REFERENCE UNDER ARTICLE 317 (1) NO.2 OF 2008 IN RE- MEHAR SINGH SAINI, CHAIRMAN, HPSC AND ORS. v

Citation: [2010] 14 S.C.R. 647

Court: Supreme Court of India

Bench: S.H. KAPADIA, K.S. RADHAKRISHNAN, SWATANTER KUMAR

Case summary

REFERENCE UNDER ARTICLE 317 (1) NO.2 OF 2008 IN RE- MEHAR SINGH SAINI, CHAIRMAN, HPSC AND ORS. v.pdf

Judgment text

[2010)14 (ADDL. ) S. C. R. 647 REFERENCE UNDER ARTICLE 317 (1) N0. 2 OF 2008 A IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC AND ORS. NOVEMBER 12, 2010 [S. H. KAPADIA, CJI, K. S. PANICKER B RADHAK~ISHNAN AND SWATANTER KUMAR, JJ. ] Constitution of India, 1950: Article 317(1)- Reference to Supreme Court for inquiry c into allegations of misbehaviour against Chairman/Members . of a Public·Service Commission - Nature of the proceedings :... Standard ofproof- HELD: The proceedings are neither akin to those under service law nor to those under criminal law - The nature of such proceedings is sui generis and the Court 0 can evolve its own procedure in consonance with the language of Article 317(1) read with the provisions of the Supreme Court Rules and the principles of natural justice - The standard ofproof applicable to such cases is not that required under the criminal jurisprudence, i. e.

, to prove the charge E 'beyond any reasonable doubt'- The Court is not called upon to record finding of guilt as if in a criminal case - The charge has to be construed in a liberal manner so as to ensure completion of inquiry in terms of Article 317(1) while keeping . in mind the constitutional stature of the office - Where the facts supported by record point a finger at the Chairman/ F Member of the Commission with some certainty, it may amount to misbehaviour in the given facts and circumstances of a case - Rule of 'reasonable preponderance of probabilities' would be the right standard to be applied to such G cases - Doctrines - Rule of 'reasonable preponderance of probabilities' - Ma? ;;u 1. Dr. Krishan Ph. D. Non- Vice 02-08-2000 1-08-2006 1. 12. 2004 en Chander official Chancellor, z G) Sanger, G. J. J: (Chairman) University I en )> 2. Sh. Narender, BA (LLB) Non- Journalist 17. 06. 1998 16. 06. 2004 z Singh (Member) Official (") I 3. Sh. Dayal Singh, B. Sc. Official G. M. 03. 07.

1998 18. 07. 1998 - )> (Member) Engg. Industries, ;:u . Haryana s: )> z 4. Sh. Jagdish Rai, MA. Official Lecturer 18. 07. 1998 17. 07. 2004 - I (Member) "'U en 5. Sh. Mahender BA (LLB) Official Teacher 28. 02. 2000 27. 02. 2006 07. 12. 2004 0 Singh Shastri, Shastri " (Member) · O. T. . en i -.. 1 -.. 1 O'l -... j 6. Sh. Mehar Singh BAMS Non- Non- 07. 07. 2000 06. 07. 2006 1. 12. 2004 (X) Saini (Member) Official Practitioner (/) 7. Sh. Gulshan LLB Non- Social 04. 04. 2001 09. 08. 2004 c Bhardwaj official Activist "tt :::0 (Member) m ~ 8. Sh. S. K. Gupta, B. A. Non- - 04. 04. 2001 03. 04. 2007 05. 07. 2004 m () (Member) official 0 c 9. Sh. Pardeep B. A. Non- Social 04. 05. 2002 03. 05. 2008 05. 07. 2004 :::0 --i Chaudhary, official Activist :::0 (Member) m "U '------ ~-----------·-··--····---~-- --------- -- ----- ---- 0 :::0 -f (/) 'i\3 0 ~ .. 9 ~ ~ ~ 0 0 r -(/) () ;:u Sl. Name of Qualifica- Whether Past Date of Date of No. the Chair.

: tion official creden- Appoin- normal z ::::0 man/ or non- ti~ls tment retirem Member official mentl s: m I (i5)> 1. Sh. Mehar Singh BAMS Non-Official Private Practitioner 01 . 12. 2004 30. 11. 2010 ~::::0 Saini (Chairman) · I ~en i )>Z 2. Sh. Dungar Ram, MA (Eng. ) Official Lecturer Govt. National 5. 7. 2004 9. 6. 2009 zG1 ~I (Member) College, Sirsa men ::::0)> 3. Sh. Chatter Singh, BE (Elect. ) Official District Transport 5. 7. 2004 4. 7. 2010 ;;s;::z c _- (Member) Officer S:::o 4. Sh. Yudhvir Singh, BA Non-official District Marketing 5. 7. 2004 4. 7. 2010 ~~ (Member) Enforcement Officer c.... ;;o .. :...... s::: )> 5. Sh. Satbir Singh, BA (Hons) Non-official Advocate 5. 7. 2004 4. 7. 2010 z Advocate LLB I (Member) '"U en () 6. Sh. Om Prakash BA LLB Official District Attorney 10. 8. 2004 9. 8. 2010 (Member) (j) -.. J - - 0 Hooda (Member) (Agronomy, Haryana, Agriculture (j) M. Sc. University c (Agronomy, -o ::::0 Ph. d, LLB m s: m 8. Mrs. Santosh M. Sc. B. Ed.

Non-official School Teacher 1. 12. 2004 30. 11. 2010 () Singh (Member) 0 c W/0 Dr. K. C. ~ Sanger (Ex- :::0 Chairman) m "U 0 9. Sh. Ram Kumar f\AA. Official Field Assistant in 15. 12. 2004 14. 12. 2010 :::0 Kashyap, (Econom ics) ESA Department ~ (j) (Member) LLB. 'i\3 ~ 0 ...... .. _. 0 ...... ~ ); 0 0 r (j) () :::0 IN RE: MEHAR SINGH SAINI , CHAIRMAN, HpSC 681 [SWATANTER KUMAR, J. ] present inquiry, it will be appropriate to reproduce the Reference A dated 31st July, 2008 made by the President of India to this Court: "WHEREAS the Governor of Haryana, vide letter dated 16th January, 2007 together with a reference from B the Government. of Haryana, has set out the grounds for the removal of the existing Chairman and Members of the Haryana Public Service Commission under Article 317(1) ~:m grounds of misbehaviour (A copy of the letter dated 16:1.

