmental enquiry pending criminal trial. This ruling of the High Court was reversed by the Supreme Court. After discussing the earlier decisions, it was observed in that case that the charge in the disciplinary proceedings was about the failure to anticipate the accident and prevention thereof. It was concluded that “it has nothing to do with the culpability of the offence under Section 304-A and 338 IPC.” It was reiterated that (SCC @ p. 704):

“It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.”

39. In M. Paul Anthony v. Bharat Gold Mines Ltd., the appellant was a Security Officer in Bharat Gold Mines, a government undertaking. In a police raid, a mining sponge gold ball weighing 4.5 grams and 1276 grams of gold-bearing sand were recovered from the appellant's house. He was placed under suspension and disciplinary proceedings were commenced. Criminal proceedings were also initiated. On the conclusion of the disciplinary proceedings, the appellant was dismissed from service. Thereafter he was acquitted by the criminal court with the categorical finding that the prosecution had failed to establish its case. On the basis of his acquittal, he requested for reinstatement which was turned down. After unsuccessfully challenging it before the High Court, the appellant approached the Supreme Court. It was held that the criminal case and departmental proceedings were based on identical set of facts and in the circumstances, “it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” The witnesses who were examined by the enquiry officer in the departmental proceedings were the same witnesses who were examined in the criminal case. Since there was no iota of difference in the facts and evidence in the departmental and criminal proceedings, it was concluded that “the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” In arriving at the above conclusion, the Supreme Court had an occasion to review the entire case law up to that point in time and summarized the position as under (SCC @ p. 691):

“22. The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.”

40. On account of the above decision in M.Paul Anthony, much of the argument in the present petitions centered on whether the Petitioners were facing charges in the criminal cases which were identical to that forming subject matter of the disciplinary proceedings before the ICAI; whether the charges in the criminal court were of a grave nature, and whether they involved “complicated questions of law and fact.”

41. To continue the discussion of the decisions on the point, the question again arose in Kendriya Vidyalaya v. T. Srinivas. There the Respondent, while working with the appellant Kendriya Vidyalaya Sangathan ('KVS') as an Upper Division Clerk, was arrested with the CBI and charged for the offence under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('PCA'). During the pendency of the criminal trial, departmental proceedings were initiated. The Tribunal stayed the disciplinary proceedings till the disposal of the trial. The KVS challenged the decision in the High Court stating that they should be permitted to proceed in the departmental enquiry at least in regard to Charge 3 which was independent of Charges 1 and 2. This was rejected by the High Court holding that Charge 3 was interconnected with the other two charges. The Supreme Court, while allowing the appeal of the KVS, found that the Tribunal and the High Court proceeded on an erroneous principle as if the stay of the disciplinary proceedings “is a must in every case where there is a criminal trial on the very same charges.” The Court followed the decision in State of Rajasthan v. B.K. Meena, and reversed the High Court's judgment.

42. In State Bank of India v. R.B. Sharma (2004) 7 SCC 27, the High Court order staying the departmental proceedings was reversed by the Supreme Court only on the ground that the High Court had come to an abrupt conclusion that the employee had been able to show that the entire matter in the departmental proceedings and the criminal court was the same. Since no details had been given to justify this conclusion, it was directed that the High Court should rehear the matter.

43. In HPCL v. Sarvesh Berry, the CBI raided the house of the Respondent in 1998 and charged him with having been in possession of assets disproportionate to his known sources of income. After obtaining sanction for prosecution, the CBI filed a charge sheet. The criminal trial did not progress for at least four years. In the disciplinary proceedings initiated by the employer, there were three charges. The first related to possession of assets disproportionate to the known sources of income and the other two related to misconduct relating to non-disclosure or non-submission of property returns as required by the conduct rules. A Division Bench of the High Court held that the second and third charges were related to the first charge and it would not be safe to permit the employer to continue the departmental proceedings till the completion of the criminal case. Allowing the appeal of the employer, the Supreme Court held as under (SCC @ p. 475):

“8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the “Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.”

Thereafter in para 13 it was observed as under (SCC @ p. 477):

“13. It is to be noted that in cases involving Section 13(1) (e) of the P.C. Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression 'known sources of income' is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the P.C. Act provides that for the purposes of the Section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by charges 2 and 3 cannot be the subject matter of adjudication in the criminal case.”

Consequently the employer was permitted to continue the departmental proceedings.

44. In NOIDA Entrepreneurs Association v. NOIDA (2007) 10 SCC 375, it was again held that there was a subtle difference between a departmental enquiry and the criminal proceedings, the standards of proof in which were different. The order of the State Government not to continue the departmental enquiry was held unsustainable and the departmental enquiry was directed to continue. In Indian Overseas Bank v. P. Ganesan, the Supreme Court again answered in the negative the question whether the pendency of a criminal case by itself would be a sufficient ground for stay of the departmental proceedings. Additionally in that case, it was noticed that the departmental proceedings against the employees in question had made considerable progress and a large number of witnesses had already been examined.

