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2020 (9) TMI 1323
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....inviolable facet of natural justice and fair hearing? Procedure: A Friend or a Foe? 3. Indian legal fraternity's love affair with the procedural codes is legendary; it has transcended the temporal bounds and resisted, to a great extent, the temptation for reform. Though we have borrowed the procedural codes from the British, we can teach them a lesson or two on how inviolable the procedure is, even if the substantive law suffers. In our country, a lawyer's forensic finesse gets measured by his command of the procedural codes. And in most cases-though not in this one-one or the other party engages a counsel for his skills to drag the proceedings. There is a premium in prolonging any judicial proceeding; sometimes the procedural panoply- with all its rigours and rigmaroles-gives the litigant what he could not have, under the substantive law, bargained for. A case in point is Bharat Petroleum Corporation Ltd., v. Champalal Vithuram Jajoo 2020 SCC OnLine Bom 792. 4. Who else can I quote than the venerable Vivekananda on how we fall into these endless procedural pits and make a virtue of our failure to climb over? He says, "[b]ut there is yet time to change our ways. Give up all tho....
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.... pending criminal complaint. Meanwhile as Sunil had been posted at New Delhi, he engaged a counsel from Delhi and continued to prosecute the case before the Lokayukta, Goa. Indeed, the Lokayukta adjourned the matter from time to time until 2018. 8. In January 2018, the Additional Session Judge, North Goa at Panaji, directed the police under Section 156(3) of the Code to register a crime against Sunil. Aggrieved, Sunil filed WP No.13 of 2018. This Court, on 27 June 2018, allowed that Writ Petition. Against this Court's Order, Munnalal filed Special Leave to Appeal (Criminal) No. 10211/2018. The SLP is pending but with no stay against the High Court's Order. It seems the Supreme Court has tagged Munnalal's SLP with another SLP dealing with a similar question: Criminal 9. Until April 2020, Lokayukta, as Sunil stresses, went on adjourning the matter. On 20 April 2020, because of the nation-wide lockdown, Sunil's counsel could not come down to Goa for the hearing. In the second week of June this year, the Lokayukta's Registrar called Sunil's advocate on record and informed her about the next date of hearing: 18 June 2020. She is said to have told the Registrar about th....
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....6, 16A, and 17, the Lokayukta's powers are wide and have far-reaching consequences. The orders may result in a public functionary's vacating the office or facing prosecution. Any hearing "with implications of such severe nature cannot be substituted with written submissions". (e) The change in the procedure under Section 13 (3) must accord with Section 32 of the Lokayukta Act. (f) Lokayukta does not suffer from any infrastructural inadequacies; it has, for instance, an e-mail facility, too. (g) There ought to be, at least, virtual hearing to facilitate oral arguments, and for that Lokayukta is well equipped. Respondents: Third Respondent: 14. Shri Padiyar, the learned counsel representing Lokayukta, has fairly submitted that Lokayukta has no desire to defend its orders as if it were an adversary. He has submitted that it has been endeavouring to dispose of long-pending cases, for the statute contemplates expeditious disposal. Shri Padiyar reminds me that the petitioner cannot treat the proceedings before Lokayukta as if they were suit proceedings in a civil court. The proceedings, according to him, are summary. In this context, he has relied on a few precedents. I wi....
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....ters that fall beyond the Institution's investigative purview. While Section 16 refers to the Institution's investigation report and Section 16A deals with the fallout to the report under Section 16, Sections 11 to 15 are essentially procedural. 21. So let us focus on Sections 11 to 15. Section 11 contains "provisions relating to complaints". Section 12, next, contains a "provision for holding preliminary inquiry". Under sub-section (1), the Lokayukta sets out to investigate under three circumstances: (1) On a Government's reference under Section 9(2); (2) on a complaint, under Section 11, by any person other than a public functionary; and (3) suo motu, on its own. As Section 12 deals with the preliminary inquiry, first, it will ascertain whether there exists a reasonable ground for it to investigate the allegation. That is, it may refuse to investigate if (a) the complaint is frivolous or vexatious or mala fide, (b) there are not sufficient grounds for it to proceed, or (c) the complainant has more efficacious remedies available. The procedure the Lokayukta should adopt, as Section 12 (2) mandates, is "such as the Lokayukta or Upa-Lokayukta deems appropriate in the circumstances ....
