Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 253 (GAU)

PEMA KHANDU v. SPEAKER

2016-04-01

T.VAIPHEI, UJJAL BHUYAN

body2016
JUDGMENT : T. Vaiphei, J. In this application, it is brought to our notice that the Writ Petitioner No.10 has been incorrectly mentioned in our judgment dated 30-03-2016 in WP(C) No. 09 of 2016 as the current Speaker of the Arunachal Pradesh Legislative Assembly and that the current Speaker of the Assembly is actually “Mr. Wangki Lowang”, who is not one of the petitioners in the instant writ petition. As the aforesaid mistake amounts to an error apparent on the face of the record and not affecting the ultimate decision of this Court, we agree to make corresponding and suitable corrections in paragraphs 36, 37, 38, 39, 40 and 41 of our said judgment, which are as under: “36. In the view that we have taken that this is a case of non-service of notice to any of the petitioners, the course of action open to us, as suggested by Mr. Rakesh Dwivedi, the learned senior counsel for the petitioners, appears to be to quash the impugned order of disqualifications and remand the case to the Speaker of the Assembly for fresh consideration by him in accordance with law. Mr. PK Goswami, the learned senior counsel for the respondent No. 2 as well as Mr. M. Krishnamani, the learned senior counsel for the respondent No. 6 and Mr. HS Paonam, the learned senior counsel for the respondent No. 4, vehemently oppose such course of action. It is their submission that as the present Speaker is one of the 24 dissident MLAs along with the petitioners herein, he cannot be expected to be impartial or free from bias; this will be tantamount to an appeal from Caesar’s wife to Caesar. They argue that in the event of the present Speaker adjudicating the cases of his colleagues belonging to the dissident group, grave miscarriage of justice is inevitable, which must be prevented by this Court. Mr. Rakesh Dwivedi, the learned senior counsel, however, submits that when the jurisdiction to decide disqualification cases is conferred upon the Speaker of the Assembly alone by the Constitution, this Court has no jurisdiction to appoint any other authority to decide such a dispute; to do so would be re-writing the Constitution, which is absolutely impermissible. Mr. Rakesh Dwivedi, the learned senior counsel, however, submits that when the jurisdiction to decide disqualification cases is conferred upon the Speaker of the Assembly alone by the Constitution, this Court has no jurisdiction to appoint any other authority to decide such a dispute; to do so would be re-writing the Constitution, which is absolutely impermissible. To remove any apprehension of partiality/bias in the minds of the respondents in such adjudicatory process, this Court may very well direct the respondent No. 2 to constitute a Committee in accordance with Rule 7(4) of the Rules for making preliminary enquiry and submit a report to him. To counter this, Mr. PK Goswami, the learned senior counsel argues that when the facts in this case are indisputable and only one conclusion is deducible there from, namely, the petitioners have voluntarily given up their membership of INC(I) and have in the process incurred the wrath of disqualification under paragraph 2(a) of the Tenth schedule to the Constitution, it is not at all necessary or justified for this Court to remand it to the Speaker but to uphold the impugned order of disqualifications and dismiss the writ petition. The principles of natural justice should not be expanded in such a manner as to make the application of the principles a mockery. 37. Having given our anxious consideration to the rival submissions made by the learned senior counsel, we are of the view that we cannot certainly uphold the impugned disqualification orders, which have become a nullity for violation of principles of natural justice. In our opinion, the apprehension of the respondents that they are not likely to get justice from the Speaker is clearly misconceived. It must not be overlooked that the current Speaker of the Assembly, namely, Shri Wangki Lowang, is not subject to disqualification though he is one of the members of dissident group along with the petitioners. That being factual position, he has become the only authority empowered by paragraph 6(1) of the Tenth Schedule to decide to the questions as to disqualification of the petitioners on the ground of defection. If he himself were subject to disqualification, the question of invoking the proviso to paragraph 6(1) of the Tenth Schedule will arise. For better appreciation of this issue, it will be apposite to refer to paragraph 6 of the Tenth Schedule, which is in the following terms: “6. If he himself were subject to disqualification, the question of invoking the proviso to paragraph 6(1) of the Tenth Schedule will arise. For better appreciation of this issue, it will be apposite to refer to paragraph 6 of the Tenth Schedule, which is in the following terms: “6. Decision on questions as to disqualification on ground of defection.—(1) If any question arises as to whether a member of a House has become subject Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.” 38. True, relegating the disqualification question to the current Speaker may give rise to the possibility of bias on his part and may not be the ideal solution, yet we must not overlook the constitutional provision of vesting such adjudicatory power only to him, who is required to function as a Tribunal exercising quasi-judicial powers. In the constitutional scheme of this nature, we have no alternative but to consider the question of invoking the doctrine of necessity. This doctrine came up for consideration before the Apex Court in State of UP v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 , and was decided in the following manner: “12. It is not in dispute that the Lok Ayukta was the disciplinary authority. The power to impose punishment on the appellant vested only in him. When the Lok Ayukta appointed one Shri S.K. Arora, a retired Director of Defence Estate, an objection thereto was taken by the appellant himself stating that no person from outside should be appointed as the inquiry officer. In the aforementioned situation, the Lok Ayukta had no other option but to take upon himself the burden of holding the departmental proceedings. When the Lok Ayukta appointed one Shri S.K. Arora, a retired Director of Defence Estate, an objection thereto was taken by the appellant himself stating that no person from outside should be appointed as the inquiry officer. In the aforementioned situation, the Lok Ayukta had no other option but to take upon himself the burden of holding the departmental proceedings. The appellant, therefore, cannot be permitted to raise any contention that the disciplinary proceeding should have been conducted by some other officer. It has not been contended that any other officer working in the office of the Lok Ayukta was available for conducting such enquiry. 13. It is true that the principle of natural justice is based on two pillars: (i) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause. 14. It is, however, well known that the principles of natural justice can be excluded by a statute. They can also be waived. 15. In a case where doctrine of necessity is applicable compliance with the principles of natural justice would be excluded. 16. Referring to the doctrine of necessity, Sir William Wade in his Administrative Law stated: “But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down.” It was further stated: “In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament.” 17. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament.” 17. In M.P. Special Police Establishment v. State of M.P. [ (2004) 8 SCC 788 : 2005 SCC (Cri) 1] a Constitution Bench of this Court observed that as the office of the Lok Ayukta is held by a former Judge of this Court, it would be difficult to assume that such authority would give a report without any material whatsoever. Although no law was laid down in this behalf, but, evidently those observations are pointers to show that normally a report from such a high officer should not be disbelieved. 18. It is not that the Lok Ayukta was not inclined to get the matter inquired into by an outsider. He appointed one Shri S.K. Arora. It is the appellant himself who raised an objection there against. He categorically stated that no outsider should be appointed as an inquiry officer although he took a different stand in his first show-cause. He, therefore, waived his right. (See Manak Lal v. Dr. Prem Chand [ 1957 SCR 575 : AIR 1957 SC 425 ] SCR at p. 586.) 19. In the aforementioned situation, the Lok Ayukta had no other option but to proceed with the inquiry. Despite the fact that he was the disciplinary authority himself, as well as a witness, he had no other option but to inquire into the charges against the appellant. Furthermore the appellant did not deny or dispute, as noticed hereinbefore, the recovery of the documents from the almirah. In that view of the matter, it was for the appellant, who had knowledge about the documents and which had been kept by him in the almirah, to show that as to how he had dealt with the same. He being the Private Secretary was a man of confidence. He was bound to follow the prevailing practice. It was his duty to place all the complaints and letters received from other departments before the Lok Ayukta. The office of a Lok Ayukta is of great importance. People approach the Lok Ayukta with various grievances. They require urgent enquiry. He being the Private Secretary was a man of confidence. He was bound to follow the prevailing practice. It was his duty to place all the complaints and letters received from other departments before the Lok Ayukta. The office of a Lok Ayukta is of great importance. People approach the Lok Ayukta with various grievances. They require urgent enquiry. It is not difficult to presume that only because such complaints were received, a practice developed that no almirah should be kept under lock and key. The appellant must be presumed to have knowledge thereabout. Despite the same he had put his almirah under lock and key. He refused to hand over the key when called upon to do so. He did not cross-examine the only witness who was available. He also did not examine himself. He did not examine any defence witness. He did not show any remorse and in that view of the matter, in the peculiar facts and circumstances of the case, we are of the opinion that it cannot be said that the order of punishment passed by the Lok Ayukta suffered from any infirmity.” 39. In view of the mandate of the Constitution, it is thus impermissible for us to by pass the Speaker as the adjudicatoy authority to decide the dispute arising out of the complaint/petition lodged by the respondent No. 6. In fairness, however, we should not simply assume that the Speaker would be partial in exercising his adjudicatory function as the Parliament has reposed faith in him to be fair; sometimes, responsibility may also change the perspective of a functionary like the current Speaker. Nevertheless, to allay the apprehension of the respondents, the Speaker shall have to constitute a Committee as contemplated by Rule 7(4) of the Rules. As we decide to quash the impugned disqualification orders for non-observance of principles of natural justice, we do not think it necessary to deal with the merit of the case or refer to the numerous decisions of the Apex Court cited by the counsel, especially by Mr. P.K. Goswami, the learned senior counsel for the respondent No. 1/2 as they mostly relate to the merit of the case. The preliminary objection raised by the respondents stands overruled as violation of principles of natural justice strikes at the root of the case. 40. The offshoot of the foregoing discussion is that this writ petition succeeds. P.K. Goswami, the learned senior counsel for the respondent No. 1/2 as they mostly relate to the merit of the case. The preliminary objection raised by the respondents stands overruled as violation of principles of natural justice strikes at the root of the case. 40. The offshoot of the foregoing discussion is that this writ petition succeeds. The impugned order of disqualifications dated 15-12-2015 found in the original record and the official Gazette Notification dated 15-12-2015 issued by the respondent No. 2 are hereby quashed. Necessarily, the