Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Sudhanshu Dhulia and Alok Kumar Verma, JJ., dismissed a writ petition which was filed in the nature of certiorari and mandamus for quashing of certain orders passed by the enquiry officer and with a prayer to change the enquiry officer on grounds of bias.

The petitioner who is a judicial officer is facing departmental proceedings before an Enquiry Officer, who is a sitting Judge of this Court. By the means of the petition he had challenged the charge-sheet which has been filed against him, the second challenge was regarding the order dated 01-10-2020, by which the defence of the Delinquent Officer has been closed by the Enquiry Officer as he was not prepared to place his defence on the date fixed and sought an adjournment and the third challenge being to change of the Enquiry Officer. A complaint was filed against the petitioner by a IV class employee alleging that the petitioner made an attempt to sodomise him which led to departmental proceeding against him. The counsel for the petitioner, P.S. Patwalia submitted that he was not pressing his challenge to the charge- sheet but liberty may be given to the petitioner to challenge the same, in case the occasion so arises. He further submitted that the Committee, constituted by the Full Court also had the present Enquiry Officer as its member and therefore the Enquiry Officer was biased against him, since he recommended for a full Departmental proceeding due to which petitioner moved an application to change the Enquiry Officer which was rejected by the Chief Justice. He further that five applications of the petitioner, including the application for recusal were rejected by the Enquiry Officer and this shows that the Enquiry Officer is biased against the petitioner.

The Court held that it would not be proper to change the Enquiry Officer at that stage of the inquiry. The Court quoted the observations of the Division Bench of this Court about the change of Enquiry Officer in Writ Petition (S/B) No. 442 of 2019, where the earlier petition of the petitioner (which was primarily for seeking a writ of certiorari to quash the order passed by the Enquiry Officer dated 23-08-2019), was dismissed on 25-09-2019,

“28. Since the claim of the petitioner that he has suffered prejudice on the failure of the Enquiry Officer to defer cross-examination of PW2 is required to be examined by the Disciplinary Authority in the first instance after completion of the inquiry, and as this Court would ordinarily not interfere with the inquiry proceedings at an interlocutory stage, we see no reason to entertain this Writ Petition. While declaring the law in this regard on whether or not prejudice is suffered on the failure of the Enquiry Officer to defer cross-examination of a witness, suffice it to make it clear that it is open to the petitioner on completion of the inquiry, and on his being afforded an opportunity to put forth his objections to the inquiry report, to also raise this contention of having suffered prejudice, on the failure of the Enquiry Officer to defer cross-examination of PW2. We have no reason to doubt that, on any such objection being raised, the Disciplinary Authority would consider such contentions uninfluenced by any observations made in this order.”

The Court while dismissing the petition stated that after perusal of records they find that Enquiry Officer has shown a lenient approach in giving opportunity to the petitioner, considering the numbers of adjournments granted to the petitioner. The Court further added that they have no doubt as to any question of bias as alleged, nor do they feel that any principles of natural justice and fair play will be violated if the learned Enquiry Officer continues to hear the matter.[Kanwar Amninder Singh v. High Court of Uttaranchal, 2020 SCC OnLine Utt 722, decided on 31-10-2020]


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Hot Off The PressNews

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ  has dismissed a plea by a district judge challenging the appointment of a ‘junior’ judicial officer as an additional judge of the Karnataka High Court and seeking a stay on his swearing-in contending that it breaches the seniority rule.

The bench took up the matter through video conferencing at 10 am, just half an hour before the scheduled swearing-in of judicial officer Padmaraj N Desai as an additional judge of the Karnataka High Court and dismissed it saying the Court cannot entertain such plea at the eleventh hour. The Court said that it generally does not interfere with the President’s order on appointment of judges at the eleventh hour.

Shivamogga principal district judge RKGMM Mahaswamiji has challenged the appointment of judicial officer Padmaraj N Desai as additional judge of the Karnataka High Court on the ground of seniority. The plea of Mahaswamiji said,

“It is a case of superseding/passing over of a senior District judge (who was appointed on February 25, 2008, under reserve category ie., schedule caste) by junior district judge and recommendation of Respondent No. 11 (P N Desai) by the collegium of Karnataka High Court is unlawful, arbitrary, and in clear violation of statutory rules / administrative instructions contained in the official memorandum dated October 9, 1985, and involved bias of malafide and it clearly violated the functional rights guaranteed to the Petitioner under Articles 14 and 16 of the Indian Constitution.”

