2000 Supreme(Ker) 687

IN THE HIGH COURT OF KERALA
A.V. SAVANT, K.S. RADHAKRISHNAN, JJ.
Thoppil Sreekumar And Etc. - Appellant
Versus
State Of Kerala And Others - Respondent
O.P. No's. 19447 and 21205 of 2000
Decided on : 06-09-2000

Headnote:

The Kerala Panchayat Raj (Amendment) Act, 1999 (Act No. 13 of 1999) was challenged before the court. The Act came into force with effect from 24th March, 1999. Under the newly inserted Chapter XXV. B of the Act, an institution of Ombudsman consisting of seven persons (for short, "Ombudsman") has been created to conduct a detailed enquiry regarding any proceedings of the local self governing bodies and the public servants holding office under it, concerning corruption, mal-administration or defects in the administration and settle such complaints u/s 271Q of the Act. The newly inserted provisions deal with the following aspects: Section 271F: Definitions; Section 271G: Formation, term of office and conditions of service of the Ombudsman; Section 271H: Removal of a Member; Section 271-I: Employees of Ombudsman; Section 271J: Functions of Ombudsman; Section 27 IK: Powers of Ombudsman; Section 271L: Service of Government Departments; Section 271M: Detailed enquiry; Section 27 IN: Enquiry trial; Section 271O: Cases now pending to be transferred to the Ombudsman; Section 27IP: Commencement of prosecution; Section 271Q: Disposal of complaints; and Section 271R: Procedure to be decided. The Petitioners raised five contentions. The first contention was that, conferring the status of a Judge of the High Court on all the seven members of the Ombudsman, by virtue of Section 271G(9) was wholly arbitrary and impermissible and was contrary to the provisions of Articles 217 and 221 of the Constitution of India, dealing with the appointment and conditions of office of Judge of a High Court and salaries etc. of the Judges of the High Court. The second contention was regarding the removal of a member of the Ombudsman as provided u/s 271H(1), where the same conditions as are applicable for the removal of a Judge of the High Court, as per the provisions of the Constitution of India, have been made applicable for removal of a member of Ombudsman, who was appointed from amongst Judges of the High Court. The third contention was in respect of Section 271H(3) of the Act. Section 271H reads as under: 271H. REMOVAL OF A MEMBER 1. The same conditions that are applicable for the removal of a High Court Judge as per the provisions of the Constitution of India shall be for the removal of a member of Ombudsman who was appointed from among persons employed as High Court Judge. 2. For removing any other member on the basis of proven misconduct or inefficiency, majority of the total members of the Assembly shall be present and shall participate in the voting and such a member shall not be removed from the office without an order passed by the Governor on the representation submitted to him in the same session and supported by not less than 2/3rd of the members so voting. 3. The procedure for submitting a representation as per Sub-section (2) and for enquiring and taking evidence regarding the misconduct or inefficiency of a member shall be similar to the one provided in Judges Inquiry Act, 1968 (Central Act 51 of 1968) and the provisions of the Act shall be applicable with necessary modifications in the removal of a member, just as they are applicable in the removal of a Judge. The challenge to Clause (1) of Section 271H is on the ground that the legislature has treated unequals as equals and has thus violated the mandate of Article 14 of the Constitution. The fourth contention is that the appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer. This amounts to excessive spending by the State and such excessive indulgence results in arbitrary waste beyond the limits of rationality as envisaged in the Constitutional scheme. It is further contended that appointment of a seven member Ombudsman is far in excess of the actual requirement of the institution. The fifth and the last contention is that if Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary. The argument is that, a Judge of the High Court accepting a post retirement benefit must always be viewed with suspicion and this would necessarily result in the independence of judiciary being eroded.

Fact of the Case:

None

Finding of the Court:

The court held that the words, "shall have the status equivalent to that of a Judge of High Court of Kerala and" appealing at the beginning of Section 271-G(9) of the Kerala Panchayat Raj Act, 1994 are unconstitutional and are, therefore, struck down being violative of the mandate of Article 14 of the Constitution. The court also held that the three contingencies contemplated u/s 271-G(3)(a) of the Act cannot be dealt with in an identical manner. The three contingencies elaborated in paragraphs 6 and 15 and would need different treatment since they deal with unequals. The court further held that the third contention regarding Section 271-H(3) making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other members of the Ombudsman, is accepted. The court rejected the fourth contention that the appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer. The court also rejected the fifth contention that if Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary.

Issues: 1. Whether conferring the status of a Judge of the High Court on all the seven members of the Ombudsman, by virtue of Section 271G(9) was wholly arbitrary and impermissible and was contrary to the provisions of Articles 217 and 221 of the Constitution of India? 2. Whether the removal of a member of the Ombudsman as provided u/s 271H(1), where the same conditions as are applicable for the removal of a Judge of the High Court, as per the provisions of the Constitution of India, have been made applicable for removal of a member of Ombudsman, who was appointed from amongst Judges of the High Court, is valid? 3. Whether Section 271H(3) of the Act, making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other members of the Ombudsman, is valid? 4. Whether the appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer? 5. Whether if Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary?

Ratio Decidendi: 1. Conferring the status of a Judge of the High Court on all the seven members of the Ombudsman, by virtue of Section 271G(9) was wholly arbitrary and impermissible and was contrary to the provisions of Articles 217 and 221 of the Constitution of India. 2. The removal of a member of the Ombudsman as provided u/s 271H(1), where the same conditions as are applicable for the removal of a Judge of the High Court, as per the provisions of the Constitution of India, have been made applicable for removal of a member of Ombudsman, who was appointed from amongst Judges of the High Court, is invalid. 3. Section 271H(3) of the Act, making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other members of the Ombudsman, is valid. 4. The appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer. 5. If Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary.

Final Decision: The court held that the words, "shall have the status equivalent to that of a Judge of High Court of Kerala and" appealing at the beginning of Section 271-G(9) of the Kerala Panchayat Raj Act, 1994 are unconstitutional and are, therefore, struck down being violative of the mandate of Article 14 of the Constitution. The court also held that the three contingencies contemplated u/s 271-G(3)(a) of the Act cannot be dealt with in an identical manner. The three contingencies elaborated in paragraphs 6 and 15 and would need different treatment since they deal with unequals. The court further held that the third contention regarding Section 271-H(3) making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other members of the Ombudsman, is accepted. The court rejected the fourth contention that the appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer. The court also rejected the fifth contention that if Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary.