Reference No 1 of 1983
Reference under Article 3171 of the Constitution of India G L Sanghi section K Mehta P N Puri and M K Dua for Chairman Punjab Service Commission
J Sorabjee Bhagwant Singh Advocate General Punjab section K Bagga for the State of Punjab
F section Nariman Anil B Divan Girish Chandra and Mrs Sarla Chandra for Gopal Krishan Saini Defaulting Member K Parasaran Attorney General Miss A Subhashini for Union of India
The order of the Court was delivered by CHANDRACHUD CJ This is the first Reference of its kind made by the President of India to this Court under Article 3171 of the Constitution
That Article reads thus 317
Removal and suspension of a member of a Public Service Commission
Subject to the provisions of clause 3 the Chairman or any other person of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court on reference being made to it by the President has on inquiry held in accordance with the procedure prescribed in that behalf under 642 Article 145 reported that the Chairman or such other member as the case may be ought on any such ground to be removed
 Clause 3 of Article 317 which confers power on the President to remove the Chairman or any other member of a Public Service Commission for reasons mentioned in sub clauses a b and c is not relevant for our purpose
Not only is this Reference the first of its kind but the facts which have been referred to us for our consideration and report are shockingly the first of their kind
We hope they will be the last of their kind
The order of Reference recites those facts as follows On 24111982 at about 1300 hours Shri Gopal Krishan Saini Member Punjab Public Service Commission physically assaulted Smt
Santosh Chowdhary Chairman Punjab Public Service Commission inasmuch as he slapped her on the face in the presence of three other Members of the Punjab Public Service Commission namely SShri H section Deol M section Brar and WG Lall and thereby committed gross misbehaviour
 In exercise of the power conferred by Article 3171 of the Constitution the President has referred for consideration of this Court the question as to whether Shri Gopal Krishan Saini Member of the Punjab Public Service Commission ought on the ground of misbehaviour to be removed from the office of the Member of the Commission
 We issued notice of the Reference to the five members of the Commission including the Chairperson Smt
Santosh Chowdhary and Shri Gopal Krishan Saini who is alleged to have assaulted her
All of them have filed their affidavits in these proceedings
Certain other persons who claim to have knowledge of the incident or of its alleged background have also filed their affidavits
Amongst them are Dr Vinod Gupta Ujagar Singh Avtar Singh Hakam Singh and Dr Rasewat
An affidavit has also been filed by Shri Saini s wife the purport of which is that Shri Saini has been involved in this false incident since the Chief Minister of Punjab Shri Darbara Singh was not happy with his appointment as a Member of the 643 Punjab Public Service Commission
It is also alleged that the Chairperson s husband was running classes for training students for the Public Service Commission Examinations that he wanted certain students of his to be favoured in those examinations and that on the failure of Shri Saini to oblige him his wife the Chairperson has involved Shri Saini into a false charge
The Chief Minister of Punjab has filed an affidavit denying the allegations made against him
In pursuance of the notices issued by this Court the Attorney General of India and the Advocate General of Punjab appeared in these proceedings
Shri Nariman who appears on behalf of Shri Saini whose conduct we are called upon to inquire into contended that before making this Reference the President should have obtained the opinion of a fact finding body for his prima facie satisfaction that a case was made out for obtaining a report from this Court on the question of the alleged misbehaviour of Shri Saini
According to counsel this Court cannot through the medium of a Reference be called upon to discharge functions which ordinarily fall within the jurisdiction of a trial Court civil or criminal
The danger of such a procedure is said to be that if we hold that the incident is proved Shri Saini will automatically be held guilty by a criminal Court of the charge of assault and he will have to suffer a decree for damages in a civil court
Counsel says that under Article 3171 the limited function of this Court is or ought to be to determine whether the facts found upon by an independent fact finding body show that the person concerned is guilty of misconduct and secondly whether the misconduct is of such a nature as to require his removal from the office of Member of the Public Service Commission
We are unable to accept these submissions
The power of the President to make a reference to this Court under Article 3171 is not subject to the condition precedent that he must first have the facts examined by some other body or authority
That Article provides that the Chairman or any other member of a Public Service Commission can only be removed from his office on the ground of misbehaviour after the Supreme Court on a Reference made to it by the President reports that the Chairman or such other person ought to be removed on any such ground
There is no justification for reading into the Article a provision which is plainly not to be 644 found in it especially a provision in the nature of a condition precedent
