The Prevention of Corruption [Reporting] Act
Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society. (State of Gujarat v. Mansukhbhai Kanjibhai).
The Prevention of Corruption Act, 1988, plays a pivotal role in India's -unyielding fight against corruption. This act was enacted to consolidate and revise laws concerning the prevention of corruption and related matters. It is formulated as a two-sided sword that affects both the person who receives a bribe and the person who gives a bribe. At first glance, it appears to be a commendable 'provision. However, upon meticulous examination, it becomes evident that this Act functions as both a sword and a shield in the hang of the public servant who receives a bribe.
Section 7 of the Prevention of Corruption Act, 1988, addresses the issue of public servants acquiring or accepting undue advantages with the intention of improperly or dishonestly executing their public duties. It encompasses several scenarios, including-
When a public servant obtains or accepts an undue advantage from any individual to perform or induce the performance of a public duty improperly or dishonestly.
When a public servant acquires or accepts an undue advantage as a reward for the improper or dishonest execution of a public duty. When a public servant encourages another public servant to execute a public duty improperly or dishonestly in anticipation of or as a consequence of accepting an undue advantage.
The consequences for contravening Section 7 are substantial. A public servant found culpable under this section may be subjected to imprisonment for a term not less than three years, which may extend up to seven years, and may also face a fine.
After this section, $7A, S.8, and S.9 are incorporated. S.7A focuses on individuals who influence a public servant's actions through corrupt or illegal means or personal influence. It outlines the penalties for such actions, which include imprisonment for a period not less than three years and may extend up to seven years, along with the possibility of a fine. Section 8 deals with individuals who give or promise to give undue advantages to others with the intention of either inducing a public servant to perform their duty improperly or rewarding them for doing so. It sets out the penalties for such actions, which include imprisonment for up to seven years, a fine, or both. However, it includes exceptions when a person is compelled to offer such advantages and obligates reporting to law enforcement authorities within seven days. Then, there is S.9. This section pertains to commercial organizations and their involvement in bribery. If a commercial organization is associated with an offense under this act, it can be fined. The Act specifies that this provision applies when individuals associated with the organization offer undue advantages to public servants to obtain or retain business or gain an advantage in conducting business.
S.9(4) unequivocally clarifies that offenses under Sections 7A, 8, and 9 are cognizable, enabling law enforcement agencies to take prompt action without delay. This expedites legal proceedings in such corruption cases significantly. However, as stipulated in Section 19, no Court can take cognizance of an offense punishable under Section 7, allegedly committed by a public servant, without prior sanction. In practical terms, this implies that when a public servant commits an offense under Section 7, immediate legal action cannot be initiated as in the case of persons who paid bribes! In Nanjappa v. State of Karnataka, the Supreme Court approved its immense authority explaining that "the Statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of causes (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the Court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the Court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law
It's essential to recognize individuals who pay bribes as potential aggrieved parties in this context, However, the PC Act holds a different perspective. While one section of the Act focuses on addressing corrupt public servants, Sections 7A, 6, and 9 of the Act are intended against individuals who might be compelled to offer bribes It's important to note that the law does not consider the person. compelled to give a bribe as the victim in such situations. Often, the primary motivating factor lies with the public servant who, due to their position, wields significant influence over the fulfilment of these needs. Amending the Act to designate the person who pays the bribe as an aggrieved party/victim, thereby ericouraging them to report misconduct by the public servant, would enhance the Act's effectiveness.
The High Court of Kamataka discussed the background of this enactment and held as under. It is in the public domain, to notice that India is a signatory to the United Nations Convention against corruption (UNCAC). Articles 5 to 14 of the said Convention deal with prosecution for corruption. It would mandate that corrupt can be prosecuted after the fact but first and foremost it requires prevention. Therefore, the entire chapter was dedicated to prevention with measures directed at both the public and private sectors. It is based upon these articles arrived at the convention, certain measures were sought to be taken to arrest corruption. One such step by the Parliament was an amendment that comes about on 26/07/2018 to the Prevention of Corruption Act, making the giver and the taker stand on the same pedestal of prosecution.' (Kailash S. Raj v State of Karnataka'). So, it is clear that the government introduced provisions that hold the person who pays a bribe accountable, intending to satisfy the UN Convention. There seems to be a mistaken belief that imprisoning the bribe giver can prevent corruption. It is illogical to think that the UN Convention really suggested this approach. Corruption cannot be prevented by punishing the bribe giver. Therefore, the existing legal framework issues a warning to both parties involved, emphasizing the necessity of strictly adhering to a clandestine procedure in their activities. My view is that the law should focus on addressing the root causes and opportunities that lead to bribery, rather than targeting the leg instead of the chapel for correction.
