SMT. SAROJINI RAMASW AMI v. UNION OF INDIA AND ANR.

SMT.S. RAMASWAMI v. U.0.¹. [KASL!WAL,J.] 193

within such time as may be specified in this behalf by the Committee. Then A under sub-section (8) of Section 3, the Committee may, after considering the written statement of the !udge, if any, amend the charges framed under sub-section (3) and in such a case, the Judge shall be given a reasonable opportunity of presenting a fresh written statement of defence. Under sub-section (9) of Section 3, the Central Government may, appoint an advocate to conduct the case against the Judge, if required by the Speaker B or the Chairman or both as the case may be. Under Section 4 of the Act, the Committee has been given power to regulate its own procedure in making the investigation subject to any rules. This also provides of giving reasonable opportunity to the Judge of cross-examining witnesses, adduc- ing evidence and of being heard in his defence. Sub-section (2) of Section c 4 with which we are directly concerned reads as under:-

"At the conclusion of the investigation, the Committee shall submit its report to the Speaker or, as the case may be, to the Chairman, or where the Committee has been D constituted jointly by the Speaker and the Chairman, to both of them, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit."

Thereafter under sub-section 3 of Section 4 of the Act, the Speaker E or the Chairman, or, where the Committee has been constituted jointly by the Speaker and the Chairman, both of them, shall cause the report to be laid as soon as may be, respectively before the House of the People and the Council of States. Section 5 provides for the powers of the Committee, like a Civil Court and has been authorised to summon and enforce the F attendance of any person and examining him on oath, requiring the dis- covery and production of documents, receiving evidence on oath, issuing commissions for the examination of witnesses or documents and such other matters as may be prescribed. Then comes Section 6 which has important bearing on the issue raised before us and as such is reprnduced as under:- G "6. (1) If the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, then, no further steps shall be taken in either House of Parliament in relation to the report and the motion pending in the House or the Houses H

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A of Parliament shall not be proceeded with.

(2) If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in sub-section (1) of Section 3 shall, together with the report of the Com- B mittee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.

(3) If the motion is adopted by each House of Parliament in accordance with the provisions of danse (4) of Article 124 or, as the case may be, in accordance with that clause c read with Article 218 of the Constitution, then, the mis- ' behaviour or incapcity of the Judge ;hall be deemed to have been proved and an address praying for the removal of the Jupge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted."

Section 7 provides for the power to make rules. We would now consider the provisions of the Rules which are relevant and necessary for deciding the controversy raised before us. Rule 5 provides for the manner in which the charges framed against the Judge shall be served on him. Under Rule 6 when the Judge appears, he may object in writing to the sufficiency of the charges framed against him and if the objection is sustained by the majority of the members of the Inquiry Committee, the Inquiry Committee may amend the charges and gives the Judge a reasonable opportunity of presenting a fresh written statement of defence. Under Rule 7, if the Judge F denies that he is guilty of the misbehaviour or if he refuses, or omits, or is unable, the plead or desires that the inquiry should be made, the Inquiry Committee shall proceed with the inquiry. Rule 8 permits the Inquiry Committee to proceed with the inquiry in the absence of the Judge, if the Judge does not appear after scrVlce of notice on him. Rule 9 deals with G the report of the Inquiry Committee and this Rule being relevant and necessary for deciding the controversy is reproduced as under :

"9. Report of Inquiry Committee. - (1) Where the mem- bers of the Inquiry Committee are not unanimous, the report submitted by the Inquiry Committee under Section H 4 shall be in accordance with the findings of the majority

SMT. S. RAMASWAMI v. U.O.I. [KASL!WAL J.] 195

of the members thereof. A (2) The presiding officer of the Inquiry Committee shall-

(a) cause its report to be prepared in duplicate,

(b) authenticate each copy of the report by putting his B signature thereon, and

( c) forward, within a period of three months from the date on which a copy of the charges framed under sub-section (3) of Section 3 is served upon the Judge, or, where no such service is made from the date of publication of the c notice referred to in sub-rule (3) of rule 5, the authenti- cated copies of the report to the Speaker or Chairman by whom the Committee was constituted, or where the Com- mittee was constituted jointly by them, to both of them: D Provided that the Speaker or Chairman, or both of them (where the Committee was constituted jointly by them), may, for sufficient cause, extend the time within which the Inquiry Committee shall submit its report.

(3) A copy of the report of the Inquiry Committee, authen- E ticated in the manner specified in sub-rule (2), shall be laid before each House of Parliament.

( 4) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is F guilty of a misbehaviour or that he suffers from an in- capacity, but the third member thereof makes a finding to the contrary, the presiding officer of the Inquiry Commit- tee shall authenticate, in the manner specified in sub-rule (2), the finding made by such third member, in duplicate and shall forward the same along with the report sub- G mitted by him under Section 4.

(5) An authenticated copy of the finding made by third member, referred to in sub-rule (4) shall also be laid before each House of Parliament. H

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A (6) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is not guilty of any misbehaviour or that he does not suffer from any incapacity, and the third member thereof makes a finding to the contrary, the Inquiry Committee shall not disclose the finding made by such third member to Par- B liament or to any other authority, body or person."

Rule 10 provides for recording of evidence according to the provisions of the Code of Civil Procedure so far as may be applicable to the examination of any witness by the Committee. A copy of the evidence, C oral and documentary, received by the Committee shall be laid before each House of Parliament along with the report laid before it under Section 4 of the Act. Sub-rule (1) of Rule 11 provides for allowing the Judge a right to consult, and to be defended by, a legal practitioner of his choice. Apart from the provisions of the Act and the Rules, it has been provided in clause D 4 of the Article 124 of the Constitution that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the grounds of proved misbehaviour.

In pursuance to the above provisions 108 members of the House of the People had given a notice of motion which was admitted by the Speaker on 12.3.1991 and a Committee was constituted of the following three persons (1) Hon'ble Mr. Justice P.B. Sawant, a sitting Judge of this Court (2) Hon'ble Mr. Justice P.O. Desai, Chief Justice of Bombay High Court and (3) Hon'ble Mr. Justice 0. Chinnappa Reddy, a retired Judge of this Court in the category of a distinguished jurist. The Lok Sabha was dis- solved on 13.3.1991. The Union Government after the fresh elections of the Lok Sabha refused to act in aid of the decision taken by the Speaker of the earlier Lok Sabha and as such a Writ Petition was filed by a body called the Sub-Committee on Judicial Accountability. That case was decided on October 29, 1991 and the majority opinion in that case was that th~ process for removal of a Judge of the Supreme Court comprises of two stages. The first stage is of investigation and proof in aceordance with The Judge H (Inquiry) Act, 1968 enacted under Article 124(5) of the Constitution by the

SMT. S. RAMASWAMI v. U.0.¹. [KASLIWAL,J.] 197

Committee constituted by the Speaker acting as a statutory authority under the Act and the second stage commences after allegations of misbehaviour are found proved. In the second stage when rr.otion is moved, bar under Article 121 on discussion in Parliament in respect of the conduct of the Judge is lifted and the process envisaged under Article 124(4) is attracted. The first stage is subject to judicial review, but the second stage is not subject to judicial review as the process involved being parliamentary process.