Besides the documents annexed to the Reference and indeed the fact that those documents are so annexed would show that the President was satisfied prima facie that the allegations made against the Member of the Public Service Commission require to be inquired into by us
Annexed to the order of Reference are a reply of Shri Saini to the allegations made against him and the statements of the three Members of the Commission Shri H section Deol Shri M section Brar and Shri W G Lall
These four statements are Annexures II III III A and III B respectively to the Reference
It is on the basis of this material that the President has made the Reference
The material is of a kind and nature enough to justify the President s opinion that a prima facie case exists for an inquiry and report by this Court
In these circumstances obtaining a preliminary opinion of yet another body would be needless duplication of work and avoidable waste of public time and money
The argument that in a reference under article 3171 this Court ought not to embark upon an examination of facts and that its function is limited to determining whether the person concerned is guilty of misbehaviour and whether the misbehaviour is of such a nature as to justify his removal is in direct opposition to the plain words of article 3171
That article provides that subject to the provisions of clause 3 i the Chairman or any other member of a Public service Commission can be removed from his office only by the order of the President on the ground of misbehaviour and ii the order of removal can be passed after the Supreme Court has on inquiry reported to the President that the Chairman or the member of a Public Service Commission is guilty of misbehaviour and ought to be removed from his office on that ground
The inquiry which this Court is required to hold is not into the limited question whether on the basis of facts found by the President the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office
The inquiry contemplated by the article is into the facts themselves and facts also so as to enable this Court to pronounce upon the question whether the allegations made against the Chairman or member are proved at all
The purpose of article 3171 is to ensure the independence of members of the Public Service Commissions and to give them protection in the matter of their tenure
The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by article 124 4 which is made applicable to 645 the Judges of High Courts the Comptroller and Auditor General of India and the Chief Election Commissioner by articles 218 148 and 324 5 respectively
Members of Public Service Commissions are in one sense given a higher degree of protection by the elimination as far as possible of political pressures in the matter of their removal
Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament
It is impossible to accept that the Supreme Court in one case and the Parliament in the case of those others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others
Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity as the case may be
The apprehension expressed by the learned counsel that the finding recorded by this Court will automatically decide the fate of a prosecution or of a civil suit for damages is real but that is as it ought to be
No grievance can legitimately be made that an examination and assessment of facts is made by this Court instead of being made by a Magistrate or a Munsif
If a full opportunity is given to the parties to prove and rebut the facts in issue as in a regular trial
it is an idle complaint that the evidence has been examined and found upon by the Supreme Court and not by a court of first instance
If after giving a full opportunity to both the sides the Supreme Court comes to the conclusion that the facts alleged are established the conviction or a decree for damages may follow as a matter of course
But then a contrary finding by this Court will equally seal the fate of those proceedings
There is therefore no unfair advantage to either side if the questions of fact are decided by this Court straightway
If the essential safeguards of a fair adjudication are observed no grievance can be made that the facts which establish the charge of misbehaviour are found by the highest Court of the land and not by the lowest
The question which then arises before us is as regards the procedure which this Court should adopt in a Reference made by the President under Article 317 1 of the Constitution
That Article provides that an inquiry has to be held by this Court in accordance 646 with the procedure prescribed in that behalf under Article 145
Article 145 provides to the extent material that subject to the provisions of any law made by Parliament the Supreme Court may from time to time with the approval of the President make rules for regulating the practice and procedure of the Court
Sub clause j of Article 145 1 confers power on this Court to make rules for regulating inquiries under Article 317 1
Order XXXVIII of the Supreme Court Rules 1966 contains rules regulating references under Article 317 1
Rule 1 of Order XXXVIII mentions the persons to whom notice of the reference is required to be given
Rule 2 which is in point provides that the Court may summon such witnesses as it considers necessary This rule shows that while making an inquiry into the matter referred to it by the President this Court is entitled to summon witnesses which obviously is for the purpose of recording their evidence
