Kerala High Court
Unknown vs (Suo Motu Proceedings Initiated By The ... on 14 March, 2014
Bench: Thottathil B.Radhakrishnan, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935
WP(C).NO. 1547 OF 2014 (P)
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(SUO MOTU PROCEEDINGS INITIATED BY THE HIGH COURT ON THE BASIS
OF ACOMMUNICATION RECEIVED IN THE REGISTRY AND THE REPORT
SUBMITTED BY THE REGISTRAR, SUBORDINATE JUDICIARY)
RESPONDENT:
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THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM
BY SR. GOVERNMENT PLEADER SRI. NOBLE MATHEW.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 19-02-2014, THE COURT ON 14-03-2014 DELIVERED
THE FOLLOWING:
Prv.
"CR"
Thottathil B.Radhakrishnan
&
A.Muhamed Mustaque, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.1547 of 2014 in re some Tribunals and Courts = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of March, 2014 Judgment Thottathil B.Radhakrishnan, J .
1.This matter is registered by the High Court, suo motu, and is treated as a petition under the extraordinary jurisdiction under Article 226 and in exercise of the power of superintendence in terms of Article 227 of the Constitution of India, in re some Tribunals and Courts.
2.The substance of this suo motu proceeding is the fact that the work of the judicial officers posted on transfer to the Motor Accidents Claims Tribunals, Family Courts and as Special Judges (NDPS Act Cases) quite often get delayed, awaiting "notifications" by the Government of WPC1547/14 -: 2 :- Kerala. The situation needs consideration of the impact of the relevant laws on the jurisdictional issue in relation to such tribunals and courts in re their constitution.
3.Heard Sri.Noble Mathew, learned Senior Government Pleader. He has taken pains to bring to the notice of this Court, the relevant statutory provisions and notifications. The assistance of the Registry has also gone into making available the relevant papers and particulars, including facts reflected in the Synopsis, as to the situation that occurred following the General Transfers of Judicial Officers in 2012 and 2013. Motor Accidents Claims Tribunals
4.Section 165 of the Motor Vehicles Act, 1988, hereinafter referred to as the "1988 Act", provides for Claims Tribunals. Sub-section 1 of that section enjoins that a State Government may, by notification in the Official Gazette, constitute one or more Claims Tribunals for such WPC1547/14 -: 3 :- area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving different situations stated therein. Sub-section 2 provides that a Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof. Sub-section 3 of Section 165 provides that a person shall not be qualified for appointment as a member of a Claims Tribunal unless he is, or has been, a Judge of a High Court, or is, or has been, a District Judge. Sub-section 4 provides that where two or more Claims Tribunals are constituted for any area, the State Government may, by general or special order, regulate distribution of business among them. These provisions in Section 165 of 1988 Act are in pari materia with the provisions in Section 110 of the Motor Vehicles Act, 1939, "1939 Act", for short, which deals with the constitution of Claims Tribunals, subject only to the difference that a person who is qualified for WPC1547/14 -: 4 :- appointment as a District Judge is also brought in among those qualified for appointment as a member of a Claims Tribunal under the 1988 Act as can be seen from Section 165(3)(c) of that Act.
5.Section 217 of the 1988 Act which repealed the 1939 Act saved, among other things, any notification issued or any appointment made under the 1939 Act, and in force immediately before such commencement so far as it is not inconsistent with the provisions of the 1988 Act and such notifications issued or appointments made under the 1939 Act are deemed to have been issued or made under the 1988 Act.