To support the aforementioned perspective, I am reinforced by the fact that public servants defined under this Act hold a dominant position over those who are expected to offer bribes. It's also crucial to note that public servants often receive bribes not only for engaging in illegal activities or abstaining from legal ones but also for executing unlawful actions Once an illegal act is committed by a public servant, it may eventually be uncovered Conversely, a legal act carried out after receiving illegal gratification remains hidden forever unless the person who paid the bribe discloses it. Given the offense under the PC Act, the person who was compelled to give a bribe may not be able to disclose it. This issue cannot be resolved without amending the aforementioned provisions. Considering the dominant nature of public servants and the transactional context mentioned above, the burden of proving innocence should also be placed upon the public servant when facing allegations of corruption.
Nevertheless, it's essential to keep in mind that the Act's objective isn't to dissuade individuals who were coerced into giving bribes to public servants from reporting such incidents later. Instead, its purpose is to empower them to report these unfortunate events to the concerned authorities. When there's no fear of prosecution, more people will be willing to come forward with allegations of bribery, potentially causing significant changes in how public servants behave In the current situation, the corrupt public servants may use the threat of impending criminal prosecution against those who provided them with bribes. Thus, the Act acts as a barrier to the reporting of corruption, which is what corrupt public servants aim for. It's not a sound approach to claim that the absence of bribery will eradicate corruption. This is akin to suggesting that appropriate dressing of girls can prevent sexual assault The Prevention of Corruption Act should not be made to be called the Prevention of Corruption Reporting Act.
Association is not a Consumer”-an infelicitous interpretation.
The Supreme Court recently held that an Association formed under the mandatory provisions of law is not a voluntarily registered association for filing of complaint as referred under S.12(1)(b) of the CP Act hence the said association cannot maintain a complaint before the consumer forum.[ Sobha Hibiscus Condominium v Sobha Developers Ltd 2020(2) KLT 95 (SC) ] The appellant before the Supreme Court was the apartment owner’s association and the complaint was filed against the builder of their apartment.
The Supreme Court considered the definition of the word ‘consumer’ under S.2(1)(d) and Section 12 of the Consumer Protection Act. Though the judgment is quite right it might have put the litigants into the helm of chaos. The Supreme Court did not consider the word ‘person’ defined under S.2(1)(m) and the implications of S.12(1)(a). For better appreciation we can refer to the relevant provisions. S.2(1)(d) defines the word ‘consumer’ and it starts with “’consumer’ means any PERSON who,-. . . . . . . . “. Remember the words used are “any person”. The word ‘person’ is defined under S.2(1)(m) of CP Act which reads
(m) “person includes,- . . .
(i) a firm whether registered or not
(ii) a Hindu undivided family
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not.”
This shows that an association of persons whether registered or not is a consumer. Section12 of the Act deals with the manner in which the complaint shall be made. Subsection (a) of S.12(1) unequivocally says that the complaint should be filed by the consumer. Please read the section.
S.12. Manner in which complaint shall be made.-(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-
(a) the CONSUMER to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
So the outcome is that any association registered or unregistered can be a ‘consumer’ and able to maintain a complaint before the forum. The Supreme Court has considered only S.12(1)(b) and held that the association formed under the mandate of law cannot maintain a complaint before the forum. The Supreme Court’s attention was not drawn to S.12(1)(a) and the definition given under S. 2(1)(m). On a meticulous analysis of the provision as above said, we could find that any association whether registered or unregistered is a consumer and as per S.12(1)(a) an Association can maintain a complaint before the forum. The case of “voluntary consumer association” will come into play only in cases where the above said association is not a consumer as defined under S.2(1)(d) of CP Act. Section 12(1)(b) is quoted as below.