He had said that if the interim relief of staying the swearing-in ceremony of judicial officer Padmaraj N Desai as an additional judge of Karnataka High Court is not granted then the purpose of the petition will be defeated and it may cause failure of complete justice and clear infraction of fundamental rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution.

According to the notification issued by the registrar general of the Karnataka High Court, Justice Shivashankar Amarannavar, Justice Makkimane G Uma, Justice Vedavyasachar Srishananda, Justice Hanchate Sanjeevkumar and Justice Padmaraj N Desai, were to take oath of additional judges of Karnataka High Court at 10.30 am.

(Source: PTI)

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Vinod Chandran and V.G. Arun, JJ., addressed an appeal by one of the senior-most District Judges in High Judicial Service of the State.

Petitioner was aggrieved by his non-consideration for elevation as a Judge of this Court under Article 217 read with Article 224 of the Constitution of India. Interse seniority between the District Judges promoted from the Subordinate Judiciary and directly recruited, was the issue that arose.

Single Judge had accepted the contention of the High Court that there was no recommendation made by the collegium of the Supreme with respect to any Judicial Officer, who completed 58 ½ Years as on the date of occurrence of vacancy.

Government of India on 25-04-2009  issued a communication stating that the maximum age limit, as proposed by the Chief Justice of India, was also noticed, which is 58 ½ Years as on the date of arising of vacancy. Further, it was stated that Single Judge rejected the writ petition on the further ground that the position claimed by appellant is a constitutional post, to which he has no substantive right of appointment nor is there any violation of service conditions.

Court’s Analysis & Decision

High Court agreeing with the Single Judge’s decision wherein it was stated that there is a prescription insofar as the age limit of 58 ½ Years. Communication of Government of India as stated above, specifically states that,

…Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart from Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58 ½ years.

Hence, if the age limit applied could aspire for only the first vacancy, which arose on 01-11-2018 and not even to the second vacancy. The rule does not stand against the first in the seniority list, which would obviously be considered for the first vacancy.

Thus while concluding the decision, Court stated that the present appeal cannot be applied and as far as the exceptions made by Collegium of High Court or Supreme Court, it is discretion exercised, which cannot be directed judicially. [John K. Illikkadan v. Union of India, 2020 SCC OnLine Ker 495, decided on 05-02-2020]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of Satya Gopal Chattopadhyay, Judicial Officer, as Judge of the Tripura High Court.


Supreme Court of India

[Collegium Statement dt. 19-02-2020]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of Ahanthem Bimol Singh, Advocate, as Judge of the Manipur High Court.


Supreme Court of India

[Collegium Statement dt. 19-02-2020]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Jammu & Kashmir High Court:

1. Shri Vinod Chatterji Koul,
2. Shri Sanjay Dhar, and
3. Shri Puneet Gupta.


Supreme Court of India

[Collegium Statement dt. 19-02-2020]

Appointments & TransfersNews

Collegium Resolution

The Supreme Court Collegium approved the proposal for elevation of the following persons as Judges of the Kerala High Court:

ADVOCATES:

  1. Shri T.R. Ravi,
  2. Shri Bechu Kurian Thomas,
  3. Shri Gopinath P., and

JUDICIAL OFFICER:

4. Smt. M.R. Anitha.


Supreme Court of India

[Collegium Resolution dt. 30-01-2020]

Case BriefsHigh Courts

Madras High Court: The Division Bench of R. Subbhiah and T. Krishnavalli, JJ., dismissed a writ petition filed for issuance of a Writ of Certiorarified Mandamus.

The present writ petition was filed by a former Chief Judicial Magistrate calling for records relating to the proceedings of the first and second respondent and quashing the same by directing to reinstate him as Chief Judicial Magistrate, Tiruvannamalai.

Facts of the Case:

Petitioner was appointed as Civil Judge in Tamil Nadu State Judicial Service. During the course of service, the petitioner was transferred and posted at various places. While the petitioner was in Judicial Service, by a Memorandum by the second respondent he was informed that while recording the Annual Confidential Report as Judicial Magistrate No. III for the period from 02-05-2012 to 16-10-2012, High Court has recorded his reputation as to honesty, integrity and impartiality as ‘not satisfactory’ and under special remarks column, it was stated that “officer is to avoid close contact with Advocates”.

On receipt of the above-stated memorandum, the petitioner made a representation requesting the High Court to review and expunge the said adverse remarks. Later, the second respondent informed the petitioner that on consideration of his representation High Court had expunged the remarks.

Petitioner through the “Times of India report” came to know that he had been sent out of service at the age of 50 years for misconduct pursuant to a resolution passed by the Full Court.

