ADDITIONAL DISTRICT AND SESSIONS JUDGE, X Vs. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH & ORS.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 408 - Power of Sessions Judge to transfer cases and appeals
Section 409 - Withdrawal of cases and appeals by Sessions Judges
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 792 of 2014, Judgment Date: Dec 18, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 792 OF 2014
Additional District and Sessions Judge 'X' ... Petitioner
versus
Registrar General,
High Court of Madhya Pradesh and others ... Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. The present writ petition has been filed by a former Additional
District and Sessions Judge of the Madhya Pradesh Higher Judicial Service.
The factual narration in the writ petition incorporates allegations of
sexual harassment aimed at the petitioner, at the behest of a sitting Judge
of the High Court of Madhya Pradesh (herein after referred to as, 'the High
Court'), who has been impleaded by name as respondent no.3. The
authenticity of the allegations levelled by the petitioner, which have been
expressly disputed by respondent no.3, would stand affirmed or repudiated
only after culmination of due process. Such being the sensitivity of the
matter, it would be inappropriate to disclose the identity either of the
petitioner or of respondent no.3. In the title of the present writ
petition, as also in its contents, the petitioner has been described as
Additional District and Sessions Judge 'X'. We shall refer to her as
Addl.D&SJ 'X'. This would help to preserve the dignity of the petitioner.
Insofar as respondent no.3 is concerned, since he is a sitting Judge of the
High Court, his reputation deserves a similar protection, we shall refer to
him as Justice 'A'.
2. The averments made in the writ petition reveal that the
petitioner having practiced as an advocate for fifteen years at Delhi,
applied for appointment by way of direct recruitment to the Madhya Pradesh
Higher Judicial Service. On the culmination of the process of selection,
the merit list of the selected candidates was released on 22.3.2011. The
petitioner was placed at serial no.2 in the merit list. She was
accordingly appointed as District Judge (entry level) by the Madhya Pradesh
State Legal and Legislative Works Department, vide order dated 8.7.2011.
She was deputed for training on 30.7.2011 and was posted as Additional
District and Sessions Judge, Gwalior.
3. The contents of the writ petition are systematically divided
into various components. In the first part of the writ petition, the
petitioner endeavours to demonstrate her efficient discharge of duties.
For this, reliance has been placed on an order passed by the Sessions
Judge, Gwalior dated 9.10.2012 (while exercising powers under Sections 408
and 409 of the Criminal Procedure Code), whereby all sessions cases,
criminal appeals, criminal revisions and miscellaneous criminal cases etc.
pending in the Court of the 2nd Additional Sessions Judge, were transferred
to the Court of the petitioner. Relying on the above order, it is the
petitioner's contention, that her superiors immediately recognized her
professional caliber, and afforded her an opportunity to deal with the
important and sensitive cases. On 23.1.2013, the Sessions Judge, Gwalior,
nominated the petitioner for regular hearing and expeditious disposal of
heinous and sensational cases involving offences of rape, gang-rape, rape
with murder etc. under the Indian Penal Code. It is further brought out,
that on 9.4.2013, the petitioner was appointed as the President of the
Vishaka Committee (in compliance with the directions issued by this Court
in Vishaka v. State of Rajasthan, (1997) 6 SCC 241), by the District and
Sessions Judge, Gwalior. It is also pointed out, that the High Court (in
exercise of the power vested in it under Section 6(2) of the Madhya Pradesh
Dekaiti Aur Vyapaharan Prabhavit Kshotra Adhiniyam, 1981) appointed the
petitioner as "Special Judge" for dealing with matters falling in a defined
area within the territorial jurisdiction of Gwalior Sessions Division. It
is pointed out that again, through a notification dated 10.5.2013 (in
exercise of the power under Section 9(3) of the Code of Criminal
Procedure), the High Court designated the petitioner as "Presiding Officer"
for speedy trial of offences of rape, gang-rape, murder with rape and other
related offences. It is also the case of the petitioner, that the
petitioner's performance came to be evaluated by the District and Sessions
Judge in a report dated 5.1.2013. It is submitted, that thereafter in
April 2013, the District Judge (Inspection and Vigilance) inspected the
civil and criminal records and assessed the petitioner's performance.
4. The factual position with respect to the selection and
appointment of the petitioner has not been disputed. The fact that the
petitioner was assigned different responsibilities from time to time is
also acknowledged. It is not necessary for us to record the personal
assessment made by the petitioner on the basis of the afore-stated reports,
suffice it to state that in the reply filed before this Court on behalf of
the Registrar General of the High Court (respondent no.1), it is
acknowledged that even though her disposal was assessed as - average, her
overall performance was graded as - very good 'B'. It was further pointed
out, that even though the petitioner was advised to improve inter-personal
relationship and team work skills, her overall assessment was evaluated as
- 'very good'.
5(i). The next component of the writ petition is devoted to the allegations
levelled against respondent no.3 - Justice 'A'. It is asserted, that on
8/9-12-2013, the wife of the Chief Judicial Magistrate, Gwalior called, the
petitioner on her land line. During her conversation, she informed the
petitioner, that respondent no.3 - Justice 'A', was eager that the
petitioner should perform a dance on an "item-song", on the occasion of
ladies sangeet (on 10.12.2013) during the festivities of the 25th marriage
anniversary of respondent no.3. It is also the assertion of the
petitioner, that she politely refused the invitation for 10.12.2013 by
giving out that she had prior commitments, for that date. It is sought to
be asserted by the petitioner, that for reasons of official protocol, she
felt compelled to attend the main marriage anniversary celebrations
scheduled for 11.12.2013. It is pointed out, that she ventured to do so in
the company of her two daughters. It is alleged by the petitioner that on
11.12.2013, respondent no.3 - Justice 'A' came close to her and whispered
in her ear, that he missed the opportunity of viewing her sexy and
beautiful figure dancing on the floor. It is the petitioner's assertion,
that respondent No.3 also told the petitioner, that he wished he could see
her dancing. The petitioner claims that she was appalled by the above
behaviour of respondent no.3, and therefore, she left the party along with
her two daughters, with tears in her eyes.
(ii). The factual position narrated above, pertaining to the telephonic
conversation with the wife of the Chief Judicial Magistrate, Gwalior has
been denied by respondent no.3. For this, respondent no.3 has appended the
affidavit of the wife of the Chief Judicial Magistrate, Gwalior as Annexure
R-16 with his counter-affidavit. In her affidavit, it is inter alia
asserted, that she had neither called the petitioner on 8/9-12-2013, nor
had she told the petitioner that respondent no.3 - Justice 'A' was eager to
watch her perform a dance on an "item-song". The other assertions at the
behest of the petitioner, narrated in the foregoing paragraph have also
been denied by respondent no.3. It is the pointed contention of respondent
no.3, that there was no occasion for him to personally interact with the
petitioner on 11.12.2013. It is also the assertion of respondent no.3,
that the function of 11.12.2013 was video-graphed, which shows that the
petitioner enjoyed her dinner and was seen talking to other invitees.
(iii). Addl.D&SJ 'X' has also asserted, that in January 2014,
respondent no.3 had sent messages to her through the District Registrar,
asking the petitioner to meet him, at his residence. It is the contention
of the petitioner, that knowing that respondent no.3 - Justice 'A' usually
lived alone, she avoided going to his residence. As per the understanding
of the petitioner, thereafter respondent no.3 started showing abnormally
high interest in her work, and also started making sexually coloured
remarks, at her. Illustratively, referring to the occasion of a marriage
party of a judicial officer on 22.2.2014, it is asserted, that respondent
no.3 in the presence of the petitioner's 16 years old daughter, told her
that "although your work is very good, but you are far more beautiful than
your work". It is contended, that he further went on to say, that looking
at the petitioner, one does not desire, even to blink ones eyes. It is
averred, that the above remarks were made, while respondent no.3 - Justice
'A' sized up the petitioner from head to toe. It is also the pointed
assertion of the petitioner, that while making the above remarks,
respondent no.3 - Justice 'A', put his hand on her back. It is sought to
be asserted, that the above behaviour of respondent no.3, discomforted the
petitioner as well as her daughter. It is also pointed out, that the
petitioner indicated to respondent no.3, that his advances were not
welcome. Thereafter, the petitioner along with her daughter, left the
marriage party.
(iv). The factual position as recorded in the foregoing paragraph has been
denied by respondent no.3 in the counter-affidavit filed by him. It is
also asserted, that respondent no.3 did not even meet the petitioner, at
the aforesaid marriage party. It is sought to be asserted in the counter-
affidavit filed on behalf of respondent no.3, that he is in possession of
the videography of the marriage function in question, which can be produced
by him.
(v). Another instance referred to by the petitioner in the writ petition,
relates to a farewell party organized by the District Judiciary, on the
occasion of the retirement of a Judge from the Gwalior Sessions Division.
It is asserted, that all sitting Judges of the Gwalior Bench of the High
Court, had been invited. On the said occasion, it is asserted, that
respondent no.3 - Justice 'A', continuously stared at the petitioner. The
petitioner claims, that sensing the attitude of respondent no.3 and given
his past conduct, the petitioner left the farewell party before respondent
no.3 could make any advances at her.
6. In the counter-affidavit filed on behalf of respondent no.3,
the facts narrated in the foregoing paragraph have been expressly denied.
It has been asserted, that respondent no.3 had never inter-acted with the
petitioner personally, except when the petitioner had herself made three
calls to him for her own problems.
7(i). The next component of the narration in the writ petition deals with
the consequences which the petitioner had to suffer for not responding to
respondent no.3 - Justice A's advances. First and foremost, it is
asserted, that respondent no.3 started subjecting the petitioner to intense
surveillance and harassment, in his capacity as Administrative Judge of
Sessions Division, Gwalior from April 2014 onwards. It is submitted, that
the aforesaid surveillance/harassment was effectuated through the District
Judge, the District Judge (Inspection), and the District Registrar. It is
pointed out, that the District Judge and the District Judge (Inspection)
visited the petitioner's court room with unusual frequency. Sometimes, on
an hourly basis. At times, within a few minutes of her commencing court
work. Sometimes, minutes after her rising for lunch. At other times,
minutes after her resuming court work after lunch. And also after the
petitioner had risen at the end of the day's work. It is also asserted,
that the District Judge, Gwalior would depute his staff to check the
petitioner during court working hours. On certain occasions, this happened
even during in-camera trials. When deputed by the District Judge, his
staff, at times, would even snatch board-diaries of cases pending in her
court. It is the petitioner's contention, that no fault could ever be found
insofar as the discharge of duties and the responsibilities of the
petitioner were concerned. It is the contention of the petitioner, that
all these inspections were not carried, for the purpose contemplated under
the Madhya Pradesh Rules (Criminal) Inspection of Criminal Courts (for
short, 'the Rules'). Relying on Rule 703 of the Rules, it is asserted,
that these actions were only for harassing the petitioner.
(ii). In the context of harassment, it is also averred in the writ
petition, that the petitioner availed casual leave in May 2014, to attend a
family event in New Delhi. During the above leave period, a stenographer
attached to the petitioner's court, was posted elsewhere for a full day, on
the instructions of the District Judge. It is pointed out, that this was
done despite the express request made by the petitioner to the Court
Manager, that the concerned stenographer had to type several judgments,
which the petitioner had dictated, before proceeding on leave. Even
otherwise, it is pointed out, that according to the orders of the District
Judge (dated 25.4.2014), such posting is permissible only for half a day.