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
The original complaint was filed before the National Commission[ Sobha Hibiscus Condominium v Sobha Developers Ltd 2015(2) CPR 797 NC ] and the opposite party challenged the maintainability of the complaint on the ground that the association is not a consumer or a recognised consumer association. The National Commission was not asked to consider the use of the word ‘person’ appeared in S.2(1)(d) and the definition of ‘person’ under S.2(1)(m). If the definition clause under S.2(1)(m) is adverted and analysed properly the judgment would have differed. So did the Supreme Court.
*Sobha Hibiscus Condominium v Sobha Developers Ltd 2020(2) KLT 95 (SC)
Rarest of rare cases in civil law.
‘Rarest of rare cases’ is a phrase that often appears in the judgments delivered under criminal law. On the civil side[ In this article the words civil law/civil side/civil dispute denotes the judgments delivered under Civil PC. Judgments rendered under the constitution are not included or considered.] it is seldom used. When it is found in the text of the civil side the readers’ enthusiasm will go up to see how a civil dispute is branded under the group of the ‘rarest of rare cases’. My quest was to find out a judgment wherein the court described the facts of the case as the ‘rarest of rare’. I would say that though the phrase appeared in a handful of judgments in civil cases we cannot easily find out a situation that leads to the rarest of rare case. There are a few judgments eligible for academic evaluation.
I couldn’t see the phrase ‘rarest of rare cases’ in any civil judgments prior to 1982. In the year 1982 the Gujarat High Court [ Gujarat Electricity Board v Mahesh Kumar AIR 1982 Guj 289]used the phrase in a judgment. The court didn’t say that the case on hand was one coming under the category of the rarest of rare cases. It was the argument advanced by the bar. See the quote.
“At the outset I would say that Mr. Vakil was right in emphasising that this High Courts powers to interfere with the lower Courts findings is very very limited. I also accept the legal position virtually declaring that except in the rarest of rare cases this High Court would not be competent to disturb the finding of the courts below however grossly erroneous they might appear to this court to be.”
But thereafter the said phrase came to sight occasionally. Rajasthan High court[ Nrusingha Charan v State bank of india AIR 1988 Ori 132] accepted the submission from the bar that the power under S.151, C.P.C. being very wide in its nature, is to be sparingly used only in rarest of rare cases and should not be a usual feature. The very same view was followed by the Allahabad High Court[ Chandra Prakash Gupta v Noor Mohd.1993(21) All LR 144] without saying that the case on their hands is one coming under the category of the rarest of rare cases.
In a case of interim prohibitory injunction restraining employer from holding the test to select employees for their choice the court said, “ Where recruitment is held by inviting applications from open market, injunction order restraining employer from holding the test should be passed in rarest of the rare cases.” The Rajasthan High court quashed the order of the trial court granting the prohibitory injunction.[ Rajasthan State Electricity Board v Munsiff and Judicial Magistrate 1994(1) Raj LW 128] That means such situations do not come under the category.
Application of inherent power to grant prohibitory injunction was considered by the Allahabad High Court and asseverated, “It is further to be imbibed that all of the three conditions precedent must co-exist for granting temporary injunction under Order 39, Rules 1 and 2, CPC. If any of them is missing, then temporary injunction applied for is to be rejected. It would be expedient to mention here that in a peculiar facts and circumstances of a case in rarest of rare cases if interest of justice so demands that property in dispute deserves to be preserved in its present condition till cloud of doubt are dispelled by deciding the suit on merit in such cases temporary injunction can also be granted under S. 151 CPC which provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of Court to make orders necessary in the ends of justice. [ Satya Prakash v IST Additional District Judge 2002 AIHC 3454 All] The High court quashed the order of the District Court and restored the order passed by trial Court seeing that the defendant in the suit violated the prohibitory order.
