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2011 (5) Supreme 100
SUPREME COURT OF INDIA
G.S. Singhvi and Chandramauli Kumar Prasad, JJ.
Justice P.D. Dinakaran — Petitioner
versus
Hon’ble Judges Inquiry Committee and others — Respondents
Writ Petition (Civil) No.217 of 2011
Decided on : 5-7-2011
(1978) 1 SCC 248; (1985) 3 SCC 545; (1964) AC 40; (1967) 2 QB 617; (1967) 2 SCR 625 – Relied upon
(b) Natural Justice – Nemo debet esse judex in propria causa – Rule against bias or interest – Justice should not only be done, but manifestly and undoubtedly be seen to be done – Real likelihood of bias is the test – Judge should be impartial and neutral and must be free from bias – A pecuniary (bias) interest, however small it may be, disqualifies a person from acting as a Judge. (Paras 25, 26, 28 and 29)
(1949) 1 All ER 108; (1958) 2 All ER 579; AIR 1968 SC 850; AIR 1969 SC 198; (1969) 2 SCC 262; (1967) 2 SCR 625; (1985) 3 SCC 545; (1866) LR 1 (Q.B.D.) 230; (1924) 1 KB 256; (1955) 1 QB 41; (1969) 1 QB 577; (1993) AC 646; 2001 (1) WLR 700; (1999) 1 All ER 577; 1999 (4) SA 147; (2000) 174 Australian Law Reports 655; (1974) 3 SCC 459; (1976) 3 SCC 585; (1987) 4 SCC 611; AIR 1957 SC 425; 1988 (Supp.) SCC 651; (2003) 7 SCC 418 – Relied upon
(c) Judges (Inquiry) Act, 1968 – Section 3(2)(c) – Natural Justice – Bias – The issue of bias has to be seen from the angle of a reasonable, objective and informed person – Respondent no. 3 speaking at the seminar against elevation of the petitioner as Judge of the Supreme Court – He even drafted and presented such a resolution to the then CJI – Petitioner’s apprehension of likelihood of bias against respondent No.3 is reasonable. (Para 45)
(d) Judges (Inquiry) Act, 1968 – Section 3(2)(c) – Natural Justice – Bias – Petitioner questioning appointment of respondent no. 3 on the ground of apprehension of bias after ten months of the notification – He had also admitted that respondent no. 3 had nothing against him personally and even appreciated his working – Prayer for quashing the appointment cannot be accepted. (Para 46)
(e) Waiver – A legal right available but not exercised will be deemed to have been waived – Petitioner having the right to object to appointment of respondent no. 3 on the ground of bias, not doing so for ten months – Deemed to waived his right. (Para 50)
AIR 1971 SC 2213; AIR 1957 SC 425; AIR 1964 SC 1300 – Relied upon
(f) Judges (Inquiry) Act, 1968 – Section 9(2)(c) – Belated raising of objection against inclusion of respondent no. 3 in the Committee a calculated move to delay finalization and submission of report beyond the time stipulated u/s 9(2)(c). (Para 51)
Facts of the case:
This case concerns the proceedings relating to removal of the petitioner Justice P.D. Dinakaran.
Finding of the Court:
There is reasonable likelihood of the respondent no. 3 being biased. Chairman of the Committee requested to appoint another jurist.
Petitioner’s objection to inclusion of respondent no. 3 in the committee is a ploy to delay finalization and submission of the report against him.
JUDGMENT
G.S. Singhvi, J. —
1. Although, the prayers made in this petition filed under Article 32 of the Constitution are for quashing order dated 24.4.2011 passed by the Committee constituted by the Chairman of the Council of States (Rajya Sabha) under Section 3(2) of the Judges (Inquiry) Act, 1968 (for short, “the Act”) and for grant of a declaration that the proceedings conducted by the Committee on 24.4.2011 are null and void, the tenor of the grounds on which these prayers are founded shows that the petitioner is also aggrieved by the inclusion of respondent No.3-Shri P.P. Rao, Senior Advocate, Supreme Court of India in the Committee under Section 3(2)(c) of the Act.
2. Fifty members of the Rajya Sabha submitted a notice of motion for presenting an address to the President of India for removal of the petitioner, who was then posted as Chief Justice of the Karnataka High Court, under Article 217 read with Article 124(4) of the Constitution of India. The notice enumerated the acts of misbehaviour allegedly committed by the petitioner and was accompanied by an explanatory note and documents in support of the allegations. After the motion was admitted, the Chairman of the Rajya Sabha (hereinafter referred to as, “the Chairman”) constituted a Committee comprising Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India, Mr. Justice A.R. Dave, the then Chief Justice of Andhra Pradesh High Court and respondent No.3.
3. Immediately after issue of notification dated 15.1.2010 under Section 3(2) of the Act, the newspapers carried reports suggesting that there was an objection to the inclusion of respondent No.3 in the Committee on the ground that he had given legal opinion to the petitioner in December, 2009. On reading the newspaper reports, respondent No.3 sent letter dated 19.1.2010 to the Chairman with the request that he may be relieved from the Committee. Paragraph 2 of that letter reads as under:
“Although, there is no conflict of duty and interest, as I did not render any professional service to him, there is a demand from certain quarters for my recusal which you might have noticed in today’s Hindustan Times. I am sure you will appreciate that justice should not only be done but also seen to be done. Even though I have no official communication as yet about my nomination, it will not be proper for me to function as a member of the Committee in the fact of such objection. I request you to kindly relieve me forthwith and nominate another jurist in my place and oblige.”
4. After due consideration, the Chairman declined to accept the request of respondent No.3 and asked him to continue as member of the Committee. Thereupon, respondent No.3 sent letter dated 21.1.2010 and agreed to accept the assignment. On that very day, Convenor of the Campaign for Judicial Accountability and Reform sent a letter to the Vice-President wherein a demand was made in the garb of making suggestion that Mr. Justice V.S. Sirpurkar should recuse from the Committee because he had association with the petitioner as a Judge of the Madras High Court from 1997 to 2003. Similar suggestion-cum-demand was made qua respondent No.3 by stating that the petitioner had consulted respondent No.3 and the latter had advised him to get a commission of inquiry appointed to go into the charges.
5. On being instructed by the Chairman, the Secretary General of the Rajya Sabha forwarded a copy of the aforesaid letter to respondent No.3. In his response dated 27.1.2010, respondent No.3 detailed the background in which the petitioner had met him on 6.12.2009 and what transpired between them. The relevant paragraphs of that letter read as under:
“I would like to place on record as to why Chief Justice Dinakaran met me at my residence with prior appointment on Sunday, the 6th December, 2009 at 02:30 p.m. On Saturday, 28 Nov ’09, there was a day-long National Seminar organized by The Bar Association of India under the Presidentship of Shri F.S. Nariman to discuss the problem
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