2007 along with the copy of reference with annexures mentioned therein is enclosed), · C AND WHEREAS from the reference prepared by the Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service D Commission, which were made without due regard to their qualifications, experience, status and accomplishments, . required for appointment to the said constitutional posts, AND WHEREAS from the reference prepared by the Government of Haryana it appears that S/Shri Mehar Singh E Saini, Dungar Ram, O. P. Bishnoi -and Chattar Singh, as members of the Selection Committee, recommended the name of Shri Pradeep Sangwan for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, F Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and .

the Prevention of Corruption Act, 1988 anq for which . these persons were arrested and challan has already been·filed in the Trial Court, G AND WHEREAS from the reference prepared by the Government of Haryana it appears that Shri Mehar Singh Saini, Chairman and S/Shri Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir H 682 SUPREME COURT REPORTS [2010) 14 (ADOL) S . C. R_·. A Singh Hooda, R. K. Kashyap and Smt. Santosh Singh as Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints · s regarding selections made by the Commission, AND WHEREAS I am satisfied from the above referred material before me that it is necessary that the said allegations be inquired into . . .

c Now, therefore, in exercise of the powers conferred upon me by clause (1) of the Article 317 ofthe Constitution, I, Pratibha Devisingh Patil, President of India, do hereby refer to the Supreme Court of India for enquiry and report as to whether the existing Chairman and Members of the Haryana Public Service Commission, ought,on the grounds 0 of misbehaviour, be removed from the office of the Chairman and Members of the Commission. " 12. Itis evident from the above-mentioned Reference that the Chairman as well as all the eight Members are alleged to E have conducted themselves in a manner, which amounts to misbehaviour within the meaning ofArticle 317(1) and, thus, are liable to be removed from their office. We may notice from the second tabulated statement afore-referred that out of the nine Members, six have already vacated their office as their term of F appointment to the Commission has ended by efflux of time.

Thus, out of the nine appointed Members, presently only three Members are holding the office of the Chairman/Members in the Commission. However, vide order dated 9th August, 2008, passed by the Governor of State of Haryana, the Chairman and G all the Members of the Commission were placed under suspension. While Mr. Mehar Singh Saini, Chairman, Mrs. Santosh Singh and Mr. Ram Kumar Kashyap, Members of the Commission continued to be Chairman and Members of the Commission under suspension respectively till date, there other H Members remained under suspension till expiry of their •, IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 683 . {SWATANTER KUMAR, J. ] respective terms. A 13. Amongst other complaints, a complaint in the matter of the appointment of Pradeep Sangwan as Drug Inspector was also r~·ceived and inquiry is stated to have,been conducted by the State Vigilance Bureau vide Enquiry No. 5 dated 16th May, B 2005, Chandigarh and subsequently FIR No.

15 dated 8th August, 2005 under Sections 420, 468, 471, 1208 lPG and Section 13(1)(c) & (d) ofthe Prevention of Corruption Act, 1988 was registered at Police Station SVB, Rohtak. In the vigilance inquiry, Dr. K. C. Bangar, the then Chairman, Shri Mehar Singh Saini, former Member and present Chairman, Shri Dungar Ram, Shri C Chattar Singh and Shri Om Prakash Bishnoi, Members of the Commission , were founq to be involved in criminal conspiracy for selection of Pradeep Sangwan. With respect to other complaints, which have been received in relation to Various selections, made by the Commission in respect of various civil D posts in the State Government, the State Vigilance Bureau initiated different enquiries being Enquiry No. 1 dated 16th May, 2005, Enquiry No. 3 dated 21st April, 2005 and Enquiry No. 4 dated 25th April, 2005. Enquiry Nos.

1 and 3, related to allegations of corruption and irregularities in recommending E candidates for appointment to different posts for the period 2000 to 2004, led to registration of FIR No. 20 dated 18th October, ·'2005 under Sections 420, 468, 471, 120B IPC, read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. For the investigations and enquiries above-referred, F ' records were required by the investigating agencies and they wrote various letters to the authorities ofthe Commission to hand over the same for expeditious completion of inquiry. However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, G despite repeated demands, had not been handed over to them. As a result of non-cooperation by the Chairman and Members of the Commission, proceedings in the Court were initiated in which, ultimately, the High Court of Punjab and. Haryana in Haryana Public Service Commission v.

State of Haryana (Writ H 684 SUPREME COURT REPORTS (2010] 14 (ADDL) S. C. R. A Petition no. 12593 of 2005) [(2005)141 PLR 486]. passed an order dated 12th August, 2005 making certain observations against the conduct of the Commission , its Chairman and Members. We will be referring to this order in some detail shortly. Against this order ofthe High Court, Special Leave Petition was s preferred before this Court, which came to be dismissed as withdrawn vide order dated 19th. September, 2005. Separate proceedings were also initiated by the Member(s) of the Commission in their own right, who had prayed for permission to file Special Leave Petition, against the order of the High Court c but the same was also declined by this Court vide order dated 28th October, 2005. 14. We have already mentioned that it is the case of the State Government that after noticing the irregularities and favouritism on a mass scale and on suspicion of serious charges D of corruption .

against the Chairman and Members of the Commission,. the Governor of Haryana had passed an order dated 9th August, 2008 suspending the Chairman and the Members of the Commission. The validity and legality of this order of suspension was questioned by the affected Chairman E and Members ofthe Commission by filing a petition under Article 32 of the Constitution before this Court, which came to be dismissed by a detailed order dated 7th August, 2009 reported as Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant extract of the order reads as under: F "16. It is very clear that since the Public Service Commissions.. are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and ·suspension of the G members of the said Commissions.

Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09. 08. 2008 under Article 317(2) of the Constitution and the H impugned notification dated 09. 08. 2008 are valid and not IN RE: MEHAR SINGH SAINI , CHAIRMAN, HPSC . 685 [SWATANTER KUMAR , J . ] liable to be quashed . The writ petitions are dismissed. " A 15. In view of the order of this Court, the order of suspension · passed against the Chairman/Members ofthe Commission, the respondents herein, attained finality. 16. As a result of various enquiries being conducted by the B Vigilance Bureau of State of Haryana and other investigating agencies in furtherance to FIR Nos.

15 and 20 of 2005 dated 8th August, 2005 and 20th October, 2005 respectively, various documents/correspondence and other evidence cam~ to light which, according to the State, pointed towards the involvement c of the Chairman and Members of ·the Commission in mal practices, favoritism and even to some extent corruption in the functiol)1ng of the Commission in making selections and recommending names to the State Government for appointment" to various posts. These documents, along with certain additional 0 charges, were placed on record before this Court. Only three articles of charge were stated in the Presidential Reference. However, during the pendency of the matter before the Court and because of subsequent events the State Government filed . additional articles of charge. Six charges were sought to be E added to the charge-sheet, in all bringing the total to nine.

From the record , it appears that the matter was heard at some length and on 22nd April, 2009, a Bench of this Court passed the following order: "Heard Mr. Shanti Shushan, learned senior counsel F appearing for the Chairman of the Haryana Public Service Commission, and alsoMr. Harish N. Salve, learned senior counsel appearing for the State of Haryana. Mr. Shanti Shushan, learned senior counsel has objected to the draft charges Nos. 1, 4, 7 and 8. The G objections were regarding the very appointment of the Chairman as one of the grounds of misbehaviour under Article 317(1) of the Constitution of India. It was argued on behalf of the State that the verj appointment itself requires H 686 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A consideration. therefore, these draft charges require to be looked into. As regards other charges, it was alleged by Mr.