The Rajasthan High Court opined that the temporary injunction is to be granted only in the rarer of the rarest case and not as a rule or matter of course.[ Shivraj Singh v Municipal Corporation Lal Kothi Jaipur 2004(2) Raj LW 714] In this case the trial court refused to give interim injunction. The High Court said that “ in case the temporary injunction as prayed for is granted, the persons who have been displaced from the other places in the derive of removing encroachment, they will remain unemployed for all times to come i. e. till the suit is decided and this is directly against the public interest.” The appeal was dismissed with cost as it was not a case coming under the rarest of the rare case.
This is an appeal by the original defendant No. 4 before the High Court of Bombay[ Kishore Bajaj v Dorab Cawasji Warden 1989(1) MhLR 482] against an order of interim mandatory injunction which virtually ousts him and his wife from the suit premises, issued by a learned Judge of the Bombay City Civil Court, on a notice of motion taken out by the plaintiff as against the defendants. The High Court avowed; “When it was pointed out that ordinarily interim mandatory injunction is not granted till the suit is decided, the learned Judge takes note of the fact that mandatory order at an interim stage can only be passed in the "rarest of the rare cases", and yet he (trial judge) granted such an order mainly on the ground that defendant No. 4 and his wife chose to complete the conveyance without the consent of the plaintiff and thereby they themselves invited this litigation and that, therefore, this is a fit case wherein mandatory order at the interim stage should be granted to meet the ends of justice.” The court further affirmed that “Needless to say that this part of the order is patently wrong as this is neither a rarest of rare case nor is there any consideration of balance of convenience or urgency as to why such an interim mandatory order should ever be granted” and allowed the appeal. The Guwahati High Court[ Assam State Ele Board v North Western Cathcar Tea Co AIR 2000 Gau 176] also allowed the appeal challenging the order interim mandatory injunction holding that the case was not one under the category of rarest of rare cases.
With regard to the revisional power of the High Court the Rajasthan High Court viewed that the power under Section 115, CPC is very limited and is not to be exercised except in rarest of rare cases[ Satya Prakash v Madan Lal AIR 1995 Raj 112] and the court refused to exercise the revisional jurisdiction. So the case was not one that came under the said category.
The power to remand the case under Rule 23A of Order 41 is only to be invoked in the rarest of rare or most exceptional cases when the appellate court is for very convincing and cogent reasons to be recorded in writing is satisfied that a retrial is necessary, failing which substantial miscarriage of justice would result, the Gujarat and Rajasthan High Court[ Vallabhabhai Kanjibhai Thakkar v Taraben Kantilal Shaw 1971(1) CLR 857, Pari v Om Prakash 2006 Raj LW (Supp) 774] viewed and found the cases were not suitable for remand. A denovo trial, especially under Order 41 Rule 23A of the Code, would imply that the trial has to start all over again from the initial stage. Since the civil trials are time consuming, a denovo trial would again take the parties through the rigours of a civil trial, therefore, such a power should be resorted in the rarest of the rare cases.[ Prabhu Lal v State 2007(4) SLR 485 Raj] The court set aside the order to remand the case. It is needless to say that the case is not in the said category.
While dealing with the issue of receiving additional evidence at a belated stage the court applied the above phrase. The court observed that it is not the scheme of the law that such attempts to introduce additional evidence at a belated stage should be permitted. The court has taken the view that such applications will be granted in the rarest of the rare cases provided the court is satisfied that the additional evidence would effectively and ultimately vary the verdict.[ H. Thirthappa v M. Muragendrappa 1996(2) Kant LJ 361, Nitinkumar Sakalchand Shah v Chandrahash Punjalal Parikh 1997 AIHC 2153] In both cases the courts didn’t find any rarity to invoke the provision. The Calcutta High Court uses the phrase while discussing the scope of revision. The court held: “In revision, factual determination of the case is impermissible and only in the rarest of rare cases, the fact can be brought into play provided the application of mind of the Court is not adhered to and grave error and illegality committed. In the above perspective, Court of revision may invoke its jurisdiction that the order, if allowed to stand, would occasion grave justice.”[ Panchanan Karmakar v Anandamoy Karmakar 1996 AIHC 3116] The revision petition was dismissed.
