Chairperson / President / Member of Tribunals / Statutory Authorities /
Commission already contain a provision prohibiting the appointees from
taking up any other work / assignment. We may also take notice of the fact
that even in the absence of any such provision in the statute, the letters of
appointment are often found to contain the same as a condition of service.
However, there is a lacuna in this regard vis-a-vis some of the statutes /
appointments and which is now sought to be filled with the Bill aforesaid.
The same has resulted in appointees of some of the Tribunals /
Statutory Authorities / Commissions being barred / not entitled to take up
arbitrations, while others are entitled to the same and who otherwise are
similarly placed. It is precisely to remedy such a situation that amendments
to the existing legislations / new legislation are/is proposed. However, the
said process, inspite of our waiting for the last nearly five years, has not
yielded any fruit.
We find that otherwise it is a settled principle of law that a full time
employee, as certainly full time Chairpersons / Presidents / Members of
Tribunals / Commissions / Statutory Authorities are, is not entitled to take
up any other employment or vocation and as certainly an arbitration would
constitute. The reason therefor is obvious. A whole-time employee is
expected to bestow all his time, energy and resources to the whole time
employment and not to divert the same to any other job, work or vocation.
Moreover, retired Judges appointed as Chairpersons or Members of
Statutory Bodies, Tribunals and Commissions discharge judicial / quasijudicial
functions and their involvement in any other commercial legal
activity or as arbitrators would necessarily require them to interact, in all
possibility, with the same set of people / professionals who appear before
them in their capacity as Chairperson / Member of the Statutory Body /
Tribunal of which they are whole time office holder, giving rise to
speculation about their impartiality in discharge of their duty in such
capacity. It would thus be seen that it is no argument or consideration that the
whole time Chairperson / Member would be acting as arbitrator only during
the hours he / she is not working as Chairperson / Member. Not only would
pursuing such a vocation / occupation simultaneously with the office
occupied, be at the cost of the work of the said office but may also
jeopardise / appear to jeopardise the reputation of the said office. It is also a
settled principle, that justice not only must be done but must seem to be
done.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th December, 2015
W.P.(C) 866/2010
COMMON CAUSE
Versus
THE UNION OF INDIA .
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 226 of the Constitution of India was filed
as a Public Interest Litigation (PIL) seeking the reliefs, (a) that no retired
Supreme Court Judge can give chamber advice to any party; and, (b) that no
retired Supreme Court or High Court Judge will take up arbitration work
while he / she is a Chairperson / Member of any Government appointed
constitutional / statutory body, commission, commission of inquiry, tribunal
or appellate body.
2. The petition was entertained only qua prayer (b).
3. An affidavit dated 19th July, 2011 was filed by the Under Secretary in W.P.(C) No.866/2010 Page 2 of 12
the Department of Legal Affairs, Ministry of Law & Justice, Govt. of India
stating that the issue of taking up arbitration work by the Chairpersons /
Members of Tribunals and Statutory Authorities, while so functioning was
under consideration and it was proposed to formulate a „Uniform Policy‟
regulating the terms and conditions of service of the Chairpersons /
Members of Tribunals and Statutory Authorities. It was further informed
that it was proposed that Chairpersons / Members of the Tribunals and
Statutory Authorities appointed, after coming into force of the Uniform
Policy will not be allowed to take up arbitration work, while functioning as
Chairperson / Member of the Tribunal and Statutory Authority.
4. The matter was adjourned from time to time awaiting final decision
by the government on the proposal aforesaid.
5. The counsel for the Union of India (UOI) on 29th August, 2012
informed that a proposal was mooted to the effect that persons appointed as
Chairpersons / Presidents / Members of the Tribunals shall not be allowed to
take up arbitration work while functioning as such and amendments for this
purpose were proposed to 42 different statutes.
6. On 13th March, 2013, we were informed that the proposal aforesaid
was pending consideration before an Intra-Ministerial Group. Though at
one time, we were also told that the Supreme Court is seized of the same
question but on 14th May, 2013 it was clarified by the counsel for the UOI
that the issue involved in this petition was not before the Supreme Court.
7. Thereafter we were on 26th February, 2014 informed that instead of
amending 42 or more statutes whereunder the Chairpersons / Members of
various Tribunals and Statutory Authorities were appointed, “The Tribunals,
Appellate Tribunals and Other Authorities (Conditions of Service) Bill,
2014” had been drafted and was introduced in the Rajya Sabha on 19th
February, 2014 and that Clause 7 of the said Bill provided that no person
while holding office as the Chairman or Member shall act as an arbitrator
save that he / she may with the permission of the Central Government
complete his / her uncompleted arbitration work at the time of appointment.
On 17th September, 2014, we were informed that the Bill had been referred
for consideration by the Standing Committee of the Rajya Sabha.