Shanti Shushan that many of the facts are not stated either in the Presidential reference or in the Governor's letter of reference in detail. However, State counsel replied that s they have materials to substantiate all the charges. Itis made clear that the Chairman of the Public Service Commission would be at liberty to raise legal objections at the time of adducing evidence on these draft charges. Draft charges are approved. C The State is directed to file list of witnesses and documents by 15th July, 2009. Post on 21st July for further orders. " 17. In light of the above order, the parties were given opportunity to lead the evidence on all the nine articles ofcharge. 0 The documentary and oral evidence was led by the State and, as many as, 31 witnesses were examined. The Chairman and Members of the Commission did not examine any witness. It will be useful to refer to the articles of charge which were E approved by this Court vide its order dated 22nd April, 2009. "1.

That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, F status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to G ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution. H IN RE: MEHAR SINGH SAINI, CHAIRMAN , HPSC 687 [SWATANTER KUMAR, J. ] 2. That Sh. M. S.

Saini, as a member of the selection A committee , recommended the name of Shri Pradeep Sangwan for selection to the post of drug Inspector on the basis of the bogus certificate in which the charges of criminal conspiracy and indulgence in acts of corruption have been brought B out against him. He has since been arrested and released on bail and the final investigation 'report has been placed before the criminal court for trial. His involvement in a case of criminal co-nspiracy, which is pending trial, constitutes misbehaviour under c Article 317(1) of the Constitution. 3. That Shri Mehar Singh Saini refused to cooperate in the investigation being carried out by the State Vigilance Bureau, ins pite of the directions issued by the Hon'ble Supreme Court, in complaints D regarding selections made by the Commission and his deliberate non-supply of documents needed in the inquiry . and refusal to co-operate in the investigations.

This constitutes misbehaviour within the meaning of Article 317(1). E 4. That~he bare reading ofthe contents ofthe additional d. ocuments placed on record, including inspection reports dated 24. 1. 2008/1 . 2. 2008 and the interim order dated 14. 1. 2008 , passed by the Hon'ble F Punjab and Haryana High Court in CWP No. 15,390 of 2002, clearly established that the acts of manipu_lations and interpolations in answer-sheets of favourite candidates was deliberate abuse of the process of sele~tion by Sh. Mehar Singh Saini as G Member of Haryana Public Service Commission, in the ~election of 2002 for Haryana Civil Services (Executive and Allied) Examination in the year 2002 and the same constitute an act of grave misbehaviour, warranting the invocation of Article 317(1) of the Constitution of India, for his removal. H 688 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A 5. That the acts of omission and commission of Sh.

Mehar Singh Saini as Member of Haryana Public Service Commission and his subsequent act and conduct as Chairman of Haryana Public Service Commission in making deliberate efforts to with-hold the material record , which was required by the B investigating agency to investigate the complaints received by the Government regarding serious illegalities and . irregularities committed by the Chairman and Member of the Commission while making selections including the selection of 2002 c for Haryana Civil Services (Executive and Allied), again clearly establish his grave misbehaviour as · envisaged under Article 317(1) of the Constitution of India, warranting his removal. D 6. That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh .

Mehar Singh Saini E constitute an act of grave misbehaviour warranting invocation ofArticle 317(1) ofthe Constitution of India for his removal. 7. That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by F defending the above mentioned patently illegal acts which constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India f9r his removal. 8. That Sh. Mehar. Singh Saini, Chairman of Haryana G Public Service Commission and S. /Sh. Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, Smt. Santosh Singh and R. K. Kashyap wrongly and unlawfully decided to file a written reply on behalf of H \ . IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 689 [SWATANTER KUMAR, J . ] the Haryana Public Service Commission to the A inspection reports dated 24. 1. 2008/1. 2. 2008 vide reply dated 25/2/2008 in CWP No.

15390 of 2002, attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana B Civil Services (Executive & Allied), which was finalized by the Commission in 2002. 9. That Sh. Mehar Singh Saini, Chairman of Haryana Public Service Commission and the members S/ Sh. Dungar Ram, Chattar Singh , Yudhvir Singh, q Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, Smt. Santosh Singh and R. K. Kashyap had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional D authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigat! ng agency.

This deliberate act on their part clearly E amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal. " 18. Thus, this Court has been called upon to examine whether the conduct of the Chairman/Members of the F Commission amounts to misbehaviour in light ofthese approved articles of charge and the evidence produced on record, which would justify their removal in terms of Article 317(1) of the Constitution. 19. The challenge by Mr. Shanti Shushan, learned senior G counsel appearing on behalf of one of the respondents in the present Reference, to the additional charges, which have been approved by the Court, is, primarily, on the ground that the jurisdiction of this Court in terms of Article 317(1) is a limited jurisdiction and the Court has to conduct its inquiry and record H 690 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R.

A its finding in the report only in relation to the articles of charge referred to by the President in exercise of its powers under Article 317(1). Thus, this Court has no jurisdiction to go into the merit or otherwise of the said additional articles of charge. It is his submission that it is not an omnibus Reference. It is also B contended that Charges 4, 6, 7 and 8 are new articles of charge and have no link to the referred charges and as such they are beyond the scope of Reference. Further, it is argued that there is no evidence on record to substantiate any of the approved articles of charge, even if it is assumed for the sake of argument c that the Court can examine all the approved articles of charge. Thus, it is stated that the Presidential Reference to this Court is ex facie a case of no evidence but political vendetta alone. It was also contended that the entire evidence produced in respect of the allegations has not been tendered in accordance with law.

A police officer cannot prove the allegations merely by filing 0 an affidavit. Thus, it is no evidence in the eye of law. In regard to charge 1, relating to qualification and status of the Chairman and Members of the Commission, it is argued that this approved article of charge itself suffers from infirmity of non-application of min'd as no qualification or status has been prescribed under E Article 316 of the Constitution for such appointment. 20. While refuting these arguments, Mr. Mishra, learned counsel appearing for the State of Haryana, argued that all the articles of charge can be gone into by this Court inasmuch as F the charges are interlinked as well as they were duly approved by the order of this Court dated 22nd April, 2009.

According to him, though no specific qualifications have been provided under Article 316 of the Constitution, but keeping in view the constitutional functions of public importance performed by the G Commission, it is expected that persons of adequate educational qualification, experience and proper status should be appointed to the Commission. The respondents are alleged to have managed their appointments to the Commission as its Chairman and Members. In support of these submissions, H reference has been made to the qualification of the Chairman, IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 691 [SWATANTER KUMAR, J. ] who was a private practitioner with degree of BAMS,while some A of the Members were graduates only. The wife of the former Chairman of the Commission, on his exit, was immediately appointed as a Member of the Commission; and Mehar Singh Saini was appointed as Chairman on 1st December, 2004, the very date on which his term as member was to expire.

