Procedure to be followed in case of sexual harassment in workplace

ADDITIONAL DISTRICT & SESSIONS JUDGE 'X' V/S REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH & OTHERS, decided on Thursday, December 18, 2014.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 792 OF 2014
Read original judgment; click here

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
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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.
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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 2 nd 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
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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
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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 25 th 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
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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.
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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
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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
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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
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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.
after her rising for lunch.
Sometimes, minutes
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
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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
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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
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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
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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
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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
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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.
expressed
by
the
District and Sessions
This requirement
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
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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
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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
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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
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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
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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
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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
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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 4 th 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
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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
Page 24
2
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
respondent no.3.
into
the
allegations
levelled
against
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
Page 25
2
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,
Page 26
2
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.
Page 27
2
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
Page 28
2
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
Page 29
3
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
Page 30
3
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 1 st 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.
Page 31
3
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
Page 32
3
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
Page 33
3
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 18 th July 1990 rendering
my aforesaid advice. I have also conveyed to him my
anguish in tendering this advice and I have requested him
Page 34
3
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
Page 35
3
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
Page 36
3
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
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3
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
Page 38
3
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
Page 39
4
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.
Page 40
4
(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
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4
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 12 th 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 28 th
September, 2007 requesting that he may be allowed to
resume duties in view of the order of the Division Bench of
Calcutta High Court.
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4
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 1 st
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 25 th 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
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4
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 25 th
February, 2008 seeking reconsideration of the decision of
his removal and sought a personal hearing. On 16 th 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 2 nd
April, 2008. However, vide his letter dated 26 th 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)
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4
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.
Page 45
4
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
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4
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.”
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4
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
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4
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
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5
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
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5
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
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5
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.
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5
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”
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5
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.
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5
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
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5
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
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5
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
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5
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
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5
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.
otherwise.
It is not as if, the position could not be
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.
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6
35.
judges
A perusal of the “in-house procedure” applicable to sitting
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
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6
two Chief Justices of High Courts (other than the concerned High
Court), besides a Judge of a High Court.
postulates a deeper probe.
The second stage,
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
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6
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;
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6
(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
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6
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
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6
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
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6
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
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6
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
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6
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”
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6
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
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7
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
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7
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
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7
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
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7
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
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7
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
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7
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.
inconsequential.
We
are
accordingly
further
But that is
satisfied
in
concluding, that following the “in-house procedure” strictly by
associating the Chief Justice of the concerned High Court, would
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7
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.
role.
Or alternatively, he may himself assume the said
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
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7
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.
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7
(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:
(i)
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”.
(ii)
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
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7
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”.
(iii) 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.
(iv) 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
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8
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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