8. The counsel for the petitioner on 25th February, 2015 contended that
the delays on the part of the Legislature were resulting in the Chairpersons /
Members of the Tribunals / Statutory Authorities / Commissions, even
though employed full time, continuing to act as arbitrators to the prejudice
and detriment of the full time office held by them; the counsel for the
petitioner called upon this Court to fill the vacuum.
9. The learned ASG informed that the Bill aforesaid is still under
examination and report by the Department i.e. the Parliamentary Standing
Committee on Personnel, Public Grievances, Law and Justice was awaited.
We were further told that the Supreme Court on 7th November, 2014 in W.P.
No.120/2012 titled Rajiv Garg Vs. Union of India had inter alia observed
“.....we hope and trust that in the meantime, the respondent Union of India
will request the concerned Parliamentary Affairs Minister to expedite the
matter before the Parliamentary Standing Committee so that the matter may
be placed before the Parliament on an early date.”
10. The learned ASG otherwise states that the intent of the Government is
also so, as is evident from the Bill aforesaid under consideration.
11. We have bestowed our thought to the matter.
12. We find that a number of statutes providing for appointment of
Chairperson / President / Member of Tribunals / Statutory Authorities /
Commission already contain a provision prohibiting the appointees from
taking up any other work / assignment. We may also take notice of the fact
that even in the absence of any such provision in the statute, the letters of
appointment are often found to contain the same as a condition of service.
However, there is a lacuna in this regard vis-a-vis some of the statutes /
appointments and which is now sought to be filled with the Bill aforesaid.
13. The same has resulted in appointees of some of the Tribunals /
Statutory Authorities / Commissions being barred / not entitled to take up
arbitrations, while others are entitled to the same and who otherwise are
similarly placed. It is precisely to remedy such a situation that amendments
to the existing legislations / new legislation are/is proposed. However, the
said process, inspite of our waiting for the last nearly five years, has not
yielded any fruit.
14. We find that otherwise it is a settled principle of law that a full time
employee, as certainly full time Chairpersons / Presidents / Members of
Tribunals / Commissions / Statutory Authorities are, is not entitled to take
up any other employment or vocation and as certainly an arbitration would
constitute. The reason therefor is obvious. A whole-time employee is
expected to bestow all his time, energy and resources to the whole time
employment and not to divert the same to any other job, work or vocation.
Moreover, retired Judges appointed as Chairpersons or Members of
Statutory Bodies, Tribunals and Commissions discharge judicial / quasijudicial
functions and their involvement in any other commercial legal
activity or as arbitrators would necessarily require them to interact, in all
possibility, with the same set of people / professionals who appear before
them in their capacity as Chairperson / Member of the Statutory Body /
Tribunal of which they are whole time office holder, giving rise to
speculation about their impartiality in discharge of their duty in such
capacity. Reference in this regard may be made to:
(i). Sukumar Mukherjee Vs. State of West Bengal (1993) 3 SCC 723
where, in the context of challenge to the West Bengal State Health Service
Act, 1990 and the West Bengal Health Service Rules, 1993 prohibiting
private practice altogether when a doctor is posted to the health centers,
rural hospitals and teaching hospitals, it was held that judicial notice can be
taken of the fact that if the doctors were allowed private practice, patients
visiting the health centers and rural hospitals would suffer. It was further
held that no government doctor can claim right to private practice. The
judgment of the High Court of Allahabad in Dr. Y.P. Singh Vs. State of
U.P. AIR 1982 Allahabad 439 holding that such a restriction is in the
interest of the public, was approved. It was held that such prohibition is for
social good and there is sufficient material available to indicate that
allowing the doctors of government hospitals to do private practice results in
neglect of essential parts of duties as a government doctor and as a teacher
and distracts the attention and energy from the task assigned.
(ii). Prof. M. Gurunath Vs. State of Karnataka MANU/KA/0194/2003
negating a challenge to the Rule prohibiting teachers in government colleges
from giving private tuitions, on the ground of being violative of Article
19(1)(a) of the Constitution of India, reasoning that if such restrictions are
not imposed, it would seriously affect the morality of the society as it would
reduce or dilute the moral value of the professors in an educational
institution who would, in total disregard of their obligation to the students,
be spending their time and energy only in giving private tuition with a view
to earn more money and there is bound to be a conflict of interest between
discharge of their duties and desire to earn more money by giving private
tuition. It was further held that the professors are then likely to be tempted
to give tuitions for monetary gain, as temptation to earn money has no
bounds and this will seriously affect the academic programme and
excellence in educational institutions. It was further held that it may send a
message to the student community that if student takes tuition from a
particular teacher, his prospect of passing and getting more marks in
examination is more.