On being aware of the same, the petitioner made another representation to the second respondent stating that he had worked as a Judicial Officer in several districts for more than 18 years without any allegations and he has also reached the norms by the High Court. Petitioner had enclosed his work statement along with the representation and requestedthe second respondent to permit him to continue in service.

Administrative Committee of the High Court resolved to continue the services of the Judicial Officer subject to the approval of the Full Court. Though, full-court unanimously resolved not to extend the service of the petitioner with direction to the Registry to address the State Government to issue necessary orders.

First respondent passed the order compulsorily retiring the petitioner from service in “public interest”.

Thus, the orders passed by the respondents are under challenge in the present writ petition.

Senior Counsel representing the petitioner submitted that there are various factors that contribute to a Judicial Officer not being able to achieve the norms for a certain period and that by itself is not a ground to compulsorily retire Judicial Officer. The impugned orders are passed based on total non-application of mind and there is an error of jurisdiction.

Sum and substance of the contentions urged by the learned Senior Counsel appearing for the petitioner are as follows:

  • The necessary ingredients under FR.56(2) for resorting to compulsory retirement are totally absent in the present case, since, in the Minutes of the Full Court meeting held on 19.03.2018, the words “compulsory retirement”, “is of the opinion” and “in public interest”, are not found.
  • Compulsory retirement passed against the petitioner is not based on the subjective satisfaction of the Full Court, since there are no records to show that the work done statements and ACRs of the petitioner were placed or there were any deliberations said to have been made. Moreover, there is no reference with regard to the Resolution of the Administrative Committee also.
  • Impugned order is based on no materials to support the ultimate conclusion.

High Court’s observation and conclusion

Court stated that the “work done statement” of the petitioner it was clear that the petitioner had not reached norms for a certain period. Therefore, it cannot be said that the decision taken by the Full Court is without any materials.

Another submission of the Senior Counsel for the petitioner that in the Minutes of the meeting of the Full Court, words “compulsory retirement” is of the opinion and “in public interest” were not found, which would show that the necessary ingredients for resorting to compulsory retirement are totally absent in the present case. In respect to this, Court was of the opinion that since such words were not mentioned in the impugned G.O. of the first respondent or the order passed by the second respondent, it will not ipso facto render the orders, which are impugned in this writ petition, vitiated.

“It is well settled that the order of compulsory retirement is neither a punishment nor a stigma and the principles of natural justice have no role play in ordering compulsory retirement.”

High Court stated that,

The conclusion arrived at by the respondents to compulsorily retire the petitioner from service cannot be interfered with by this Court, unless such a conclusion is based on no evidence or irrelevant material.

Court relied on the High Court of Judicature at Bombay v. Udaysingh, (1997) 5 SCC 129, wherein the scope of the Court in regard to Judicial Review of cases was discussed.

Hence, the Court held that it has no power to interfere with the decision taken by the respondents and to substitute its own conclusion.

Court added to its conclusion that,

“There are evidences made available against the petitioner based on which the respondents have come to a conclusion to compulsory retire the petitioner from service in the form of service particulars of the petitioner like ACR, work done statement, vigilance enquiry report, leave particulars etc. While so, it cannot be again said that there are no material at all for the respondents to arrive at a conclusion to pass the order of compulsory retirement against the petitioner.”

Thus the Court dismissed the petition in view of the above reasons. [R. Naraja v. State of Tamil Nadu, 2019 SCC OnLine Mad 9120, decided on 05-11-2019]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Amreshwar Pratap Sahi, CJ and Ashutosh Kumar, J., dismissed the petition as they did not find any fault with the decision of the High Court administration in not granting promotion to the petitioner to the higher judicial post of District Judge (entry-level).

The facts of the case was that the petitioner was considered for promotion from Civil Judge (senior division) to the post of District Judge (entry-level) in accordance with the Bihar Superior Judicial Service Rules, 1951 against the 65 per cent quota for the year 2012-2013, but he was not found fit for promotion, as he had failed in viva-voce test and also because of adverse entry in his ACR. An adverse entry in the ACR of the petitioner for the year 2009-2010 and for removal of which adverse remark, a representation was filed by the petitioner, which was rejected by the High Court and such decision was communicated to him in the year 2010 only. The aforesaid decision of the High Court was not challenged by the petitioner. A departmental proceeding was initiated against the petitioner in the year 2010, in which he was served with a punishment of censure. In another departmental proceeding in the year 2013, the enquiry report suggesting dropping of the charges was accepted by the High Court on its administrative side. As such, the case of the petitioner was again considered for promotion for following years of 2013-2014, 2014-2015, 2016-17 and 2017-18 but the Selection and Appointment Committee of the High Court thought it proper not to call the petitioner for interview as a departmental proceeding was under contemplation.