Has the Court power or jurisdiction to extend the time for payment of Court fee payable under S.4A of the Kerala Court Fees and Suits Valuation Act beyond the period of 30 days provided under the proviso to that section even if there are sufficient reasons for non-payment of court fee within that time is the point considered by the High Court of Kerala. The Court followed the earlier decisions of the court and held that having regard to the peculiar facts and circumstances of this case, we would allow the plaintiff a very short extension of time for payment of the requisite court fee, namely ten days from today. The court observed that “For all practical purposes an extension of time under S.149 CPC can possibly be granted only in rarest of the rare cases.” Since the facts of the case are not explained in the above judgments it is not possible to arrive at a conclusion on its rarity.[ Shajahan v Kamala Narayanan 1997(1) KLT 569] This decision was followed in State of Kerala v N. Umesh Rao[ State of Kerala v N. Umesh Rao 1998(2) KLT 541] and granted time. In this case the state was the petitioner. The delay was on account of administrative procedure.
Application of S. 151 of the Code of Civil Procedure to strike out the plaint was considered by the High Court of Bombay[ SNP Shipping Services (P) Ltd. V Kara Mara Shipping Co LTD AIR 2000 Bom 57] and cautioned the judicial system. The court monitored that every Court has inherent jurisdiction to strike out from its record a suit which is frivolous, vexatious, malicious or tantamount to abuse of the process of the Court or tends to bring the administration of justice to ridicule by persistently and consistently filing proceedings and suits though the matter has been settled finally by the highest Court of the land. It was further held that such power of striking out the plaint from the record of the Court on the ground of abuse of process is to be exercised sparingly and with circumspection and in rarest of rare cases but when the conduct of a litigant is so glaringly contumacious intended to keep a matter alive in a Court having no jurisdiction, such litigation deserves to be dealt with sternly. The High Court found that the present case was a classic example of re-agitating the same issue by a party which has been decided against him by the highest Court of the land. So the High Court dismissed the suit on cost. So it is discernible that this case will fall under the category.
The Allahabad High Court opted the phrase while discussing the question relating to execution. Objections under Section 47 CPC on the ground of decree being a nullity as having been passed by Court having no jurisdiction can be permitted to be raised only in the rarest of rare cases. It cannot be permitted to be used as second innings of litigation.[ Virendra Singh Pal v Judge Small Causes Court Kanpur 2004 AIHC 4463 All] One of the objections was that the decree was bad to the extent of nullity for non-impleadment of necessary party. The objections were rejected by the court and against the said order the petitioner filed revision and it was dismissed in limine by District Judge. The writ petition was against the aforesaid order. The High Court dismissed the petition. So the said case was also outside the purview of the said phrase.
Although, Order 9, R13 of the Code bestows sufficient power to deny the defendant an opportunity of hearing, but such a power should not be used mechanically or at the drop of the head. Since exercise of such a power infringes on the constitutional right of being heard, it also infringes on the principles of natural justice, such a power should be exercised in the rarest of the rare case.[ Jagdish Prasad Swami v Ramji Lal Joshi 2007(3) Raj LW 1970 Raj] The hyper-technical and the hyper- insensitive approach of the trial Court while dealing with an application under Order 9, Rule 13 of the Code of Civil Procedure is forcing a defendant to run from pillar to post. What could be easily tackled at the level of the trial Court is being transported to this court. Needlessly, this Court is being flooded day in day out with appeals against the rejection of application under Order 9, Rule 13 of the Code. This tide needs to be reserved, if this court is not to be overwhelmed by the rising dockets. The Rajasthan High Court set aside the exparte judgment.
