In Re.. vs Mehar Singh Saini,Chairman Hpsc & ... Decided on 12 November, 2010 by Supreme Court of India in exercising advisory jurisdiction over the reference made by President of India, seeking advice whether State Public Service Commission members can be removed over alleged illegalities and irregularities, Bench consisting of Justice : S Kapadia, K P Radhakrishnan, S Kumar, held in affirmative.
FACTS:- Several members and Chairman of HPSC was appointed by Haryana Govt just before election code of conduct. During their tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State. Subsequently, it came to the notice of the Government that various irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them. After conducting preliminary enquiries, the Government claims to have initiated vigilance enquiries as well as First Information Reports were registered for the alleged irregularities, illegalities and acts of commissions and omissions by the Chairman and Members of the Commission. This resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18th December, 2006, to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution of India. It was averred that the Chairman and Members of the Commission were guilty of misbehaviour, as mentioned under Article 317(1) of the Constitution. It was also averred that they do not possess requisite qualification, experience and had been appointed to the coveted offices only to achieve political ends. In this letter, detailed facts were given about the qualifications, experience and credentials of the Chairman and Members of the Commission with definite emphasis on the fact that they had made appointments contrary to the rules and with favouritism. Their conduct in making selection to different posts was an exercise in subversion of the constitutional protections rather than sub-serving, the interest of the Constitution. After receiving this Reference, the Governor of Haryana, vide letter dated 16th January, 2007, forwarded it to the President of India with supporting documents and records for consideration. The President, after examining the records, referred the matter to this Court under Article 317(1) of the Constitution for inquiry and report, as to whether the existing Chairman and Members of the Commission ought to be removed from the office on the alleged grounds of misbehaviour.
ALLEGATIONS & CHARGES ELICITED IN JUDGEMENT
Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service Commission, which were made without due regard to their qualifications, experience, status and accomplishments, required for appointment to the said constitutional posts.
….. One selection committee chairman, Recommended the name of …… one candidate….. for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court.
Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.
Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.
However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, despite repeated demands, had not been handed over to them. As a result of non- cooperation by the Chairman and Members of the Commission, proceedings in the Court were initiated in which, ultimately, the High Court of Punjab and Haryana in Haryana Public Service Commission v. State of Haryana (Writ Petition no.12593 of 2005) [(2005)141 PLR 486], passed an order dated 12th August, 2005 making certain observations against the conduct of the Commission, its Chairman and Members.
That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution.
That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh. Mehar Singh Saini constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.
That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by defending the above mentioned patently illegal acts which constitute an act of grave misbehavior warranting invocation of Article 317(1) of the Constitution of India for his removal.
…..Wrongly and unlawfully decided to file a written reply on behalf of the Haryana Public Service Commission to the inspection reports………., attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana Civil Services (Executive & Allied), which was finalized by the Commission in 2002.
…..Had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal."
It is the case of the State Government that after noticing the irregularities and favouritism on a mass scale and on suspicion of serious charges of corruption against the Chairman and Members of the Commission, the Governor of Haryana had passed an order dated 9th August, 2008 suspending the Chairman and the Members of the Commission. The validity and legality of this order of suspension was questioned by the affected Chairman and Members of the Commission by filing a petition under Article 32 of the Constitution before this Court, which came to be dismissed by a detailed order dated 7th August, 2009 reported as Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant extract of the order reads as under: "16. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. The writ petitions are dismissed."
OPPONENT’S CONTENTIONS :-
Court has to conduct its inquiry and record its finding in the report only in relation to the articles of charge referred to by the President in exercise of its powers under Article 317(1). Thus, this Court has no jurisdiction to go into the merit or otherwise of the said additional articles of charge. It is his submission that it is not an omnibus Reference. Further, it is argued that there is no evidence on record to substantiate any of the approved articles of charge, even if it is assumed for the sake of argument that the Court can examine all the approved articles of charge. Thus, it is stated that the Presidential Reference to this Court is ex facie a case of no evidence but political vendetta alone. It was also contended that the entire evidence produced in respect of the allegations has not been tendered in accordance with law. A police officer cannot prove the allegations merely by filing an affidavit. Thus, it is no evidence in the eye of law. In regard to charge , relating to qualification and status of the Chairman and Members of the Commission, it is argued that this approved article of charge itself suffers from infirmity of non-application of mind as no qualification or status has been prescribed under Article 316 of the Constitution for such appointment.
