Full Judgment Text
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PETITIONER:
SPECIAL REFERENCE No. 1 OF 1983
Vs.
RESPONDENT:
DATE OF JUDGMENT17/08/1983
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
PATHAK, R.S.
MUKHARJI, SABYASACHI (J)
CITATION:
1983 AIR 996 1983 SCR (3) 639
1983 SCC (4) 258 1983 SCALE (2)97
ACT:
Constitution of India, 1950-Article 317(1)-Scope of-
Allegation of assault on the Chairperson by a Member of
Public Service Commission-Reference by President-Procedure
to be followed-Supreme Court Rules-order XXXVIIl rule 2-
Scope of.
HEADNOTE:
The Chairperson of the Punjab Public Service Commission
made a complaint to the President of India alleging that a
certain member of the Commission had committed gross
misbehaviour towards her by slapping her on her face in the
presence of three other members of the Commission. In
exercise of the power conferred by Article 317(1) of the
Constitution, the President had referred for consideration
of this Court the question whether on the ground of gross
misbehaviour the member ought to be removed from the office
of Member of the Public Service Commission.
Certain persons who claimed to have knowledge of the
incident filed their affidavits. The Member’s wife, who had
also filed an affidavit, alleged that the then Chief
Minister was not happy with her husband’s appointment as a
member of the Commission, that the Chairperson’s husband,
who was running classes for training students for the Public
Service Commission examinations, wanted certain students of
his to be favoured in these examinations and that when her
husband refused to accede to the request he was falsely
implicated in this incident.
It was contended on behalf of the Member that before
making the reference the President (1) ought to have
referred the case to a fact finding body to ascertain
whether a prima facie case had been made out for obtaining
the report of this Court on the question of alleged
misbehaviour and (2) the function of this Court is limited
to determining whether the person concerned was guilty of
misconduct of such a nature as would require his removal
from the office OF Member of the Public Service Commission.
^
HELD: on the facts of this case, obtaining a
preliminary opinion of yet another body would be needless
duplication of work and avoidable waste of public time and
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money. The power of the President to make a reference to
this Court under Article 317(1) is not subject to the
condition precedent that he must first have the facts
examined by some other body or authority. There is no
justification for reading into the Article a provision which
is not to be found in it, especially a provision in the
nature of a condition precedent. The material before the
President was of a kind and nature enough to justify his
opinion that a prima facie case existed for an enquiry and
report by this Court. [643 G-H, 644A, C-D]
640
(2) The enquiry which this Court is required to hold is
not into the limited question whether the charge of
misbehaviour was made out and whether the misbehaviour was
of such a nature as to warrant his removal from office but
is an enquiry into the facts themselves and facts also so as
to enable this Court to pronounce whether the allegations
levelled against the Chairman or Member were proved at all.
The purpose of this Article is to ensure independence of the
members and to give protection in the matter of their
tenure. Certain dignitaries of the State like Judges of this
Court and High Courts, the Comptroller and Auditor General
and the Chief Election Com missioner can be removed from
their offices only in accordance with tho procedure
prescribed in the relevant provisions of the Constitution.
In the case of Members of the Public Service Commission a
higher degree of protection is given by the elimination of
political pressures in the matter of their removal. While in
the case of these dignitaries removal on the ground of
proved misbehaviour or incapacity depends upon the will of
the Parliament, any allegation of misbehaviour made against
members of the Public Service Commission has to be examined
by this Court on merits. It is impossible to accept that
this Court in one case and the Parliament in the case of
others are entrusted by the Constitution with the limited
power of determining whether the facts found by some other
body establish misbehaviour in one case and misbehaviour or
incapacity in those others. Their function is to find upon
facts and their duty is to pronounce whether the facts found
by them establish the charge of misbehaviour or incapacity
as the case may be.