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....e. 25. If Lokayukta finds that the allegations made against a public functionary have not been proved or remained unsubstantiated, that will deter no prosecution on the same or similar allegations. So mandates Section 23. Nor does any court of law stand denuded of its powers of adjudication. That is, quasi-judicial findings will not deter judicial fora from adjudicating the issues that come before them. Then, Section 26 of the Lokayukta Act speaks of "bar to inquiries". If a complaint has been presented to Lokayukta under Section 11 of the Act, there shall be no formal or open inquiry, at the Government's instance, into any allegations against the public functionary on the same count. But nothing affects the right or power of any authority under the Code of Criminal Procedure or under any other extant law. We need not elaborate on the rest of the provision. 26. Now let us focus on Section 27, the pivotal provision for Sunil. According to this provision, the pendency of any civil or criminal case in the High Court or any court subordinate to it regarding any allegation or grievance shall not bar the Lokayukta from scrutinising, investigating, or inquiring into that allegation. But....
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....hat procedure remain unchanged throughout? (ii) Can Lokayukta not regulate its own procedure without its framing Regulations under Section 32 of the Lokayukta Act? (iii) Are the facts and issues involved in the case are so complex that the Lokayukta ought to allow the petitioner to advance oral arguments? (iv) Can the Lokayukta dispense with the petitioner's 'right to oral hearing' when its findings may have far-reaching consequences, including the public functionary's vacating the office or facing prosecution? Precedential Position on Procedure and Oral Hearing: 32. To unravel the above questions, let us first consider the decisions the parties on either side have relied on. Bhumika Cleantech Services & Viswasrao Chudaman Patil: 33. This Court in Bhumika Cleantech Services Pvt. Ltd. v. Lokayukta (2017) 6 Mah LJ 799 has held that the Lokayukta, while exercising powers under the statute, acts as a quasi-judicial authority. Yet, its functions, according to this Court, are investigative. To hold thus, it has followed this Court's Division Bench decision in Dr Viswasrao Chudaman Patil v. Lok Ayukta, State of Maharashtra AIR 1985 Bom 136. The Division Bench has elaborated on....
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....lause (2) of Art. 311. This clause (2) proscribes the authorities from dismissing or removing an employee or reducing his rank without an inquiry and a reasonable opportunity of hearing about the charges the employee has faced. 38. As to Clause (2) of Article 311, Tulsiram Patel holds that the provision gives a constitutional mandate to the principles of natural justice and the audi alteram partem. That said, it also enumerates under what circumstances the safeguards apply: dismissal, removal, or reduction in rank. To that extent, the pleasure doctrine under Article 310 (l) is abridged. But this safeguard provided for a government servant by clause (2) of Article 311 is taken away when the second proviso to that clause applies. That is, the second proviso excludes these instances from the protective cover of Article 311 (2): (a) when the dismissal, removal, or reduction in rank is due to the employee's conviction on a criminal charge; or (b) when an inquiry is not reasonably practicable, but this exclusion must be reasoned; or (c) when the President or the Governor concludes that such an inquiry will affect the security interest of the State. 39. In this context, Tulsiram Pat....
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....ection 11 of the Act also states that for any such investigation, including the preliminary inquiry, Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in the matter of summoning and enforcing the attendance of any person and examining him on oath. Further, they have also the power for requiring the discovery and production of any document, receiving evidence on affidavits, Mohd. Arif: 44. Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737 is a constitutional Bench decision. It concerns the review by convicts on death row. Order XL, Rule 3 of the Supreme Court Rules 1966 permits review. The question is whether the hearing of Review Petitions in death sentence cases should be only by circulation; should not it not be in open Court? Should the Supreme Court Rule be declared unconstitutional? The verdict is 4:1. The Majority (per R. F. Nariman J) accepts that death sentence cases are a distinct category altogether and opines that "reasonable procedure" would encompass oral hearing of review petitions arising out of death penalties. 45. After copiously quoting from P. N. Eswara Iyer, the Majority holds that the oral ....