Applicability of the M Paul Anthony test to the present cases.

45. The judgments of the Supreme Court discussed hereinbefore by and large permitted the continuation of disciplinary proceedings notwithstanding the pendency of a criminal case on the same charges. In applying the law explained in the above cases to the present petitions, the Court is called upon to examine: (a) are the charges on which the disciplinary proceedings are proposed to be held identical or nearly similar to the charges on which they are facing criminal proceedings? (b) Are the criminal charges of a grave nature? (c) Do the charges involve complicated questions of law and fact?

46. It may at the outset be noticed that in the criminal case, arguments on charge which were in progress when these petitions were argued have been framed by the Special Judge on 25th October 2010. The offences mentioned in the charge sheets do allege that the Petitioners have committed offences which could be characterized as being of a 'grave' nature. These include the offences under Sections 409, 420, 468, 471, 477-A, 201 r/w Section 120-B IPC. Secondly, a comparison of the charges in the disciplinary proceedings with those in the criminal trial indicates that while the charges in the former will all be examined in the latter as well, the converse is not true. There would be additional matters that are likely to be examined in the criminal trial. This brings up the third limb, i.e. whether the charges involve complicated questions of law and fact? It may be recalled that in B.K. Meena the Supreme Court has reiterated that criminal case should be of a grave nature “involving complicated questions of fact and law.” In other words, it is not sufficient for a Petitioner resisting departmental proceedings to show that the criminal case is based on an identical set of facts but that it involves complicated questions of both fact and law.

47. The learned senior counsel for the ICAI was right in the submission that apart from merely stating that the charges involve complicated questions of law and fact there has been nothing actually shown by the Petitioners to demonstrate this. Whether in fact the charges that are stated to have been framed on 25th October 2010 by the Special Judge involve complicated questions of law and fact cannot be determined unless they are studied in some detail and further after the trial progresses. Also, the mere fact that the number of witnesses is large or that the alleged fraud is of a large sum need not by itself mean that the questions of fact and law are complicated. Thirdly, even if in criminal cases, the facts may be invariably complicated, the question of law need not be. Understandably therefore, the learned senior counsel for the Petitioners did not address the Court on this particular aspect except to repeat the requirement of M Paul Anthony that the criminal case involved complicated questions of law and fact. This however is not sufficient if the court has to be persuaded to stay the disciplinary proceedings.

48. The inescapable conclusion is that the third and important limb of the test evolved in the decisions discussed hereinbefore and succinctly summarised in M Paul Anthony has not been shown by the Petitioners to be satisfied in their cases viz., that the criminal cases in which they are arrayed as accused involve complicated questions of law and fact. They have therefore been unable to persuade this Court, on the basis of the law explained above, to stay the disciplinary proceedings pending the conclusion of the criminal trial.

Other factors

49. One important factor in each of the above decisions that have been discussed is that the issue arose in the context of service law where the desirability of permitting an employee continuing to discharge official duties pending disciplinary proceedings weighed with the courts. In the present writ petitions, although the Petitioners cannot be equated with government servants, they too have been charged with professional misconduct in not discharging their duties, as expected of a professional chartered accountant in terms of the CA Act. A chartered accountant who continues to have a privilege of practising as such notwithstanding the fact that he may be facing charges of professional misconduct is indeed a matter of concern. It is no less than having a government servant facing disciplinary proceedings on serious charges. What is more significant is that a chartered accountant cannot be suspended from practice and there is nothing to prevent a chartered accountant practising as such till such time the disciplinary proceedings come to an end. 

50. Relying on the observations of the Supreme Court in M Paul Anthony [SCC para 22 (v)] to the effect that the disciplinary proceedings can be asked to continue if “the criminal case does not proceed or its disposal is being unduly delayed”, it was urged that since there is a designated fast track court that has been asked to conclude the criminal trial before 31st July 2011, the disciplinary proceedings, even if stayed on account of the pendency of the criminal case, could be resumed and proceeded with soon thereafter and would therefore not get indefinitely postponed. This Court is not persuaded to accept this submission. The penultimate paragraph of the Supreme Court's order dated 26th October 2010 acknowledges that if the trial is unable to conclude before 31st July 2011 the accused whose bail have been cancelled can apply afresh for bail. In any event, unless this Court is shown that the charges involve complicated questions of law and fact the case for stay of disciplinary proceedings pending the conclusion of the criminal trial cannot be said to be made out.

Have a look at the decision.

Establishing misconduct of Public Service Commission members: The law revisited

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.

Have a look at the Opinion of the Court on Presidential Reference.