[644 F-H, 645 A-D]
(3) Their would be no unfair advantage to either side
if the questions of fact are decided by this court
straightaway. So long as the essential safe guards of a fair
adjudication are observed no grievance can be made that the
facts which establish the charge are found by the highest
court and not by the lowest. [645 F-G]
(4) (a) As regards procedure, order XXXVlll rule (2)
provides that while making an enquiry into the matter
referred to it by the President, this court has power to
summon witnesses and record their evidence. But having
regard to the nature and gravity of the matter, it would not
be conducive to justice to decide the reference on a
consideration of affidavits only, because it would not be
known at this stage whether the allegation that the member
was falsely implicated in the incident is true or not. Those
allegations cannot be adjudicated upon on a consideration of
the affidavits only. Having regard to the important nature
of the question, the parties whose interests are affected
should be permitted to cross-examine the opposing witnesses.
Again keeping in view the grave nature of the allegations
and counter allegations it will be impossible to consider in
isolation the evidence bearing directly on the alleged
incident of slapping but the entire evidence would have to
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be taken into account for deciding whether the allegations
against the member can be held to be proved. Therefore it is
only fair that an opportunity should be given to the member
to prove that the charge against him was false, inspired and
motivated. [646E-H]
(b) order XXXVIII, Rule 2 of the Supreme Court Rules
confers power on this Court to summon and examine witnesses
but it does not enjoin that
641
the evidence must be recorded by this court itself. Although
a provision like Order XLVII, Rule 6 which preserves the
power of the court to act ex debito justiciae is not
incorporated in order XXXVIII, it has to be read in the
latter Order to enable this Court to pass proper orders in
the interest of justice.
[648 E-H]
Considering the overwhelming commitments of this Court,
the Court delegated the duty of recording evidence to the
District Judge with a direction that he should record
evidence treating the affidavits filed in this Court as
examination in chief of the respective witnesses and (2)
that the evidence recorded should be limited to cross-
examination only of witnesses who had filed affidavits
before this Court. [649 A-B]
JUDGMENT:
ADVISORY JURISDICTION: Special Reference No. 1 of 1983.
(Reference under Article 317(1) of the Constitution of
India)
G. L. Sanghi, S. K. Mehta, P. N. Puri and M. K. Dua for
Chairman, Punjab Service Commission.
Soli. J. Sorabjee, Bhagwant Singh, Advocate General
Punjab, S. K. Bagga for the State of Punjab.
F. S. Nariman, Anil B. Divan, Girish Chandra and Mrs.
Sarla Chandra for Gopal Krishan Saini (Defaulting Member)
K. Parasaran, Attorney General, Miss A. Subhashini for
Union of India.
The order of the Court was delivered by
CHANDRACHUD, C.J.: This is the first Reference of its
kind made by the President of India to this Court under
Article 317(1) of the Constitution. That Article reads thus:
"317. Removal and suspension of a member of a
Public Service Commission.
(1). Subject to the provisions of clause (3) the
Chairman or any other person of a Public Service
Commission shall only be removed from his office by
order of the President on the ground of misbehaviour
after the Supreme Court, on reference being made to it
by the President, has, on inquiry held in accordance
with the procedure prescribed in that behalf under
642
Article 145, reported that the Chairman or such other
member, as the case may be, ought on any such ground to
be removed."
Clause (3) of Article 317, which confers power on the
President to remove the Chairman or any other member of a
Public Service Commission for reasons mentioned in sub-
clauses (a), (b) and (c), is not relevant for our purpose.
Not only is this Reference the first of its kind but
the facts which have been referred to us for our
consideration and report are, shockingly, the first of their
kind. We hope they will be the last of their kind. The order
of Reference recites those facts as follows:
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"On 24.11.1982 at about 1300 hours Shri Gopal
Krishan Saini, Member, Punjab Public Service
Commission, physically assaulted Smt. Santosh
Chowdhary, Chairman, Punjab Public Service Commission
inasmuch as he slapped her on the face in the presence
of three other Members of the Punjab Public Service
Commission, namely, S/Shri H. S. Deol, M. S. Brar and
W.G. Lall and thereby committed gross misbehaviour."