so-called disqualification orders both bearing dated 15-12-2015 produced by the petitioners and the respondents respectively are to be treated as non-est, and are, therefore, declared inoperative having no force of law. Consequently, we issue the following directions: (1) the Speaker shall constitute a Committee under Rule 7(4) of the Members of the Arunachal Pradesh Legislative Assembly (Disqualification of Ground of Defection) Rules, 1987 within the next 15 days to make preliminary enquiry on the complaint/petition of the respondent No. 6. (2) The Committee so constituted shall submit their report within one month thereafter from the date of their constitution. (3) On receipt of the report of the Committee, the Speaker shall determine the petition/complaint of the respondent No. 6 for disqualifying the petitioners on the ground of defection by taking into account the report of the Committee and in accordance with law after giving reasonable opportunity of hearing to both the petitioners and the respondent No. 6 within two month thereafter. (4) If the disqualification issue cannot be disposed of by the Speaker for reasons attributable to the act of omission or commission on the part of the Committee or of the Speaker or of the petitioners within the next three and half months in total as stipulated above, the impugned disqualification orders shall stand revived without further reference from this Court. 41. Before parting, we feel it to be our duty to point out a thing or two warranted by the facts and circumstances of this case. 41. Before parting, we feel it to be our duty to point out a thing or two warranted by the facts and circumstances of this case. The existing system of conferring power upon the Speaker of the Assembly or upon a member to be elected by the House where the Speaker has become the subject of disqualification, to decide the question of disqualification on the ground of defection under the Tenth Schedule to the Constitution has left much to be desired, can hardly result in a fair and just decision and has also given a go by to one of the two principles of natural justice, namely, bias. After all, the Speaker is likely to be elected with the support of the ruling party and may not, ipso facto, be free from bias, as we have experienced some of the time. What should then be the remedy? In our opinion, the time has now come for the Parliament to seriously think of amending paragraph 6 of the Tenth Schedule to the Constitution to take away the power of the Speaker to decide on the questions of disqualification on ground of defection and entrust it to an independent body to ensure impartial and effective decision. The Parliament may also seriously ponder the suggestion of one of our greatest parliamentarians, the late Madhu Limaye, who in his article in the Kolkata daily, The Telegraph, published sometime in 1985 when the Bill was under consideration in the Parliament. According to him, the main reason for defection being the lure of ministerial berth in the Government, the practical solution for eliminating the evils of defection does not lie in disqualifying a Member but in denying him a ministerial berth. The other alternative is to make the post of Speaker apolitical like in England where once he is so elected, he severs all kinds of relationship with his party and is re-elected unopposed. “Once a Speaker, always a Speaker” is the famous maxim in U.K. This can make him insulated from the rough and tumble of politics and decide the disqualification issue fairly and fearlessly. We are not unmindful of the fact that none of above options can ensure a fool-proof system, but when the existing dispensation has miserably failed us, the time has really come to explore other alternatives. We are not unmindful of the fact that none of above options can ensure a fool-proof system, but when the existing dispensation has miserably failed us, the time has really come to explore other alternatives. In any case, the bottom line is that it is not really the system which fails us; it is rather the individuals who operate the system who fails us. After all, law can always be bent or circumvent to suit one’s convenience. Nevertheless, we still hope and trust that the member so elected will rise to the occasion and come to an impartial decision on this issue so that the faith reposed in him by the Parliament is vindicated. Secondly, we have taken the liberty of citing some decision not cited at the bar, but we do not think this to be improper. This reminds us of the following observations of Lord Denning in the Discipline of Law, at p. 289 (Indian Reprint): “Thus rebuked, I may as well make a confession. On many occasions I have done my own researches and given an opinion on matters on which the Court has not had the benefit of the arguments of counsel or of the judgment of the Court below. I have done this because vary much in their ability and I do not think that their clients should suffer by any oversight or mistake of counsel. If it is a new point or a new matter which could alter the outcome of the case, then the right course is to inform counsel and put the case in the list for further hearing. But if it is just the elaboration of existing points or matters, there is no such need – although I do know of one authority where the defendant failed on every point argued on their behalf, but succeeded on a new point which was taken by the Judges themselves after the argument was concluded. It was Shaw v. Great Western Rly. [1894] 1 QB 373]” Our judgment and order dated 30.03.2016 stands modified only to the extent and in the manner indicated above. The Registry is to issue fresh certified copy on the basis of this corrected judgment. It was Shaw v. Great Western Rly. [1894] 1 QB 373]” Our judgment and order dated 30.03.2016 stands modified only to the extent and in the manner indicated above. The Registry is to issue fresh certified copy on the basis of this corrected judgment. Both the records coming from the Apex Court as well as the record coming from the Respondent No.3 shall remain in the custody of the Registrar (Judicial) of this Court under sealed cover for the next 30 days. The Interlocutory Application is disposed of.