The Inquiry report in the present case has been stated to be complete and awaits the decision of this Court in the present case. A perusal of the provisions of the Act and the Rules mentioned above shows that the c process as a whole is an amalgam of statutory process as well as parliamen- tary process. There are number of checks and safeguards kept in the process where the matter relates to the misbehaviour of a sitting Judge of the Supreme Court and the High Courts who are high constitutional functionaries. The Parliament while enacting The Judges (Inquiry) Act, D 1968 long after 18 years of the coming into force of the Constitution was fully conscious regarding the consideration of any allegation of mis- behaviour imputed against a Judge of the Supreme Court or of a High Court. It may be noted that Article 121 of the Constitution was a clear bar for any discussion in Parliament with respect to the conduct of any Judge of the Supreme Court or of the High Court in the discharge of his duties E except upon a motion for presenting an address to the President praying for the removal of the Judge. The framers of the Constitution under clause 5 of Article 124 of the Constitution gave an authority to the Parliament to make any law for regulating the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or in- F capacity of a Judge under clause (4). The framers of the Constitution themselves laid down in clause 4 of Article 124 of the Constitution that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of total membership of that House and also by a majority of not less than two-thirds of the members of that House G present and voting. In case of the consideration of a motion for the removal of the Judge on the ground of proved misbehaviour, the above provision shows that the framers of the Constitution themselves keeping in view the independence of the judiciary and the Judges of the High Courts and Supreme Court provided that in case of any charges of misbehaviour the H

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A Judge shall not be removed from his office except by an order of the President passed after such motion is supported by not only a majority of the total membership of the House, but also by a majority of not less than two-thirds of the members of that House present and voting and to be presented to the President in the same session. The Parliament while enacting The Judges (Inquiry) Act, 1968 in respect of constituting a Com- B mittee for the investigation and proof of any allegations of misbehaviour provided for constitution of a Committee consisting of only persons belong- ing to the judiciary. Not only that the members of the Committee consisted of - one, to be chosen from among the Chief Justice of India and other Judges of the Supreme Court, second one, to be chosen from among the c Chief Justices of the High Courts and the third one a distinguished jurist. The matter of investigation as such wao entrusted to a high judicial authority consisting of a sitting Judge of the Supreme Court, a Chief Justice of the High Court and a distinguished jurist. This shows that the intention of the Parliament was to maintain the dignity and independence of the judiciary and as such the investigation in respect of the misbehaviour of a sitting Judge of the Supreme Court or the High Court was entrusted to a wholly judicial body consisting of judicially trained persons and no inter- ference of any kind has been allowed or given to any executive authority or to any person outside the judiciary. Not only that, a combined reading of all the relevant provision of the Constitution, the Act and the Rules clearly show that where an Inquiry Committee unanimously or by majority records a finding of not guilty of the charges levelled against the Judge, the matter ends and no further discussion on the motion is required in the Parliament. It is further important to note that sub-rule (6) of Rule 9 further provides that where the majority of the members of the Inquiry F Committee makes a finding to the effect that the Judge is not guilty of any misbehaviour and the third member thereof makes a finding to the con- trary, the Inquiry Committee shall not disclose the finding made by such third member to Parliament or to any other authority, body or person. This provision clearly indicates the respect, dignity and maintenance of the independence of the judiciary and not to disclose to any authority, body or person including the Parliament, the contrary fmding of the guilty· made by the third member and thus to maintain the prestige of the Judge concerned intact. The Parliament under the above scheme is entitled to take up the motion for consideration only when it receives a report with the finding of guilty recorded by a majority or unanimous opinion of the members of the

SMT. S. RAMASWAMI v. U.0.¹. [KASLIWAL, J.] 199

Committee. It may be further noted that in such kind of case where out of the three members of the Committee, if two members record a finding a guilty while the third member gives a finding of not guilty, then in that case, both the findings are required to be submitted on the floor of the House so that at the time of consideration of the motion both views may be available for consideration before taking any final decision on the motion. B In the background of the abvoe scheme of the law we have to consider whether this Court can give any direction for the supply of the report of the Committee to the concerned Judge for the purpose of giving sufficient time so that the Judge may decide to take further action or not by way of challenging the report by judicial review. Both the reliefs as c prayed are intermixed and according to the petitioner and rightly so one without the other is of no use. Admittedly, there is no provision in the Act or the Rules for the supply of such copy to the concerned Judge by the Inquiry Committee before sending such report to the Speaker for laying down the report before the Parliament. D

The argument of Mr. Sibal, Learned Senior Counsel appearing on behalf of the petitioner. is that this Court in the case Sub-Committee on Judicial Accountability (supra) has held that the admission of motion by the Speaker and constitution of the Committee are statutory functions of the E Speaker outside parliamentary process. Till the report is received by the Parliament and the motion is taken for consideration the matter is outside the Parliamentary process and any action till such stage being outside Parliamentary process is amenable to judicial review. It has been submitted that the learned Judge is entitled to question the adverse findings of F misbehaviour, if any, recorded by the Committee and this can be done only when the copy of the report is given to the learned Judge and thereafter reasonable time is given for availing the right of challenging the same by judicial review. It has also been contended that there is no provision in the Act and the Rules for the Speaker to supply a copy of the report to the learned Judge. Once a report is placed on the floor of each House of G Parliament, it is exclusively within the domain of the Parliament and it cannot be predicated as to what procedure the Parliament may adopt regarding the consideration of the motion. This valuable right cannot be taken away nor rendered nugatory by interpretative process which would violate the principles of natural justice. H

200 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A Mr. G. Ramaswamy, Learned Attorney General contended that the Committee is in the nature of a subordinate authority to the Speaker. The report is like granting of sanccion for prosecution of a public servant as contemplated under Section 197 of the Code of Criminal Procedure, 1973. Unless the validity of the sanction is questioned at the earliest stage the accused is precluded to assail it at a later stage. On the same analogy the B learned Judge is entitled to challenge the adverse findings, if any, recorded in the report by the Committee before the same is taken for consideration by the Parliament. This can only be done when such report is made available to the learned Judge for seeking a judicial review. It is not for this Hon'ble Court to decide as to what procedure Parliament will follow c for the purpose of voting upon the motion nor can this Court, in any way, interefere with the Parliamentary process. It is for the Parliament alone to decide as to how the motion shall be dealt with and in case a copy of the Inquiry report is not furnished to the learned Judge at this stage for seeking judicial review, it would be against the basic principle of natural justice not D to condemn a person unheard.

So far as the propositions of law laid down in Sub-Committee on Judicial Accountability's case is concerned, I do not consider it necessary to burden this judgment as it has been considered in great detail in the judgment by Verma, J. Suffice to say that in the aforesaid case the con- E troversy raised in the present case was not in issue and the Court in that case was concerned with the stage of entertaining the motion by the Speaker for consideration of the House and the fate of such motion upon the dissolution of the Lok Sabha.

F We shall now deal with the question directly raised in the present case whether this Court should give a direction to the President of the Committee to furnish the copy of the report ·to the learned Judge before sending the same to the Speaker and to make a further direction to withhold the submission of the report for a reasonable period so that the learned Judge may get time to avail or not to avail the remedy of challeng- G ing the adverse findings in the report by way of judicial review. In order to decide this question it is necessary to consider as to m;1der what principle of law or authority such relief is sought. Admittedly, there is no provision· in the Act or Rules for giving the copy of the Inquiry report to the concerned Judge before sending it to the Speaker. This position is even accepted by the learned Counsel appearing for the petitioner. If we ex-

SMT. S. RAMASWAM!v. U.0.¹. [KASLIWAL, J.] 201

amine the provisions of the Act and the Rules a contrary conclusion emerges to what is prayed by the petititoner. Section 4(2) of the Act clearly envisages that at the conclusion of the investigation, the Committee shall submit its report to the Speaker and under sub-section (3) the Speaker shall cause the report to be laid, as soon as may be before the House of the People in the present case. Further under Rule 9(2) (c), it is provided that the Presiding Officer of the Inquiry Committee shall forward the report within a period of three months from the date on which a copy of the charges framed under sub-section (3) of Section 3 is served upon the Judge, or where no such service is made from the date of publication of the notice referred to in sub-rule (3) of Rule 5. Under the proviso, the Speaker is authorised to extend the time for sufficient cause. Thus, the intendment of the aforesaid scheme of the provisions is a speedy disposal of the investigation in public interest and the report is required to be sent to the Speaker as soon as the investigation is concluded, unbss the case falls within the ambit of Rule 9(6) in that case the Inquiry Committee shall not disclose the finding made by such third member -to Parliament or to any other authority, body or person.