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....ormal rule of the judicial process is oral hearing and its elimination an unusual exception, accepts P. N. Eswara Iyer. That said, it also emphasises that the "goal to be attained is maximisation of judicial time and celerity of disposal" of review petitions. India is neither England nor America and our forensic technology must be fashioned by our needs and resources. It tellingly observes that the right to be heard is of the essence, but hearing does not mean more than fair opportunity to present one's point on a dispute, followed by a fair consideration thereof by fair-minded Judges. Let us not romanticise this process nor stretch it to snap it. The presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary, it is unfair to exclude it and, therefore, arbitrary too. But where oral presentation is not that essential, its exclusion is not obnoxious. What is crucial is the guarantee of the application of an instructed, intelligent, impartial and open mind to the points presented. (italics supplied) 51. In fact, P. N. Eswara Iyer prefers the blend of both; it leaves the choice to the discerning judge. It wants the "ro....
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.... few enactments which allow the respective tribunals to regulate their own procedure and see whether they allow, as a matter of rule, oral argument. To begin with, under Section 22 (2) of the Administrative Tribunals Act, 1985, a Tribunal shall decide every application after hearing such "oral arguments" as may be advanced. Section 24 (1) of the Arbitration and Conciliation Act, 1996, says unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for "oral argument", or whether the proceedings shall be conducted based on documents and other materials. But the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. 57. Under Section 14 (3) of the Central Administrative Tribunal (Procedure) Rules, 1987, the Tribunal shall have the power to decline an adjournment and also to limit the time for "oral arguments". Section 18 (2) of the Railway Claims Tribunal Act, 1987, the Claims Tribunal shall decide every application expeditiously. And ordinarily every application shall be decided....
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....phobic. Now, the Corona pandemic has forced it to change its practice of direct hearing that stood unchanged since 1803. On 14 April 2020, Washington Post reported that "[i]he coronavirus pandemic has forced a change at the Supreme Court that justices have long resisted: live audio of the court's oral arguments". It has started holding oral arguments via teleconference. What might sound like a simple technological advance to the rest of the world marks, according to the Washington Post, a stunning change at the Supreme Court, where cameras have never been allowed and where justices have resisted repeated calls for live audio of oral arguments. Still no video-Supreme Court permitted only audio. The UK Supreme Court: 61. The UK Supreme Court's Practice Direction 6 requires the parties to notify the Registrar within seven days after their filing the statement of facts, issues, and the appendix. They should express their readiness to have the appeal listed and must also "specify the number of hours" their respective counsel estimate to be necessary for their oral submissions. Time estimates must be as accurate as possible, subject to the Court's discretion, https://www.supre....
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....nal". Numerous are the judicial pronouncements on the lines of MP industries. Let us not burden this judgement with any more. 64. Indeed, as the Supreme Court has held time and again, an oral hearing is a facet of fair hearing, but it is not an indispensable part of it. In a proceeding, a court in a tribunal may modulate its procedure - sometimes allowing oral arguments and some other times requiring the parties to file their written arguments. More particularly, when the statute confers wide procedural powers and allows a judicial or quasi-judicial authority to regulate its own proceedings, we cannot read into those proceedings the requirement of oral hearing at every stage of the proceedings. It is, then, sure to defeat the legislative purpose, as well as the mandate. 65. A case in point is the Supreme Court's decision in Ch. Rama Rao v. The Lokayukta, AIR 1996 SC 2450. In that case, the petitioner contended that he had had no opportunity before the Lokayukta recommended actions against him. The Supreme Court disagreed, however. After referring to the relevant statutory provision, Ch. Rama Rao has distinguished between the preliminary investigation and regular investigation. Av....
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....a tribunal may modulate its procedure. That apart, when a statute is clear, this court exercising its supervisory jurisdiction ought not to dictate to any tribunal the nitty-gritty of day-to-day proceedings. 69. Shri Sehgal has often emphasised that Sunil is a high ranked official with an impeccable reputation and that the proceedings before the Lokayukta may affect him adversely. So he wants the Tribunal to provide Sunil with every opportunity, including oral arguments, to refute the allegations and to vindicate his stand. In that backdrop, I may observe that this Court's ruling on the question of an oral hearing is fact centric. It has felt that for an interlocutory hearing of an application on maintainability, especially one under section 27 of the Lokayukta act, under the exceptional circumstances as are prevailing, the Lokayukta has justly exercised its discretion. It has required the party to file written submissions, instead of advancing oral arguments. All is said and done, even the logistical inadequacies cannot be ignored. To the Lokayukta's credit, I may note that until the pandemic broke out, it gave every opportunity to all concerned; it has allowed them to argue ....