These 8 appointments, thus, have been made only for gaining political mileage and to make selections on the basis of favouritism and other extraneous considerations. According to the learned counsel there is sufficient evidence, documentary and oral, on record to substantiate and prove the approved articles of charge C in accordance with law. With reference to the charge of noncooperation, it is contended that despite the order of the Punjab and Haryana High Court, the course of action adopted by the Chairman and Members of the Commission is not only misbehaviour but is contemptuous to the extent that it violates 0 prudent norms of governance in accordance with law. The acts of favouritism , manipulation of records and the conduct of the Chairman and Members of the Commission are unacceptable from constitutional functionaries and, therefore, they are liable to be removed from their office.

We may notice that the learned counsel appearing for some of the other respondents principally E adopted the arguments advanced by Mr. Shanti Shushan, but added greater emphasis on the contention that exercise of right of privilege in relation to records of the Commission, being affairs of the State, was a justifiable claim. Further, the charge that the Chairman/Members of the Commission do not possess F requisite qualification and experience is no charge in the eye of law that can be attributed to the private respondents, as the Constitution itself does not provide for any such qualification and experience. As such, both these charges cannot, in law, amount to misbehaviour as contemplated under Article 317(1) G of the Constitution. 21. Before we proceed to examine the merit or otheJWise of the contentions raised before us as well as the evidence on each approved article of charge, reference to Article 317 of the H 692 SUPREME COURT REPORTS [201 0] 14 (ADDL. ) S. C. R.

A Constitution would be proper. Article 317 reads as under: "Article 317- R~moval and suspension of member of a Public Service Commission-(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from B 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 article 145, reported that the Chairman or such other c member, as the case may be, ought on any such ground to be removed.

(2) The President, in the case of the Union Commission or a Joint Commission, and the Governor in the case of a State Commission, may suspend from office the Chairman or any D other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. E (3) Notwithstanding af)ything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,- (a) is adjudged an insolvent; or F (b) engages during his term of office in any paid employment outside the duties of his office; or (c) is, in the opinion of the President,unfit to continu~ in office by reason of infirmity of mind or body.

G (4) If the Chairman or any other member ofa Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in H IN RE: MEHAR SINGH SAINI, CHAIRMAN , HPSC 693 [SWATANTER KUMAR, J .. ] any benefit or emolument arising therefrom otherwise than A as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1 ), be deemed to be guilty of misbehaviour. " 22. A bare reading of Article 317 shows that the 8 constitutional protection for the term of office of Chairman and Members ofthe Commission is provided to ensure independent fu. nctioning of the Commission. The working of the Commission and its Members has to be of impeccable integrity and rectitude.

The object should be to provide the best persons from the available candidates for appointment in the State/Central C cadres. This has to be done by adopting a judicious, fair and transparent method of selection, free· of influence from any quarter. in the Government or otherwise. That is why the framers of . the Constitution clearly distinguished appointments to the Commission from appointments to the State Services or All India 0 Services. The Members ofthe·Commission cannot be subjected to regular departmental enquiries and can only be removed from their office by strictly complying with the provisions of. Article 317 of the Constitution. This·provision contemplates removal of the Member on two different grounds.

First, where a Chairman E or Member could be removed on the ground of misbehaviour by the President only after making a Reference to this Court and · where this Court has given a report, after holding inquiry in accordance with the prescribed procedure, that the Chairman _. or. the member ought to be removed on the grounds stated in F that report. Second, by reason of automatic disqualification as provided under Article 317(3) and (4) of the Constitution. The President of India can act without any report from this Court in . terms of Article 317 (3) and (4). Under Article 317(4), if the Chairman or Member of the Public Service Commission G becomes interested or concerned in any agreement or in -any profit thereof or commits any of the stated defaultss, then such Chairman/Member shall be deemed to be guilty of misbehaviour for the purpose of clause (1) of Article 317. Article 317 thus provides for a complete and composite proced~re, which is to H .

694 SUPREME COURT REPORTS [2010] 14 (ADOL. ) S. C. R. A be adopted by the President of India, before a Chairman/ Member of the Commission can be removed from his office. Making Ref~rence to this Court under Article 317(1) of the Constitution invokes the Reference/Advisory jurisdiction of this Court. In the scheme of the Constitution relating to this aspect, s it is clear that before the Reference can be made to this Court, certain procedure is required to be satisfied. The Governor, acting on the advice of the State Government, would request the President for taking steps for removal of a Member in accordance with the provisions of Article 317(1) of the c Constitution. There is requirement of proper application of mind by the President while making a Reference to this Court and it is but natural that Reference to this Court would be made only whefe'tHe President is satisfied that a prima facie case of misbehaviour is made out. D 23.

In light ofthe above provisions, it is obvious that normally this Court would follow the prescribed procedure and record its findings only on the articles ofcharge referred to by;the President. However, in some cases, the Court may take cognizance and examine the articles of charge which are incidental/explanatory E to the articles of charge mentioned in the Reference. In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge F subsequently suggested before this Court and the original articles of charge referred by the President.

The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by G the Government, during the process of inquiry before this Court. 24. Article 317(1) requires that the inquiry held by this Court is to . be in accordance with the procedure prescribed in that behalf under Article 145 of the Constitution. Article 145 empowers the Supreme Court to make rules, with the approval H of the President, for regulating generally the practice and IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 695 [SWATANTER KUMAR, J . ] procedure of this Court. In turn, Article 145(1 )0) specifically A empowers the Supreme Court to frame Rules, with the approval of the President of India, to regulate the procedure for enquiries referred to under clause (1) ofArticle 317 of the Constitution.

Of course, such rules have to be subject to any law that may be e·nacted by the Parliament. The Supreme Court has framed the B following rules under Part VI , Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution:- "1. On receipt by the Registrar of the order of the President referring to the Court a case for inquiry under article 317(1) C of the Constitution, the Registrar shall give notice to the Chairman or Member of the Public Service Commission concerned and to the Attorney-General for India or the Advocate-General of the particular State to appear before the Court on a day specified in the notice to take the 0 directions of the Court in the matter of the inquiry. A copy of the charges preferred against him shall be furnished to the respondent along with the notice. 2. The Court may sum'r'non such witnesses as it consider E necessary. 3.

After the hearing of the reference under article 317(1) of the Constitution, the Registrar shall transmit to the President the Report of the Court. F 4. No Court-fees or process fees shall be payable in connection with any reference dealt with by the Court under this Order. " · 25. A plain reading of these Rules clearly shows that no detailed procedure has been provided so far, as to how and in G what manner the inquiry shall be coflducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left tv the discretion of this Court to follow a procedure whic~ is in consonance with the language of Article 317(1), read with the above Rules and H 696 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A principles of natural justice.