Now the other aspect to be examined is the violation of any principle of natural justice, if the copy of the report is not given co the Judge concerned for seeking a judicial review and this is the main plank of submission on which the entire edifice is built on behalf of the petitioner. E So far as, the principle of audi alteram partem that no person can be condemned unheard, is concernd; in my view is not applicable in the present case. The right of hearing to the concerned Judge in the pre$ent scheme of law can only arise before two authorities. One before the. Inquiry Committee and the other before the Parliament. So far as the right of F hearing before the Committee is concerned, there is ample opportunity given in the provisions of the Act and the Rules. The entire investigation into misbehaviour is done after a notice given to the concerned Judge. The charges framed together with a statement of the grounds on which each such charge is based is communicated to the Judge and he is given a reasonable opportunity of presenting a written statement of defence. The G Committee after considering the written statement of the Judge may amend the charges and thereafter the Judge is again given a reasonable oppor- tunity of presenting a fresh written statement of defence. The Committee in making the investigation is required to give a reasonable opportunity to the Judge of cross-examining witne£ses, adducing evidence and of being H

202 SUPREME COURT REPORTS [1992] SUPP.¹ S.C.R.

A heard in his <lcfence."The plea of the Judge is recorded. the evidence of each witness examined by the Inquiry Committee is taken down in writing. The Judge is also given a right to consult, and to be defended by a legal practitioner of his choice. Thus, so far as the opportunity of hearing before the Inquiry Committee is concerned, the above-me11tioned provisions clear- ly show that full opportunity of hearing is given to the Judge in respect of contesting the charges framed against him as well as cross-examining any witness and leading any evidence in defence.

Now, so far as the opportunity of any hearing to be given to the concerned Judge by the Parliament, that stage has not reached in the present case. It is no doubt correct that Parliament is free to adopt its own procedure while considering the motion, but that alone cannot be con- sidered as a ground for seeking judicial review against the report of the Committee. The question of not giving any opportunity of hearing before any action is taken against the learned Judge by the Parliament can only arise after any decision is taken against the Judge by the Parliament. The violation of principle of the natural justice, if any, cannot be examined in isolation, but depends on the facts and circumstances of each case. No argument based on the violation of principle of natural justice can be considered on the assumption that the Parliament may adopt a procedure which may be in violation of principles of natural justice. Learned Attorney E General at a subsequent stage of the arguments as well as the Counsel for the Committee were in agreement on this score that the Parliament shall give an opportunity of hearing to the learned Judge before taking a final decision on the motion and as a necessary corollary thereof the copy of the Inquiry report shall be given to the learned Judge by the Parliament. Thus, F if a direction is being sought for supplying a copy of the report on the ground of assumed violation of any principle of natural justice by the Parliament, we find no justification and it would be pre-judging the issue and predicating a remady without laying any foundation or basis for such relief.

G It may also be noted that the rules of natural justice are manifested in the twin principles of nenzo judes in sua caues and audi alteram partem. \Ve arc not Ci lncerned here with the former since no case of bias has been urged. The grievance ventilated is that being condemned unheard. The audi alterani parleni rule has a few facets two of which are (9) notice of the case to be met; and (b) opportunity to explain. There is no violation in

SMT.S.RAMASWAMI v. U.0.¹. [KASLIWAL,J.] 203

the present case of anyone of the above two facets of the audi alteram partem rule. The violation of principle of natural justice will depend on the facts and circumstances of the each case and in my view there is nothing to show that in the present case there is any violation of the principles of natural justice.

The next limb of this ground of violation of principles of natural justice claimed on behalf of the petitioner is that if the copy of the report will not be given to the learned judge, then it would defeat his right of judicial review. I do not find any force in this submission. The right of judicial review is not a right emerging under any principle of natural justice. It cannot be equated with the rule of audi alteram partem. The right of judicial review is itself a right available only on limited permissible grounds. The right of seeking a judicial review depends on the facts of each in- dividual case and will depend on several factors which would be necessary to be examined before the particular order or action is put under challenge. There cannot be any demand of judicial review as an abstract proposition of law on the premise of violation of any principles of natural justice at this stage in the scheme of the Act and the Rules. No direction as such can be sought on the basis that .if the copy of the report is not supplied at this stage, the learned Judge would be left with no remedy of judicial review at a later stage. Neither in the Scheme of the Act and the Rules nor under any provision of the Constitution it has been shown that such right is available to the concerned Judge. There is neither any violation of any principle of natural justice nor violation of any constitutional or statutory provision in not affording a copy of the Inquiry report before sending the same to the Speaker. This Court cannot gives any mandamus to any authority unless it can be shown that such authority is acting in violation of any provisions of the statute or constitutional obligation. Thus, even if it may be considered that the Committee is performing a statutory function amenable to the jurisdiction of this Court in judicial review, it must be shown that it is acting in violation of any rule or law. In the present case the Inquiry Committee is rather performing its legal duty and fulfilling the statutory obligation of sending the report to the Speaker and as such no mandamus or direction can be given to delay or put any hindrance in such lawful action on the part of t!Je Committee.

I am not convinced with the submission of the Learned Attorney General that the Inquiry report in this case can be compared or equated H

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A with the sanction given under Section 197 of the Code of Criminal Proce- dure in respect of a public servant. The powers, duties and functions of the Inquiry Committee constituted under the provisions of the Act and com- posed of high judicial functionaries which records its finding after giving an opportunity to the concerned Judge on the basis of the oral and documentary evidence cannot be compared or equated with the sanction accorded by an executive authority in respect of a public servant.

We shall also examine other aspects of the matter having a direct bearing on the question in issue. So far as any fmding of guilty recorded by the Committee on the charges is concerned, it is not conclusive and final and the Parliament can still hold that the charges levelled against the concerned Judge did not amount to misbehaviour and may decide not to adopt the motion. On the other hand, if in the course of judicial review this Court approves or affirms such findings recorded by the Inquiry Committee being a decision of this Court shall be binding on the Parlia- D ment. In that case, it would not be possible for the Parliament to take a different view and this would be an extra constitutional interference in the framework of the scheme. In another case during the course of judicial review this Court may come to the conclusion of quashing the entire proceedings conducted by the Inquiry Committee and require it to hold a fresh Inquiry. In that kind of case a problem may arise of the continuation of the investigation beyond the period allowed in the Rules and by the Speaker. It is important to note that the life and existence of the Inquiry Committee itself is coterminus with the period of 3 months as laid down in rule 9(2)(c) of the Rules or till the Speaker extends the time for sufficient cause under the proviso to the aforesaid rule. After this period is over, the Committee ceases to function and neither this Court nor any other Court can extend this period in the exercise of judicial review of the findings of the Inquiry Committee. The period of 3 months has been fixed in the statutory rules itself and the Speaker alone has been authorised to extend such period for sufficient cause. In my humble opinion this court cannot extend such period nor give any direction to the Speaker to do so, and any attempt of remanding the matter for fresh Inquiry or to keep the matter pending till the concerned Judge decides to challenge the report by way of judicial review or to keep the matter pending for decision under the exercise of judicial review beyond the aforesaid period is not permissible and cannot be done in an indirect manner which cannot be done directly. H This Court has no power to extend the life of the Inquiry Committee by a

