Judge accused in Harassment Case divested of administrative roles

19/12/2014

NEW DELHI: A sitting Madhya Pradesh High Court judge, accused of sexually harassing a former woman judicial officer, was today "divested" of administrative and supervisory authority today by the Supreme Court which also quashed a two-judge panel set up by the HC Chief Justice to probe his alleged misconduct.
Rapping the Chief Justice of the High Court for constituting a two-Judge Committee by which he clearly traversed beyond his jurisdictional authority under the "in-house procedure", a bench headed by Justice J S Kehar also said the HC CJ should be kept out of the procedure of inquiry.
The bench said the role of the Madhya Pradesh High Court Chief Justice should be given to his counterpart of some other High Court. Or else, it suggested that the Chief Justice of India himself assume that role as "the Chief Justice of the High Court, in the present case, travelled beyond the determinative authority vested in him, under stage-one of the in-house procedure."
The court said, "In order to ensure, that investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself."
"The Chief Justice of the High Court is accordingly directed to divest Justice 'A', of the administrative and supervisory control vested in him, to the extent expressed above," the bench, also comprising Justice Arun Mishra, said in its 71-page judgement in which the alleged victim has been referred to as "X judge" and sitting High Court Judge as "Judge A".
Earlier, the apex court had restrained the media from covering the proceedings in the case. It, however, had said that the judgement can be reported.
It had on August 29 stayed an August 8 order of the Chief Justice of the High Court setting up a judicial panel to probe the allegations levelled by the former woman judge.
The former Gwalior judge, who had resigned alleging sexual harassment by the HC judge, had moved the apex court raising questions over the judicial panel comprising judges of the same High Court to look into her complaint.
In her plea, she had said that her resignation is a "constructive termination" and she be reinstated with all consequential benefits.
The Gwalior judge had also objected to the summons being sent to her husband and daughter to be present at the inquiry.
The bench agreed with the submission of the former woman judicial officer that the Chief Justice of the High Court had no jurisdiction to constitute a two-judge committee in terms of the "in-house procedure".
The apex court noted that in dealing with complaints made against sitting judges of the High Courts, the onus of recording a prima facie view, was vested with the Chief Justice of the concerned High Court and participation in the investigative process, at the hands of any other judge of the same High Court, was sought to be excluded.
"The exclusion of judges of the same Court from the investigative process, was also well thought out. In certain situations it may be true, as pointed out by the counsel for the petitioner, that judges of the same Court being colleagues of the concerned judge, would endeavour to exculpate him from his predicament.
"It is not as if, the position could not be otherwise. Animosity amongst colleagues is not unknown. Reasons of competitiveness, jealousy and the like are known amongst colleague judges, specially from the same High Court.
"By excluding judges of the concerned High Court (as the judge complained against), is bound to be beneficial, in both the situations, referred to above. The Chief Justice of the High Court, being a Judge from another State, would be shorn of any such prejudices. Moreover, being a man on the spot, he would be most suited for the purpose," the bench said.
Writing the judgement for the Bench, Justice Kehar said existence of the "in-house procedure" is now an established means for inquiring into allegations levelled against a judge of a superior court, through his peers.
The bench explained the "seven steps" contemplated for "in-house procedure" to be followed in two stages and is a confidential inquiry for institutional credibility under the charge of the Chief Justice of India.
"And therefore, its affairs are to be kept out of public domain. The proceedings under the above procedure being sensitive, are required to be inaccessible to third parties," it said.
The bench noted that the Chief Justice of the High Court does not need to venture into the "deeper probe" and rather, he has determine as to whether a deeper inquiry was required or not and for that he has to conduct a discreet probe.
The bench said in the facts and circumstances of the present case, our conclusions are that "With reference to the in-house procedure pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required.
"The said determination is a part of stage-one (comprising of the first three steps) of the in-house procedure. The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of the in-house procedure.
It said a perusal of the "in-house procedure" applicable to sitting judges of High Courts reveals that the same is compartmentalized into two stages. Through the first stage, the prima facie veracity of the allegations, contained in the complaint is ascertained.
"If so, whether a deeper probe is called for. The first stage does not contemplate an in-depth examination of the allegations. It requires merely an assessment based on the contents of the complaint, and the response of the concerned judge. All that the Chief Justice of the High Court is required to do, is to determine whether a deeper probe is required," the bench said.
The first stage of "in-house procedure" should be based on a logical assessment made on aconsideration of the response of the concerned Judge against whom the allegations has been levelled.
Dealing with the procedure, the bench said it is the second stage of the "in-house procedure", relating to sitting judges of High Courts, which could lead to serious consequences.
"The second stage is monitored by none other, than the Chief Justice of India. Only if the Chief Justice of India endorses the view expressed by the Chief Justice of the High Court, that a deeper probe is called for, he would constitute a 'three-member Committee', and thereby take the investigative process, to the second stage.
"This Committee is to comprise of two Chief Justices of High Courts (other than the concerned High Court), besides a Judge of a High Court. The second stage, postulates a deeper probe. Even though the 'three-member Committee' is at liberty to devise its own procedure, the inherent requirement provided for is, that the procedure evolved should be in consonance with the rules of natural justice.
"Herein, for the first time, the authenticity of the alleggations, are to be probed, on the basis of an inquiry. The incumbents of the 'three-member Committee', would have no nexus, with the concerned judge. Not only would the concerned judge have a fair opportunity to repudiate the allegations levelled against him, even the complainant would have the satisfaction, that the investigation would not be unfair.
"The 'in-houseprocedure' was devised to ensure exclusion of favouritism, prejudice or bias," the bench said.

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