Inherent power of this Court is wide enough to enunciate such a procedure, with reference to the facts and circumstances of a given case , as Rule 6 of Order XLVII of the Supreme Court Rules specifically provides that nothing in these Rules shall be deemed to limit ·or otherwise B 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. In the Matter of Reference under . fl. rlicle 317(1) of the Constitution of India [{1983) 4 sec 2S8] (hereinafter referred to as 'Reference 1 of 1983J this Court, c while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence.

Evidence, as far as practicable, has to be recorded in accordance w ith the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order 0 XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the . misbehaviour of the Chairman/Members of the Commission. E 26. Article 316 of the Constitution of India regulates appointment of Chairman and Members of a Public Service Commission. Proviso to Article 316(1) provides·that, as nearly as may be, one half of the members of every Public Service F Commission shall be persons who, at the dales of their respectiv~ appointments, have held office, for at least ten years, either under 'the Government of India or the Government of a State. ln other words, one-halfofthe members ofthe.

Commission who are to be appointed by the Governqr, should have held G 'public office' for a period often years prior to their appointments and are normally terrned as 'official members'. However, it ! s not necessary for the remaining one-half of the members of the Commission to possess such qualifications or experience for appointment and they are termed as 'non-official members'. H IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 697 [SWATANTER KUMAR, J. ] 27. The power to remove a Chairman/Member of the Public A Service Commission has be~n vested exclusively in the President. This power, under the scheme of the constitutional provisions, is to be exercised by the President only upon report 1 of the Supreme Court that the conduct of the member is tantamount to misbehavior of the kind that justifies his removal 8 from the office, except in cases specifically covered under Clauses (3) and (4) of Article 317.

Upon a Reference from the President, the jurisdiction of the Court is, primarily, advisory inasmuch as the Court,in its report to the President, has to record a finding that the delinquent Chairman/Member is guilty of the c misbehaviour complained of, which would justify his removal from the office. The articles of charge, whic·h are referred to the Court by the Preside! 'lt. are the very foundation ·of the ref~rence proceedings . Reference jurisdiction, by its very nature, is jurisdiction of limited scope in contradistinction to original or D appellate jurisdiction of the Supreme Court. For that reason, it may be difficult for the Court to hold that in exercise of its limited jurisdiction, the Court can frame such entirely new articles of charge which have no link, connection or are not even explanatory to the original charges stated in the Presidential Reference and E try them as part ofthe inquiry being conducted by the Court under Article 317(1) of the Constitution.

\This will not be true where the charges are found to be linked, inter-dependent, explanatory or incidental to the main articles of charge referred by the President to this Court. This would depend upon the facts and circumstances of a given case, but it can be stated with some F certainty that this Court can examine articles of charge, facts or evidence which were not before the President while making a reference to this Court. Such need may arise because of subsequent events, as a result of investigation or otherwise, and which have a direct connection to the matters in issue. Thus, the G contention of the respondents that this Court can neither frame nor examine additional charges beyond, or in addition to, the articles ofcharge referred to in the Presidential Reference cannot be accepted as a proposition of law. The scope of inquiry by this Court is of a wide nature and has to be regulated by the H 698 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R.

A procedure which may be prescribed by the Court in terms of the above stated provisions of law. 28. In Reference 1 of 1983 referred by us supra, this Court also examined whether additional facts or grounds can be examined while holding an inquiry into the matters referred in 8 the Presidential Reference and held as under: "7. ... 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 ofsuch a nature c as to wa"ant 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.

D The purpose of Article 317(1) 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 E procedure prescribed by Article 124(4) which is made_ applicable to the Judges of High Courts, the Comptroller and Auditor-General of India and the Chief Election Commissioner by Articles 218, 148 and A 324(5) respectively. Members of Public Service Commissions are, F 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 G 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 H power ofdetermining whether the facts found by some other IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 699 [SWATANTER KUMAR, J. ] body establish misbehaviour in one case and misbehaviour A 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. " B (emphasis supplied) 29. We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had mad~ a Reference under Article 317(1) of the Constitution relating to various aspects of c misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission.

The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 D , charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly . within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of Thus, the charges were framed/ E approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evi~ence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office. While dealing with the Reference on these facts and discussing the scope of F the inquiry to be conducted by the Court in terms of Article 317 (1) of the Constitution, the dictum ofthis Court as stated in para 5 of the judgment in Reference No.

1 of 1983 (supra) was reiterated with approval as follows: "5. The contours of enquiry when a reference is made by G the President of India under Article 317(1) ofthe Constitution of India "has been clearly drawn by this Cou. _rt in Special Reference No. 1 of 1983 [1983] 3SCR639 . This Court· therein has held that the President's prima facie satisfaction based on available materials was enough for making a H 700 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A reference to this Court under Article 317(1) of the Constitution of India and that there was no need for the President to obtain the opinion of any fact finding body before making a reference. The enquiry which this Court is required to hold is not into the limited questionwhether, on the basis of facts found by the President, the charge of 8 misbehavior is made out and whether the misbehavior 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 so as to enable the Court to pronounce upon the question whether the allegations made c against the member are proved. This Court also indicated the procedure that could be conveniently followed when this Court is called upon to answer a reference under Article 317(1) of the Constitution of India. " D 30. To apply the rule of strict construction to the language of Article 317(1) of the Constitution to the extent that the Court cannot examine any facts, records or extended charges, would defeat the object of this provision and the constitutional intent. While it may be possible to argue that Presidential Reference E in such cases is not an omnibus Reference which will include each and every misbehaviour of all time, it will not be possible to accept the argument that the allegations stated in the Presidential Reference stricto sensu can be examined by this Court and nothing else.

Keeping in view the stature of the F Commission, it is important to understand the message behind the provision and the intendment of enacting Articles 316 to 318 of the Constitution. The Constitution has assigned a definite stature to the Commission and has provided special methodology and procedure for removal of its Chairman/ G Me,mber(s) from their respective offices. The message behind this constitutional scheme may stand frustrated if the argument advanced on behalf ofthe respondents is accepted. This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme H Court being the highest Court of the land, its vitality is a national IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 701 [SWATANTER KUMAR, J. ] imperative.

The primary institutional task of this Court is to clearly A understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light ofthe constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above 8 discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having c a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference. 31.

Another facet of the same issue is the nomenclature of the proceedings before this Court while conducting an inquiry D in terms of Article 317(1) ot. the Constitution. The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship ofemployer and employee, alleged misconduct being in breach of the rules/ E regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and F regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution . This distinction is a marked one.

Keeping in mind the constitutional protections available to the Chairman and Members of the G Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even H 702 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution s bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission.