SMT. S. RAMASWAMI v. U.0.¹. [KASI.IWAI.,J.] 205

judicial fiat in the teeth of the express provisions of the statutory rules. A

Further, in case a judicial review is permitted at this stage against the findings recorded by the Committee then in that case even findings of not guilty recorded by the Committee may also be challenged in Court by persons who had initiated the motion. It has been contended in this regard on behalf of the Learned Counsel for the petitioner that no question of any challenge to the findings of not guilty recorded by the Committee is permissible as contemplated under Section 6(1) of the Act according to which if the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour then no further steps shall be taken in either House of Parliament in relation to the report. I find no force in such cont~ntion because this will only apply when such fmding of not guilty is affirmed by the Court in judicial review also. But in case such finding itself is reversed in judicial review, then the finding of not guilty by the Commit- tee no longer exists and it would be taken as a finding of guilty recorded in judicial review. Thus, many problems may arise which cannot be predi- cated and w'iich may result against the interest of the concerned Judge .D himself.

Thus, in the circumstances mentioned above in the scheme of the Act and the Rules and the Constitution, no direction can be given to the Inquiry Committee to furnish the report to the Judge for seeking judicial review at E this stage when the investigation is already complete. So far as the stage after the conclusion of the proceedings in the Parliament are concerned, the remedy of judicial review is always available which, of course, will depend on the facts and circumstances of the case emerging then and subject to recognised permissible grounds of judicial review. F

The entire constitutional scheme in this matter shows that the Par- liament had complete confidence in the independence and dignity of judiciary. The Inquiry has been left to the Inquiry Committee composed of high judicial functionaries alone. In case of such Committee giving a finding of not guilty, the same has been considered as final and giving a quietus G and no further discussion on the motion has been made permissible. It is only in case of finding of guilty recorded by the Inquiry Committee that the motion is required to be taken up for further consideration. In this kind of case in the larger public interest including the independence of the judiciary itself any delay after the recording of such finding of guilty, if any, H

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A by the Inquiry Committee and to permit such report being challenged by way of judicial review at this stage would not be proper. The matter after recording, if any, a finding of guilty against the concerned Judge by the Inquiry Committee should be left for further consideration by the Parlia- ment. The Parliament should be left answerable to the public at large for its future course of action in the matter. B Thus, taking in view the entire facts and circumstances of the case, no direction can be given as prayed by the petitioner and the petition stands disposed of in terms of the direction gives in the judgment of brother Verma, J. c K. RAMASWAMY, J. Having had the benefit of reading the draft judgment circulated by my learned brother Verma, J. and given my anxious consideration, I express my regrets not to sail totally with them but prefer to sink alone. D The petitioner sought a writ of Mandamus or any other writ or directions to direct Mr. Justice P.B. Sawant Committee, appointed under sec.3(2) of the Judges (Enquiry) Act 1968 for short 'the Act', to supply a copy of its report to Hon'ble Mr. Justice V. Ramaswami before its submis- sion to the Speaker of the Lok Sabha. She also sought direction to the said committee to withhold forwarding simultaneously the said report to the Speaker. The facts in nu:-shell are that the Speaker of 9th Lok Sabha constituted Mr. Justice P.B. Sawant Committee to enquire into the grounds of the motion prayed for the removal of Mr. Justice V. Ramaswami from the office as Judge of this court with the allegations that he committed, in his administrative capacity as Chief Justice of Punjab & Haryana High Court, financial irregularities which constitute misbehaviour within the meaning of Art. 124(4) of the Constitution of India. Mr. M. Krishna Swami filed Writ Petition No. 149 of 1992 and questioned the power and jurisdic- tion of the Speaker to admit the motion, the constitution of the committee and the procedure i: adapted to investigate into the charges etc. The G committee on assumption of its office started investigation, the slay of the proceedings, though sought for, was not granted and the investigation went on. While we were hearing the writ petition, on May 10, 1992, the learned Judge addressed a letter to the Presiding Officer of the Committee request- ing to supply him a copy of its report before it was forwarded to the H Speaker and also requested to withhold the same by giving reasonable time

SMT. S. RAMASWAMI v. U.O.l. [K. RAMASWAMY ..J.J 207

to peruse and to take appropriate action thereon. An application for the same relief was also made in Writ petition No. 149 of 1992. This Bench was given to understand that the Committee would submit the report to the Hon'ble Speaker on or before July 31, 1992, the extended date. During summer vacation the petitioner filed the writ petition for the aforesaid reliefs which was posted along with writ petition No. 149 of the 1992. On enquiry by this Bench whether the learned Judge would agree to abide by the decision that may be given in this case, Mr. Kapil Sibal, the learned senior counsel for the petitioner, on instruction, stated to the positive. He placed on record the letter he addressed and the endorsement thereon by the learned Judge. c He agrued that in Sub-Committee on Judicial Accountability v. Union of India & Ors., [1991] 2 SCR 741 for short 'SCJA' case, this Court held that the admission of the motion by the Speaker and constitution of the committee are statutory functions of the Speaker outside Parliamentary process. Till the report was placed on the floor of each House of the D Parliament, the Speaker has possession of the report and power to with- hold. So the Committee too. If it finds on investigation that the misconduct has not been proved, there ends the matter and need to take further political process is obviated. If it finds that the misconduct has been proved, the Parliamentary process to remove the Judge gets revived on placing the report and the evidence on the floor nf each House of Parlia- E ment and the address started. The investigation is judicious blend of political and judicial process. The admission of the motion, constitution of t],, committee and submission of the report by the committee to the Speaker are outside Parliamentary processes and amenable to judicial review. The learned Judge is entitled to question the adverse finding of misbehaviour and so is entitled to the supply of a copy of the report before it is actually submitted to the Speaker. When the learned Judge has a right and is entitled to judicial review, to question the correctness of the finding of proved misbehaviour he has right to move this court under Art. 32 or Art. 136 or the High Court under Art. 226. Without supply of the copy of · the report he cannot adequately plead and prove its incorrectness to quash the same. Accordingly it is his contention that the supply of the repori and grant of reasonable time are essential postulates sequal to avail judicial review. Accordingly the learned Judge is entitled to the copy of the report thereof. In support thereof he stated that the Parliamentary process com- mences only when the Speaker moves the motion as annexure in the House H

208 SUPREMECOURTREPORTS [1992JSUPP.1S.C.R.

A along with the address to be presented to the President for the removal of the Judge. Until then the Speaker remains a statutory authority, there is no express provision either in the act or the Judges Enquiry Rules 1969 for short 'the Rules' or in the Constitution to provide the learned Judge with an opportunity of representation and hearing on the floor of both the B Houses of Parliament. We cannt predicate as to what procedure the Parliament may adapt in its address and it is also immune from judicial review. By necessary implication, the learned Judge when he has right to review must have remedy to challenge the adverse report in a judicial process and supply of the copy of the report is a must. There is also no provision in the Act and Rules for the Speaker to supply a copy of the report to the learned Judge. Once a report is placed on the floor of each House of the Parliament it is exclusively within the domain of the Parlia- ment and the Judge loses his right to judicial review. The Parliament may choose to give a copy of the report or constitute a sub committee to analyse the report or may proceed with the address without any oppoutunity to the learned Judge. As a corollary to the judgment of this court in SCJA's case, the report of the committee with its finding must be furnished to the learned Jndge without which there can never be any efficacious judicial review. This valuable right cannot be taken away nor rendered nugatory by interpretative process which would violate the principles of natural justice and unfair procedure offending Art. 21. The Committee is a statutory E Tribunal, even though per force its report is not operative. As a Tribunal it is enjoined to supply him a copy of its report and if it fails to supply, the learned Judge is entitled to maintain the writ petition compelling the committee to supply the copy of the report.