In exercise of the power conferred by Article 317(1) of the
Constitution, the President has referred for consideration
of this Court the question "as to whether Shri Gopal Krishan
Saini, Member of the Punjab Public Service Commission,
ought, on the ground of misbehaviour, to be removed from the
office of the Member of the Commission."
We issued notice of the Reference to the five members
of the Commission, including the Chairperson Smt. Santosh
Chowdhary and Shri Gopal Krishan Saini who is alleged to
have assaulted her. All of them have filed their affidavits
in these proceedings. Certain other persons who claim to
have knowledge of the incident or of its alleged background
have also filed their affidavits. Amongst them are: Dr.
Vinod Gupta, Ujagar Singh, Avtar Singh, Hakam Singh and Dr.
Rasewat. An affidavit has also been filed by Shri Saini’s
wife, the purport of which is that Shri Saini has been
involved in this false incident since the Chief Minister of
Punjab, Shri Darbara Singh, was not happy with his
appointment as a Member of the
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Punjab Public Service Commission. It is also alleged that
the Chairperson’s husband was running classes for training
students for the Public Service Commission Examinations,
that he wanted certain students of his to be favoured in
those examinations and that on the failure of Shri Saini to
oblige him, his wife, the Chairperson, has involved Shri
Saini into a false charge. The Chief Minister of Punjab has
filed an affidavit denying the allegations made against him.
In pursuance of the notices issued by this Court, the
Attorney-General of India and the Advocate-General of Punjab
appeared in these proceedings.
Shri Nariman, who appears on behalf of Shri Saini whose
conduct we are called upon to inquire into, contended that
before making this Reference, the President should have
obtained the opinion of a fact-finding body for his prima
facie satisfaction that a case was made out for obtaining a
report from this Court on the question of the alleged
misbehaviour of Shri Saini. According to counsel, this Court
cannot, through the medium of a Reference, be called upon to
discharge functions which ordinarily fall within the
jurisdiction of a trial Court, civil or criminal. The danger
of such a procedure is said to be that if we hold that the
incident is proved, Shri Saini will automatically be held
guilty by a criminal Court of the charge of assault and he
will have to suffer a decree for damages in a civil court.
Counsel says that under Article 317(1), the limited function
of this Court is or ought to be to determine whether the
facts found upon by an independent fact-finding body show
that the person concerned is guilty of misconduct and,
secondly, whether the misconduct is of such a nature as to
require his removal from the office of Member of the Public
Service Commission.
We are unable to accept these submissions. The power of
the President to make a reference to this Court under
Article 317(1) is not subject to the condition precedent
that he must first have the facts examined by some other
body or authority. That Article provides that the Chairman
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or any other member of a Public Service Commission can only
be removed from his office on the ground of misbehaviour
after the Supreme Court on a Reference made to it by the
President reports that the Chairman or such other person
ought to be removed on any such ground. There is no
justification for reading into the Article a provision which
is plainly not to be
644
found in it, especially a provision in the nature of a
condition precedent. Besides, the documents annexed to the
Reference and indeed the fact that those documents are so
annexed would show that the President was satisfied prima
facie that the allegations made against the Member of the
Public Service Commission require to be inquired into by us.
Annexed to the order of Reference are a reply of Shri Saini
to the allegations made against him and the statements of
the three Members of the Commission, Shri H. S. Deol, Shri
M. S. Brar and Shri W. G. Lall. These four statements are
Annexures II, III, III-A and III-B respectively to the
Reference. It is on the basis of this material that the
President has made the Reference. The material is of a kind
and nature enough to justify the President’s opinion that a
prima facie case exists for an inquiry and report by this
Court. In these circumstances, obtaining a preliminary
opinion of yet another body would be needless duplication of
work and avoidable waste of public time and money.