In other words while dealing with a reference under Article 3171
this Court has the power to summon witnesses and record their evidence
A procedural issue which was debated before us is whether we should pronounce our opinion on the allegations made against Shri Saini on the basis of the affidavits only or whether we should permit the parties to cross examine persons who have filed their affidavits
Considering the nature and gravity of the matter referred to us we are of the opinion that it will not be conducive to justice to decide the Reference on a consideration of the affidavits only
We do not know at this stage whether the allegation made by Shri Saini that he has been falsely involved into the particular incident by reason of certain other matters and at the instance of certain other persons is true or not
But those allegations cannot be adjudicated upon on a consideration of the affidavits only
The credibility of witnesses who depose to facts is a matter which bears directly on the adjudication of those facts
And the best method of testing whether a witness is a person of credit is to subject him or her to cross examination
The credit of a witness can be shaken and ironically sometimes established by cross examining him and indeed section 1463 of the Evidence Act specifically permits the cross examination of a witness in order to shake his credit by injuring his character
Bearing in mind the impact of our findings on a future trial civil or criminal relating to the question referred to us the repercussions of our findings on the parties concerned and the fact that the matter referred to us is one of public importance which transcends the immediate private interests of the parties who have made allegations and counter allegations against one another we are of the view that 647 parties whose interests are directly affected by these proceedings that is to say the Chairperson Smt
Santosh Chowdhary and Shri Gopal Krishan Saini ought to be permitted to cross examine opposing witnesses who have filed their affidavits
There was a sharp difference between the rival views submitted before us as to the nature and scope of the evidence which we should allow the parties to lead
It was contended by Shri Sorabjee who appears for the Government of Punjab and by Shri GL Sanghi who appears for the Chairperson that evidence should be allowed to be led only on the question whether the incident of slapping took place as alleged and not on any other matter
It was urged by these learned counsel that we are only concerned to determine whether Shri Saini slapped the Chairperson and not with the events antecedent to the assault or which are said to furnish the motive for the alleged false implication of Shri Saini
On the other hand it was contended by Shri Nariman that the case of his client is that he has been falsely implicated into the charge of assault because he had incurred the wrath of the Chief Minister of Punjab and the hostility of the Chairperson s husband and that it would be impossible for him to prove his case unless he is allowed to cross examine witnesses on those aspects of the matter
Counsel contends that if he could satisfy us that there was a conspiracy to involve his client falsely or that there were reasons for so involving him we will be loathe to hold that the alleged incident is proved
Shri Nariman s submission must be accepted in the circumstances of the case
It will be impossible to consider in isolation the evidence bearing directly on the incident which is alleged to have taken place on November 22 1982
The entire evidence admissible and relevant shall have to be taken into account for the purpose of deciding whether the allegation against Shri Saini can be held to be proved
We are not pronouncing at a stage upon the admissibility or relevance of any particular piece of evidence which shall have to be done after the entire evidence is before us
All that we do now is to say that we cannot prevent Shri Saini against whom a grave charge has been made from proving that the charge is false and motivated
One of the questions which is bound to arise in this matter as it arises in matters of similar nature is as to why the complainant should make a false allegation that she was slapped courting trouble and involving her own status and respectability
The answer to that question has to be furnished by the person who is called upon to meet the allegation that he slapped her
Answers on questions of fact cannot be made in courts 648 of law in a vacuum
There has to be evidence to justify those answers
Therefore it is only fair that an opportunity should be given to Shri Saini to prove his case that the charge against him is false inspired and motivated
We only hope that this opportunity will not be exploited by Shri Saini to fight a political battle against the Chief Minister or to engage in a duel with the Chairperson s husband
In the ultimate analysis after the dust raised by these accusations and counter accusations has settled down the fundamental question which this Court will have to answer is Did Shri Saini slap the Chairperson or not  She says he did
He says he did not
And on the contrary according to him it is she who raised her hand to beat him when he tried to ward off the blow
