Prompt actions instead of delayed one is preferable- learning from a recent ruling of the supreme Court in matter against Chief Justice P. D. Dinakaran.

[C.A. DEV KUMAR KOTHARI]

Relevant link and references:

Justice P.D. Dinakaran    Vs.  Hon'ble Judges Inquiry Committee and others        http://judis.nic.in/supremecourt/helddis3.aspx 

The Judges (Inquiry) Act, 1968.

Articles 32, 124(4) and 217, of   the   Constitution of India.            

Prompt actions:

In any matter a prompt  action and decision is always desirable and should be preferred  instead of taking action belatedly.  The expression ‘prompt  action’ , should not however be considered as a hasty action or decision. The promptness should also be with due care, application of mind and after collection and consideration of all relevant material. Reasonable time taken in process of collection of relevant material, can be regarded as  time required to prepare for the action which is alleged to be delayed. However, flimsy grounds or unreasonable time required cannot be a ground for delayed action.

Delayed actions – a source of doubt:

When an action is taken belatedly that is after reasonable time and / or permissible time, it can be doubted that it is an ‘after thought’ and designed with some ulterior intention and purpose. The opposite party can take advantage of such delays and take plea that such delayed actions should not be permitted  and the petition or appeal should be dismissed on ground of delay. A delayed action by a party to the suit can also have some effect on the thinking of the judge and thus can affect his decision.

Doubt expressed by the Supreme Court even against Chief Justice P. D. Dinakaran:

Relevant facts and decision analyzed:

 A Committee was constituted u/s 3(2) of the Judges (Inquiry) Act, 1968 on 15.1.2010 to enquire into allegations that Chief Justice P. D. Dinakaran had misused his position as a Judge and as Chief Justice of the High Court for material gains.

A notice dated 16.3.2011 was sent to Justice Dinakaran asking him to appear on 9.4.2011 to answer the charges.

 In reply, Justice Dinakaran submitted a representation dated 8.4.2011 .

In representation prayer was made  that the order constituting the Inquiry Committee be rescinded and notice issued by the Committee may be annulled.

The ground for such prayer was that one of the members of the Committee namely Mr. P.P Rao cannot act without  bias because   Mr.P.P.Rao:

 had, by actively participating in a seminar organized by the Bar Association in which he had  already declared accused Justice Dinakaran guilty of certain charge

Had also  opposed  elevation of Justice Dinakaran  to Apex Court tooth and nail”

Therefore,  it would be a “travesty of justice” if Mr. P. P. Rao was permitted to be on the Committee. .

Committees decision:

The Committee rejected the objection  of Justice Dinakaran   holding that  it was:

 “completely misconceived”

  Is  with “oblique motive”

The purpose is “to somehow scuttle the enquiry by causing delay in the Committee’s proceedings”.

Challenge before Supreme Court:

Aggrieved from the decision of the committee, Justice Dinakaran filed a Writ Petition in the Supreme Court to challenge the decision of the committee.

The Supreme Court while dismissing the Petition observed and held on the following lines:

  About rule against bias or interest:

                The rule against bias or interest is based on three maxims

No man shall be a judge in his own cause;

 Justice should not only be done, but manifestly and undoubtedly be seen to be done; and

 Judges, like Caesar’s wife should be above suspicion.

About natural justice- judge:

The Judge should be impartial and neutral and must be free from bias.

Test of bias:

Supreme Court held that “to decide whether there is “bias”, the “real likelihood test” has to be adopted.

The Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially.

In other words, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias.

Human probabilities:

 In deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct;

 About facts of the case The Supreme Court observed and held:

             (ii) On facts, the fact that Mr. P. P. Rao had participated in a seminar and demanded public inquiry into the charges levelled against Justice Dinakaran and drafted a resolution opposing elevation of Justice Dinakaran to the Supreme Court could give rise to reasonable apprehension in the mind of an intelligent person that Mr. P. P. Rao was likely to be biased. Accordingly, Justice Dinakaran’s apprehension of likelihood of bias against Mr. P. P. Rao is reasonable and not fanciful;  

               (iii) However, Justice Dinakaran was aware of Mr. P. P. Rao’s inclusion in the Committee in January, 2010. His “knowledgeful silence” and “belated plea” that by virtue of the active participation in the meeting held by the Bar Association, Mr. P. P. Rao will be deemed to be biased against him “militates against the bona fides of his objection” and does not merit acceptance. The objection is “a calculated move”. He is an “intelligent person” and “wants to adopt every possible tactic to delay the submission of report” by the Committee. No Court can render assistance in a petition filed with the sole object of delaying finalisation of the inquiry;

 (iv) However, given the finding of bias, the Committee is requested to nominate another distinguished jurist in place of Mr. P. P. Rao. The reconstituted Committee shall be entitled to proceed on the charges already framed against Justice Dinakaran.

The judgment:

The Supreme Court has while dismissing the Writ Petition has ruled, though  in form of a request  to nominate another member on Committee and held as follows:

                52.  “ However, keeping in view our finding on the issue of bias, we would request   the   Chairman   to   nominate   another   distinguished   jurist   in   place   of  respondent   No.3.     The   proceedings   initiated   against   the   petitioner   have progressed only to the stage of framing of charges and the Committee is yet to   record   its   findings   on   the   charges   and   submit   report.     Therefore, nomination   of   another   jurist   will   not   hamper   the   proceedings   of   the Committee and the reconstituted Committee shall be entitled to proceed on the charges already framed against the petitioner.

53.     In   the   result,   the   writ   petition   is   dismissed   with   the   aforesaid  observations.

Per author:

Their Lordships have requested the Chairman of the Committee to nominate another distinguished jurist in place of respondent no.3. This has been in view of rule laid down in relation to bias. Therefore, it can be said that the petitioner has won his case to some extent and not fully. Since their lordship has made a statement in form of a request, it is held that the WP is dismissed, however, in fact it can be considered that the WP has been allowed partly.

In conclusion we can say that a timely action is always preferable to keep away a vital reason and factor which can cause defeat in legal proceedings. A timely action is also an indication of discipline, sincerity and honesty. A delayed action can cause adverse impact on a very good case also.