The argument that in a reference under article 317(1)
this Court ought not to embark upon an examination of facts
and that its function is limited to determining whether the
person concerned is guilty of misbehaviour and whether the
misbehaviour is of such a nature as to justify his removal
is in direct opposition to the plain words of article
317(1). That article provides that, subject to the
provisions of clause (3), (i) the Chairman or any other
member of a Public service Commission can be removed from
his office only by the order of the President on the ground
of misbehaviour and (ii) the order of removal can be passed
after the Supreme Court has on inquiry reported to the
President that the Chairman or the member of a Public
Service Commission is guilty of misbehaviour and ought to be
removed from his office on that ground. The inquiry which
this Court is required to hold is not into the limited
question whether, on the basis of facts found by the
President, the charge of misbehaviour is made out and
whether the misbehaviour is of such a nature as to warrant
the removal of the person from his office. The inquiry
contemplated by the article is into the facts themselves and
facts also so as to enable this Court to pronounce upon the
question whether the allegations made against the Chairman
or member are proved at all. The purpose of article 317(1)
is to ensure the independence of members of the Public
Service Commissions and to give them protection in the
matter of their tenure. The Judges of the Supreme Court can
be removed from their office only in accordance with the
procedure prescribed by article 124 (4) which is made
applicable to
645
the Judges of High Courts, the Comptroller and Auditor-
General of India and the Chief Election Commissioner by
articles 218, 148 and 324 (5) respectively. Members of
Public Service Commissions are, in one sense, given a higher
degree of protection by the elimination, as far as possible,
of political pressures in the matter of their removal. Any
allegation of misbehaviour made against them has to be
examined by the Supreme Court on merits unlike the
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allegations made against those others whose removal on the
ground of proved misbehaviour or incapacity depends upon the
will of the Parliament. It is impossible to accept that the
Supreme Court in one case and the Parliament in the case of
those others are entrusted by the Constitution with the
limited power of determining whether the facts found by some
other body establish misbehaviour in one case and
misbehaviour or incapacity in those others. Their function
is to find upon facts and their duty is to pronounce whether
the facts found by them establish the charge of misbehaviour
or incapacity, as the case may be.
The apprehension expressed by the learned counsel that
the finding recorded by this Court will automatically decide
the fate of a prosecution or of a civil suit for damages is
real but, that is as it ought to be. No grievance can
legitimately be made that an examination and assessment of
facts is made by this Court instead of being made by a
Magistrate or a Munsif. If a full opportunity is given to
the parties to prove and rebut the facts in issue as in a
regular trial. it is an idle complaint that the evidence has
been examined and found upon by the Supreme Court and not by
a court of first instance. If, after giving a full
opportunity to both the sides, the Supreme Court comes to
the conclusion that the facts alleged are established, the
conviction or a decree for damages may follow as a matter of
course. But then, a contrary finding by this Court will
equally seal the fate of those proceedings. There is,
therefore, no unfair advantage to either side if the
questions of fact are decided by this Court straightway. If
the essential safeguards of a fair adjudication are
observed, no grievance can be made that the facts which
establish the charge of misbehaviour are found by the
highest Court of the land and not by the lowest.
The question which then arises before us is as regards
the procedure which this Court should adopt in a Reference
made by the President under Article 317 (1) of the
Constitution. That Article provides that an inquiry has to
be held by this Court in accordance
646
with the procedure prescribed in that behalf under Article
145. Article 145 provides, to the extent material, that
subject to the provisions of any law made by Parliament, the
Supreme Court may, from time to time, with the approval of
the President, make rules for regulating the practice and
procedure of the Court. Sub-clause (j) of Article 145 (1)
confers power on this Court to make rules for regulating
inquiries under Article 317 (1). Order XXXVIII of the
Supreme Court Rules, 1966 contains rules regulating
references under Article 317 (1). Rule 1 of Order XXXVIII
mentions the persons to whom notice of the reference is
required to be given. Rule 2, which is in point, provides
that "the Court may summon such witnesses as it considers
necessary." This rule shows that while making an inquiry
into the matter referred to it by the President, this Court
is entitled to summon witnesses, which obviously is for the
purpose of recording their evidence. In other words, while
dealing with a reference under Article 317(1). this Court
has the power to summon witnesses and record their evidence.