COURT OPINION AND QUOTED CITATIONS
In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court. A plain reading of these Rules (Supreme Court has framed the following rules under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution) clearly shows that no detailed procedure has been provided so far, as to how and in what manner the inquiry shall be conducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left to the discretion of this Court to follow a procedure which is in consonance with the language of Article 317(1), read with the above Rules and principles of natural justice.
In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission.
We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had made a Reference under Article 317(1) of the Constitution relating to various aspects of misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission. The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of. Thus, the charges were framed/approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office.
This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme Court being the highest Court of the land, its vitality is a national imperative. The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference.
SERVICE JURISPRUDENCE IS NOT APPLICABLE HERE:- The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. Keeping in mind the constitutional protections available to the Chairman and Members of the Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission. The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. Principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services.
CRIMINAL JURISPRUDENCE IS ALSO NOT APPLICABLE HERE:- The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis.
DROPPED CHARGES:- The alleged malicious acts of influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse of the public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine explanatory, incidental or intrinsically inter-connected charges to the charges mentioned in the Reference and in that respect can take note of additional facts, take evidence and examine the entire record before it. But where the charges, apparently and in substance, are new and do not appear to be justifiable on the basis of the record and there is no direct evidence to substantiate them, it may not be in the ends of justice that this Court should examine those articles of charge in the present inquiry.
WHAT IS MISBEHAVIOUR AND MISCONDUCT:- In Article 124(4) "misbehaviour" means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree or mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour…………….Needless to notice neither misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved.
In the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term `misbehaviour' while dealing with the matter under the Public Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. `Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained by the members of a particular service or office.
This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex- Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 and 11 of the judgment as under : "10... "6. Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
This Court in the case of Union of India v. J. Ahmed [(1979) 2 SCC 286], while dealing with disciplinary proceedings, under the service law, explained the term `misconduct' to mean conduct not expected of a member of service, conduct in a manner inconsistent with due and faithful discharge of duties and service or gross or habitual negligence in performance of duties. `Proved misbehaviour' is an expression clearly distinguishable from the above terms of `misbehaviour' and `misconduct' as is apparent from the language of Article 124(4) of the Constitution. Intent, gravity and onus are of a much higher degree. The prefix `proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play.
All these expressions fall under different domains of jurisdiction and operate in distinct and different fields. The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/misconduct could be used interchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. `Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include `grave misconduct' or `proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to `misbehaviour' which is an expression of very wide magnitude.
They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements for holding these high constitutional offices. Similarly, in the case of Inderpreet Singh Kahlon v. State of Punjab [(2006) 11 SCC 356], this Court in exercise of its appellate jurisdiction was concerned with allegations against the Chairman of the Punjab Public Service Commission that in discharge of his duties, he had selected persons for extraneous as well as monetary considerations during 1996 to 2002. For such conduct and selections, FIRs had been registered in that behalf while the selection of the appointed candidates was also challenged. While dealing with these allegations, the Court held as under: "102. This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."
CHARGE 1 NOT PROVED:- In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the Government in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that fault would have to be traced to the processing and the appointing authority rather than the candidate alone. ……. The constitutional provisions do not provide any qualification for Official/Non-official Members. It also does not provide any experience in any particular field or office for Non-official Members. In the case of an Official Member, it is nowhere spelt out as to which cadre in the official hierarchy, he should have experience of 10 years. In these circumstances, we find that the Government has failed to prove Charge 1 and we hold the respondents not guilty of any misbehaviour as contemplated under Article 317(1) on this count.