He says that this occasion was exploited by interested parties to involve him in a false charge out of personal malice and hostility
Both the accuser and the accused must have an equal opportunity to prove their respective cases
It must also be remembered that Article 317 was enacted in order to give protection to the members of the Public Service Commissions in regard to their removal from office and not as a disability
Having seen that witnesses shall have to be summoned and allowed to be cross examined by the opposite party the next question which we have to decide is whether we should have the evidence recorded in our presence or whether we can and should appoint some responsible delegate for doing so
Order XXXVIII Rule 2 of the Supreme Court Rules 1966 provided that this Court may summon such witnesses as it considers necessary
This provision confers the requisite power on this Court to summon and examine witnesses but nothing contained therein can be read to mean that after deciding which witnesses should be summoned and examined evidence must be recorded by this Court itself
Order XLVII Rule 6 of the same Rules provides that nothing contained in the Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court
This provision like its counterpart in statutes like the Code of Civil Procedure Section 151 or the Code of Criminal Procedure Section 482 does not create or confer any new power but preserves the power of the Court to act ex debito justiciae
Though a provision like Rule 6 of Order XLVII of the Supreme Court Rules is not specifically incorporated in Order XXXVIII of those Rules it shall have to be read in the latter Order in order to enable this Court to pass proper orders in the interest of 649 justice
Considering the overwhelming commitments of this Court for the time being and in the foreseeable future it is regretfully inexpedient that the evidence should be recorded by this Court itself
No useful purpose will be served by expending our own time in recording the evidence of various witnesses except for the advantage of seeing and hearing the witnesses
The balance of convenience requires that we should forego that advantage and delegate the duty of recording evidence
Accordingly we direct that evidence in this Reference will be recorded by a learned Additional District and Sessions Judge Delhi who will be nominated by the learned District and Sessions JudgeDelhi
The nomination may be made before August 221983
We cannot confer any power on the learned Judge so nominated for recording evidence to decide on the admissibility or relevance of any particular piece of evidence
The learned Judge will therefore record the evidence which the parties lead before him within the constraints of the following guidelines 1 The affidavits filed in this Court will be treated as the examination in chief of the respective witnesses
2 The evidence to be recorded by the learned Judge will be limited to the cross examination of witnesses who have filed affidavits before us
In other words no person who has not filed an affidavit in this Court will be examined or cross examined as a witness except with the leave of this Court
3 Witnesses who have filed affidavits in this Court may be summoned or requested by the learned Judge to attend his Court for the purpose of cross examination
The proceedings will normally be held in Delhi
Evidence may however be recorded at any other place if the learned Judge considers it necessary or convenient
The mere fact that the evidence of any particular witness is recorded by the learned Judge will not conclude the issue as regards the admissibility or relevance of that evidence
All questions regarding admissibility and relevance of the evidence so recorded will be decided by this Court during the hearing of the Reference
We hope that all parties concerned will take care to avoid putting frivolous or scandalous questions to witnesses and will afford 650 the necessary co operation to the learned Judge for an expeditious termination of the proceedings before him
The parties shall appear before the learned Additional District and Sessions Judge nominated by the learned District and Sessions Judge Delhi on Monday September 5 1983 at 1100 am for obtaining further directions in the matter
The recording of evidence will commence on Monday September 12 1983 and shall proceed from day to day until the entire evidence is over
We expect that the recording of evidence will be over by September 30 1983
In case it is not over by that date the learned Judge may write to the Registrar of the Supreme Court for extension of time
The evidence will be transmitted to the Registrar Judicial of this Court immediately after the entire evidence is recorded


Summary:
The Chairperson of the Punjab Public Service Commission made a complaint to the President of India alleging that a certain member of the Commission had committed gross misbehaviour towards her by slapping her on her face in the presence of three other members of the Commission
In exercise of the power conferred by Article 3171 of the Constitution the President had referred for consideration of this Court the question whether on the ground of gross misbehaviour the member ought to be removed from the office of Member of the Public Service Commission
Certain persons who claimed to have knowledge of the incident filed their affidavits