On account of the above interference in the discharge of her official
functioning, the petitioner addressed a complaint dated 12.5.2014 to the
District Judge against the Court Manager. In her complaint, the petitioner
also highlighted the fact that the Court Manager usually refused to provide
alternative staff to the petitioner, when staff attached to the petitioner
was on leave. According to the petitioner, rather than taking action
against the Court Manager, the District Registrar issued a notice to the
concerned stenographer, asking him to show cause why he had not disclosed
the extent of pending dictation work, with reference to the petitioner's
court. The concerned stenographer was asked to file his reply, within
three days. It is averred, that the petitioner again approached the
District Judge on the above issue. Rather than appreciating the predicament
of the petitioner, the District Judge informed the petitioner, that if she
said anything, he would spoil her confidential report. It is also averred,
that the District Judge advised her to make a complaint to the
Administrative Judge (respondent no.3) if she had any problem with the
system. According to the petitioner, given aforesaid circumstances, she
contacted respondent no.3 - Justice 'A' on his mobile phone on 30.5.2014.
Respondent no.3, it is averred, informed her, that he could not speak to
her as he was not in station.
(iii). Another instance of harassment and victimization pointed out by
the petitioner emerges from the fact, that the peon provided to the
petitioner at her residence was diagnosed with a likelihood of cancer on
12.5.2014. The concerned peon sought leave for treatment, at Mumbai.
Despite several oral requests, no substitute was provided to the
petitioner. Therefore, on 20.5.2014, the petitioner sent a letter to the
District Judge, Gwalior, requesting him to provide a peon at her residence,
out of the surplus staff. Even though the petitioner was entitled to a
full time peon at her residence, on 22.5.2014, the District Judge made
provision for a temporary peon for two hours (from 9 a.m. to 11 a.m.).
(iv). In order to further demonstrate victimization, it is pointed out,
that the petitioner was suddenly and unceremoniously transferred mid-
session on 8.7.2014. It is further pointed out, that general transfers are
made every year, in March/April. It is the case of the petitioner, that
when annual general transfers were made in 2014, the petitioner had not
completed the stipulated tenure of service, and accordingly, was not
subjected to transfer. Mid-session transfer, according to the petitioner,
is almost impermissible, and as such is extremely rare, and is effected
only for compelling reasons. In order to demonstrate the assertion of
victimization, it is pointed out, that the petitioner was transferred to
Sidhi, a remote place in Madhya Pradesh. According to the petitioner for
her posting, Sidhi was deliberately chosen, to prevent her husband from
visiting her on week ends, because of its non-connectivity. It is also
pointed out, that Sidhi was chosen because the area is well known to be
naxal affected and it would be difficult for the petitioner to work, at
that station. It was also pointed out, that the said transfer was in
violation of the transfer guidelines/policy of the High Court.
(guidelines/policy appended to the petition, as Annexure P-27). On the
very next day, after the receipt of the transfer order dated 8.7.2014,
i.e., 9.7.2014, the petitioner-Addl.D&SJ 'X', addressed a representation to
the Registrar General of the High Court, seeking eight months extension.
The aforesaid extension was sought because the petitioner's daughter was to
take Board examinations of Class XII. It was also pointed out, that under
the transfer policy/guidelines, in case daughter of a judicial officer is
to take Board/University examinations, the officer is not to be transferred
till the end of the academic session. Having submitted the aforesaid
representation, it is the case of the petitioner, that she contacted
respondent no.3 - Justice 'A', in his capacity as Administrative Judge of
her Sessions Division, and pleaded with him that her transfer be deferred
for the sake of her daughter, who was to take the Class XII Board
examination. In the pleadings the petitioner asserted, that respondent
no.3 mockingly reacted to the petitioner's request by telling her that she
had not fulfilled his desires, she had not visited his residence alone to
meet him even once, and therefore, this order of transfer was before her.
He further told the petitioner, that he would finish her career completely.
It is submitted that the petitioner's representation dated 9.7.2014, was
declined on 11.7.2014.
8. All the facts narrated in the foregoing paragraph have been
denied by respondent no.3 in his counter-affidavit. In response to the
above averments, it is denied that respondent no.3 ever issued any
instructions to the District Judge, District Judge (Vigilance) or the
District Registrar in regard to surveillance of the professional work of
the petitioner. It is denied, that the actions of respondent no.3, were
responsible for the petitioner's harassment. Justice 'A' has denied having
ever spoken to the officers referred to by the petitioner, with reference
to the petitioner, on any of the issues raised by her. On the allegation
of the petitioner's intentional transfer to Sidhi in July, 2014, the
Registrar General of the High Court has filed an affidavit dated 17.11.2014
acknowledging, that the exercise of annual transfers was carried out in
March, 2014, but the petitioner was transferred in July, 2014. It is
sought to be explained, that at the relevant time, the Transfer Committee
of the High Court comprised of two senior Judges, which recommended the
transfer of two Additional District & Sessions Judges, namely, Shri Manoj
Kumar Tiwari and Shri Rajeev Kumar Singh, to Sidhi in March 2014. The
recommendation of the Committee was accepted by the Chief Justice of the
High Court, whereupon the said officers were transferred to Sidhi.
Reciprocally, no Additional District and Sessions Judge was transferred out
of Sidhi, at that juncture. The above transfers had been made on the basis
of a request made by the District and Sessions Judge, Sidhi to handle the
huge pendency of cases at Sidhi. Despite the transfer of two Additional
District and Sessions Judges referred to above, the District and Sessions
Judge, Sidhi made another request through his communication dated 9.6.2014
to post another two Additional District and Sessions Judges, at Sidhi.
This requirement expressed by the District and Sessions Judge, Sidhi was
considered by the Transfer Committee, along with similar other requests
from other Sessions Divisions. On a fresh consideration, the Transfer
Committee recommended the transfer of 28 judicial officers including 6
Additional District & Sessions Judges. The Chief Justice of the High Court
approved the recommendations made by the Transfer Committee. The transfer
of the petitioner-Addl.D&SJ 'X' to Sidhi accordingly materialized. It is
submitted that all the transfers, including that of the petitioner, were
made in administrative exigencies, and not on extraneous consideration.
Insofar as the representation made by the petitioner, dated 9.7.2014
seeking cancellation/deferment of order of her transfer is concerned, it is
pointed out, that the same was placed before the Transfer Committee. The
Transfer Committee, vide its resolution dated 11.7.2014, recommended the
rejection of the representation. The said recommendation was approved by
the Chief Justice of the High Court on 11.7.2014 itself. With reference to
the petitioner's representation dated 11.7.2014, it is pointed out, that
the same was also placed before the Transfer Committee. The Transfer
Committee vide its resolution dated 14.7.2014, recommended the rejection of
the second representation. The recommendation made by the Transfer
Committee, was again approved by the Chief Justice of the High Court on
14.7.2014. It is pointed out, that on the very next day, i.e., 15.7.2014,
the petitioner tendered her resignation.
9(i). The next component of the narration in the writ petition, relates to
the measures adopted by the petitioner. In this behalf, it is asserted,
that the petitioner along with her husband traveled to Jabalpur on
1.6.2014. The sole purpose was to discuss the afore-stated issues with a
senior Judge of the High Court. After the petitioner narrated her version
to the senior Judge, she was informed by the senior Judge, that he knew
respondent no.3 - Justice 'A', and promised to intervene in the matter. He
assured the petitioner, that he would arrange a meeting between the
petitioner and respondent no.3 at Gwalior (during a forthcoming marriage in
the 2nd week of June, 2014).
(ii). From 11.4.2014 to 14.7.2014, the petitioner claims that she spoke to
the Private Secretary to the Chief Justice of the High Court, for seeking
an audience with the Chief Justice of the High Court. According to the
pleadings in the writ petition, on 13.7.2014, the Private Secretary
informed the petitioner that the Chief Justice had refused to give her an
appointment. The Private Secretary however reassured her, that he would
make yet another effort to procure her an appointment for the following
day, and was hopeful to manage the same. He had also informed the
petitioner that he would convey the outcome "early next morning". On
14.7.2014, since the petitioner did not receive any message from the
Private Secretary, she sent a message to him inquiring about the outcome of
his efforts. Learned counsel, during the course of hearing, submitted that
the Private Secretary did not contact the petitioner thereafter. In
support of the assertion, that the petitioner was seeking an appointment
with the Chief Justice of the High Court, it is asserted, that as the
Private Secretary was hopeful of getting her an audience with the Chief
Justice, she purchased two railway tickets for 14.7.2014 to travel from
Gwalior to Jabalpur, in the company of her husband. These tickets were in
addition to the tickets purchased by her to make a similar journey on
11.7.2014 to meet senior Judges of the High Court. Copies of both sets of
tickets have been appended to the writ petition.
(iii). It is the pleaded case of the petitioner, that on the following
day, after the petitioner met respondent no.3 - Justice 'A" i.e., on
11.7.2014, the petitioner visited a number of senior Judges of the High
Court. She was advised to make another representation seeking deferment of
her transfer, which she did on 11.7.2014 itself. Some of them urged the
petitioner to have faith in the system, and to await the outcome of her
second representation. The petitioner's second representation, was
declined through a communication dated 11.7.2014.
10. According to the petitioner, having been subjected to victimization
and harassment, the petitioner submitted her resignation from the post of
Additional District and Sessions Judge, on 15.7.2014. The aforesaid
resignation was addressed to the Registrar General of the High Court. In
her resignation, the petitioner expressly mentioned about her elder
daughter studying in Class XII. It was submitted, that no reference to the
sexual harassment suffered by her was made in the resignation letter, as
the same would have been embarrassing for the petitioner. It was pointed
out that the resignation submitted by the petitioner, was accepted on
17.7.2014 by the Legal and Legislative Work Department of the State
Government. On the issue of the petitioner's resignation, the position
explained in the reply filed on behalf of respondent no.1 is, that the
petitioner's resignation was received in the office of the Registrar
General of the High Court on 15.7.2014. The same was placed for
consideration of the Chief Justice of the High Court on 16.7.2014. The
Chief Justice recommended the acceptance of the resignation to the State
Government. The State Government accepted the petitioner's resignation on
17.7.2014.
11. Having suffered extreme vilification at the hands of her superiors,
for having not been afforded even an opportunity of being able to express
her difficulties, the petitioner sent a representation to the President of
India, the Chief Justice of India and the Chief Justice of the High Court
on 1.8.2014. In her representation, the petitioner inter alia sought the
following reliefs:
"1. Appropriate action be taken, after a fact-finding.
2. Re-consider the circumstances under which the Petitioner was coerced
and exerted a great duress upon, until the only option she had was to
resign.
3. Institute an appropriate mechanism for redressal of grievances like the
above, of sub-ordinate services judicial officers."