A procedural issue which was debated before us is
whether we should pronounce our opinion on the allegations
made against Shri Saini on the basis of the affidavits only
or whether we should permit the parties to cross-examine
persons who have filed their affidavits. Considering the
nature and gravity of the matter referred to us, we are of
the opinion that it will not be conducive to justice to
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decide the Reference on a consideration of the affidavits
only. We do not know at this stage whether the allegation
made by Shri Saini that he has been falsely involved into
the particular incident by reason of certain other matters
and at the instance of certain other persons, is true or
not. But those allegations cannot be adjudicated upon on a
consideration of the affidavits only. The credibility of
witnesses who depose to facts is a matter which bears
directly on the adjudication of those facts. And the best
method of testing whether a witness is a person of credit is
to subject him (or her) to cross-examination. The credit of
a witness can be shaken (and, ironically, sometimes
established) by cross-examining him and indeed, section
146(3) of the Evidence Act specifically permits the cross-
examination of a witness in order "to shake his credit by
injuring his character". Bearing in mind the impact of our
findings on a future trial, civil or criminal, relating to
the question referred to us, the repercussions of our
findings on the parties concerned and the fact that the
matter referred to us is one of public importance which
transcends the immediate private interests of the parties
who have made allegations and counter-allegations against
one another, we are of the view that
647
parties whose interests are directly affected by these
proceedings, that is to say the Chairperson Smt. Santosh
Chowdhary and Shri Gopal Krishan Saini ought to be permitted
to cross-examine opposing witnesses who have filed their
affidavits.
There was a sharp difference between the rival views
submitted before us as to the nature and scope of the
evidence which we should allow the parties to lead. It was
contended by Shri Sorabjee who appears for the Government of
Punjab and by Shri G.L. Sanghi who appears for the
Chairperson that evidence should be allowed to be led only
on the question whether the incident of slapping took place
as alleged and not on any other matter. It was urged by
these learned counsel that we are only concerned to
determine whether Shri Saini slapped the Chairperson and not
with the events antecedent to the assault or which are said
to furnish the motive for the alleged false implication of
Shri Saini. On the other hand, it was contended by Shri
Nariman that the case of his client is that he has been
falsely implicated into the charge of assault because he had
incurred the wrath of the Chief Minister of Punjab and the
hostility of the Chairperson’s husband and that, it would be
impossible for him to prove his case unless he is allowed to
cross-examine witnesses on those aspects of the matter.
Counsel contends that if he could satisfy us that there was
a conspiracy to involve his client falsely or that there
were reasons for so involving him, we will be loathe to hold
that the alleged incident is proved. Shri Nariman’s
submission must be accepted in the circumstances of the
case. It will be impossible to consider in isolation the
evidence bearing directly on the incident which is alleged
to have taken place on November 22, 1982. The entire
evidence, admissible and relevant, shall have to be taken
into account for the purpose of deciding whether the
allegation against Shri Saini can be held to be proved. We
are not pronouncing at a stage upon the admissibility or
relevance of any particular piece of evidence, which shall
have to be done after the entire evidence is before us. All
that we do now is to say that we cannot prevent Shri Saini,
against whom a grave charge has been made, from proving that
the charge is false and motivated. One of the questions
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which is bound to arise in this matter, as it arises in
matters of similar nature, is as to why the complainant
should make a false allegation that she was slapped,
courting trouble and involving her own status and
respectability. The answer to that question has to be
furnished by the person who is called upon to meet the
allegation that he slapped her. Answers on questions of fact
cannot be made in courts
648
of law in a vacuum. There has to be evidence to justify
those answers. Therefore, it is only fair that an
opportunity should be given to Shri Saini to prove his case
that the charge against him is false, inspired and
motivated. We only hope that this opportunity will not be
exploited by Shri Saini to fight a political battle, against
the Chief Minister or to engage in a duel with the
Chairperson’s husband. In the ultimate analysis, after the
dust raised by these accusations and counter-accusations has
settled down, the fundamental question which this Court will
have to answer is: Did Shri Saini slap the Chairperson or
not ? She says he did. He says he did not. And on the
contrary, according to him, it is she who raised her hand to
beat him when he tried to ward off the blow. He says that
this occasion was exploited by interested parties to involve
him in a false charge, out of personal malice and hostility.