The fact of the case before the Karnataka High Court was that the plaintiffs filed suit for declaration that the sale deed executed by first defendant based on the forged Power of Attorney in respect of the suit schedule property as null and void. In the written statement, defendant No.1 has emphatically conceded that power of attorney executed in his favour by the plaintiff is bogus and the same cannot be relied upon, which means that defendant No. 1 has admitted in his written statement, the case of the plaintiff. After the failure on the part of defendant No. 1 to get the admissions made in his written statement withdrawn, the defendant No.2 filed an application to examine the defendant No.1 herein as his witness. The said application was rejected by the Court below. The high court remarked that though it is true that the party to the suit can examine another party to the suit as witness, such procedure has to be permitted only in the rarest of rare cases and dismissed the writ petition. [ Krithi Constructions v Thippa Reddy 2015 ILR (Kant) 122] The suit for the relief of perpetual injunction in respect of the suit schedule property was dismissed and the appeal filed was allowed and granted perpetual injunction against the defendant restraining the defendant and his agents, servants and associates etc., Even after the passing of this decree and judgment against the defendant which was continuing, his illegal interference and attempt to dispossess the plaintiff from his house premises continued. So the plaintiff filed petition under O21 R37 for arrest and detention of the defendant. The defendant was ex parte. The court ordered arrest and detention of the defendant. The Andhra Pradesh High Court found that though the provisions exist for detention of a person for violating the decree of injunction, that power has to be exercised cautiously and in the rarest of rare cases and only after recording a finding intervened in the order holding that the trial Court had not even recorded a finding justifying the order of arrest.[ Kunkuntla Narsimha v Syed Zainulabuddin 2015(3) ALD 700] At last I came across a decision wherein the court indubitably considered it as a rarest of rare case. In this suit the defendant failed to file the written statement within the time stipulated. Thereafter, the case was posted for plaintiff's evidence and the defendant did not choose to cross-examine the plaintiff and hence plaintiff's cross-examination was taken as 'nil'. When the case was posted for arguments, the defendant has filed petition under Section 151 of Civil Procedure Code, 1908 seeking permission to file the written statement contending that he was suffering from blood pressure and diabetes over a period of two years and hence was unable to contact his Advocate to give instructions to file written statement. The delay was not intentional, but for the reasons stated above. The Trial Court rejected the said application. The Karnataka High Court asserted that this is a rarest of rare case to permit the defendant to file his written statement.[ P. Puttaramu v Venkatappa 2017(2) Kant LJ 353].
Sobha Hibiscus Condominium v Sobha Developers Ltd 2015(2) CPR 797 NC
3. In this article the words civil law/civil side/civil dispute denotes the judgments delivered under Civil PC. Judgments rendered under the constitution are not included or considered.
4.Gujarat Electricity Board v Mahesh Kumar AIR 1982 Guj 289
5.Nrusingha Charan v State bank of india AIR 1988 Ori 132
6.Chandra Prakash Gupta v Noor Mohd.1993(21) All LR 144
7.Rajasthan State Electricity Board v Munsiff and Judicial Magistrate 1994(1) Raj LW 128
8.Satya Prakash v IST Additional District Judge 2002 AIHC 3454 All
9.Shivraj Singh v Municipal Corporation Lal Kothi Jaipur 2004(2) Raj LW 714
10.Kishore Bajaj v Dorab Cawasji Warden 1989(1) MhLR 482
11.Assam State Ele Board v North Western Cathcar Tea Co AIR 2000 Gau 176
12.Satya Prakash v Madan Lal AIR 1995 Raj 112
13. Vallabhabhai Kanjibhai Thakkar v Taraben Kantilal Shaw 1971(1) CLR 857, Pari v Om
14.Prakash 2006 Raj LW (Supp) 774
15.Prabhu Lal v State 2007(4) SLR 485 Raj
16.H. Thirthappa v M. Muragendrappa 1996(2) Kant LJ 361, Nitinkumar Sakalchand Shah v
17.Chandrahash Punjalal Parikh 1997 AIHC 2153
18.Panchanan Karmakar v Anandamoy Karmakar 1996 AIHC 3116
19.Shajahan v Kamala Narayanan 1997(1) KLT 569
21.State of Kerala v N. Umesh Rao 1998(2) KLT 541
22.SNP Shipping Services (P) Ltd. V Kara Mara Shipping Co LTD AIR 2000 Bom 57
23.Virendra Singh Pal v Judge Small Causes Court Kanpur 2004 AIHC 4463 All
24.Jagdish Prasad Swami v Ramji Lal Joshi 2007(3) Raj LW 1970 Raj
Overthrow of right of appeal .