The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of c proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. In the case of Ram Kumar Kashyap (supra), this Court while upholding the order of suspension of the very respondents in the present case, passed by the Governor in exercise of the powers vested under Article 317(2) of the Constitution, held as under: 0 "9. It will be useful to refer to a judgment of this Court in Reference underArticle 317(1) ofthe Constitution ofIndia, In re wherein it was held that the position of a Chairman or a member of a Public Service Commission cannot be E equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under Article 317.

The relevant observations were made at para 9: F "9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case ofa member of the Commission is different. The latter holds a constitutional post and is governed by the special G provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. In·our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present H matter and the reference will have to be answered IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 703 [SWATANTER KUMAR, J. ] on the merits of the case with reference to the A complaint and the respondent's defence. " 32. Therefore, principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) ofthe Constitution.

Inter alia, it is for the reason that being 8 constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services. 33. The next limb of the same argument is with regard to C applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is o neither practicable nor possible to apply the norms of crim"inal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability.

Under the service jurisprudence, a person E may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to · F the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis. That may be G one of the reasons that the framers of the Constitution opted not to give power of removal of Chairman/Member of the Commission to any other person except the President of India, and that too, on the basis of a report of this Court. Further,.

the H 704 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A procedure for removal has neither been stated in the Constitution in detail nor has this Court framed any elaborate rules in exercise of its power under Article 145 of the Constitution. The nature of the proceeding is such that it may become necessary for the Court to adopt a procedure befitting the facts and circumstances a of a given case. Thus, we also have no hesitation in rejecting the contention ofthe respondents that the burden of proof applied to such cases has to be 'beyond reasonable doubt'. In fact, we need not deliberate any further on this point in view of the fact that this Court in the case of Smt. Joshi (supra) also took the c same view, the reasoning whereof we adopt with respect and refer to paragraph 15 of the judgment which reads as under : " 15.

Learned counsel for Respondent 3 argued as if this reference was a criminal trial and the charge against the respondent has to be proved beyond reasonable doubt. D Learned counsel for the Public Service Commission submitted that these proceedings were neither in the nature of a criminal trial nor in the nature of the service dispute, but that it was a question of an inquiry into the conduct of a member of the Public Service Commission who was E expected to maintain the highest standards of integrity. This Court in Reference underArticle 317(1) of the Constitution ofIndia, In re while answering Special Reference No. 1 of 1983 had noticed: "9. The case of a government servant is, subject to the F special provisions, governed by the law of master and servant, but the position in the case of a member of the Commission is different.

The latter holds a constitutional post and is governed QY the special provisions dealing with different aspects of his office as envisaged by Articles 315 G to 323 of Chapter II of Part XIV of the Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint H IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 705 [SWATANTER KUMAR, J. ] and the respondent's defence. " A 34. Further in para 143, this Court held as under : "143... As we have indicated in the beginning, what we are concerned with is the appreciation of the evidence of PW 15 examined before us in the light of his cross-examination, 8 the other evidence and in the light of his prior statement contained in Ext. 53. So viewed, it is really a question of believing or disbelieving the evidence of PW 15 given before us.

We are not dealin_g with a prosecution and in that context the alleged confession of a co-accused. We c ; are on a fact-finding enquiry based on the evidence before us and the probabilities of the case. " 35. The above reasoning persuades us to follow the law enunciated in the afore-referred cases and take . the view that 0 the content and nature ofthe proceedings before this Court under Article 317(1) is sui generis and the Court can evolve its own procedure in consonance with the principles of natural justice to suit the facts of a given case and to ensure that ends ofjustice are achieved and there is no abuse of the process of Court. E Discussion on the scope of approved articles of charge 36. There is no doubt that in the Presidential Reference dated 31st July, 2008, there were only three articles of charge attributing misbehaviour to the Chairman and Members of the Commission. We have reproduced them above.

However, F because of subsequent investigation, certain additional facts, documentary evidence came to the notice of the concerned authorities. On the strength of the subsequent events and additional information thus acquired, it is stated on behalf of the Government that attitude of complete non-cooperation was G adopted by the Chairman and Members of the Commission as a result of which complete records could not be placed before the Governor/President. It is also submitted that the newly nominated Members of the Commission decided to hand over the records to the inquiry/investigating agencies. As a result H 706 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A thereof it became possible for the authorities and the State Government to place the same before this Court in these proceedings.

We do not wish to examine this issue in any further elucidation at this stage as non-cooperation itself is a separate charge against the respondents and it will be more appropriate to discuss the entire issue at that stage. 8 37. Nine articles of charge were proposed to be framed and they were termed as draft charges, which we have already referred to in the earlier part of the judgment. They came to be plaeed for the consideration ofthis Court. Arguments were heard C and vide order dated 22nd April, 2009, the draft charges framed were approved by this Court. Once the charges have been approved by the Court, the parties have gone to trial on all the approved articles of charge and have led evidence in support thereof. There can hardly be any bar for this Court to consider D all the approved articles ofcharge. Besides this, the respondents were given liberty to raise legal objections at the time of adducing evidence on these draft charges.

This liberty was granted on the contention raised that the referred articles of charge are not complete and several facts have not been stated either in the E Presidential Reference or in the Governor's letter of Reference. In face . of this order, we are afraid that we cannot accept the contention now that charges 4 to 9 n~ed be excluded from the zone of consideration by this Court.. ~ 38. The approved articles of charge 1, 3, 5, 8 and 9 h~ve F been framed against all the nine private respondents. Charges 4, 6 and 7 have been framed only against respondent No. 1. Lastly, Charge 2 has been framed against respondents No. 1 to 4. While Charge 1 relates to lack ofqualification and experience. Charges 3, 5 and 9 relate to non-cooperation by passing G resolutions not to handover the records to the inquiring/ investigating agencies. Charges 6 and 7 relate to influencing subordinates and abuse of public office by the respondent specifically named under these charges.

Charge 2 attributes misbehaviour to respondent Nos. 1 to 4 in relation to irregular H appointment of Pradeep Sangwan. IN RE: MEHAR SINGH SAINI , CHAIRMAN, HPSC 707 {SWATANTER KUMAR, J. ) 39. Charge 3, as approved by this Court, relates to refusal A on the part of all the respondents to cooperate and to supply documents, as required by the investigating agencies. Charge 5 of the approved articles of charge also refers to withholding of the material records which were required by the investigating agencies as well as by the Government in face of the fact that B the Government had received complaints of serious irregularities and illegalities committed by the Chairman and members of the ·Commission in various selections including selection to the Haryana Civil Services (Executive Branch) and Allied Services Exam. ination, 2002. Charge 9, again, is a repetition and, c primarily, refers that there was direction to the Commission to cooperate with the investigating agencies.