Both the accuser and the accused must have an equal
opportunity to prove their respective cases. It must also be
remembered that Article 317 was enacted in order to give
protection to the members of the Public Service Commissions
in regard to their removal from office and not as a
disability.
Having seen that witnesses shall have to be summoned
and allowed to be cross-examined by the opposite party the
next question which we have to decide is whether we should
have the evidence recorded in our presence or whether we can
and should appoint some responsible delegate for doing so.
Order XXXVIII, Rule 2 of the Supreme Court Rules, 1966
provided that this Court may summon such witnesses as it
considers necessary. This provision confers the requisite
power on this Court to summon and examine witnesses, but
nothing contained therein can be read to mean that after
deciding which witnesses should be summoned and examined,
evidence must be recorded by this Court itself. Order XLVII,
Rule 6 of the same Rules provides that nothing contained in
the Rules "shall be deemed to limit or otherwise affect the
inherent powers of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the
process of the Court. This provision, like its counterpart
in statutes like the Code of Civil Procedure (Section 151)
or the Code of Criminal Procedure (Section 482), does not
create or confer any new power but preserves the power of
the Court to act ex debito justiciae. Though a provision
like Rule 6 of Order XLVII of the Supreme Court Rules is not
specifically incorporated in Order XXXVIII of those Rules,
it, shall have to be read in the latter Order in order to
enable this Court to pass proper orders in the interest of
649
justice. Considering the overwhelming commitments of this
Court for the time being (and in the foreseeable future), it
is regretfully inexpedient that the evidence should be
recorded by this Court itself. No useful purpose will be
served by expending our own time in recording the evidence
of various witnesses except for the advantage of seeing and
hearing the witnesses. The balance of convenience requires
that we should forego that advantage and delegate the duty
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of recording evidence. Accordingly, we direct that evidence
in this Reference will be recorded by a learned Additional
District and Sessions Judge, Delhi, who will be nominated by
the learned District and Sessions Judge,Delhi. The
nomination may be made before August 22,1983.
We cannot confer any power on the learned Judge so
nominated for recording evidence, to decide on the
admissibility or relevance of any particular piece of
evidence. The learned Judge will, therefore, record the
evidence which the parties lead before him, within the
constraints of the following guidelines:
(1) The affidavits filed in this Court will be treated
as the examination-in-chief of the respective witnesses.
(2) The evidence to be recorded by the learned Judge
will be limited to the cross-examination of witnesses who
have filed affidavits before us. In other words, no person
who has not filed an affidavit in this Court will be
examined or cross-examined as a witness, except with the
leave of this Court.
(3) Witnesses who have filed affidavits in this Court
may be summoned or requested by the learned Judge to attend
his Court for the purpose of cross-examination. The
proceedings will normally be held in Delhi. Evidence may,
however, be recorded at any other place if the learned Judge
considers it necessary or convenient.
The mere fact that the evidence of any particular
witness is recorded by the learned Judge will not conclude
the issue as regards the admissibility or relevance of that
evidence. All questions regarding admissibility and
relevance of the evidence so recorded will be decided by
this Court during the hearing of the Reference.
We hope that all parties concerned will take care to
avoid putting frivolous or scandalous questions to witnesses
and will afford
650
the necessary co-operation to the learned Judge for an
expeditious termination of the proceedings before him.
The parties shall appear before the learned Additional
District and Sessions Judge nominated by the learned
District and Sessions Judge, Delhi, on Monday, September 5,
1983, at 11.00 a.m., for obtaining further directions in the
matter. The recording of evidence will commence on Monday,
September 12, 1983 and shall proceed from day to day until
the entire evidence is over. We expect that the recording of
evidence will be over by September 30, 1983. In case it is
not over by that date, the learned Judge may write to the
Registrar of the Supreme Court for extension of time. The
evidence will be transmitted to the Registrar (Judicial) of
this Court immediately after the entire evidence is
recorded.
P.B.R.
651