12. Another relevant fact, which has not been disclosed in the writ
petition, and which has emerged from the reply filed on behalf of
respondent no.1-the Registrar General of the High Court, needs to be
recorded here to complete the sequence of events. It is pointed out on
behalf of respondent no.1, that the petitioner had never disclosed the
factum of sexual harassment in any of the numerous communications addressed
by her to the High Court. It is pointed out, that the factum of sexual
harassment had not even been incorporated in the petitioner's resignation
letter. In the reply filed by respondent no.1, it is sought to be
asserted, that the allegations of sexual harassment were recorded by the
petitioner, for the first time, in her representation dated 1.8.2014, which
was addressed to the Chief Justice of India. It is also sought to be
asserted, in the reply filed on behalf of respondent no.1, that the nature
of allegations of sexual harassment levelled by the petitioner came to the
knowledge of the Chief Justice of the High Court through a newspaper item
published on 4.8.2014 in the Times of India. It is averred in the reply
filed on behalf of respondent no.1, that respondent no.3 - Justice 'A',
addressed a letter to the Chief Justice of the High Court with reference to
the news item dated 4.8.2014. The news item as well as the letter received
from respondent no.3 were sent by the Chief Justice of the High Court, by a
special messenger, to the Chief Justice of India. Respondent no.1, i.e.,
the Registrar General of the High Court, on being directed by the Chief
Justice of the High Court, issued the following press release on 4.8.2014:
"PRESS RELEASE
This is with regard to news item published in daily newspaper 'Times
of India' dated 04.08.2014 reporting that a lady Judicial Officer posted as
Additional District Judge, Gwalior had to resign from judicial service due
to alleged harassment by a High Court Judge. It has been reported that
when the lady Judicial Officer sought appointment with Hon'ble the Chief
Justice to apprise him of the factual position, the same was declined.
This is a distorted version.
As a matter of fact, she sought appointment telephonically through
Principal Private Secretary (PPS) to Hon'ble the Chief Justice, after she
had already tendered her resignation which was forwarded to the State
Government for necessary action. In the given situation, she was informed
by the PPS to submit a formal representation, if advised, in the matter.
However, no representation has so far been made by her.
In the context of the news item, the concerned High Court Judge faxed
a confidential letter to Hon'ble the Chief Justice which was received on
4th August, 2014 in the morning. Hon'ble the Chief Justice has forwarded a
copy of the said letter to Hon'ble the Chief Justice of India with
comments.
The lady Ex-Judicial Officer, who was posted at Gwalior since August,
2011 was transferred in July, 2014 to Sidhi on administrative grounds. Her
two representations seeking cancellation of the transfer on the ground of
education of her daughters were duly considered and rejected by the
concerned Administrative Committee of the High Court. She has not
represented about the alleged misbehavior or harassment caused to her by
anyone.
Sd/-
(VED PRAKASH)
REGISTRAR GENERAL
HIGH COURT OF MADHYA PRADESH
JABALPUR
04.08.2014"
(emphasis is ours)
The aforesaid press release has been extracted hereinabove so as to avoid
any further narration on the aforesaid subject.
13. According to the averments made in the reply filed on behalf of the
Registrar General of the High Court, a sealed envelope was received from
the office of the Chief Justice of India in the High Court on 7.8.2014.
From the record made available, it is apparent that the Chief Justice of
the High Court, keeping in view the sensitivity and seriousness of the
matter, invited the two senior most judges of the High Court and the
Registrar General of the High Court. All decisions in the matter were made
collectively, in the best interest of all concerned. In furtherance of the
communication received from the Chief Justice of India, the Chief Justice
of the High Court constituted a two-member senior judges Enquiry Committee
(one of whom was a lady judge), to make a confidential and discreet
inquiry, and to submit a report. A senior lady Additional District and
Sessions Judge, was nominated by the Chief Justice of the High Court, for
secretarial assistance of the "two-Judge Committee".
14. Consequent upon the nomination of the "two-Judge Committee", the
petitioner received (via e-mail) a notice from the Secretary of the
Committee constituted by the Chief Justice of the High Court on 12.8.2014,
requiring her to appear for a preliminary inquiry before the "two-Judge
Committee" on 19.8.2014 at 10.30 a.m. The petitioner responded to the
aforesaid notice vide her reply dated 14.8.2014 (via e-mail and speed post)
requesting for information, as to under what authority of law the "two-
Judge Committee" had been constituted. In order to ensure, that the
deliberations assigned to the Committee constituted by the Chief Justice of
the High Court were fair, the petitioner, through her above reply dated
14.8.2014, requested that administrative functions be withdrawn from
respondent no.3 - Justice 'A'. She also sought the transfer of the
District Judge, the District Judge (Inspection) and the District Registrar
posted at Gwalior, so that her witnesses could depose freely and fairly
before the "two-Judge Committee". In a response dated 14.8.2014 (sent via
e-mail), the petitioner was informed, that the Chief Justice of the High
Court had set up the "two-member Committee" to conduct a preliminary
inquiry into the allegations levelled against respondent no.3. On
19.8.2014, the petitioner submitted her second reply (via e-mail as also
via speed post) stating that her request for withdrawal of administrative
work from respondent no.3 - Justice 'A' and her request for transfer of
judicial officers from Sessions Division, Gwalior had remained unaddressed.
She also pointed out, that the procedure envisaged by the Supreme Court in
the decision rendered in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee
(1995) 5 SCC 457, was not being followed, inasmuch as the Chief Justice of
the High Court was to conduct a discreet inquiry at his own and that she
could not be required to appear before the "two-Judge Committee" for a
preliminary inquiry. In support of the original complaint submitted by the
petitioner, on this occasion she also enclosed a sworn affidavit, affirming
the factual position expressed in her complaint.
15. The determination of the present controversy, will emerge from the
factual position projected by the rival parties which has been summarized
above.
16. It would be pertinent to mention, that the main submission advanced
at the hands of the learned counsel for the petitioner was, that the
proceedings being conducted in the matter, are not in consonance with the
"in-house procedure" adopted by this Court for taking suitable remedial
action against judges, who by their acts of omission or commission, do not
follow the accepted values of judicial life, including the ideals expressed
by the Supreme Court in the "Restatement of Values of Judicial Life". The
projection of the aforesaid contention, we felt, would not require an
insight into the allegations made by Addl.D&SJ 'X', or even the response of
Mr. Justice 'A'. However, the submissions, as they have emerged during the
course of hearing, reveal that the same also require to be considered. We
also felt, after hearing submissions advanced on behalf of the rival
parties, that the steps taken by the Chief Justice of the High Court, also
needed a closer examination, for an effective and fruitful consideration of
the controversy in view of the sensitivity and seriousness of the matter.
We have, accordingly, briefly traced the allegations made by the
petitioner, as also, the defence of respondent no.3. We have also ventured
to narrate the steps taken by the Chief Justice of the High Court,
consequent upon the petitioner's complaint being forwarded to him by the
Chief Justice of India. As a note of caution, we would like to record,
that our recording of the events, may not be taken as the last word on the
matter, we may have noticed certain facts in a manner which may have
overlooked the sensitivity with which the party concerned had viewed or
projected them. We may have also missed certain finer points, which could,
on an analysis of facts, result in quite a different conclusion on their
holistic examination. The issue of sexual harassment has a variety of fine
connotations. Its evaluation may sometimes depend upon the sensitivity of
the person concerned. And also whether, the perception of the harassed
individual was known to the one against whom the accusing finger is
pointed.
17. Every day is a matter of learning. Hearing of submissions in this
case, we may say, was a matter of further understanding the sensitivities
involved in a controversy of the present nature. We may venture to
demonstrate this, by noticing a verbal exchange, during the course of
hearing, between the counsel for the petitioner and that for the High
Court. While the learned counsel representing the High Court was on "his"
legs, learned counsel for the petitioner interjected to express "her" point
of view. All through, during the process of hearing, submissions were
advanced in a lively and respectful manner, and pointedly on the subject
under consideration. Feeling that the thought being projected by the
learned counsel was being disturbed by the intervention, the Bench
accordingly exhorted learned counsel, to go on unmindful of the
interruption. Learned counsel for the High Court, well-meaning and
deferential as he always is, responded by observing, "The interjections by
the learned senior counsel for the petitioner, are always delightful".
Learned senior counsel for the petitioner, had serious objection to the
term, ''delightful'' used, with reference to "her". She questioned, the
use of the term, ''delightful" by posing to the learned senior counsel,
whether similar interjections by men, were also considered by him as
delightful. Why then, she questioned, should "her" interjection be found
''delightful''. In expressing her view, she went on to describe the
response of the learned senior counsel as "sexually coloured". Having
given our thoughtful consideration to the response, of the learned counsel
for the petitioner, we may only say, that she may well be right. There is
a lot to be learnt, from what she innocuously conveyed. Her sensitivity to
the issue, one may confess, brought out to us, a wholly different
understanding on the subject. It is, therefore, that we have remarked
above, that the evaluation of a charge of sexual harassment, would depend
on the manner in which it is perceived. Each case will have to be
decided on its own merits. Whether the perception of the harassed
individual, was conveyed to the person accused, would be very material, in
a case falling in the realm of over-sensitivity. In that, it would not be
open to him thereafter, to defend himself by projecting that he had not
sexually harassed the person concerned, because in his understanding the
alleged action was unoffending.
18. Therefore, as a matter of caution, we desire to expressly record,
that the facts taken into consideration by us, are for the limited purpose
of the submissions advanced at the hands of the learned counsel for the
petitioner, to consider whether the procedure being followed in the present
controversy, is in consonance with the "in-house procedure" adopted by this
Court, as also, whether the procedure adopted by the Chief Justice of the
High Court, would meet the ends of justice.
19. Before dwelling upon the pointed issues canvassed before us, we would
venture to briefly record the sequence of events which led to the adoption
by this Court, of the "in-house procedure". It is necessary for us to do
so, because the contentions advanced by the learned counsel for the
petitioner were founded on the "in-house procedure", whereas, it was the
contention in response, that the same was not justiciable, and as such, the
present writ petition is not maintainable in law.
20. Amongst the first encounters, to an investigation into the conduct of
a judge, can be traced from a statement made to the Bar by the then Chief
Justice of India, Mr. Justice Sabyasachi Mukherjee on 20.7.1990, with
reference to the allegations levelled against Mr. Justice V. Ramaswami, who
at that juncture, was a sitting Judge of the Supreme Court of India. An
extract of the statement made to the Bar is being reproduced hereunder:
"Re: Ramaswami, J.
CJI's Statement to the Bar
In the beginning of May, 1990, some learned advocates of this Court drew my
attention to certain newspapers about the audit report investigating the
expenses incurred in furnishing the residence of a former Chief Justice of
the Punjab & Haryana High Court, namely, Shri V. Ramaswami, who is now a
sitting Judge of this court. I was requested by the learned lawyers to take
action suo-motu. The matter was mentioned more than one. On 1st May, 1990.
I had received a communication from the editor of a magazine enclosing
therewith a copy of April 90 issue of the magazine The Lawyers, stating
that it contained the full text of the audit report of the Chandigarh
Administration. Thereafter after, the learned Attorney General, Sir. Soli
Sorabjee, the former Attorney General, Sri Parasaran, Mr. Venugopal, the
president of the Supreme Court Bar Association, and Dr. Y.S. Chitale,
former President of the Supreme Court Bar association, also met me and drew
my attention to these reports and expressed concern on the contents of the
publications. The Union Minister of Law and Justice called on me and
expressed the concern of the members of parliament about the alleged
extravagance by Justice Ramaswami and the contents of the report, while
working as the Chief Justice of the Punjab and Haryana High Court. Sharing
their concern, I had told the Law Minister and have since assured the
learned Attorney General and other members of the Bar that I would look
into the matter.
Legally and constitutionally the Chief Justice of India, as such, has no
right or authority to inquire into the conduct of a sitting Judge of the
Supreme Court. However, the Chief justice of India, as the head of the
Judicial Family has, I believe, the duty and the responsibility to maintain
the judicial propriety and attempts to secure the confidence of the public
in the working of the judicial process.
This was an unprecedented and an embarrassing situation. It called for
caution and establishment of a salutary convention. If have obtained from
the Chief Justice of Punjab and Haryana High Court the necessary papers.