In the judgment reported in Pudupariyaram Service Coop: Society Ltd v Rugmini Amma (1996(1) KLT 100) it was held that “A right of appeal is a valuable right and when a statute has provided such a right it should not be scuttled or frustrated by not forming such a sub-committee or executive committee.” The division bench was considering the right of appeal available to the aggrieved employee in the coop: society by the decision taken in disciplinary proceedings. At the time of the judgment, R.198(2A) & (2B) are not in the statute book, so there was no sub committee to take disciplinary action against the employees. The practice was prevalent and what followed was to do all the disciplinary functions commenced from issuing of charge sheet to imposing of punishment by the committee of the society. At the same time R.198(4) gives a right to the aggrieved employee to prefer an appeal before the managing committee. Therefore, the appeal also was considered by the same committee. The decision stated above removed the absurdity . The committee excluding the sub committee became the appellate body and the entire functions related to disciplinary action were vested with the sub committee. After this verdict R.198(2A) & (2B) are included in the statute book. In Kodanchery service Cooperative Bank Ltd v Joshy Varghese (2020(4) KLT 129) division bench of Kerala High Court held that the disciplinary sub-committee has no power to issue charge sheet to an employee for the reason that the powers of the sub committee is only to make inquiries into the charges. The court categorically held that on conjoint reading of sections 2(e) of the Act and R. 182(2) and 198(2) of the KCS Rules the committee of the society, which is the authority competent to appoint employees in a cooperative society is bound to inform the delinquent employee in writing of the grounds on which it is proposed to take action against him. The High Court interpreted the above provisions and held that the said committee shall issue the charge sheet to the delinquent employee. Now the concern is whether the right of appeal provided under R.198(4) and protected vide judgment in Pudupariyaram Service Coop: Society Ltd v Rugmini Amma is available to the aggrieved parties after the pronouncement of Kodancheri service Cooperative Bank’s case. It is to be noted that in the Kodancheri service Cooperative Bank’s case Pudupariyaram case was not discussed. The question whether the right of appeal was scuttled or affected was also not considered. What is now in the lime light is framing of charge is to be done by the committee of the society and not by the sub committee. As per R.198(4) the appeal filed by the aggrieved employee also to be heard by the same committee. This situation was not appraised in the present judgment. In Pudupariyaram’s case the court held that advantages of an appeal provision are that the aggrieved party can focus on points missed by the first decision taking body and the appellant would be in a better position to project different angles. A reappraisal of materials for reaching different findings can be made by the appellate body. Now the committee who framed the charges has to consider the validity of charges, if raised by the aggrieved, in an appeal and in such a situation there may be an embittered decision from the committee. This is the apprehended overthrow of right of appeal pointed out in Pudupariyaram’s case.
On going through the fact of the case as narrated in the judgment we can see that the sub committee was constituted after suspending the employee from service. So the view of the High Court that the decision to initiate disciplinary proceedings cannot be subsequent to issuance of charge sheet and disciplinary proceedings commence only when charge sheet is issued to the delinquent employee are well founded. But there are unnoticed facts. Nowhere it is stated that the disciplinary sub committee should be constituted at any particular point of time. Many of the societies constitute all the required sub committees in their first meeting itself. That means even before committing the act of misconduct by an employee or otherwise there will be a disciplinary sub committee in the society. If this aspect was perceived there would have been a different verdict then.
My sorrow over the last page.
The first page in the part I, 2011(2) KLT bears the title “The Last Page”. When I finished it in a single sitting, I felt for a moment, as if it were my last breath. Among the many I am a devotee of you. None of the articles you have written and I came across were ‘passed over’ for reading even for an hour. I am inspired from the articles as if those are the pages from a Holy book. The same enthusiasm that I felt decades ago while reading from the articles still filled within me.
The article “the last page” is not a page from the Holy book. It has nothing to quench the thirst of any reader of you instead it threatens them that they should suffer the days ahead without any consoling words and guidelines from your pen and tongue.