(iii). Lt. Col. K.C. Sud Vs. S.C. Gudimani 20 (1981) DLT 302 holding
that a Public Prosecutor appointed in exercise of powers under Section 24(1)
of the Code of Criminal Procedure, 1973 cannot as an advocate appear
against the State. S. Naganna Vs. Krishna Murthy, AIR 1965 AP 320
holding that a Public Prosecutor though a qualified legal practitioner is a
whole time government servant and must suspend his practice upon entering
in government service and cannot therefore appear for the accused in his
capacity as a practicing advocate was relied upon.
(iv). Satish Kumar Sharma Vs. The Bar Council of Himachal Pradesh
(2001) 2 SCC 365 upholding withdrawal of enrolment of the petitioner as an
advocate with the Bar Council on the ground of the petitioner being
employed as an Assistant (Legal) and ultimately as a Law Officer with the
Himachal Pradesh State Electricity Board, reasoning that the petitioner as a
full time salaried employee could not practice as an advocate.
(v). Dr Haniraj L. Chulani Vs. Bar Council of Maharashtra & Goa
(1996) 3 SCC 342 observing that legal profession requires full time
attention and would not countenance an advocate riding two horses or more
at a time. Accordingly, it was held that a medical practitioner, even if gave
an undertaking that he would not practice medicine during the Court hours
could not be enrolled as an advocate as he would be torn between two
conflicting loyalties i.e. loyalty to his clients on the one hand and loyalty to
his patients on the other.
(vi). Krishna Chandra Sharma Vs Sind Hyderabad National Collegiate
Board MANU/MH/0507/1987 where a Division Bench of the High Court of
Bombay accepted a challenge to the provision of the Bombay University
Act, 1974 providing for appointment of Presiding Officers of the College
Tribunal constituted thereunder on part time basis inter alia on the ground
that the Presiding Officers would then not be in a position to devote
complete attention to the work in hand and the same would also effect his
independence and open him to influences. It was held that the appointment
should be on full time basis.
(vii). Govind Martand Purandare Vs. State of Maharashtra
MANU/MH/0971/1990 where another Division Bench of the High Court of
Bombay observed that a full time employee of a school during vacation also
is not entitled to take up employment elsewhere, except if permitted so.
(viii). Lal Bahadur Singh Vs. The State of Bihar MANU/BH/0377/1995
where a Division Bench of the High Court of Patna, dealing with the claim
of part time lecturers to the same pay scale, observed that the mere fact that W.P.(C) No.866/2010 Page 10 of 12
both a part time lecturer and a full time lecturer engage classes and perform
similar duties cannot be a ground for ignoring the basic difference in the
nature of the appointments; while a full time lecturer is a whole time
government servant who cannot take up any other employment under any
employer, a part time lecturer is free to engage himself in any other activity
and to seek employment under any other employer.
(ix) Osmania University Vs. A.V. Ramana 1992 Supp (1) SCC 535
where the Supreme Court was concerned with the question whether the
Evening Law College conducts part time course of study. Finding that
though called the Evening Law College and imparting tuition to the students
during evening hours, the college was in all respects at par with the socalled
day colleges and was offering the same course of same duration with
the same syllabus, the Supreme Court set aside the judgment of the Full
Bench of the High Court and inter alia held that the extent of time a student
devotes to his study depends upon him and it is for the University to
determine whether the course of study is a part time or a full time course.
15. It would thus be seen that it is no argument or consideration that the
whole time Chairperson / Member would be acting as arbitrator only during
the hours he / she is not working as Chairperson / Member. Not only would
pursuing such a vocation / occupation simultaneously with the office
occupied, be at the cost of the work of the said office but may also
jeopardise / appear to jeopardise the reputation of the said office. It is also a
settled principle, that justice not only must be done but must seem to be
done.
16. As would be obvious from the aforesaid, the relief sought in the
petition has not been controverted by the UOI also. In fact the UOI has
itself tried to grant the said relief but there are implicit delays in the same.
The Courts though, whenever have found a vacuum in legislation and the
need to fill the same, have immediately stepped in, as in (i) Vishaka Vs.
State of Rajasthan (1997) 6 SCC 241; (ii) Vineet Narain Vs. Union of
India (1998) 1 SCC 226; (iii) Mrs. Asha Sharma Vs. Chandigarh
Administration (2011) 10 SCC 86; (iv) Court on its Own Motion Vs.
Union of India MANU/SC/1094/2012; (v) Pravasi Bhalai Sangathan Vs.
Union of India (2014) II SC 477, but here, we hesitate to do so, out of our
deference to the legislature, which is seized of the matter and, respecting the
doctrine of separation of powers. The subject, in our view, falls in the
domain of legislature and we will be overstepping our limits if, while the
legislature is debating the issue, pre-empt the legislature by issuing
directions.
17. We therefore dispose of the petition with a direction to the
respondents to bestow special attention on the issue and to ensure that
appropriate legislation is made at the earliest.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
DECEMBER 11, 2015
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