CHARGE 2 PROVED:- This charge has been framed against four of the nine private respondents. It is alleged that ………… as members of the Selection Committee recommended the name of Pradeep Sangwan for the post of Drug Inspector on the basis of bogus experience certificate. It was contended that selection ……….. was, thus, arbitrary and constituted misbehaviour under Article 317(1) of the Constitution. In regard to the irregularities committed, an FIR being …………. lodged; during investigation and on further inquiry by the State Vigilance Bureau, various documents have come to light which show that selection of Pradeep Sangwan was arbitrary and was made in a manner, which is not acceptable in law. Pradeep Sangwan did not possess the requisite essential qualifications and experience. A complaint against his selection was filed by one Rakesh Walia. Despite this, the candidate was not only selected but also recommended on the basis of the bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and certificates submitted by the candidate, statements of witnesses including the witness from M/s. Zee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee.
DEFENCE RAISED ON THE CHARGE:- The counsel appearing for the Commission has not even attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. ………………….. It is also argued that if Pradeep Sangwan has obtained a bogus certificate then, at best, he can be said to have committed some offence and that cannot be understood as an instance of misbehaviour on the part of the private respondents. Further, the contention is that there is no evidence to support this charge. Discrepancies in date of filing of application, manipulation of date, withholding of original certificates by respondents from expert verification, non verification of records of candidate, and other documentary evidence As a result of documentary verification and discussion over it, Supreme court considered the charge in these words ”we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview, selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet the standards of behaviour, integrity and rectitude required to be maintained by the office they were holding. Thus, their behaviour with respect to this article of charge would certainly fall within the ambit of misbehaviour justifying their removal from office.”
OTHER CHARGES HELD PROVED :- Approved articles of charge 3, 5, 8 and 9 pertaining to alleged acts, omissions and commissions amounting to misbehaviour have been framed against all the respondents in the present inquiry. However, article of charge 4 has been framed only against Mehar Singh Saini, respondent No.1, who was earlier Member and later appointed as Chairman of the Commission. These approved articles of charge can be dealt with together inasmuch as they are based on common allegations, common evidence and with reference to the same records produced by the State Government in support of the allegations. …….. The cumulative reading of these articles of charge shows that emphasis is on non-cooperation of the Chairman and Members of the Commission in not furnishing the records, when it was demanded by the investigating agencies. Further there has been an abuse of office of the Chairman and Members of the Commission by withholding the material records, passing resolutions contrary to law, filing incorrect replies in judicial proceedings and lastly the manipulation and interpolations in regard to answer sheets of the selected/non-selected candidates.
Points which emerge from these approved articles of charge :
a) Whether during their tenure as Chairman and Members of the Commission, the private respondents adopted a non- cooperative attitude and intentionally decided not to furnish relevant records to the concerned authorities/investigating agencies?
b) Whether the right of privilege in terms of Section 123 of the Indian Evidence Act, 1872 was available to the Commission acting through its Chairman and Members?
c) Whether non-furnishing of documents or records to the inquiring/investigating agencies, under the pretext that the Commission is a constitutional authority and thus not amenable to investigation, was a bona fide decision/resolution or it was an attempt to cover up the misdeeds, omissions and interpolations made in the process of selection?
Furthermore, if the records were made available to the agencies would it have exposed the misbehaviour of the private respondents?
REGARDING POINT OF LAW HIGH COURT OBSERVATIONS UP HELD:- High Court (in the same matter) had clearly held that claim of privilege for non- production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14th December, 2009. In the meanwhile, as already stated, four new Members had been appointed to the Commission in place of the Members whose term had expired. These newly nominated Members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the private respondents.
It is not in dispute that the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. ….. While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: "...we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date."
CONCLUSION ON OTHER CHARGES:- We have no doubt in coming to the conclusion that the Chairman and Members of the Commission (private respondents herein) adopted a non-cooperative attitude and declined to furnish relevant records to the concerned authorities/investigating agencies. Furthermore, passing of resolutions and resistance despite directions/observations of the Court to comply with the notices issued by the investigating agencies to furnish records are acts which lack bona fides. The claim of privilege was sought to be invoked as a ploy to prevent production of records, which would have exposed the irregularities, illegalities and manipulations in the process of selection. In the name of the constitutional authority, the Chairman and Members of the Commission certainly violated the expected standards of behaviour. They not only adopted a non-cooperative attitude but also unduly delayed completion of the inquiry/investigations which, in fact, are stated to be pending at different stages even to this day.