Your inimitable talent and skill made you as an outstanding lawyer for all the time. The legal profession is a “difficult terrain”, as you said once, but it was so easy for you. The walls of the High Court of Kerala also will speak about your charismatic handling of complicated questions of law. The furniture in the court hall may cackle when the citations of precedents came out of your tongue without any aid of notes. The articles that you have written are the examples of your deep knowledge and unbeatable courage. You are skilled to write without verbal pomposity and circumlocution which you lamented in “Judicial Prose”.[ [1976 KLT 61]] When you said “ the noblest profession has now become the sorriest of trades, going fast forward, from zero to zero”[ [Quo Vadis Legal Profession : 1999(1) KLT 4]] the readers found in themselves the elements of decaying factor. There is no one to sit near you and chances of getting such kind of articles and speeches which compel us to assimilate the saga of wisdom are remote. Let me choose your own sentence with modification ‘search for another personality like you, would certainly be elusive.[ [A Testament to Towering Judge : Justice P.T.Raman Nayar : 2001(2) KLT 1]]
The articles that you have written are to be obeyed and followed by the legal fraternity. In the article “judicial Over Speed”[ 1980 KLT 71.] you have pointed out the absurdity of listing system and disposal mania of the presiding officers. But Alas!, who cares!, the system acquired more speed. Contra to this the article “Once a Justice always a Justice?”[ 2000(3) KLT 84.] is seen accepted by the persons among the class and I couldn’t see any of the former judges using the prefix “Justice”. When you said “a judge is only the second incarnation of a lawyer with a conferred Constitutional status for a limited period, which brings honour, not immunity” it became the more suitable definition for the word judge. [ Cry Noble Profession : 2001(3) KLT 12.]
The fledgling lawyers of all time guided by you with your mesmeric elocution and chronicles. Though the spirit of words are not followed very strictly it is the torch light in the pitch darkness. The light should continue to shine. The stunning comments that you have made in the article “Choosing God’s Middleman” that “The bar being the feeder category of the judiciary, also needs up gradation, especially when solo law practice is the order of the day; and nobody works as a junior under a senior for the tariff period. If this be the state of affairs, we should be prepared to face a judicial earthquake” will prick all hearts.[ 2001(2) KLT 23. ]
You have taken a wand to guide the judges. The articles in which you have showed anguish over the conduct of the judges are many and it gave courage to my community. “Judge not the crusader, but the cause.[ 1979 KLT 100.] When you have expressed your anxiety posing a question “Quo Vadis Mandamus” you have reminded the judges about the practice of issuing of mandamus in reticent vocabulary.[ 2001(2) KLT57.] Your courage to say the truth openly and frankly influenced the persons like me heavily. You are brave enough to say that naming CHIEF JUSITCE OF KERALA is unconstitutional.[ 1981 KLT 15.] You have reminded a judge who indulged in verbal exuberance and complexities that “a judge should discipline his words to the purpose of decision, and not indulge in exaggerated violence and pathos.[ 1981 KLT 63.] My admiration went up when I read “the quality of the judges has been dwindling slowly”[ Nambiar Second Miscellany p.62,] and “the Bar’s affection is precious judicial assets for a judge.”[ Nambiar Third Miscellany, p. 66.]
Sir, it is your privilege to stop or continue academic exercise and I have no right to say anything over it, but still I think that “the last page” is not an article to be read while the author is alive and capable of rendering wisdom. Missing of a doyan lawyer who exhorts us to become Karmayogi lawyers is unendurable.
25.[1976 KLT 61]
26.[Quo Vadis Legal Profession : 1999(1) KLT 4]
27.[A Testament to Towering Judge : Justice P.T.Raman Nayar : 2001(2) KLT 1]
28.1980 KLT 71.
29.2000(3) KLT 84.
30.Cry Noble Profession : 2001(3) KLT 12.
31.2001(2) KLT 23.
32.1979 KLT 100.
34.1981 KLT 15.
35.1981 KLT 63.
36.Nambiar Second Miscellany p.62,
37.Nambiar Third Miscellany, p. 66.
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