6.As per notifications, including, G.O.No.(P)96/PW dated 21.4.1975 published as S.R.O.No.412/75 and G.O.(P).No.54/78/W&T dated 14.6.1978 published as S.R.O.No.569/78, the Government of Kerala constituted Claims Tribunals under the 1939 Act. The first among the aforenoted ones was modified and the second one superseded as per G.O.(P). No.60/W&T dated 23rd June, 1979. All those WPC1547/14 -: 5 :- notifications constituted Claims Tribunals for such areas as were specified in those notifications and it was ordered that each Claims Tribunal shall consist of a single member in the cadre of a District Judge. After the 1988 Act came into force on 1st July, 1989, Government issued G.O.Ms.No.112/89/Home dated 6.9.1989 sanctioning the establishment of 14 courts in various parts of the State, including a Claims Tribunal at Perumbavoor. That was followed by the issuance of G.O.Rt.No.2132/90/Home dated 17.3.1990 establishing Claims Tribunal at Perumbavoor and modifying the territorial limits of the Claims Tribunal, Ernakulam. Thereafter, G.O.(Rt)No.5311/90/Home dated 24.8.1990 was issued and published as S.R.O.No.1178/90 in exercise of powers under sub-section 1 of Section 165 of 1988 Act further amending the notification published under G.O.(P).No.60/W&T dated 23rd June, 1979. It is also worthwhile to note that Government issued G.O.(Rt).No.2427/2013/Home dated 2.9.2013 published as S.R.O.No.746/2013 constituting the Additional District and Sessions WPC1547/14 -: 6 :- Courts mentioned in column (2) of the Schedule to that Government Order as Additional Motor Accidents Claims Tribunals with the headquarters at the places specified in column (3) thereof, with concurrent jurisdiction over the local area of jurisdiction of the Motor Accidents Claims Tribunal existing at the headquarters specified against it in column (3) of that notification.
7.The aforesaid sequencing of notifications clearly shows that the Government had consistently operated its policy that the Claims Tribunals constituted by it under the different notifications shall be manned by a single member in the cadre of District Judge. Thus, the notifications are made with reference to the quality of office and the choice has been made by the Government on the basis of the identity of office, that is to say, as belonging to the cadre of District Judge, for the time being. Therefore, for all intents and purposes, the notifications issued under Section 110(1) of the 1939 Act and under Section 165(1) of the 1988 Act, amount to WPC1547/14 -: 7 :- constitution of Claims Tribunals specifying the area and the identity of the person who shall be the Tribunal; such identity of the person being expressed with reference to the service and cadre to which that officer belongs. From inception, the Government have carried its conscious decision under the relevant statutory provisions; that is to say, that an officer in the cadre of District Judge shall man the Claims Tribunal for the time being. While this does not take away the power of the Government to constitute a Tribunal in any other manner possible with reference to sub-sections 2 and 3 of Section 165 as rightly pointed out by Sri.Noble Mathew, for the time being, that is to say, during the currency of the notifications constituting the Tribunals as noted above and during the currency of similar notifications as may be issued from time to time, no further notification of the Government is necessary to identify the individual who would man the Tribunal from the cadre of District Judge by taking charge and discharging duties, responsibilities and functions of a particular WPC1547/14 -: 8 :- Claims Tribunal when an officer in the cadre of District Judge is transferred and posted by the High Court for the purpose of that Tribunal. This is because, District Judges are appointed by the Governor on the advice of the Council of Ministers, though selection is made by the High Court. Thereafter, their postings and transfers are within the administrative domain of the High Court and no further enabling or energising notification by Government is necessary for that officer to take charge and discharge duties and responsibilities of a Claims Tribunal on transfer and posting to that Tribunal or on being put in charge of that office. Primarily, no such "notification" is provided for in the 1988 Act; nor, was there any such requirement under the 1939 Act. More importantly, this is the harmonious way of construing the provisions in the different sub-sections of section 165 of the 1988 Act and section 110 of the 1939 Act to promptly effectuate the functions of Tribunals in terms of those provisions, intended to provide easier, cost effective and timely access to WPC1547/14 -: 9 :- justice. We also notice that this view is in consonance with the fact that while the statutory provisions enjoin the issuance of a notification for the purpose of constitution of the Tribunal, there is no prescribed requirement of "notification" when appointing a member of the Tribunal. This is all the more so while the appointment of the person is identifiable to an existing cadre. No order or notification by the Government is warranted in each instance of transfer and posting, having regard to the nature and setting of the different sub-sections in Section 165 of the 1988 Act. The interpretation and construction of the statutory provisions and notifications dealt with herein also answers the constitutional value and policy, as to access to justice, enjoined in Article 39A of the Constitution of India. Article 14 will also stare at the relevant constitutional institutions; namely, the Government and the Judiciary; whenever by reason of institutional vacancy, the victims of motor accidents would be left in the lurch.
WPC1547/14 -: 10 :-
8.Though different Government Orders were issued from time to time appointing officers who are transferred by the High Court to man the Claims Tribunal, as noted above, so long as the Government are operating the method of appointment with reference to the cadre of District Judges, thereby meaning a cadre in office, issuance of separate Government Orders following each transfer orders, from time to time, is unnecessary.