ANSWERED IN AFFIRMATIVE:- Thus, there exist justifiable grounds for removal of the private respondents from their respective offices in terms of Article 317 (1) of the Constitution. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows: "1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions."
FACTS:- Several members and Chairman of HPSC was appointed by Haryana Govt just before election code of conduct. During their tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State. Subsequently, it came to the notice of the Government that various irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them. After conducting preliminary enquiries, the Government claims to have initiated vigilance enquiries as well as First Information Reports were registered for the alleged irregularities, illegalities and acts of commissions and omissions by the Chairman and Members of the Commission. This resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18th December, 2006, to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution of India. It was averred that the Chairman and Members of the Commission were guilty of misbehaviour, as mentioned under Article 317(1) of the Constitution. It was also averred that they do not possess requisite qualification, experience and had been appointed to the coveted offices only to achieve political ends. In this letter, detailed facts were given about the qualifications, experience and credentials of the Chairman and Members of the Commission with definite emphasis on the fact that they had made appointments contrary to the rules and with favouritism. Their conduct in making selection to different posts was an exercise in subversion of the constitutional protections rather than sub-serving, the interest of the Constitution. After receiving this Reference, the Governor of Haryana, vide letter dated 16th January, 2007, forwarded it to the President of India with supporting documents and records for consideration. The President, after examining the records, referred the matter to this Court under Article 317(1) of the Constitution for inquiry and report, as to whether the existing Chairman and Members of the Commission ought to be removed from the office on the alleged grounds of misbehaviour.
ALLEGATIONS & CHARGES ELICITED IN JUDGEMENT
Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service Commission, which were made without due regard to their qualifications, experience, status and accomplishments, required for appointment to the said constitutional posts.
….. One selection committee chairman, Recommended the name of …… one candidate….. for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court.
Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.
Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.
However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, despite repeated demands, had not been handed over to them. As a result of non- cooperation by the Chairman and Members of the Commission, proceedings in the Court were initiated in which, ultimately, the High Court of Punjab and Haryana in Haryana Public Service Commission v. State of Haryana (Writ Petition no.12593 of 2005) [(2005)141 PLR 486], passed an order dated 12th August, 2005 making certain observations against the conduct of the Commission, its Chairman and Members.
That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution.
That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh. Mehar Singh Saini constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.
That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by defending the above mentioned patently illegal acts which constitute an act of grave misbehavior warranting invocation of Article 317(1) of the Constitution of India for his removal.
…..Wrongly and unlawfully decided to file a written reply on behalf of the Haryana Public Service Commission to the inspection reports………., attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana Civil Services (Executive & Allied), which was finalized by the Commission in 2002.
…..Had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal."
It is the case of the State Government that after noticing the irregularities and favouritism on a mass scale and on suspicion of serious charges of corruption against the Chairman and Members of the Commission, the Governor of Haryana had passed an order dated 9th August, 2008 suspending the Chairman and the Members of the Commission. The validity and legality of this order of suspension was questioned by the affected Chairman and Members of the Commission by filing a petition under Article 32 of the Constitution before this Court, which came to be dismissed by a detailed order dated 7th August, 2009 reported as Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant extract of the order reads as under: "16. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. The writ petitions are dismissed."
OPPONENT’S CONTENTIONS :-
Court has to conduct its inquiry and record its finding in the report only in relation to the articles of charge referred to by the President in exercise of its powers under Article 317(1). Thus, this Court has no jurisdiction to go into the merit or otherwise of the said additional articles of charge. It is his submission that it is not an omnibus Reference. Further, it is argued that there is no evidence on record to substantiate any of the approved articles of charge, even if it is assumed for the sake of argument that the Court can examine all the approved articles of charge. Thus, it is stated that the Presidential Reference to this Court is ex facie a case of no evidence but political vendetta alone. It was also contended that the entire evidence produced in respect of the allegations has not been tendered in accordance with law. A police officer cannot prove the allegations merely by filing an affidavit. Thus, it is no evidence in the eye of law. In regard to charge , relating to qualification and status of the Chairman and Members of the Commission, it is argued that this approved article of charge itself suffers from infirmity of non-application of mind as no qualification or status has been prescribed under Article 316 of the Constitution for such appointment.