F Sri G. Ramaswarni, the learned Attorney General contended that the committee is in the nature of a subordinate authority to the Speaker, the latter being a statutory authority. The report is like grant of sanction for prosecution of a public servant under section 197 of the Code of Criminal Procedure, 1973. Unless validity of the sanction is questioned at the earliest stage the accused is precluded to assail it later on. On the same analogy G the Judi:;: is entitled to ·challenge adverse findings, the foundation for address in the Parliament, at the earliest stage even before being con- sidered by the parliament. This court in SCJA's case found that the judicial review is available against the adverse report of the committee. The Par- liamentary process of removal is not amenable to judicial rev;ew. There- H fore, before any motion is laid on the floor of each House of Parliament,

SMT. S. RAMASWAMI v. U.0.¹. [K. RAMASWAMY,J.] 209

the learned Judge is entitled to the supply of a copy of the report and to the judicial review thereof. Thereafter, this court has no jurisdiction to interdict the proceeding before both the Houses of Parliament take up the motion for discussion. Interference later on would tantamount to interfer- ing with the Parliamentary process. The Parliament alone is to decide as to how the motion is to be dealt with. Neither this court nor any other court in this county has any jurisdiction to deal with the matter or interfere with its decisions. Under these circumstances the learned Judge is entitled to a copy of the report and a right to judicial review of the same by this court. Any construction otherwise would leave the learned Judge high and dry. Such a situation is anathema to rule of law and the cause of justice. Exercise of the power of judicial review would be consistent with the interpretation of the provision of the Constitution, the Act and the Rules as laid by this Court in SCJA's case. Any other view would run counter to the conclusions in SCJA's case. He also contended that it is a basic principle of natural justice that the person against whom findings are rendered is entitled to be heard and seek judicial review of the adversse findings. As a corollary he is entitled to be supplied with the copy of the report and later the members of the Committee are not amenable to writ jurisdiction.

Sri Narirnan, the !earned Senior counsel for the committee con- tended that the report submitted by the committee germinates certain statutory consequences directly relatable to the political process of removal of the Judge, be the finding one of guilt or exoneration. The report forms a Parliamentary documenf for its consideration and determines the future course of the pending motion. If the finding is one of guilt the motion has to proceed to the stage of consideration and vote. If the finding is of "not guilty" the motion by force of statute is teaninated without further con- sideration or discussion by the Parliament. By operation of sections 4(2) and 4(3) of the Act the committee is enjoined to submit its report to the Speaker who is obligated to place it on the floor of both the houses of Parliament under section 4(3). If the contention that the findings in the report are subject to judicial review, the consequence would be that the finding of "not guilty" is also equally liable to be questioned by any member of the Parliament that moved the motion. Until the report is upheld or quashed the Speaker would take no further steps in both Houses of the Parliament. By necessary implication it excludes consideration by the Par- liament. In other words judicial review woud tantamount to stultify the H

210 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A political process in the highest forum under the Constitution. On placing the report on the floor of each House of Parliament the motion would be subject to discussion, and resolution by majority in terms of Art. 124(4) which by necessary implication excludes judicial review of the said finding and of the political process in the Parliament. The learned Judge is not without remedy. Judicial review need not necessarily be by a court of law. B Article 124(4) empowers the Parliament to review the report submitted by the Committee in terms of the law made under Art. 124(5). The learned Judge is entitled to be heard in the Parliament when the report is taken up for consideration. In support thereof he placed reliance of the instance of Mr. Justice Angelo Vasta of the Supreme Court of Qeensland, Australia, C wherein Justice Vasta was given a notice and he was heard on the floor of the House before the Parliament discussed his conduct and recommended to the Governor for his removal.

It is next contended that the ratio in'SCJA's case only to oversee "the process and progress" of the Committee's proceedings before it sends its report. The function of the Committee ends with its submitting the report to the Speaker with its finding of proved gnilt or non-gnilt. By implication thereafter the report is not subject to judicial review. The judicial review after the order of removal passed by the President, in terms of Article 124(4), does not appear to be immune from judicial review, be it by a civil suit under Sec. 9 of the Code of Civil Procedure, 1908 which did not expressly or by necessary implication bar it or in a proceeding under Art. 32 or Art. 226 of the Constitution. It is settled law by this court that it is not bound by the technicalities of prerogative writs. Exercise of power under Art. 226 or Art. 32 of the Constitution is elastic to mete out justice. F The nature of the remedy may be different, may not be reinstatement but may be damages. It is his further contention that expedition in disposal of the motion admitted by the Speaker is the animation from a reading of the relevant provisions prescribing 3 months time to send the report to the Speaker. Interference is that Judicial review in the- is not called for. He G also contends that being a document of the Parliament, the logical conse- quences would be to permit the highest forum namely the Parliament to discuss the proved misbehaviour of the learned Judge and to allow the Parliament to take its decision per majority in terms of Article 124(4) of the Constitution. The judicial review by necessary implication must be H eschewed at this stage by proper and true interpretations of Article 124(4)

SMT.S.RAMASWAMlv. U.0.¹.[K.RAMASWAMY,J.) 211

and Article 124(5), the Act and the Rules. According to the learned A · counsel it is not sensitivity of the learned Judge, but larger public interest of the confidence in the independence of judiciary which is paramount. Non review of the report till the order of removal by the President is passed, would protect and subserve public interest. It would also avoid protraction and proliferation of insidious effects on the efficacy of judicial review is the interregnum.

212 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A The learned Attorney General and Sri Sibal are unanimous in their reply that the political process of removal of a Judge after the resolution per majority, in tune with Art. 124(4) of the constitution, is not subject to judicial review as the Parliament exercises judicial power but not legislative power. Its power of recording judicial finding whether or not guilty was entrusted to the Committee and it is its judgment. It cannot be prognosti- cated as to what procedure the Parliament would follow to discussing the misbehaviour of the learned Judge. Therefore, the judicial review would trench into a conflict of jurisdiction of two constitutional wings of the State and the Court would exercise self-restraint to disturb the finality of con- stitutional process of removing a Judge. This Court in SCJA's case held that the judicial review would be available to the Judge only before it is being placed on the floor of the House as a concomitant. But they relented to the position that judicial review would be available, if the removal is not passed say by a majority of 2/3rd members of the Parliament present and voting or discussion and voting was not in the same session or that even the proved facts and based thereon the finding of guilt as accepted by the Parliament per se is not a misconduct in the eye of law, etc. Sri Sibal distinguished Fowel's case on the ground that it was a disqualification to sit as a member of the House and not impeachment for misconduct and purely political process. He relied on Halsted L. Ritter v. U.S., 84 Court of E Claims 293 referred to by Sri Nariman and certiorari was denied in Ritter v. U.S., 300 U.S. 663. This Court in SCJA's case expressly held that from the stage of admitting the motion till submission of the report being statutory the Tribunal's findings are reviewable by this court under Art. 32 or 136 of the Constitution or Art. 226 in the High Court. The adverse F report, if found, would give cause of action to file writ petition. It is open to the learned Judge to show to the court the illegalities committed by the Committee and at the threshold they be corrected and the judicial review after removal is not efficacious. The availability of the remedy after removal does not preclude the court to correct illegalities or errors at the earliest.