The Member s wife who had also filed an affidavit alleged that the then Chief Minister was not happy with her husband s appointment as a member of the Commission that the Chairperson s husband who was running classes for training students for the Public Service Commission examinations wanted certain students of his to be favoured in these examinations and that when her husband refused to accede to the request he was falsely implicated in this incident
It was contended on behalf of the Member that before making the reference the President 1 ought to have referred the case to a fact finding body to ascertain whether a prima facie case had been made out for obtaining the report of this Court on the question of alleged misbehaviour and 2 the function of this Court is limited to determining whether the person concerned was guilty of misconduct of such a nature as would require his removal from the office OF Member of the Public Service Commission
 HELD on the facts of this case obtaining a preliminary opinion of yet another body would be needless duplication of work and avoidable waste of public time and money
The power of the President to make a reference to this Court under Article 3171 is not subject to the condition precedent that he must first have the facts examined by some other body or authority
There is no justification for reading into the Article a provision which is not to be found in it especially a provision in the nature of a condition precedent
The material before the President was of a kind and nature enough to justify his opinion that a prima facie case existed for an enquiry and report by this Court
643 G H 644A C D 640 2 The enquiry which this Court is required to hold is not into the limited question whether the charge of misbehaviour was made out and whether the misbehaviour was of such a nature as to warrant his removal from office but is an enquiry into the facts themselves and facts also so as to enable this Court to pronounce whether the allegations levelled against the Chairman or Member were proved at all
The purpose of this Article is to ensure independence of the members and to give protection in the matter of their tenure
Certain dignitaries of the State like Judges of this Court and High Courts the Comptroller and Auditor General and the Chief Election Com missioner can be removed from their offices only in accordance with tho procedure prescribed in the relevant provisions of the Constitution
In the case of Members of the Public Service Commission a higher degree of protection is given by the elimination of political pressures in the matter of their removal
While in the case of these dignitaries removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament any allegation of misbehaviour made against members of the Public Service Commission has to be examined by this Court on merits
It is impossible to accept that this Court in one case and the Parliament in the case of others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others
Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity as the case may be
644 F H 645 A D 3 Their would be no unfair advantage to either side if the questions of fact are decided by this court straightaway
So long as the essential safe guards of a fair adjudication are observed no grievance can be made that the facts which establish the charge are found by the highest court and not by the lowest
645 F G 4 a As regards procedure order XXXVlll rule 2 provides that while making an enquiry into the matter referred to it by the President this court has power to summon witnesses and record their evidence
But having regard to the nature and gravity of the matter it would not be conducive to justice to decide the reference on a consideration of affidavits only because it would not be known at this stage whether the allegation that the member was falsely implicated in the incident is true or not
Those allegations cannot be adjudicated upon on a consideration of the affidavits only
Having regard to the important nature of the question the parties whose interests are affected should be permitted to cross examine the opposing witnesses
Again keeping in view the grave nature of the allegations and counter allegations it will be impossible to consider in isolation the evidence bearing directly on the alleged incident of slapping but the entire evidence would have to be taken into account for deciding whether the allegations against the member can be held to be proved
Therefore it is only fair that an opportunity should be given to the member to prove that the charge against him was false inspired and motivated
646E H b order XXXVIII Rule 2 of the Supreme Court Rules confers power on this Court to summon and examine witnesses but it does not enjoin that 641 the evidence must be recorded by this court itself
Although a provision like Order XLVII Rule 6 which preserves the power of the court to act ex debito justiciae is not incorporated in order XXXVIII it has to be read in the latter Order to enable this Court to pass proper orders in the interest of justice
648 E H Considering the overwhelming commitments of this Court the Court delegated the duty of recording evidence to the District Judge with a direction that he should record evidence treating the affidavits filed in this Court as examination in chief of the respective witnesses and 2 that the evidence recorded should be limited to cross examination only of witnesses who had filed affidavits before this Court
649 A B