COURT OPINION AND QUOTED CITATIONS
In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court. A plain reading of these Rules (Supreme Court has framed the following rules under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution) clearly shows that no detailed procedure has been provided so far, as to how and in what manner the inquiry shall be conducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left to the discretion of this Court to follow a procedure which is in consonance with the language of Article 317(1), read with the above Rules and principles of natural justice.
In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission.
We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had made a Reference under Article 317(1) of the Constitution relating to various aspects of misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission. The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of. Thus, the charges were framed/approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office.
This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme Court being the highest Court of the land, its vitality is a national imperative. The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference.
SERVICE JURISPRUDENCE IS NOT APPLICABLE HERE:- The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. Keeping in mind the constitutional protections available to the Chairman and Members of the Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission. The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. Principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services.
CRIMINAL JURISPRUDENCE IS ALSO NOT APPLICABLE HERE:- The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis.
DROPPED CHARGES:- The alleged malicious acts of influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse of the public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine explanatory, incidental or intrinsically inter-connected charges to the charges mentioned in the Reference and in that respect can take note of additional facts, take evidence and examine the entire record before it. But where the charges, apparently and in substance, are new and do not appear to be justifiable on the basis of the record and there is no direct evidence to substantiate them, it may not be in the ends of justice that this Court should examine those articles of charge in the present inquiry.
WHAT IS MISBEHAVIOUR AND MISCONDUCT:- In Article 124(4) "misbehaviour" means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree or mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour…………….Needless to notice neither misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved.
In the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term `misbehaviour' while dealing with the matter under the Public Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. `Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained by the members of a particular service or office.
This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex- Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 and 11 of the judgment as under : "10... "6. Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
This Court in the case of Union of India v. J. Ahmed [(1979) 2 SCC 286], while dealing with disciplinary proceedings, under the service law, explained the term `misconduct' to mean conduct not expected of a member of service, conduct in a manner inconsistent with due and faithful discharge of duties and service or gross or habitual negligence in performance of duties. `Proved misbehaviour' is an expression clearly distinguishable from the above terms of `misbehaviour' and `misconduct' as is apparent from the language of Article 124(4) of the Constitution. Intent, gravity and onus are of a much higher degree. The prefix `proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play.
All these expressions fall under different domains of jurisdiction and operate in distinct and different fields. The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/misconduct could be used interchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. `Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include `grave misconduct' or `proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to `misbehaviour' which is an expression of very wide magnitude.
They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements for holding these high constitutional offices. Similarly, in the case of Inderpreet Singh Kahlon v. State of Punjab [(2006) 11 SCC 356], this Court in exercise of its appellate jurisdiction was concerned with allegations against the Chairman of the Punjab Public Service Commission that in discharge of his duties, he had selected persons for extraneous as well as monetary considerations during 1996 to 2002. For such conduct and selections, FIRs had been registered in that behalf while the selection of the appointed candidates was also challenged. While dealing with these allegations, the Court held as under: "102. This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."
CHARGE 1 NOT PROVED:- In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the Government in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that fault would have to be traced to the processing and the appointing authority rather than the candidate alone. ……. The constitutional provisions do not provide any qualification for Official/Non-official Members. It also does not provide any experience in any particular field or office for Non-official Members. In the case of an Official Member, it is nowhere spelt out as to which cadre in the official hierarchy, he should have experience of 10 years. In these circumstances, we find that the Government has failed to prove Charge 1 and we hold the respondents not guilty of any misbehaviour as contemplated under Article 317(1) on this count.
CHARGE 2 PROVED:- This charge has been framed against four of the nine private respondents. It is alleged that ………… as members of the Selection Committee recommended the name of Pradeep Sangwan for the post of Drug Inspector on the basis of bogus experience certificate. It was contended that selection ……….. was, thus, arbitrary and constituted misbehaviour under Article 317(1) of the Constitution. In regard to the irregularities committed, an FIR being …………. lodged; during investigation and on further inquiry by the State Vigilance Bureau, various documents have come to light which show that selection of Pradeep Sangwan was arbitrary and was made in a manner, which is not acceptable in law. Pradeep Sangwan did not possess the requisite essential qualifications and experience. A complaint against his selection was filed by one Rakesh Walia. Despite this, the candidate was not only selected but also recommended on the basis of the bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and certificates submitted by the candidate, statements of witnesses including the witness from M/s. Zee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee.