The Court held that after perusal of the entire service record of the petitioner, it is clear that the petitioner did not, in the past, conduct himself as an upright judicial officer and, therefore, the denial of promotion to him cannot be faulted with. Further, the Court failed to find any fault with the decision of the High Court administration in not granting promotion to him to the higher judicial post of District Judge (entry-level). [Prabhunath Prasad v. Patna High Court, 2019 SCC OnLine Pat 1839, decided on 24-10-2019]

Appointments & TransfersNews

Supreme Court Collegium in its meeting held on 15-10-2019, after taking into consideration the material on record, has approved the proposal for elevation of the following persons as Judges of the Gauhati High Court:

1. Soumitra Saikia, Advocate;

2. Parthivjyoti Saikia, Judicial Officer; and

3. S. Hukato Swu, Judicial Officer.


Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of following one Advocate and seven Judicial Officers, as Judges of the Bombay High Court

ADVOCATE:

1 Shri Amit B. Borkar,

JUDICIAL OFFICERS:

2 Shri M.G. Sewlikar,
3 Shri V.G. Bisht,
4 Shri B.U. Debadwar,
5 Ms. M.S. Jawalkar,
6 Shri S.P. Tavade,
7 Shri N.R. Borkar, and
8 Shri S.D. Kulkarni

For purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, Collegium have carefully scrutinized the material including the observations made by the Department of Justice as well as complaints placed in the file against some of the above-named recommendees.

On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that (1) Shri Amit
B. Borkar, Advocate and S/Shri (2) M.G. Sewlikar, (3) V.G. Bisht, (4) B.U. Debadwar, (5) Ms. M.S. Jawalkar, (6) S.P. Tavade, (7) N.R. Borkar, and (8) S.D. Kulkarni, Judicial Officers are suitable for being appointed as Judges of the Bombay High Court.

The Collegium has duly taken note of the observation made in the file that three Judicial Officers viz. S/Shri B.U. Debadwar, S.P. Tavade, and S.D. Kulkarni had crossed the prescribed age limit of 58-1/2 years on the date of vacancies against which their names have been recommended.

In this regard, while approving the proposal for their elevation we have taken into account the fact that Bombay High Court is grappling with huge pendency of civil as well as criminal cases, as it is functioning with 67 Judges against the total Judge-strength of 94 (constituting about 29 per cent vacancies). 

In view of the above, the Collegium resolves to recommend that (1) Shri Amit B. Borkar, Advocate and S/Shri (2) M.G. Sewlikar, (3) V.G. Bisht, (4) B.U. Debadwar, (5) Ms. M.S. Jawalkar, (6) S.P. Tavade, (7) N.R. Borkar, and (8) S.D. Kulkarni, Judicial Officers, be appointed as judges of the Bombay High Court. 


Supreme Court of India

[Collegium Resolution dt. 26-09-2019]

Case BriefsForeign Courts

Supreme Court of Namibia: The Three-Judge Bench of Shivute, CJ., Frank, AJ and Damaseb, DCJ. (dissenting), stated that making the State liable for individual acts of the judiciary poses a risk of undermining a foundational value of the Constitution.

The appellant has pleaded against the conduct of the judicial officer wherein the trial of the appellant was wrongful and unlawful and in consequence, thereof his liberty was curtailed otherwise than in accordance with procedures established by law under Article 7 of the Namibian Constitution for which as the appellant pleads to be compensated by the respondent. The respondent refused to own the liability which completely was for the judicial branch and contended that judicial officers were not in the employment of the State thus they were immune from their actions.

The Court basing its judgment upon the independence of the judiciary reiterated the fact that independence of the judiciary and the separation of powers militated against holding the State liable for the conduct of the judicial branch as they have no power over the judicial functions. Further, when there was a default in exercising that function the Constitution has also provided for an existing recognized right of recourse against the officer.

Thereafter new remedy in public law cannot be recognized against the respondents for the action of the judiciary. Accordingly, the appeal was dismissed.[Pieter Petrus Visagie v. Republic of Namibia, SA 34/2017 [2018] NASC 411, order dated 03-12-2018]

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The Bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, 2016 SCC OnLine SC 1101, decided on 05.10.2016]