There are three kinds of reports (i) Reports submitted by the Internal
Audit Cell of the High Court (ii) Fact-finding Reports submitted by
District and Sessions Judges (Vigilance) both of Punjab and Haryana;
and(iii) Reports and audit-paras submitted by the official of the
Accountant Generals office to the High Court for reply. The reports and
audit paras last mentioned seek clarifications and justifications in
respect of the transactions which prime facie appeared to be irregular.
I have looked into it and then arrived at a certain tentative impression it
is not necessary to recapitulate in detail, the alleged irregularities I
understand from the authorities of the High Court that the officials
involved in the alleged irregularities have been suspended and departmental
inquiries have been instituted against them. The final result of these
departmental inquiries is awaited. In the meantime, I took Brother
Ramaswami into confidence and made known to him the contents of the audit
reports with a view to ascertaining his position in relation to the
disclosures made in the reports. He has given his version. I have also
requested Brother Ramaswami to communicate his views to the Registrar, High
Court of Punjab and Haryana so that the High Court may reply to the audit
objections raised by the Government.
I understand that the High Court had directly sought Brother Ramaswamis
clarifications with regard to certain audit objection and he has written to
the officers of the High Court in this behalf. The proceedings, as
mentioned before, against some of the officers of High Court on alleged
irregularities are still pending. In respect of some of the irregularities
which I have considered and the tendency of the departmental inquiries
against the suspended officers, I am of the opinion that it would be
appropriate to wait for a closer examination of the replies to the audit
objections and the various queries submitted by the High Court to Brother
Ramaswami before one can come to a final conclusion.
xxx xxx xxx
The Supreme Court must uphold the rule of law. It is, therefore, necessary
that those who uphold the rule of law must live by law and judges must,
therefore, be obliged to live according to law. The law, procedure and the
norms applicable in this case, enjoin that the expenses incurred by the
Court for the Judges must be according to the rules, norms and the
practice. No man is above law or the rules. The Judges either of the
Supreme Court or of the High Courts and the Chief Justices are all subject
to the rule of law and procedure like any other citizen of this country and
must abide by the norms and regulation prescribed inasmuch as these and to
the extent are applicable to them I always thought this was clear and
needed no reiteration. We must, therefore, ensure that there is no conduct
of the Judges, which affects the faith of the people that Judges do not
live according to law. Judges cannot afford to be involved in disputes,
which have to determine the question whether the Judges while functioning
as Judges of Chief Justices have attempted to subvert the law either
designedly or in utter negligence or recklessness.
In this matter, the questions involved are, namely, (i) whether the Chief
Justice was entitled to the expenses of his telephone at Madras because
Chandigarh was declared a disturbed area;
(ii) Whether the Chief Justice was obliged to obtain leave to avail the
facility of LTC;
(iii) Whether the Chief Justice was entitled to direct the cars to be taken
to madras when he was on vacation from Chandigarh for the reasons mentioned
by him;
(iv) Whether the silver maces ordered by the High Court have been done at
the rate similar to the rate applied in respect of those supplied tot he
Madras high Court, and
(v) Whether even though the Judges of the Punjab and Haryana High Court did
not approve the idea of having maces for each individual Judge, the Chief
Justice was entitled to direct the purchase of these maces. Theses are the
matters on which interpretation of the rules or on the permission or
relaxation of rules, certain consequences will follow, and if the Chief
justice was not so entitled or these could not be sanctioned as has been
done under the circumstances mentioned in the aforesaid objections and
communications, reimbursement or recovery would be directed. These matters,
therefore, will have to await adjudication by the appropriate authorities,
namely, the Government and the sanctioning authorities dealing with audit
objections, in respect of the permissions sought. Though one would like to
think that there has been extravagance and ostentiousness but these by the
selves do not involve determining questions of moral or legal impropriety
of a judge functioning as a Judge in the Court.
But there are some other aspects involved in this matter, namely, the
questions of not accounting for all the furnitures or items that were in
the residence and office of the Chief Justice, the alleged replacement of
superior quality items by inferior quality items, the missing items and the
splitting up of the bills in order to have the sanction of the authorities
or to conform to the rules, are the matters which are also pending
determination and adjudication.
Involvement in any investigation on the conduct of a sitting Supreme Court
Judge on such matters as aforesaid is embarrassing in the circumstances and
the background in which these questions have arisen in the instant case.
For one who should attempt to uphold the rule of law, it is embarrassing to
be involved in such a dispute. But no final decision on this aspect can be
arrived at until the investigations and inquiries are completed. I have, on
these aspects after looking into the matter and the points involved, no
doubt that those who aspire to uphold the rule of law must strive to live
according to law and they necessarily expose the selves to the danger of
perishing by law. I am aware and deeply conscious that in certain
circumstances somebody may be a victim of certain situation. I was
constrained, in those circumstances, to advise Brother Ramaswami to desist
from discharging judicial functions so long as the investigations continued
and his name was cleared on this aspect.
I wrote to Brother Ramaswami on 18th July 1990 rendering my aforesaid
advice. I have also conveyed to him my anguish in tendering this advice and
I have requested him to please be on leave until the investigations on the
aforesaid conduct are completed.
On 18th July, 1990 after receipt of my letter, Brother Ramaswami has
applied for leave for six weeks in the first instance with effect from
23rd July, 1990. I have directed the office to process his application for
leave.
Since I had assured the learned Attorney General, the Law Minister, the
president of the Bar Association and other that I will look into it, I
thought I must covey to you result of my looking into it."
It would be relevant to mention, that no further action was taken by the
Chief Justice of India, in furtherance of the administrative authority
vested in him, in the matter relating to the allegations levelled against
Justice V. Ramaswami. Impeachment proceedings were initiated against
Justice V. Ramaswami under Article 124 of the Constitution of India. The
outcome of the same, is inconsequential to the present controversy.
21. Contextually, reference needs to be made, to the resolution passed by
the Bombay Bar Association on 1.3.1995 by a majority of 185 out of 207
permanent members, demanding the resignation of Justice A.M. Bhattacharjee,
the then Chief Justice of Bombay High Court. A writ petition came to be
filed in this Court, seeking an appropriate writ, order or direction to
restrain the Bar Council of Maharashtra and Goa, the Bombay Bar
Association, and the Advocates' Association of Western India, from coercing
Justice A.M. Bhattacharjee from resigning the office held by him. The
petitioner in the above case, had also made a prayer, that the allegations
levelled against Justice A.M. Bhattacharjee be required to be investigated
by the Central Bureau of Investigation, and if the same were found to be
true, a direction be issued to the Speaker of the Lok Sabha, to initiate
action for the removal of Justice A.M. Bhattacharjee, under Article 124
read with Article 218 of the Constitution of India, and the Judges
(Inquiry) Act, 1968. While deliberating upon the aforesaid issue, this
Court inter alia held as under:
"40. Bearing all the above in mind, we are of the considered view that
where the complaint relates to the Judge of the High Court, the Chief
Justice of that High Court, after verification, and if necessary, after
confidential enquiry from his independent source, should satisfy himself
about the truth of the imputation made by the Bar Association through its
office bearers against the Judge and consult the Chief Justice of India,
where deemed necessary, by placing all the information with him. When the
Chief Justice of India is seized of the matter, to avoid embarrassment to
him and to allow fairness in the procedure to be adopted in furtherance
thereof, the Bar should suspend all further actions to enable the Chief
Justice of India to appropriately deal with the matter. This is necessary
because any action he may take must not only be just but must also appear
to be just to all concerned, i.e., it must not even appear to have been
taken under pressure from any quarter. The Chief Justice of India, on
receipt of the information from the Chief Justice of the High Court, after
being satisfied about the correctness and truth touching the conduct of the
Judge, may tender such advice either directly or may initiate such action,
as is deemed necessary or warranted under given facts and circumstances. If
circumstances permit, it may be salutary to take the Judge into confidence
before initiating action. On the decision being taken by the Chief Justice
of India, the matter should rest at that. This procedure would not only
facilitate nipping in the bud the conduct of a Judge leading to loss of
public confidence in the courts and sustain public faith in the efficacy of
the rule of law and respect for the judiciary, but would also avoid
needless embarrassment of contempt proceedings against the office bearers
of the Bar Association and group libel against all concerned. The
independence of judiciary and the stream of public justice would remain
pure and unsullied. The Bar Association could remain a useful arm of the
judiciary and in the case of sagging reputation of the particular Judge,
the Bar Association could take up the matter with the Chief Justice of the
High Court and await his response for the action taken thereunder for a
reasonable period.
41. In case the allegations are against Chief Justice of a High Court,
the Bar should bring them directly to the notice of the Chief Justice of
India. On receipt of such complaint, the Chief Justice of India would in
the same way act as stated above qua complaint against a Judge of the High
Court, and the Bar would await for a reasonable period the response of the
Chief Justice of India.
42. It would thus be seen that yawning gap between proved misbehaviour
and bad conduct in consistent with the high office on the part of a non
cooperating Judge/Chief Justice of a High Court could be disciplined by
self-regulation through in-house procedure. This in-house procedure would
fill in the constitutional gap and would yield salutary effect.
Unfortunately, recourse to this procedure was not taken in the case at
hand, may be, because of absence of legal sanction to such a procedure."
22. In furtherance of the directions issued in C.Ravichandran Iyer's case
(supra), this Court constituted a committee comprising of three Judges of
this Court, namely, Justices S.C. Agrawal, A.S. Anand (as he then was),
S.P. Bharucha (as he then was), and the then two senior-most Chief Justices
of High Courts, i.e., Justices P.S. Misra and D.P. Mohapatra (of the Andhra
Pradesh High Court and the Allahabad High Court, respectively), to lay down
the "in-house procedure", for taking suitable remedial action against
judges, who by their acts of omission or commission, do not follow the
accepted values of judicial life, including the ideals expressed by the
Supreme Court in the "Restatement of Values of Judicial Life". The
committee submitted its report on 31.10.1997. The same was adopted with
amendments, in a Full Court Meeting of the Supreme Court of India, on
15.12.1999. In the afore-stated report, three sets of procedure for taking
such suitable remedial action against judges were laid down. The first,
related to Judges of the High Courts, the second, to Chief Justices of the
High Courts, and the third, to Judges of the Supreme Court. Insofar as the
present controversy is concerned, since the same relates to the allegations
made against a sitting Judge of the Madhya Pradesh High Court, only the "in-
house procedure" pertaining to Judges of the High Courts is relevant. The
main submission advanced at the hands of the learned counsel for the
petitioner is also based on the same. The "in-house procedure", as
determined with reference to Judges of the High Court, is accordingly being
extracted hereunder:
"HIGH COURT JUDGE:
A complaint against a Judge of a High court is received either by the Chief
justice of that High Court or by the Chief Justice of India (CJI). Some
times such a complaint is made to the President of India. The complaints
that are received by the President of India are generally forwarded to the
CJI. The Committee suggests the following procedure for dealing with such
complaints:-
(1) Where the complaint is received against a Judge of a High Court by the
Chief Justice of that High Court, he shall examine it. If it is found by
him that it is frivolous or directly related to the merits of a substantive
decision in a judicial matter or does not involve any serious complaint of
misconduct or impropriety, he shall file the complaint and inform the CJI
accordingly. If it is found by him that the complaint is of a serious
nature involving misconduct or impropriety, he shall ask for the response
thereto of the Judge concerned. If on a consideration of the allegations in
the complaint in the light of the response of the Judge concerned, the
Chief Justice of the High Court is satisfied that no further action is
necessary he shall file complaint and inform the CJI accordingly. If the
Chief Justice of the High Court is of the opinion that the allegations
contained in the complaint need a deeper probe, he shall forward to the CJI
the complaint and the response of the Judge concerned along with his
comments.