DEFENCE RAISED ON THE CHARGE:- The counsel appearing for the Commission has not even attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. ………………….. It is also argued that if Pradeep Sangwan has obtained a bogus certificate then, at best, he can be said to have committed some offence and that cannot be understood as an instance of misbehaviour on the part of the private respondents. Further, the contention is that there is no evidence to support this charge. Discrepancies in date of filing of application, manipulation of date, withholding of original certificates by respondents from expert verification, non verification of records of candidate, and other documentary evidence As a result of documentary verification and discussion over it, Supreme court considered the charge in these words ”we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview, selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet the standards of behaviour, integrity and rectitude required to be maintained by the office they were holding. Thus, their behaviour with respect to this article of charge would certainly fall within the ambit of misbehaviour justifying their removal from office.”
OTHER CHARGES HELD PROVED :- Approved articles of charge 3, 5, 8 and 9 pertaining to alleged acts, omissions and commissions amounting to misbehaviour have been framed against all the respondents in the present inquiry. However, article of charge 4 has been framed only against Mehar Singh Saini, respondent No.1, who was earlier Member and later appointed as Chairman of the Commission. These approved articles of charge can be dealt with together inasmuch as they are based on common allegations, common evidence and with reference to the same records produced by the State Government in support of the allegations. …….. The cumulative reading of these articles of charge shows that emphasis is on non-cooperation of the Chairman and Members of the Commission in not furnishing the records, when it was demanded by the investigating agencies. Further there has been an abuse of office of the Chairman and Members of the Commission by withholding the material records, passing resolutions contrary to law, filing incorrect replies in judicial proceedings and lastly the manipulation and interpolations in regard to answer sheets of the selected/non-selected candidates.
Points which emerge from these approved articles of charge :
a) Whether during their tenure as Chairman and Members of the Commission, the private respondents adopted a non- cooperative attitude and intentionally decided not to furnish relevant records to the concerned authorities/investigating agencies?
b) Whether the right of privilege in terms of Section 123 of the Indian Evidence Act, 1872 was available to the Commission acting through its Chairman and Members?
c) Whether non-furnishing of documents or records to the inquiring/investigating agencies, under the pretext that the Commission is a constitutional authority and thus not amenable to investigation, was a bona fide decision/resolution or it was an attempt to cover up the misdeeds, omissions and interpolations made in the process of selection?
Furthermore, if the records were made available to the agencies would it have exposed the misbehaviour of the private respondents?
REGARDING POINT OF LAW HIGH COURT OBSERVATIONS UP HELD:- High Court (in the same matter) had clearly held that claim of privilege for non- production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14th December, 2009. In the meanwhile, as already stated, four new Members had been appointed to the Commission in place of the Members whose term had expired. These newly nominated Members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the private respondents.
It is not in dispute that the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. ….. While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: "...we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date."
CONCLUSION ON OTHER CHARGES:- We have no doubt in coming to the conclusion that the Chairman and Members of the Commission (private respondents herein) adopted a non-cooperative attitude and declined to furnish relevant records to the concerned authorities/investigating agencies. Furthermore, passing of resolutions and resistance despite directions/observations of the Court to comply with the notices issued by the investigating agencies to furnish records are acts which lack bona fides. The claim of privilege was sought to be invoked as a ploy to prevent production of records, which would have exposed the irregularities, illegalities and manipulations in the process of selection. In the name of the constitutional authority, the Chairman and Members of the Commission certainly violated the expected standards of behaviour. They not only adopted a non-cooperative attitude but also unduly delayed completion of the inquiry/investigations which, in fact, are stated to be pending at different stages even to this day.
ANSWERED IN AFFIRMATIVE:- Thus, there exist justifiable grounds for removal of the private respondents from their respective offices in terms of Article 317 (1) of the Constitution. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows: "1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions."
0 comments:
Post a Comment