Despite such orders, the Commission did not cooperate and such conduct amounted to misbehaviour on their part. All these three approved articles of charge have been framed against all the nine respondents . D ·In the letter of the Governor to the President dated 16th January, 2007, it has been specifically mentioned that several complaints were rece ived against various selections made by the Commission. Enquiries by the Vigilance Bureau as well as by other investigating agencies, in furtherance to the FIRs E registered, were pending. The wrong and arbitrary selections had generated 139 Writ Petitions and seven Special Leave Petitions during the tenure of the Chairman/Members of the Commission, the respondents herein. Specific reference was made to the High Court's order directing the Commission to F fully cooperate. These charges are analogous to the third charge mentioned in the Presidential Reference.

Charges 5 and 9, as approved by the Court, thus, are explanatory and intrinsically inter-connected to Charge 3. Thus, these can be examined by the Court on merits. G 40. Charge 4 merely refers to the proceedings of Writ Petition No. 15390 of 2002 which had been specified in detail in the letter of the Governor to the President which itself is the foundation for making of the Reference by the President in the present case. Charge 4, in fact, is repetition in a concise form H 708 SUPREME COURT REPORTS [2010] 14 (ADDL. ) S. C. R. A of the paragraphs mentioned in the letter of the Governor. The • illegalities, manipulations and interpolations had been referred to not only on the records of this case but even in the Writ Petitions filed before the High Court. In terms of para 8 of Governor's letter. it is alleged that a reply had been filed by the Chairman B and Members ofthe Commission in an unlawful manner to cover up their o~n mistakes.

Further, Charge 8 is merely ancillary to Charge 4 which itself is not beyond the record which was placed before the President and, in any case, all these facts have come to light subsequently. We may also notice here that during the c course of hearing, some of the original answer sheets were produced before us, however, the entire compilation was filed and accepted, during the recording of evidence in the present inquiry. 41. Charges 6 and 7 of approved articles of charge are D inter-connected. However, we may notice that these approved articles of charge are totally independent and are not incidental or explanatory to the articles of charge specified in the Presidential Reference. They do not even emerge directly from the record produced before us.

The alleged malicious acts of E influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse ofthe public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine F explanatory, incidental or intrinsically inter-connected charges to the charges mentioned in the Reference and in that respect can take note of additional facts, take evidence and examine the entire rec. ord before it. But where the charges, apparently and in substance, are new and do not appear to be justifiable G on the basis of the record and there is no direct evidence to substantiate them, it may not be in the ends of justice that this Court should examine those articles of charge in the present inquiry.

In the event they are examined, the deli~quent Chairman/ Member of the Commission may suffer prejudice to his right of H IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 709 [SWATANTER KUMAR, J. ] ·defence and this may offend the constitutional protection that is A available to such Chairman/Member which cannot be permitted. Therefore, we would only proceed to examine Charges 1·5, 8 and 9. 'Misbehaviour' in contradistinction to 'misconduct' and B 'proved misbehaviour' 42. The condition precedent to an order being passed by the President of India, removing the Chairman/Member of the Commission from office, is a report of the Supreme Court to the President recording a finding after inquiry that the Chairman/ C Member ought to be removed from office on the ground of misbehaviour. The plain language of Article 317(1) indicates that the expression 'on the ground of misbehaviour' is an expression ofwide connotation and cannot be given a restricted meaning.

Normally, such term should be understood keeping in o view the nature of the misbehaviour complained of, the office in question and the standards expected to be maintained by the constitutional body in discharge of its functions. The framers of the Constitution opted to use different expressions in other Articles relating to misconduct or misbehaviour of other E Constitutional institutions. Use of different expressions in different Articles of the Constitution itself indicates the clarion intent of the framers to correlate a misconduct or misbehaviour to the constitutional status held by the person in terms ofexpected standards of performance, functions, integrity and rectitude. F .

· While in Article 317(1) of the Constitution the expression 'on the ground of misbehaviour' has been used, which is to be established by report of this Court, in Article 124(4) tlie expression 'on the ground of proved misbehaviour or incapacity' indicates a condition precedent to removal of a Judge of the Supreme Court from office. To demonstrate this clear distinction, G reference can usefully be made to Article 311 ofthe Constitution dealing with civil services. A civil servant such as Member of the All India Service or Civil Services of the State, though not a constitutional appointee in the sense understood under Articles 316 and 124, shall be dismissed or removed from office or H 710 SUPREME COURT REPORTS [2010]14 (ADDL. ) S. C. R. A r~duced in rank only after holding an enquiry in which he has been informed of the charges again st him and given a reasonable opportunity of being heard in respect of those charges.

The concept ofdoctrine of pleasure, which is applicable to civil servants, is not attracted in the constitutional appointments B under Articles 124 and 316. Removal is possible only when the conditions postulated under these Articles are satisfied. In order to clearly understand the fine distinction between misbehaviour and misconduct which at some places have even been treated synonymously, we may refer to some accepted definitions of c these terms. In Law Lexicon 2nd Ed . 1997, the te. rm 'misbehaviour' is explained as under: "ill-conduct: improper and unlawful behaviour. The term 'misbehaviour', in a statute providing that the award of arbitrators may be vacated if the arbitrators were guilty of D misbehaviour, is used to imply a·wrongful intention, and not a mere error of judgment, on t~e part of the arbitrators. 43. In Reference No.

1 of 2003 [(2009) 1 SCC 344] this Court noted that the expression 'misbehaviour' has not been E defined, but still ventured to provide certain examples of such misbehaviour which would constitute 'misbehaviour' as contemplated under Article 317(1) of the Constitution held as under: "28. Article 317, like Article 124{4) does not define F misbehaviour or enumerate what acts would constitute misbehaviour except that clause (4) of Article 317 makes an improvement in specifying misbehaviour, namely, being interested in any government contract. Outside clause (4), it is left to the Supreme Court to determine whether any G particular act or conduct is of such a nature as to warrant the removal of the Chairman or member on the ground of "misbehaviour". Ordinarily bribery, corruption and the like should be regarded as such "misbehaviour". But there is no limitation prescribed by the Constitution itself. H 30.

In Article 124(4) "misbehaviour" means wrong conduct IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 711 [SWATANTER KUMAR, J. ] or improper conduct. It has to be construed with reference A to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a B creation of some degree or mens rea by the doer. Willful abuse of constitutional office,willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be mi. sbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to c perform duties or willful abuse of the office would be misbehaviour. On the facts and in the circumstances of the case this Court is of the opinion that Charge 1 that Dr.

Mirdha, who was the Chairman of OPSC , committed misbehaviour by not informing that his two married 0 daughters were to appear in the examination is not proved. " 44. The expression 'misconduct' has been explained in Law ·r - ---· Lexicon (2nd Edn. ) as under : "The term "misconduct" implies a wrongful intention, and E not a mere error of judgment. Malfeasance; improper conduct. 45. Needless to notice neither misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil F Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved. In the case of R. P. Kapur v. S.

Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term 'misbehaviour' while dealing with the matter underthe Public G Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. 'Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained H 712 SUPREME COURT REPORTS [2010] 14 (ADDL. } S. C. R. A by the members of a particular service or office. This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004} 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex-Constable [(1992} 4 SCC B 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 and 11 of the judgment as under : "10... "6.

Thus it could be seen that the word 'misconduct' c though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; D forbidden act, a transgression of established and definite rule ofaction or code of conduct but not mere error of judgment, carelessness or negligence in performance ofthe duty; the act complained of bears forbidden quality or character. Its ambit has to be E construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope ofthe statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline.

F Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. " (See also Probodh Kumar Bhowmick v. University of G Calcutta and B. C. Chaturvedi v. Union of India. } 11. Section 35 of the Advocates Act, however. refers to imposition of punishment for professional or other misconduct. A member of the legal profession which is a noble one is expected to maintain a standard in a dignified H IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 713 [SWATANTER KUMAR, ~-] and determined manner. The standard requ ired to be A maintained by the member of the legal profession must be commensurate with the nobi lity thereof. A lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court. This Court in Bar Council ofMaharashtra v. M. V.

8 Dabholkar observed : "The high moral tone and the considerable public service the Bar is associated with and its key role in the developmental and disput~-processing activities and, aboye all, in the building up of a just C society and co:1stitutional order, has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline. " 46. This Court in the case of Union of India v. J. Ahmed 0 [(1979) 2 sec 286], while dealing with disciplinary proceedings, under the service law, explained the term 'misconduct' to mean conduct not expected of a member ~f service. conduct in a manner inconsistent with due and faithful discharge of duties and &ervice or gross or habitual negligence in performance of E duties. 47 . 'Proved misbehaviour' is an expression clearly distinguishable from the above terms of 'misbehaviour' and 'misconduct' as is apparent from the language of Article 124(4) of the Constitution. lntent, gravity and onus are of a much higher F degree.

The prefix 'proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play. This Court in the case of Sub-Committee on Judicial Accountability v. Union of India [(1991) 4 SCC 699] held as under: G "44. The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was H 714 SUPREME COURT REPORTS [2010J 14 (ADDL. ) S. C. R. . A intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge. If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity' it presupposes that B misbehaviour or incapacity has been proved earlier.

This is more so on account of the expression 'investigation and proof used in clause (5) with specific reference to clause (4). This indicates that 'investigation and proof' of misbehaviour or incapacity is not within clause (4) but within c clause (5). Use of the expression 'same session' in clause {4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i. e. , 'investigation and proof which is to be entirely governed by the enacted law and not the parliamentary 0 practice which may be altered by each Lok Sabha. 45. The significance of the word 'proved' before the expression 'misbehaviour or incapacity' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the E Public Service Commission.

The expression in clause (1) of Article 317 used for describing the ground of removal is 'the ground of misbehaviour' while in clause (4) of Article 124, it is, 'the ground ofproved misbehaviour or incapacity'. The procedure for removal of a member of the Public F Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the. Parliament under clause (5) of Article G 124. In view of the fact that the adjudication of the ground of misbehaviour under Article 317(1) is to be by the Supreme Court, ·in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of H the word 'proved' in Article 124(4) and the requirement of IN RE: MEHAR SINGH SAINI , CHAIRMAN, HPSC 715 [SWATANTER KUMAR, J .

] law for this purpose under Article 124(5). " A 48. All these expressions fall under different domains of jurisdiction and operate in distinct and different fields . The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that 8 the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/ misconduct qould be used interchangeably in certain C circumstances while in other they may have to be understood as clearly distinguishable. 'Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include 'grave . misconduct' or 'proved misbehaviour'.

This distinction has to be kept in mind by this D Court where the constitutional mandate refers to 'misbehaviour' which is an expression of very wide magnitude. As already held by this Court in the case of Reference No. 1 of 2003 (supra), this term must be construed very liberally so as to bring within its ambit the behaviour of. the Chairman/Member of the E Commission which, as per settled norms, was not expected of him/her. The expression 'misbehaviour' generally refers to a conduct which might erode the faith and confidence of the public at large in such constitutional office. F Discussion on merits of the approved articles of charge 49. Before we proceed to discuss the evidence on each approved article of charge, as well as record our findings in that regard, it is imperative to note, as already held, that we are only examining Charges 1 to 5, 8 and 9.

Charges 6 and 7 do not G require examination by this Court as they are ex-facie beyond the permissible scope ofthe Presidential Reference. The second aspect, which requires to be noticed by the Court, is that though approved articles of charge have been framed against all the private respondents, while the proceedings were pending, H 716 SUPREME COURT REPORTS [2010]14 (ADDL. ) S. C. R. A private respondents, namely, Doonger Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash and Dr. Ranbir Singh were suspended. vide order dated 9th August, 2008 and, thereafter, they have ceased to be the Members of the Commission as their terms of appointment has come to an end B by efflux of time during 9th June, 2009 to 9th August, 2010. The learned counsel, appearing for the State, submitted that though in view of the judgment of this Court in the case of Reference 1 of 1983 [(1990) 4 sec 262, para 8], the Court may be called upon to examine the misbehaviour even in respect .

of the c Chairman/Member whose term has already expired, still he has specific instructions not to press for recording of findings in the inquiry against these respondents. Consequently, while accepting this request which was unopposed, we further declare that this Court would not be examining the alleged misbehaviour of these private respondents. 0 Article of Charge 1 50. Therefore, the Court has to examine the correctness or otherwise of artiCle 1 of the approved charges only qua Mehar Singh Saini, Chairman, Mrs. Santosh Singh and Ram Kumar E Kashyap, Members of the Commission. It is alleged that their qualifications, experience and stature were not of the required standard for appointment to their respective constitutional offices. Their appointments have been made with a yiew to ensure that they would further the objectives ofthe political party, F then in power.

Thus, by conniving in the subversion of the Constitution, they are guilty of misbehaviour under Article 317(1) of the Constitution. 51. First, it needs to be noticed that the words 'by conniving G in the subversion of the Constitution' are introduced in the draft charges which, of course, stand approved by this Court. In any case, this is only an explanatory line and does not change the content and meaning of this article of charge, as stated in the Presidential Reference. The appointment to the office of H Chairman and Members of-the Commission is made by the IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 717 [SWATANTER KUMAR. J. ] Governor ofthe State in terms of Article 316 of the Constitution.

A Under proviso to Article 316(1), one half of the members of the Commission shall be persons who, at the dates of their respective appointments, have held an office either under the Government of India or under the Government of a State for at least 10 years, implying that the remaining half of the Members B of the Commission. can be appointe~ by the Governor in accordance with law. 'In accordance with law' means that they are to be appointed on the recommendation of the St