(2) When the complaint is received by the CJI directly or it is forwarded
to him by the President of India the CJI will examine it. If it is found by
him that it is either frivolous or directly related to the merits of a
substantive decision in a judicial matter or does not involve any serious
complaint of misconduct or impropriety, he shall file it. In other cases
the complaint shall be sent by the CJI to the Chief Justice of the
concerned High court for his comments. On the receipt of the complaint from
CJI the Chief Justice f the concerned High court shall ask for the response
of the judge concerned. If on a consideration of the allegations in the
complaint in the light of the response of the Judge concerned the Chief
justice of the High Court is satisfied that no further action is necessary
or if he is of the opinion that the allegations contained in the complaint
need a deeper probe, he shall return the complaint to the CJI along with a
statement of the response of the Judge concerned and his comments.
(3) After considering the complaint in the light of the response of the
judge concerned and the comments of the Chief justice of the high court,
the CJI, if he is of the opinion that a deeper probe is required into the
allegations contained in the complaint, shall constitute a three member
Committee consisting of two Chief justices of High Courts other than the
High Court to which the Judge belongs and one High Court Judge. The said
Committee shall hold an inquiry into the allegations contained in the
complaint. The inquiry shall be in the nature of a fact finding inquiry
wherein the Judge concerned would be entitled to appear and have his say.
But it would not be a formal judicial inquiry involving the examination and
cross-examination of witnesses and representation by lawyers.
(4) For conducting the inquiry the Committee shall devise its own procedure
consistent with the principles of natural justice.
(5)(i) After such inquiry the Committee may conclude and report to the CJI
that (a) there is no substance in the allegations contained in the
complaint, or (b) there is sufficient substance in the allegations
contained in the complaint and the misconduct disclosed is so serious that
it calls for initiation of proceedings for removal of the Judge, or (c)
there is substance in the allegations contained in the complaint but the
misconduct disclosed is not of such a serious nature as to call for
initiation of proceedings for removal of the Judge.
(ii) A copy of the Report shall be furnished to the judge concerned by the
Committee.
(6) In a case where the Committee finds that there is no substance in the
allegations contained in the complaint, the complaint shall be filed by the
CJI.
(7) If the Committee finds that there is substance in the allegations
contained in the complaint and misconduct disclosed in the allegations is
such that it calls for initiation of proceedings for removal of the Judge,
the CJI shall adopt the following course:-
(i) the Judge concerned should be advised to resign his office or seek
voluntary retirement;
(ii) In a case the judge expresses his unwillingness to resign or seek
voluntary retirement, the chief justice of the concerned High Court should
be advised by the CJI not to allocate any judicial work to the judge
concerned and the President of India and the Prime Minister shall be
intimated that this has been done because allegations against the Judge had
been found by the Committee to be so serious as to warrant the initiation
of proceedings for removal and the copy of the report of the Committee may
be enclosed.
(8) If the Committee finds that there is substance in the allegations but
the misconduct disclosed is not so serious as to call for initiation of
proceedings for removal of the judge, the CJI shall call the Judge
concerned and advise him accordingly and may also direct that the report of
the Committee be placed on record."
23. Next in sequence, we may advert to the letter dated 4.8.2008 written
by the then Chief Justice of India, Mr. Justice K.G. Balakrishnan, to the
then Prime Minister Mr. Manmohan Singh, recommending the removal of Mr.
Justice Soumitra Sen, then a sitting Judge of the Calcutta High Court. A
relevant extract of the above letter is placed below:
"The text of the letter written by Chief Justice of India, K.G.
Balakrishnan to Prime Minister Manmohan Singh recommending removal of Mr.
Justice Soumitra Sen, Judge of the Calcutta High Court.
Dated: 4 August, 2008
Dear Prime Minister,
I write this to recommend that the proceedings contemplated by Article
217(1) read with Article 124(4) of the Constitution be initiated for
removal of Mr. Justice Soumitra Sen, Judge, Calcutta High Court.
2-8. xxx xxx xxx
9. Reports appeared in newspapers concerning the conduct of Justice
Soumitra Sen in the above-noted matter. The then Chief Justice of Calcutta
High Court withdrew judicial work from him and wrote a letter dated 25th
November, 2006 to my learned predecessor bringing the matter to his notice
for appropriate action.
10. On 1st July, 2007 I sought a comprehensive report from the Chief
Justice of Calcutta High Court along with his views about Justice Soumitra
Sen. On 12th July, 2007 Justice Soumitra Sen called on me, on advice of his
Chief Justice and verbally explained his conduct. He sent his report to me
on 20th August, 2007.
11. xxx xxx xxx
12. On 10th September, 2007 I had asked Justice Soumitra Sen to furnish his
fresh and final response to the judicial observations made against him.
After seeking more time for this purpose he furnished his response on 28th
September, 2007 requesting that he may be allowed to resume duties in view
of the order of the Division Bench of Calcutta High Court.
13. Since I felt that a deeper probe was required to be made into the
allegations made against Justice Soumitra Sen, to bring the matter to a
logical conclusion, I constituted a three Member Committee consisting of
Justice A.P. Shah (Chief Justice, Madras High Court), Justice A.K. Patnaik
(Chief Justice, High Court of Madhya Pradesh) and Justice R.M. Lodha
(Judge, Rajasthan High Court), as envisaged in the 'In-House Procedure'
adopted by Supreme Court and various High Courts, to conduct a fact finding
enquiry, wherein the Judge concerned would be entitled to appear and have
his say in the proceedings.
14. The Committee submitted its report dated 1st February, 2008, after
calling for relevant records and considering the submission made by Justice
Soumitra Sen, who appeared in-person before the Committee. The Committee
inter alia concluded that:
(a) Shri Soumitra Sen did not have honest intention right from the year
1993 since he mixed the money received as a Receiver and his personal money
and converted Receiver's money to his own use:
(b) There has been misappropriation (at least temporary) of the sale
proceeds since:
(i) he received Rs. 24,57,000/- between 25th February 1993 to 10th January,
1995 but the balance in the Account No. 01SLPO632800 on 28th February, 1995
was only Rs. 8,83,963.05.
(i) a sum of Rs. 22,83,000/- was transferred by him from that account to
Account No. 01SLPO813400 and, thereafter, almost entire amount was
withdrawn in a couple of months reducing the balance to the bare minimum of
Rs. 811.56, thus, diverting the entire sale proceeds for his own use and
with dishonest intention.
he gave false explanation to the court that an amount of Rs. 25,00,000/-
was invested from the account where the sale proceeds were kept, whereas,
in fact, the amount of Rs. 25,00,000/- was withdrawn from Special Officer's
Account No. 01SLPO813400 and not from 01SLPO632800, in which the sale
proceeds were deposited;
(d) mere monetary recompense under the compulsion of judicial order does
not obliterate breach of trust and misappropriation of Receiver's funds for
his personal gain;
(e) the conduct of Shri Soumitra Sen had brought disrepute to the high
judicial office and dishonour to the institution of judiciary, undermining
the faith and confidence reposed by the public in the administration of
justice.
In the opinion of the Committee misconduct disclosed is so serious that it
calls for initiation of proceedings for his removal.
15. A copy of the Report dated 6th February, 2008 of the Committee was
forwarded by me to Justice Soumitra Sen and in terms of the In-House
procedure, he was advised to resign or seek voluntary retirement.
Thereupon, Justice Soumitra Sen made a detailed representation dated 25th
February, 2008 seeking reconsideration of the decision of his removal and
sought a personal hearing. On 16th March, 2008 a Collegium consisting of
myself, Justice B.N. Agrawal and Justice Ashok Bhan (Seniormost Judges of
Supreme Court) gave a hearing to Justice Soumitra Sen and reiterated the
advice given to him to submit his resignation or seek voluntary retirement
on or before 2nd April, 2008. However, vide his letter dated 26th March,
2008 Justice Soumitra Sen expressed his inability to tender resignation or
seek voluntary retirement.
In view of the foregoing, it is requested that proceedings for removal of
Justice Soumitra Sen be initiated in accordance with the procedure
prescribed in the Constitution.
With warm regards,
Yours sincerely
Sd/-
(K.G. Balakrishnan)
Hon'ble Dr. Manmohan Singh,
Prime Minister of India,
7, Race Course Road,
New Delhi-110011."
Based on the communication addressed by the Chief Justice of India,
impeachment proceedings were actually initiated against Mr. Justice
Soumitra Sen, under Article 124 of the Constitution of India. Consequent
upon his resignation, during the course of deliberation on the impeachment
proceedings in Parliament, the impeachment proceedings were dropped as
having been abated.
24. It is, therefore, apparent that the seeds of the "in-house procedure"
came to be sown in the judgment rendered by this Court in C. Ravinchandran
Iyer's case (supra). It is also apparent, that actions have been initiated
under the "in-house procedure", which has the approval of the Full Court of
the Supreme Court of India. And, based on the afore-stated "in-house
procedure", impeachment proceedings were actually initiated by the
Parliament under Article 124 of the Constitution of India. There can
therefore be no doubt whatsoever, that in the above situation, the "in-
house procedure" is firmly in place, and its adoption for dealing with
matters expressed by this Court in C. Ravichandran Iyer's case (supra) is
now a reality.
25. Despite the above conclusion, it is imperative to take into
consideration the observations recorded by this Court in Indira Jaising v.
Registrar General, Supreme Court (2003) 5 SCC 494, as under:
"In our constitutional scheme it is not possible to vest the Chief Justice
of India with any control over the puisne Judges with regard to conduct
either personal or judicial. In case of breach of any rule of the Code of
Conduct, the Chief Justice can choose not to post cases before a particular
Judge against whom there are acceptable allegations. It is possible to
criticise that decision on the ground that no enquiry was held and the
Judge concerned had no opportunity to offer his explanation particularly
when the Chief Justice is not vested with any power to decide about the
conduct of a Judge. There is no adequate method or machinery to enforce the
Code of Conduct. Article 124 provides for appointment of Judges of this
Court and also their removal. Similarly, Article 217 deals with the
appointment and removal of the Judges of the High Court. In the Judges'
Enquiry Act of 1968 provisions are made for investigation into misbehavior
or incapacity of a Judge. It may be noted that since Judges of the superior
Courts occupy very high positions, disciplinary proceedings which exist in
the case of all other employees cannot be though of.