G Though the contentions are carved on wide canvass, I prefer to focus the problem within narrow confines. Whet.her, judicial review of a finding of guilt recorded by the committee or removal of the Judge following the resolution passed by both the House of Parliament on an address with H requisite majority, amenable to judicial review and if so on what grounds,

Slv.T.S.RAMASWAMlv. U.0.¹.(K.RAMASWAMY,J.] 213

at what stage ·and to what extent, would not arise on the present facts. The A controversy thereof traverses wider dimensions pregnant with far reaching ramifications. The need to traverse the entire gamut is obviated for the reason that it is premature to go into the questio~ at this stage and secondly when it trenches into conflict of jurisdictions of this court and of the Parliament, it would be better to avoid an opinion at an inopportune stage. B The Parliament while. making the Act in the Language of this court in SC]A's case adopted a "judicious blend" or 'admixture and amalgam" of political and judicial process as held in Krishna Swami's case, to remove a Judge of the Constitutional court. The initiation of the process to remove a Judge was entrusted to the requisite members of either Rajya Sabha or C Lok Sabha with stated grounds in the motion. The power was entrusted to the Speaker to admit or to refuse its admission and on its admission the duty to constitute a High Judicial Committee composed of a sitting Judge of the Supreme Court, one of the Chief Justices of the High Courts and a distinguished Jurist. In SCJA' case this Court held that all the actions of the Speaker under the Act are statutory ones outside the parliamentary D proceedings and are subject to judicial review.

In my respectful view, the only question, on th.e facts relevant for decision in this case is, whether the learned Judge is entitled to supply of a copy of the report of the Committee to be submitted to the Hon'ble E Speaker of Lok Sabha. If the contention of Sri Nariman is accepted that the moment the report was signed by the Committee it forms a Parliamen- tary document is accepted, the logical result must end in an address by both the Houses of Parliament; a resolution in that behalf passed in terms of Art. 124(4} and an order of removal would be passed by the President. Certainly, the consequence would be that the political process comes to a F terminus and the order of removal of the Judge becomes final. Whether it is reviewable by judicial process is yet another question. As soon as the report is signed by the Committee, as reported to have already been signed by the Committee, whether it would automatically form part of the Par- liamentary document is the question. Whether the finding of exoneration G of the learned Judge by the Committee is also liable to be questioned as contended for by Sri Nariman? Let us first take the later question. To bring out that contention pointedly to focus, it is necessary to consider the scope of Sec.6 of the Act which reads thus: H

214 SUPREME COURT REPORTS (1992) SUPP.¹ S.C.R.

A 6.(1) "If the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapcity, then, no further steps shall be taken in either House of Parliament in reiation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with. B (2) If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in sub-sec- tion (1) of section 3 shall, together with the report of c the Committee, be taken up for consideration by the House or the Houses of Patliament in which it is pending.

(3) If the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of D Article 124 or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address pray- ing for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted."

The Act insisted that the political process of removal of a Judge must be flavoured by a finding of guilt of proved misbehaviour or incapacity, a foundation for removal under Art. 124(4) by a high judicial authority as it impinges upon the reputation and forfeiture of office by an equally high constitutional functionary. Article 124(5) empowers to make law of proce- dure for investigation into misbehaviour or incapacity of a Judge. Section 3(2) authorises the Speaker to constitute the Committee in terms thereof and, therefore, he ceases to have any hold over the commiitee. The Committee thus is a high judicial body consistent with the status of the Judge. The contention of the Attorney General that the Committee is a delegate of the Speaker, is ill conceived. By operation of Sec. 6(1), if the report of the Committee contains a finding that the Judge is not guilty of misbehaviour ~r does not suffer from any incapacity, then no further steps

SMT. S. RAMASWAMI v. U.0.¹. [K. RAMASWAMY,J.] 215

should be taken in either House of the Parliament in relation to the report and there is legislative mandamus that the motion pending in either the House of Parliament shall not be proceeded with. In other words the motion stands lapsed. The result also is envisaged in Rule 9( 4). Rule 9 provides the procedure to submit "the report. Sub-rule 4 of rule 9 provides thus: B "(4) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is guilty of a misbehaviour or that he suffers from an in- capacity, but th~ third member thereof makes a finding to the contrary, the presiding officer of the Inquiry Commit- c tee shall authenticate, in the manner specified in sub-rule (2), the finding made by such third member, in duplicate and shall forward the same along with the report sub- mitted by him under sec.4.

D Sub-rule (6) of rule 9 reads thus :

"(6) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is not guilty of any misbehaviour or that he does not suffer from any incapacity, and the third member thereof makes E a finding to the contrary, the Inquiry Committee shall not disclose the finding made by such third member to Par- liament or to any other authority, body or person."

A conjoint reading of sec. 6(1), rule 9(4) read with rule 9(6) would establish the legislative animation that where the report contains a finding of guilt of misbehaviour or that the Judge suffers from an incapacity, unanimously or per majority view, then the Presiding Officer (sitting Judge of this Court) of the Inquiry Committee shall authenticate, in the manner prescribed in sub-rule (2) the finding made by the third member of not guilty, in duplicate, should be forwarded to the Speaker/Chairman along with the report submitted by him under sec.4. At the discussion by the Parliament, the favourable finding of 'not guilty' may be taken into account by the Parliament or even the finding of guilt may be open to discussion with the aid of the evidence placed on its floor and the Parliament may or may not agree with the majority view in which case there shall be deemed proof or H

216 SUPREME COURT REPORTS (1992) SUPP. l S.C.R.

A disproof of misbehaviour or incapacity in the light of majority resolution, though no express finding was recorded in that behalf. On the other band, if the majority members make a fmding that the Judge is not guilty of any misbehaviour or he does not suffer from any incapacity, but the third member records a finding to the contrary, the Committee shall not disclose that fmding of the third member to the Parliament or to any other authority, body or person. In other words there is a statutory prohibition or mandatory injunction to the committee to disclose the minority view to the public. Thus it is clear that the finding of "not guilty", in other words, "exoneration" from the alleged misbehaviour or incapacity by majority of the members was treated to be conclusive and should be kept secret and by necessary implication it excluded judicial review. The reason is obvious that the finding of a high judicial body, a final arbitor, must be respected; should receive finality and should not be tinkered with. Equally disclosure of even the minority view would effect not only the reputation of the Judge but the non-disclosure would also ward off collateral attack from any quarter or liability to be questioned by any third party. It is held in Krishna Swami's case that neither the members of the Parliament, nor anybody have locus or right to participate and lead evidence against the Judge at the investigation done by the Committee. As a necessary corollary µo-one is · entitled to impugne the correctness of the findings of 'not guilty' recorded by the Committee, absolving fhe Judge from the charge. Therefore, the legislature itself made a distinction between the consequences that would flow from recording a finding of guilty or exoneration and the former is subject to political process, together with the contra fmding of third member but in the latter case it is conclusive. As held in SCJA's case, no further steps based thereon should be taken up for consideration. In other words, it is immune from attack from any quarter whatsoever, when even the Parliament itself was prohibited to go into that question. It must thus be held that first contention of Sri Nariman is not tenable and accordingly it is negatived.