The Committee referred to by the petitioner is stated to have been
constituted as a part of In-House procedure. A Judge cannot be removed from
his Office except by impeachment by a majority of the House and a majority
of not less than 2/3rd present and voting as provided by
Articles 124 and217 of the Constitution of India. The Judges (Inquiry) Act,
1968 has been enacted providing for the manner of conducting inquiry into
the allegation of judicial conduct upon a Motion of Impeachment sponsored
by at least 100 Lok Sabha members or 50 Rajya Sabha members. The Presiding
Officer of the concerned House has the power to constitute a Committee
consisting of three persons as enumerated therein. No other disciplinary
inquiry is envisaged or contemplated either under the Constitution or under
the Act. On account of this lacuna In-House procedure has been adopted for
inquiry to be made by the peers of Judges for report to the Hon'ble the
Chief Justice of India in case of a complaint against the Chief Justices or
Judges of the High Court in order to find out truth of the imputation made
in the complaint and that In-House inquiry is for the purpose of his own
information and satisfaction. A report made on such inquiry if given
publicity will only lead to more harm than good to the institution as
Judges would prefer to face inquiry leading to impeachment. In such a case
the only course open to the parties concerned if they have material is to
invoke the provisions of Article 124 or Article 217 of the Constitution, as
the case may be. It is not appropriate for the petitioner to approach this
Court for the relief or direction for release of the Report, for what the
Chief Justice of India has done is only to get information from peer Judges
of those who are accused and the report made to the Chief Justice of India
is wholly confidential. The said report is only for the purpose of
satisfaction of the Chief Justice of India that such a report has been
made. It is purely preliminary in nature, ad hoc and not final. If the
Chief Justice of India is satisfied that no further action is called for in
the matter, the proceeding is closed. If any further action is to be taken
as indicated in the In-House procedure itself, the Chief Justice of India
may take such further steps as he deems fit. Therefore, in the hierarchy of
the courts, the Supreme Court does not have any disciplinary control over
the High Court Judges, much less the Chief Justice of India has any
disciplinary control over any of the Judges. That position in law is very
clear. Thus, the only source or authority by which the Chief Justice of
India can exercise this power of inquiry is moral or ethical and not in
exercise of powers under any law. Exercise of such power of the Chief
Justice of India based on moral authority cannot be made subject matter of
a writ petition to disclose a report made to him."
A perusal of the observations made by this Court in the extract reproduced
above, reveals that the existence of the "in-house procedure" is now an
established means for inquiring into allegations levelled against a judge
of a superior court, through his peers. It is a confidential inquiry for
institutional credibility under the charge of the Chief Justice of India.
And therefore, its affairs are to be kept out of public domain. The
proceedings under the above procedure being sensitive, are required to be
inaccessible to third parties. And therefore, the prayer seeking the
disclosure of the report submitted on the culmination of the "in-house
procedure" was declined. The object sought to be addressed through the "in-
house procedure", is to address concerns of institutional integrity. That
would, in turn, sustain the confidence of the litigating public, in the
efficacy of the judicial process.
26. It is impermissible to publicly discuss the conduct of a sitting
judge, or to deliberate upon the performance of his duties, and even on/of
court behaviour, in public domain. Whilst the "in-house procedure" lays
down means to determine the efficacy of the allegations levelled, it is now
apparent, that the procedure is not toothless, in the sense, that it can
lead to impeachment of the concerned judge under Article 124 of the
Constitution of India. Such being the cause, effect and repercussions of
the findings recorded during the course of the "in-house procedure", this
Court in Indira Jaising's case (supra) declined to entertain the writ
petition filed at the behest of a third party, seeking details of the
proceedings, and the consequential report prepared by the committee of
judges. But, that should not be understood to mean, that an individual
concerned, who is called upon to subject himself/herself to the
contemplated procedure, should be precluded or prevented from seeking
judicial redress. It is now well understood, that an individual who
subjects himself/herself to the jurisdiction of an authority, cannot turn
around to find fault with it at a later juncture. If there is a fault, the
same should be corrected, before one accepts to submit to the jurisdiction
of the concerned authority. The submission of the petitioner in the
present case, to the "two-Judge Committee", would certainly have had the
above effect. We are therefore satisfied to hold, that those who are
liable to be affected by the outcome of the "in-house procedure", have the
right to seek judicial redressal, on account of a perceived irregularity.
The irregularity may be on account of the violation of the contemplated
procedure, or even because of contemplated bias or prejudice. It may be on
account of impropriety. The challenge can extend to all subjects on which
judicial review can be sought. The objections raised on behalf of
respondent no.3, in respect of the sustainability of the instant petition
at the hands of Addl.D&SJ 'X', are therefore wholly untenable. The
challenge to the maintainability of the instant writ petition, is
accordingly declined.
27. The petitioner's pointed contention with reference to the procedure
adopted, while giving effect to the "in-house procedure" approved by the
Full Court of the Supreme Court, is with reference to the clear and
categoric jurisdictional authority, exclusively vested with the Chief
Justice of the concerned High Court. According to learned counsel, the
Chief Justice of the High Court is, to examine the veracity of the
allegations, at his own. It was accordingly submitted, that the Chief
Justice of the High Court, had neither the jurisdiction nor authority, to
constitute a committee of judges to hold a fact finding inquiry, by
recording statements of witnesses. Pointing out to the procedure
contemplated in paragraph (1) of the "in-house procedure" (extracted in
paragraph 22 herein above), it was submitted, that where the complaint made
against a sitting judge of the High Court is received by the Chief Justice
of the High Court, "he" is required to examine the same. On "his"
examination, if the complaint is found to be frivolous or directly related
to the merits of a substantive decision in a judicial matter, or if it does
not involve serious allegations of misconduct or impropriety, "he" shall
file the complaint and inform the Chief Justice of India accordingly.
Alternatively, if it is found by "him", that the complaint is of a serious
nature involving misconduct or impropriety, "he" would seek the response of
the concerned judge. Based on the complaint and the response, "the Chief
Justice of the High Court" would take appropriate action, namely, "he"
would file the complaint if "he" is satisfied that no further action is
necessary. However, if "he" considers that the allegations need to be
further probed, "he" would forward the complaint, and the response of the
concerned judge, along with "his" comments to the Chief Justice of India.
It was pointed out that the terms "he", "his" or "him", have a reference,
exclusively to the Chief Justice of the concerned High Court.
28. Referring to paragraph (2) of the "in-house procedure" pertaining to
a complaint against a sitting High Court Judge, i.e., in situations where
the complaint is received by the Chief Justice of India directly (or it is
forwarded to him by the President of India), the Chief Justice of India may
file the complaint at his own, if it is found by "him", i.e., the Chief
Justice of India, that it is either frivolous or directly related to the
merits of a substantive decision in a judicial matter or does not involve
any serious misconduct or impropriety. In other cases, the complaint shall
be forwarded by the Chief Justice of India to the Chief Justice of the
concerned High Court. On the receipt of such complaint, the Chief Justice
of the High Court would seek the response of the concerned judge. The
consideration at the hands of the Chief Justice of the High Court, is
limited to an examination of the complaint in conjunction with the response
of the concerned judge. Thereupon, the Chief Justice of the High Court
could either be satisfied that no further action is called for, or "he" may
entertain the opinion that the allegations contained in the complaint need
a deeper probe. "he" shall return the complaint to the Chief Justice of
India, along with the response of the concerned judge and "his" comments.
It was pointed out, that even in paragraph (2) of the "in-house procedure"
the terms "he" and "his", have a reference exclusively to the Chief Justice
of the High Court.
29. Based on paragraphs (1) and (2) of the "in-house procedure"
pertaining to complaint against a sitting High Court Judge, it is the
contention of the learned counsel for the petitioner, that the procedure
does not envisage/contemplate, holding of a full fledged inquiry. The
jurisdiction vested in the Chief Justice of the High Court, under the "in-
house procedure", according to learned counsel, is limited to seeking the
response of the concerned judge, and thereupon, in case the allegations
contained in the complaint require a deeper probe, the Chief Justice of the
High Court, is to forward the complaint along with the response of the
concerned High Court Judge, as well as his own comments, to the Chief
Justice of India. It is therefore, the contention of the learned counsel
for the petitioner, that constitution of the "two-Judge Committee", to be
assisted for secretarial purposes, by a senior lady Additional District
Judge, was clearly beyond the authority and jurisdiction of the Chief
Justice of the High Court, and that the same was in complete violation and
derogation of the "in-house procedure" approved by the Full Court of the
Supreme Court.
30. It was also the contention of the learned counsel for the petitioner,
that the action of the "two-Judge Committee" constituted by the Chief
Justice of the High Court, requiring the petitioner to appear before the
Committee, along with relevant documents in relation to the imputations
levelled by her, was also impermissible. It was pointed out, that the "two-
Judge Committee" had not only required the petitioner's presence, but also
that of her daughter. It is further submitted, that a communication was
addressed by the "two-Judge Committee" to the petitioner's husband, also
requiring him to remain present before the Committee. All the afore-stated
actions, according to the learned counsel for the petitioner, were in clear
violation of the "in-house procedure", approved by the Full Court of the
Supreme Court.
31. During the course of hearing, learned counsel for the petitioner
invited our attention, to the assertions made on behalf of respondent no.3,
namely, that it was imperative for the "two-Judge Committee" constituted by
the Chief Justice of the High Court, to verify the factual position, from
the wife of the Chief Judicial Magistrate, Gwalior, the District Registrar,
Gwalior, the District Judge (Inspection), Gwalior, as also, the District
and Sessions Judge, Gwalior, since averments had been made with reference
to all of them, in the complaint filed by the petitioner. Responding to
the aforesaid, it was submitted, that an inquiry extending to the persons
referred to hereinabove, as also the staff attached to the petitioner, who
could be witnesses, to the acts of omission and commission alleged against
respondent no.3, were also clearly beyond the scope of "in-house
procedure".
32. It is also necessary for us to record, that the submissions advanced
at the hands of the learned counsel for the petitioner, to demonstrate the
responsibility of the Chief Justice of the High Court, with reference to
the "in-house procedure", was not contested by the learned counsel for the
respondents. Whilst the stance adopted by the Registrar General of the
High Court was, that the procedure adopted by the Chief Justice of the High
Court, was based on the sensitivity involved in the matter. In the counter
affidavit filed on behalf of the Registrar General of the High Court, it is
sought to be averred, that even though the "two-Judge Committee"
constituted by the Chief Justice of the High Court had commenced to inquire
into the matter, but the report thereof was not submitted to the Chief
Justice of the High Court, because of the news flashed in the media on
29.08.2014, about this Court having stayed further proceedings in the
matter. The issue under consideration is not whether the Chief Justice of
the High Court was well meaning, in constituting the "two-Judge Committee"
for inquiring into the matter. The issue is, whether it was open to the
Chief Justice of the High Court, to constitute such a committee, within the
framework of the "in-house procedure". We are satisfied, that the Chief
Justice of the High Court, had no jurisdiction to do so, in terms of the
"in-house procedure". It is therefore, that the learned counsel
representing the High Court repeatedly adopted the stance, that in the
given facts and circumstances of the case, the High Court would not be
averse to following any procedure, which this Court would consider
reasonable and proper. Learned Solicitor General representing the Secretary
General of the Supreme Court, fully endorsed the above view.
33. No pointed submission was advanced by the counsel representing
respondent no.3 - Justice 'A', on the main submission advanced at the hands
of the learned counsel for the petitioner. Learned counsel for respondent
no.3, in order to repudiate the submissions advanced at the hands of the
learned counsel for the petitioner, contended that the Chief Justice of a
High Court, does not function under the administrative control of the Chief
Justice of India. It was, therefore pointed out, that while adjudicating
on the issue being canvassed, it needed to be kept in mind, that the Chief
Justice of a High Court, is not subservient to the Chief Justice of India.
It was accordingly asserted, that in discharging his onerous
responsibility, the Chief Justice of a High Court, would (and should) be at
liberty, to evolve a procedure, in the best interest of all concerned. It
was submitted, that the Chief Justice of a High Court, should not be
deprived of the said liberty, for the simple reason, that he has to ensure
fairness to the rival parties, and at the same time, to safeguard the
dignity of the institution. It was therefore, that learned counsel advised
us, not to limit or place fetters on the discretion of the Chief Justice of
the High Court, insofar as the investigative procedure is concerned.
Learned counsel submitted, that the procedure adopted by the Chief Justice
of the High Court, represented the ethical and moral authority of the High
Court, and as such, it would not be proper to interfere with the same. It
was submitted, that the petitioner had not alleged, that the procedure
adopted by the Chief Justice of the High Court, was unethical or morally
improper. It was repeatedly pointed out, that the proceedings assailed by
the petitioner, had neither any statutory status, nor the force of law. It
was submitted that the Chief Justice of the High Court had followed the
procedure, he felt best for the purpose. The submissions of the learned
counsel representing respondent no.3, we are sure, was well intentioned.
The response of the learned counsel avoids the issue being canvassed. The
response would be understandable if the Chief Justice of the High Court had
adopted the procedure in question, because the "in-house procedure", would
not have been the proper course to follow, or would have resulted in
injustice to one or the either party. But that is not the case here.
34. We have given our thoughtful consideration to the main contention
advanced at the hands of the learned counsel for the petitioner. In the
process of examining the "in-house procedure", we have had the occasion to
appreciate the invaluable contribution made by three Judges of this Court,
two of whom adorned this Court as Chief Justices, and two Chief Justices of
High Courts, one of whom was later elevated as a Judge of this Court. The
"in-house procedure", did not overlook any relevant aspect. The
sensitivity of the matter was kept in mind. The individual integrity of
the parties was taken care of. The parties concerned were assured, that
all efforts would be made to unravel the truth. The procedure devised
ensured the preservation of institutional reputation, as well. In dealing
with complaints made against sitting judges of High Courts, the onus of
recording a prima facie view, was vested with the Chief Justice of the
concerned High Court. Participation in the investigative process, at the
hands of any other judge of the same High Court, was sought to be excluded.
The exclusion of judges of the same Court from the investigative process,
was also well thought out. In certain situations it may be true, as
pointed out by the learned counsel for the petitioner, that judges of the
same Court being colleagues of the concerned judge, would endeavour to
exculpate him from his predicament. It is not as if, the position could
not be otherwise. Animosity amongst colleagues is not unknown. Reasons of
competitiveness, jealousy and the like are known amongst colleague judges,
specially from the same High Court. By excluding judges of the concerned
High Court (as the judge complained against), is bound to be beneficial, in
both the situations, referred to above. The Chief Justice of the High
Court, being a Judge from another State, would be shorn of any such
prejudices. Moreover, being a man on the spot, he would be most suited for
the purpose.
35. A perusal of the "in-house procedure" applicable to sitting judges of
High Courts reveals, that the same is compartmentalized into two stages.
Through the first stage, the prima facie veracity of the allegations,
contained in the complaint is ascertained. If so, whether a deeper probe
is called for. The first stage does not contemplate an in-depth examination
of the allegations. It requires merely an assessment based on the contents
of the complaint, and the response of the concerned judge. All that the
Chief Justice of the High Court is required to do, is to determine whether
a deeper probe is required. This is to be done, on the basis of a logical
assessment made on a consideration of the response of the concerned Judge
(with reference to the allegations levelled in the complaint).
36. It is the second stage of the "in-house procedure", relating to
sitting judges of High Courts, which could lead to serious consequences.
The second stage is monitored by none other, than the Chief Justice of
India. Only if the Chief Justice of India endorses the view expressed by
the Chief Justice of the High Court, that a deeper probe is called for, he
would constitute a "three-member Committee", and thereby take the
investigative process, to the second stage. This Committee is to comprise
of two Chief Justices of High Courts (other than the concerned High Court),
besides a Judge of a High Court. The second stage, postulates a deeper
probe. Even though the "three-member Committee" is at liberty to devise
its own procedure, the inherent requirement provided for is, that the
procedure evolved should be in consonance with the rules of natural
justice. Herein, for the first time, the authenticity of the allegations,
are to be probed, on the basis of an inquiry. The incumbents of the "three-
member Committee", would have no nexus, with the concerned judge. Not only
would the concerned judge have a fair opportunity to repudiate the
allegations levelled against him, even the complainant would have the
satisfaction, that the investigation would not be unfair. The "in-house
procedure" was devised to ensure exclusion of favouritism, prejudice or
bias.
37. By forwarding the complaint received by the Chief Justice of India
against respondent no.3 - Justice 'A', to the Chief Justice of the High
Court, the "in-house procedure" was sought to be put in motion. The
extract of the "in-house procedure" (applicable to sitting Judges of High
Court), reproduced in paragraph 22 above reveals, that the same is
expressed in the simplest possible words. For recording our conclusions,
we have endeavoured to explain the same through "seven steps" contemplated
therein. The description of the "in-house procedure", relating to sitting
High Court Judges, is being narrated hereunder, stepwise:
Step one: (i) A complaint may be received, against a sitting Judge of a
High Court, by the Chief Justice of that High Court;
(ii) A complaint may also be received, against a sitting Judge of a
High Court, by the Chief Justice of India;
(iii) A complaint may even be received against a sitting Judge of a High
Court, by the President of India. Such a complaint is then forwarded to
the Chief Justice of India;
In case of (i) above, the Chief Justice of the High Court shall examine the
contents of the complaint, at his own, and if the same are found to be
frivolous, he shall file the same.
In case of (ii) and (iii) above, the Chief Justice of India shall similarly
examine the contents of the complaint, by himself, and if the same are
found to be frivolous, he shall file the same.
Step two: (i) The Chief Justice of the High Court, after having examined
a complaint, may entertain a feeling, that the complaint contains serious
allegations, involving misconduct or impropriety, which require a further
probe;
(ii) The Chief Justice of India, on examining the contents of a
complaint, may likewise entertain a feeling, that the complaint contains
serious allegations, involving misconduct or impropriety, which require a
further probe;
In case of (i) above, the Chief Justice of the High Court, shall seek a
response from the concerned Judge, and nothing more.
In case of (ii) above, the Chief Justice of India, shall forward the
complaint to the Chief Justice of the High Court. The Chief Justice of the
High Court, shall then seek a response from the concerned Judge, and
nothing more.
Step three: The Chief Justice of the High Court, shall consider the
veracity of the allegations contained in the complaint, by taking into
consideration the response of the concerned Judge. The above consideration
will lead the Chief Justice of the High Court, to either of the below
mentioned inferences:
(i) The Chief Justice of the High Court, may arrive at the inference,
that the allegations are frivolous. In the instant eventuality, the Chief
Justice of the High Court shall forward his opinion to the Chief Justice of
India.
(ii) Or alternatively, the Chief Justice of the High Court, may arrive at
the opinion, that the complaint requires a deeper probe. In the instant
eventuality, the Chief Justice of the High Court, shall forward the
complaint, along with the response of the Judge concerned, as also his own
consideration, to the Chief Justice of India.
Step four: The Chief Justice of India shall then examine, the allegations
contained in the complaint, the response of the concerned Judge, along with
the consideration of the Chief Justice of the High Court. If on such
examination, the Chief Justice of India, concurs with the opinion of the
Chief Justice of the High Court (that a deeper probe is required, into the
allegations contained in the complaint), the Chief Justice of India, shall
constitute a "three-member Committee", comprising of two Chief Justices of
High Courts (other than the High Court, to which the Judge belongs), and
one High Court Judge, to hold an inquiry, into the allegations contained in
the complaint.
Step five: The "three-member Committee" constituted by the Chief Justice
of India, shall conduct an inquiry, by devising its own procedure,
consistent with the rules of natural justice. On the culmination of the
inquiry, conducted by the "three-member Committee", it shall record its
conclusions. The report of the "three-member Committee", will be
furnished, to the Chief Justice of India. The report could lead to one of
the following conclusions:
That, there is no substance in the allegations levelled against the
concerned Judge; or that there is sufficient substance in the allegations
levelled against the concerned Judge. In such eventuality, the "three-
member Committee", must further opine, whether the misconduct levelled
against the concerned Judge is so serious, that it requires initiation of
proceedings for removal of the concerned Judge; or that, the allegations
contained in the complaint are not serious enough to require initiation of
proceedings for the removal of the concerned Judge.
In case of (i) above, the Chief Justice of India, shall file the complaint.
In case of (ii) above, the report of the "three-member Committee", shall
also be furnished (by the Committee) to the concerned Judge.
Step six: If the "three-member Committee" constituted by the Chief
Justice of India, arrives at the conclusion, that the misconduct is not
serious enough, for initiation of proceedings for the removal of the
concerned Judge, the Chief Justice of India shall advise the concerned
Judge, and may also direct, that the report of the "three-member Committee"
be placed on record. If the "three-member Committee" has concluded, that
there is substance in the allegations, for initiation of proceedings, for
the removal of the concerned Judge, the Chief Justice of India shall
proceed as under:-
(i) The concerned judge will be advised, by the Chief Justice of India,
to resign or to seek voluntary retirement.
(ii) In case the concerned Judge does not accept the advice of the Chief
Justice of India, the Chief Justice of India, would require the Chief
Justice of the concerned High Court, not to allocate any judicial work, to
the concerned Judge.
Step seven: In the eventuality of the concerned Judge, not abiding by the
advice of the Chief Justice of India, the Chief Justice of India, as
indicated in step six above, the Chief Justice of India, shall intimate the
President of India, and the Prime Minister of India, of the findings of the
"three-member Committee", warranting initiation of proceedings, for removal
of the concerned judge.
38. It is apparent from the "seven steps", of the "in-house procedure",
for sitting High Court Judges, that the role of the Chief Justice of the
High Court, is limited to the first three steps. We are satisfied, that
the main contention advanced by the learned counsel for the petitioner,
relying on the "in-house procedure" is fully justified. There can be no
doubt, that it was not open to the Chief Justice of the High Court, either
to constitute the "two-Judge Committee", or to require the "two-Judge
Committee", to hold an inquiry into the matter, by recording statements of
witnesses. The role of the Chief Justice of the High Court, being limited
to the first stage of the investigative process, during which the only
determination is, whether a prima facie case is made out requiring a deeper
probe; the Chief Justice of the High Court had exceeded the authority
vested in him under the "in-house procedure". It is only in the second
stage of the investigative process, that the Chief Justice of India, is to
constitute a "three-member Committee" for holding a deeper probe, into the
allegations levelled in the complaint. Learned counsel for the petitioner,
was fully justified, in submitting, that the "two-Judge Committee"
constituted by the Chief Justice of the High Court, was beyond the purview
of the "in-house procedure".
39. Having examined the facts and circumstances of the case, we are of
the view, that by not strictly abiding by the procedure contemplated under
the "in-house procedure" evolved by this Court, the Chief Justice of the
High Court, introduced serious infirmities in the investigative process.
These infirmities were of the nature which were sought to be consciously
avoided under the "in-house procedure". We may mention a few. It is
apparent, that the "in-house procedure" contemplated an independent
holistic two-stage process. We have described hereinabove, that the first
stage comprises of steps 'one' to 'three'. The first stage is limited to a
prima facie consideration, at the hands of the Chief Justice of the High
Court, for determining whether a deeper probe into the matter was required.