The next question is as to when the report of unanimous or per majority finding of 'proved misbehaviour or incapacity' would form part of Parliamentary document. Under sub-section (2) of sec.4, '.at the conclusion of the invest1gation, the Committee shall send the report to the Speaker, or as the case may be, to the Chairman or where the Committee has been constituted jointly by the Speaker and the Chairman, to both of them stating therein its findings on each of the charges with such of the reasons

SMT.S.RAMASWAMJv. U.0.¹.[K.RAMASWAMY,J.] 217

on the whole case as it deems fit'. Under sub-sec. (3) thereof the Speaker A or the chairman or both when the committee was constituted jointly by them, 'shall cause the report to be laid, as soon as may ·be, before the House of People and Council of State'. Under Rule 9(3), a copy of the report of the Inquiry Committee, authenticated in the manner specified in sub-rule (2), 'shall be laid before each House of Parliament'. Under B sub-rule (6) of rule 9 when one member recorded a finding of not guilty of misbehaviour or does not suffer from any incapacity, the said report of the third member, as authenticated by the Presiding Officer, shall also be laid before each House of Parliament along with the evidence as per Rule 9(5). c In SCJA's case interpreting Sections 3, 4 and 6 of the Act, the majority, in the context of the doctrine of lapse, held that the entire stage up to proof of misbehaviour or incapacity began with the iiiitiation of investigation on the allegation being made is governed l>y the law enacted under Art. 124(5). The stage of an address by each House of the Parlia- D ment commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under Clause 5 (para 78). The first part is entirely statutory while the second part alone is the Parliamen- tary process. The first part covered fully by enacted law, the validity of which and process thereunder being subject to judicial review independent of any political colour and after proof it is was intended to be a parliamen- tary process (para 82). The House does not come into picture at the stage of admitting the motion, constituting the committee and the investigation into the alleged misbehaviour or incapacity.

Therefore, the Speaker on receipt of the report submitted by the committee under section 4(2) or, as the case ·may be, the Chairman or both of them, by operation of sub-section (3) thereof should cause the report to be laid before each House of parliament. The manner of preparation of the record is controlled and regulated by rule 16. It postulates that, when the committee unanimously or per majority thereof, finds that the Judge is guilty of any misbehaviour or suffers from an incapacity, the Secretary of the Lok Sabha or Rajya Sabha, as the case may be, shall prepare the address in form II and a copy of the motion shall be annexed. to the address. They shall fix the date for consideration by each House and address may be supported by majority member in terms of Art. 124(4). H

218 SUPREME COURT REPORTS (1992) SUPP.¹ S.C.R.

A Thus it is clear that the moment the report was signed by the committee, it did not, ipso facto, become the document of the Parliament but when the Speaker/Chairman or both, as the case may be, caused the report to be laid on the floor of each House of Parliament together with the evidence and the motion in the manner prescribed in Rule 16, it becomes the B document of the Parliament. Until then the Speaker/Chairman holds the document in his statutory capacity under the Act. The anchor of Sri Nariman lost its hook.

The question then is whether the committee is a tribunal? In lndo- C China Steam Navigation Co. Ltd. v. Jasjit Singh, Addi. Collector of Custom & Ors., (1964) 6 SCR 594 the facts were that under the Customs Act on proceedings having been taken and the goods confiscated, an appeal was laid before the Central Board of Revenue which was rejected. A revision to the Central Govt. also met with the same fate. When their correctness was questioned in this court under Act. 136, a preliminary objection was D raised that the Board and the Government are not a tribunal within the meaning of Art. 136 and that, therefore, the order passed by the authorities under the Act was not subject to judicial review. While repealing the contention the Constitution Bench held at pages 603 & 604 thus :

E "It is difficult to lay down any definite or precise test for determining the character of a body which is called upon to adjudicate upon matters brought before it. Sometimes in deciding such a question, courts enquire whether the body or authority whose status or character is the subject matter of the enquiry, is clothed with the trappings of a court. Can it compel witnesses to appear before it and administer oath to them, is it required to follow certain rules of procedure, is it bound to comply with the rules of natural justice, is it expected to deal with the matters before it fairly, justly and on the merits and not be guided by subjective considerations; in other words, is the ap- proach which it is quasi-judicial approach? If all or some of the important tests in that behalf are satisfied, the proceedings can be characterised as judicial proceedings and the test of trappings may be said to be satisfied. But H apart from the test of trappings, another test of impor-

SMT.S.RAMASWAMI v. U.0.¹.[K. RAMASWAMY,J.] 219

lance is whether the body or authority had been con- A . stituted by the State and the State had conferred on its inherent judicial power. If it appear that such a body or authority has been constituted by the .Jegislatur~ and on it has been conferred the State's inherent judicial power, that wou.Jd be a significant, if not a decisive, indication that the said body or authority is a Tribunal". B

Accordingly it was held that the Central Board of Revenue and the Central Govt. are Tribunals for the purpose of Art. 136. In the Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, (1950] SCR 495 when similar objection was taken of Industrial Tribunal another Consitu· C tion Bench held that the main function of the Industrial Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases and that it has ·also to arrive at a conclusion as to how the dispute is ended. Prima facie, therefore, a Tribunal like this cannot be ~l'~!l!9ed from the scope of Art. 136. It was D also further held that though the award in proprio vigore is not enforceable, is t:i life kindles into being, ,.,:., :'': : on ',, acceptance '. by the government • concerned and a notification was issued by the government in the manner prescribed by law. It by itself is not a determinitive factor to keep the award outside the purview of Art. 136 of the Constitution. In Associated Cement Co. Ltd. v. E P.N. Sharma & Anr., (1965] 2 SCR 366 the question was whether the order passed by the government with the concurrence of the Labour Commis- sioner under the Punjab Welfare Officer Recruitment and Conditions of Service Rules, 1952 is a Tribunal within the meaning of Art. 136. This Court at page~ 386 & 387 held thus: F "The presence of all or some of the trappings _of a court is really not decisive. The presence of some of the trap- pings may assist the determination of the question as to whether the power exercised by the authority which pos- sesses the said trappings, is the judicial power of the State G or not. The main and the basic test, however, is whether the aJjudicating power which a particu.Jar authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial func- H

220 SUPREME COURT REPORTS [1992) SUPP. 1 S.C.R.

A lion. Applying this test, there can be no doubt that the power which the State Govt. exercises under R.6(5) and R.6(6) is a part of the State's judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. There is, in that B sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it".

It is, therefore, settled law that all the trappings of the court need not necessrily be present in a particular case to bring the authority as a Tribunal but the essential postulate must be that it must be the creature of the statute and the State should delegate its inherent power of judicial review to the Tribunal; all or some of the trappings of a court may or may not be present in a given case. The Tribunal should adjudicate the dispute between the parties before it, after giving reasonable opportunity to the parties, consistent with the principles of fair play and natural justice. It is not necessary that proprio vigore it is enforceable. The mere fact that it is subject to further orders does not take away the effect of the decision or findings recorded thereunder.

The committee is not a recommendatory body. It is high judicial authority deriving its power from Art. 124(5) of the Constitution read with Section 3(2) of the Act. On framing definite charges and service on him, it gives reasonable time to the learned Judge to file his defence. The Committee under Rule 8 is empowered to conduct ex-parte enquiry, in the G absence of the Judge, when he did not appear or had chosen to remian absent. The Judge also has been given right under Rule 11 to consult his counsel and the right to .be defended by a legal practitioner of his choice. During investigation the Committee was empowered by Sec. 5 of the Act with 'powers of a civil court while trying the civil suit' under Code of Civil H Procedure, 1908 in respect of enumerated matters, namely, 'to summon,