The first stage of the "in-house procedure" contemplates the implied
exclusion of colleague Judges, from the same High Court. In the process
adopted by the Chief Justice of the High Court, he has consciously involved
colleague Judges, of the same High Court. This was sought to be avoided
under the "in-house procedure". Unfortunately, what Chief Justice of the
High Court has embarked upon, is not a prima facie determination, but a
holistic consideration of the allegations. This is also wholly contrary to
the "in-house procedure". The Chief Justice of the High Court, has
actually embarked upon steps 'four' to 'seven', which are a part of the
second stage of the "in-house procedure". The second stage of the "in-
house procedure" envisages a deeper probe, which is to be monitored by the
Chief Justice of India himself. If the proceedings move to the second
stage, the Chief Justice of India, would nominate a "three-member
Committee". In the process adopted by the Chief Justice of the High Court,
he has usurped the investigative process, assigned to the "three-member
Committee". The Chief Justice of the High Court, has himself, commenced
the deeper probe, through the "two-Judge Committee". Furthermore, under
the second stage, the inquiry is to be conducted by two sitting Chief
Justices of High Courts, and one Judge of a High Court. An inquiry
conducted by the "three-member Committee", in terms of the "in-house
procedure", would have a wholly different impact. Not only would the
concerned parties feel reassured, that justice would be done, even the
public at large would be confident, that the outcome would be fair and
without any prejudices. By doing so, the Chief Justice of the High Court,
ignored the wisdom of the Committee of Judges, who devised the "in-house
procedure", as also, the determination of the Full Court of the Supreme
Court of India. In the procedure adopted, by the Chief Justice of the High
Court in the instant case, it is possible for one or the other party to
feel, that he/she may not get justice at the hands of the "two-Judge
Committee". In fact, that is exactly the position, in the present case.
For the reasons recorded hereinabove, the proceedings adopted by the Chief
Justice of the High Court are liable to be set aside. The same are
accordingly hereby set aside.
40. The next contention of the learned counsel for the petitioner was,
that the inquiry conducted by the "two-Judge Committee", constituted by the
Chief Justice of the High Court, cannot be expected to arrive at a fair
conclusion. That by itself, according to learned counsel, vitiates the
entire proceedings. The instant submission was sought to be supported on
two counts. Firstly, it was the submission of the learned counsel for the
petitioner, that all the persons and officers through whom the petitioner
is to substantiate her allegations, are subordinate to respondent no.3 -
Justice 'A'. It was pointed out, that Justice 'A' exercises administrative
superintendence and control over them. It was also the submission of the
learned counsel for the petitioner, that even persons who would vouchsafe
the veracity of the assertions made by respondent no. 3 - Justice 'A', are
under the administrative supervision and control of respondent no. 3, and
as such, they too cannot be expected to make statements, freely and without
fear. Secondly, it was the contention of the learned counsel for the
petitioner, that the "two-Judge Committee" constituted by the Chief Justice
of the High Court, comprised of colleagues of respondent no.3 - Justice
'A', and as such, the said committee may not be open-minded enough, to
affirm the claim of the petitioner. In this behalf, it was the submission
of the learned counsel, that the endeavour of the "two-Judge Committee",
would be to exculpate their colleague, from the allegations levelled
against him. Accordingly, it was the assertion of the learned counsel,
that the "two-Judge Committee" required to inquire into the matter, by the
Chief Justice of the High Court, was wholly unsuited for inquiring into the
allegations levelled by the petitioner.
41. It is not necessary for us, to delve into the contention advanced at
the hands of the learned counsel for the petitioner, as has been noticed in
the foregoing paragraph, for the simple reason, that while accepting the
main contention advanced at the hands of the learned counsel, we have
already concluded, that the procedure adopted by the Chief Justice of the
High Court, is liable to be set aside. Be that as it may, we consider it
just and appropriate to deal with the above contention, so that the issue
canvassed is crystallized, by an effective determination for future
reference. There can be no doubt, that an investigation, would lead to
consequences. The concerned judge may be found remiss, or alternatively, he
may be exculpated of the charges. Whilst in the former eventuality, the
concerned judge against whom the findings are recorded, would be the
obvious sufferer. In the latter eventuality, the adverse consequences
would be against the complainant, for it would be assumed that she had
levelled unfounded allegations. It is therefore imperative, that the
procedure adopted for the investigative process, is absolutely fair for all
concerned. The procedure should be such as would ensure, that it would be
shorn of favouritism, prejudice or bias. Presence of any one of the above,
would vitiate the entire investigative process. Recording of statements of
individuals, who are subservient to respondent no.3 - Justice 'A',
irrespective of whether the statements are recorded on behalf of the
complainant or the concerned judge, would most definitely render the
investigative process unsustainable in law. The influence of the concerned
judge, over the witnesses to be produced, either by the complainant or by
the concerned judge himself, will have to be removed. It will be for the
complainant, to raise a grievance of the nature referred to above. In such
an eventuality, the grievance will be considered by the Chief Justice of
India. And whenever necessary, remedial steps will be taken.
42. The last contention of the learned counsel for the petitioner was,
that the Chief Justice of the High Court himself, is clearly incapacitated,
to be a party to any determinative process, insofar as the allegations
levelled by the petitioner are concerned. It was the contention of the
learned counsel, that for the present case, the Chief Justice of the High
Court, should not even be required to determine, whether or not a deeper
probe into the matter was required. Insofar as the instant aspect of the
matter is concerned, learned counsel vehemently contended, that the
petitioner had made numerous efforts to meet the Chief Justice of the High
Court, to apprise him of the factual position. It was pointed out, that in
the petitioner's efforts to meet the Chief Justice of the High Court, she
had also made repeated attempts to do so, through the Private Secretary of
the Chief Justice. The Private Secretary has now assumed the stance, that
the petitioner had never contacted him, for the said purpose. This
position, according to the petitioner, is false not only to the knowledge
of the Private Secretary, but also, to the knowledge of all concerned. It
is sought to be emphasized, that a press note was also released, to the
aforesaid effect, at the behest of the Chief Justice of the High Court.
The position adopted by the Chief Justice of the High Court, according to
the learned counsel, clearly reveals a position of denial of the factual
assertions made by the petitioner. In the above view of the matter, it was
the contention of the learned counsel for the petitioner, that even the
Chief Justice of the High Court, was in denial of the facts asserted by the
petitioner. And by doing so, the Chief Justice of the High Court had
rendered himself ineligible, for any role arising out of the complaint made
by the petitioner.
43. It is essential for us to record a finding even on the last
contention advanced at the hands of the learned counsel. We say so,
because according to the learned counsel for the petitioner, it would not
be proper, in the facts and circumstances of this case, to reinitiate the
process expressed in the "in-house procedure", through the Chief Justice of
the High Court. It seems to us, that there is merit in the instant
contention. Undoubtedly, the Chief Justice of the High Court has adopted a
position, in respect of some aspects of the matter, contrary to the
position asserted by the petitioner. Truthfully, even though these facts
do not have any direct bearing on the allegations levelled against
respondent no. 3, yet when examined dispassionately, the fact of the matter
is that the Chief Justice of the High Court, personally perceived certain
facts differently. These facts are personal to the Chief Justice of the
High Court, namely, whether attempts were made by the petitioner to meet
the Chief Justice of the High Court, and whether he declined such attempts.
In the above view of the matter, we are of the considered view, that it
may not be appropriate, in the facts and circumstances of the present case,
to associate the Chief Justice of the High Court with the investigative
process. It is not as if, there is any lack of faith, in the Chief Justice
of the High Court. It is also not as if, there is any doubt in our mind,
about the righteousness of the Chief Justice of the High Court. The issue
is that of propriety. To the credit of the Chief Justice of the High
Court, we may also observe, that he may have adopted the present procedure,
just for the reasons indicated above, namely, to keep himself out of the
fact finding process, so as to arrive at a fair and just decision. But
that is inconsequential. We are accordingly further satisfied in
concluding, that following the "in-house procedure" strictly by associating
the Chief Justice of the concerned High Court, would not serve the
contemplated purpose, insofar as the present controversy is concerned.
44. We have concluded hereinabove, that it is no longer viable, to
strictly follow the "in-house procedure" contemplated for sitting judges of
the High Court de novo. That however, does not mean, that it is no longer
possible to determine the veracity of the allegations levelled by the
petitioner. What procedure must be followed in the facts and circumstances
of the present case, will have to be determined by the Chief Justice of
India. We therefore, leave it to the Chief Justice of India, to take a
fresh call on the matter. All that needs to be done is, that the role
assigned to the Chief Justice of the concerned High Court, in the first
stage of the "in-house procedure", will now have to be assigned to some one
other than the Chief Justice of the concerned High Court. In taking a
decision on the matter, the Chief Justice of India may assign the above
role to a Chief Justice, of some other High Court. Or alternatively, he
may himself assume the said role. The assumption of the role by the Chief
Justice of India himself, would not be unrealistic, as the said role is
vested with the Chief Justice of India, under the "in-house procedure",
with reference to complaints received against Chief Justices of High
Courts.
45. In view of the consideration and the findings recorded hereinabove,
we may record our general conclusions as under:
(i) The "in-house procedure" framed by this Court, consequent upon
the decision rendered in C. Ravichandran Iyer's case (supra) can be
adopted, to examine allegations levelled against Judges of High Courts,
Chief Justices of High Courts and Judges of the Supreme Court of India.
(ii) The investigative process under the "in-house procedure" takes
into consideration the rights of the complainant, and that of the concerned
judge, by adopting a fair procedure, to determine the veracity of
allegations levelled against a sitting Judge. At the same time, it
safeguards the integrity of the judicial institution.
(iii) Even though the said procedure, should ordinarily be followed in
letter and spirit, the Chief Justice of India, would have the authority to
mould the same, in the facts and circumstances of a given case, to ensure
that the investigative process affords safeguards, against favouritism,
prejudice or bias.
(iv) In view of the importance of the "in-house procedure", it is
essential to bring it into public domain. The Registry of the Supreme
Court of India, is accordingly directed, to place the same on the official
website of the Supreme Court of India.
46. In the facts and circumstances of the present case, our conclusions
are as under:
With reference to the "in-house procedure" pertaining to a judge of a High
Court, the limited authority of the Chief Justice of the concerned High
Court, is to determine whether or not a deeper probe is required. The said
determination is a part of stage-one (comprising of the first three steps)
of the "in-house procedure" (elucidated in paragraph 37, hereinabove). The
Chief Justice of the High Court, in the present case, traveled beyond the
determinative authority vested in him, under stage-one of the "in-house
procedure".
The Chief Justice of the High Court, by constituting a "two-Judge
Committee", commenced an in-depth probe, into the allegations levelled by
the petitioner. The procedure adopted by the Chief Justice of the High
Court, forms a part of the second stage (contemplated under steps four to
seven -elucidated in paragraph 37, hereinabove). The second stage of the
"in-house procedure" is to be carried out, under the authority of the Chief
Justice of India. The Chief Justice of the High Court by constituting a
"two-Judge Committee" clearly traversed beyond his jurisdictional
authority, under the "in-house procedure".
In order to ensure, that the investigative process is fair and just, it is
imperative to divest the concerned judge (against whom allegations have
been levelled), of his administrative and supervisory authority and control
over witnesses, to be produced either on behalf of the complainant, or on
behalf of the concerned judge himself. The Chief Justice of the High Court
is accordingly directed to divest respondent no.3 - Justice 'A', of the
administrative and supervisory control vested in him, to the extent
expressed above.
The Chief Justice of the High Court, having assumed a firm position, in
respect of certain facts contained in the complaint filed by the
petitioner, ought not to be associated with the "in-house procedure" in the
present case. In the above view of the matter, the Chief Justice of India
may reinitiate the investigative process, under the "in-house procedure",
by vesting the authority required to be discharged by the Chief Justice of
the concerned High Court, to a Chief Justice of some other High Court, or
alternatively, the Chief Justice of India may himself assume the said role.
47. Liberty was sought by the learned counsel for the petitioner, to
raise all remaining issues raised in the writ petition, through a separate
petition. Leave and liberty sought, is granted. The instant petition is
disposed of, in the above terms.
.................................J.
(Jagdish Singh Khehar)
.................................J.
(Arun Mishra)
New Delhi;
December 18, 2014.
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