SMT.S.RAMASWAMiv. U.0.¹.[K.RAMASWAMY,J.] 221

and enforce the attendance of the witnesses and their examination, power of discovery and inspection or to direct them, production of documents, to receive evidence on oath, to issue commission for examination of the witnesses or the documents and such other p~escribed matters'. Under sec.4(1) the Committee shall give reasonable opportunity to the Judge and the Advocate appointed under Sec. 3(9) to examine witnesses, right to examine, adjudication of evidence in proof or disproof of the charges and right to be heard in defence. Under Rule 10(1) the evidence should be recorded as per provision of the Code of Civil Procedure. The right to 1 examine and cross-examine witnesses is a valuable right akin to a trial of dispute between two contending parties and their right to address the Committee on the evidence adduced in proof or disproof of the charges is to adjudge the issue in a judicious manner. The Committee thus has been empowered to adjudicate on the proof or disproof of the charges in accordance with the evidence legally adduced after hearing the Judge and the Advocate. The Committee has no other function except to adjudicate upon the dispute of 'the proved guilt or not guilty". By operation of Rule D f. the Committee, may on consideration of the evidence and applying the standard of 'proof beyond reasonable doubt', make a finding that the misbehaviour or incapacity has been proved or disproved. The finding of guilt alone is subject to political process. Thus the Inquiry Committee is a high judicial body or authority. E

The problem could be broached from a different perspective. In substance the investigation and proof of misbehaviour or incapacity of a Judge under Art. 124(5) read with the Act and the Rules; the address by each House of Parliament supported by the requisite majority and removal F of a Judge by the President is akin to a disciplinary measure to resuscitate and infuse needed judicial conduct and fervidity by assertion of the supremacy of law that the Judge too will be subject to law. The Judge occupies a constitutional office. Article. 124(5) devised an amalgam of judicial and political process to remove an erring Judge or Judge suffering from incapacity. The report submitted by the Committee to the Speaker G with the finding that the alleged misbehaviour is proved and the Judge is found guilty of the proved misbehaviour, constitutes fresh material. This Court in Union of India v. H.C. Goe~ (1964) 4 SCR 718 at 728 held thai:-

"The enquiry report along with the evidence recorded H

222 SUPREME COURT REPORTS (1992] SUPP. I S.C.R.

A constitute the material on which the government has ul- timately to act. That is the only purpose of the enquiry held by the competent officer and the report which he makes as a_ result of the said enquiry'.

(Emphasis supplied) B It was further held at p.729 that:-

"It is true that the order of dismissal which may be passed against a government servant found guilty of misconduct, c can be described as an administrative order; nevertheless, the proceedings held against such_ a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public D servant if he is able to satisfy the High Court that the ultimate conclusion of the government in the said proceedings which is the basis of his dismissal is based on no evidence".

In Union of India & Ors. v. Mohd. Ramzan Khan, (1991] 1 SCC 588 E a bench of three Judges held (of course it is subject to the decision by the Constitution Bench, pending reference) that the disciplinary authority is very often influenced by the conclusion of the enquiry officer and even by the recommendations relating to the nature of the punishment to be inflicted. With the 42nd amendment the delinquent officer is associated with the disciplinary enquiry not beyond the recording of evidence and submissions made on the basis of the matter to assist the enquiry officer has to come to his conclusion. In case his conclusions are kept away beyond the enquiry with or without recommendation as to punishment, the delin- quent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is conerned. In a quasi- judicial matter, if the delinquent is being deprived of knowledge of the material against him, though the same was made available to the punishing authority in the' matter of reaching its conclusion, it is voilative of the rules

SMT. S. RAMASWAMI v. U.0.¹. [K. RAMASWAMY, J.] 223

of natural justice. This court further approved the ratio in Mazharul Islam A Hashmi v. State of U.P. & Anr., [1979] 4 SCC 537 = AIR 1979 SC 1237 that the other person must know what he has to meet and he must have an opportunity of meeting that case. The Legislature, however, can exclude operation of these principles expressly or impliedly but in the absence of any such exclusion, principles of natural justice will have to be followed. B The finding of guilt of misbehaviour or incapacity, with which the Judge is suffering from, would visit with civil consequences of loss of reputation in the society apart ,from forfeiture of office. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 SCR 272 it was held that a person effected by the civil consequences is entitled to C the Report. It is now settled law that the principles of natural justice are an integral part of constitutional scheme of just and fair procedure en- visaged under Art.14 of the Constitution.

The above discussion leads to conclude that if the committee makes, an unanimous or per majority, finding that the learned Judge is 'not guilty' D of misbehaviour, the finding receives quietus and is conclusive. The politi- cal process pursuant to pending motion should not be proceeded with and should stand lapsed. The minority finding of 'guilt' should remain secret and none be entitled to, either access to the report of exoneration or to assail the correctness of the finding of not guilty recorded by the commit- E tee. The need to supply the report is obviated. bn the other hand if the committee either unanimously or per majority makes a finding of 'guilty of the proved misbehaviour' only that part should be laid on the floor of each -House of the Parliament in terms of the Act and the Rules along with the minority views of 'not guilty' and the political process for removal of the Judge would start. That report is adverse to the learned Judge. The F constitutional scheme laid emphasis on expedition of the consideration of the pending motion and, it should doubtless be done for, its dilation would generate deleterious effects on pub,lic confidence in the efficacy of ad- ministration of justice. Every right carries with it the corollary remedy to redress the injury. Indisputably and as a fact in fairness, Sri Nariman, also G accepted that the learned Judge is entitled to judicial review. The arena of controversy is, whether, before the parliament had taken up the motion for consideration or after the President passed an order of removal under Article 124(4). As prefaced before the start of discussion that stage would H

224 SUPREME COURT REPORTS (1~92] SUPP.! S.C.R.

A set only if and when the learned Judge has chosen to seek judicial review. That would arise only when he has been supplied with a copy of the report. W.ithout kno~g what the contents of the report are; the reasoning in support of the findings of proved misbehaviour or other illegalities in the process of adjudication, can a party be foreclosed from legal remedy? In such a case is it not a non-issue? Without supply of the material, the B foundation of legal injury, can he adequately and effectively plead, proved

.. and disabuse the incorrectness of the finding etc.? May be the learned Judge opts to avail the remedy on the floor of the House of Parliament. Does non-supply of the report not trench into offending the principles of natural justice? Is it not anathema to judicial process? The secrecy of the c report of minority member's finding of 'guilt' is to protect the Judge but when the finding of guilt when adversely effects the Judge, can it be denied on the plea of secrecy? May be the counsel may canvas any contention on a non-issue. ls the court bound to answer all the contentions raised? In the circumstances, I am of the humble view that the learned Judge is entitled to the supply of a copy of the report and the committee being a high statutory one, the court can, keeping the status of the committee in view, make a request to supply the copy of the report to the learned Judge.

The necessary conclusion, therefore, is that the learned Judge is entitled to the supply of a copy of the report of the committee. Its concomitant would be that the learned Judge needs time to reflect upon to taking a decision and action thereon. Though the Speaker was sought to be impleaded as a respondent to the writ petition, later on he was deleted. Therefore, the question of direction to the Hon'ble Speaker with a request not to lay the report on the floor of each House of Parliament F does not arise. Necessarily, the committee is to be requested to withnold submission of its report for a reasonable time.

Accordingly, I allow the writ pj'tition and direct the Registrar General to communicate a letter of request to Sri Justice P.B. Sawant G Committee to supply a copy of the report to Hon'ble Sri Justice V. Ramaswami and to convey further request to withhold submission of its report for a reasonable time from the date of the receipt of the letter of request from the Registry. The Attorney General is also requested to apprise the Hon'ble Speaker of the Lok Sabha of the order passed in this H behalf and if necessary to extend the needed time to enable the committee

SMT.S.RAMASWAM!v. U.0.I.[K.RAMASWAMY,J.] 225

to submit its report within that extended time. The writ petition is accord- A ingly ordered but in the circumstances without cost.

ORDER

This Writ Petition is disposed of in terms of, and in accordance with the majority opinion. B T.N.A. Petition disposed of.