Special Courts(NDPS Act Cases)
9.Constitution of Special Courts under Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short, the "NDPS Act", is to be done by the Government by notification in the Official Gazette. Special Courts as may be necessary for such area or areas as may be specified in the notification could be constituted. The purpose is to provide speedy trial of the offences under the NDPS Act. A WPC1547/14 -: 11 :- Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court of the State in which the Sessions Judge or the Additional Sessions Judge was working before his appointment as Judge of the Special Court. A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Thus, the appointment of the Judge of a Special Court is to be made by the Government.
10.The objects sought to be achieved by the Special Courts under the NDPS Act are, among other things, to reach out, substantially and timely, at offenders in terms of the provisions of that Act. This is explicit even from sub-section 1 of Section 36 which says that the purpose of constituting Special Courts is for providing speedy trial of the offences under that Act. The penal provisions and the regulated bail provisions, contrasted with the liberty doctrine WPC1547/14 -: 12 :- in the Constitution and the international human right laws regime point at the need to facilitate speedy conclusion of proceedings in the interest of the accused persons. But, the need for such speed and reach out is necessary to the international and national need of this Republic to annihilate the opportunities for commission of such crimes and to effectively deal with those found guilty. Lethargic and slow-paced trials in this part of the world would stimulate an inkling in the mind of the wrongdoers, including international criminals, that ours is an haven for them. It has to be remembered that the NDPS Act was brought in since the earlier enactments governing statutory control over narcotic drugs were found deficient with the passage of time and in view of the developments in the field of illicit drug traffic and drug abuse at national and international levels. This country was facing increasing problems of transit traffic of drugs coming mainly from some of neighbouring countries and destined mainly to western countries. The then existing laws did not provide appropriate WPC1547/14 -: 13 :- power of investigation of offences under different laws. By that time, a vast body of international law in the field of narcotics control had evolved through various international treaties and protocols. The Government of India has been a party to those treaties and conventions which entail several obligations which were not adequately covered by the then existing enactments. There was an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, inter alia, to consolidate and amend the then existing laws relating to narcotic drugs, strengthen the existing controls over drug abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party. These are well reflected by the Statement of Objects and Reasons to the NDPS Act. Obviously WPC1547/14 -: 14 :- therefore, in public interest, there ought to be no delay on the part of the Government in issuing the appointment of the Judge of the Special Court following general transfers which come with the concurrence of the Chief Justice of the High Court of Kerala, unless the proposed officer was working in another State. Hence, as and when such concurrence is informed, the Government are obliged in terms of the clear provisions of Section 36 to proceed immediately to make appointment of the Judge of the Special Court. Family Courts
11.Section 3 of the Family Courts Act, 1984, provides that for the purpose of exercising the jurisdiction and powers conferred on a Family Court by that Act, the State Government, after consultation with the High Court, and by notification, shall establish a Family Court as required in clause (a) of Section 3(1) and may establish Family Courts for other areas as enjoined by clause (b) of Section 3(1) of that WPC1547/14 -: 15 :- Act. Sub-section 2 of Section 3 provides that the State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court should extend. This may, at any time, be increased or reduced or altered following the same procedure and by issuance of such notification as may be required. Different notifications, commencing from G.O. (Ms).No.117/92/Home dated 6.6.1992 published as S.R.O.No.693/92, were issued by the Government constituting various Family Courts. G.O.(Ms). No.28/96/Home dated 20.1.1996 published as S.R.O.No.96/96 was issued appointing the District Judges of the Stations where Family Courts are situated, as Additional Judges of Family Courts at those stations in order to attend to the urgent matters of those Family Courts in the absence of the Presiding Officers.
12.Upon constitution of a Family Court and notifying its territorial limits in terms of Section 3 of the Family Courts Act, section 4 of WPC1547/14 -: 16 :- that Act provides that the State Government, with the concurrence of the High court, would appoint one or more persons to be the Judge or Judges of that Family Court in terms of that section. Such appointment has to be made by the State Government from among classes of persons enumerated in sub-section 3 of Section 4. The concurrence of the High Court obviously comes through the process of the issuance of general or other transfer orders of judicial officers. Such course is essentially treated as a deputation, as is evident from the second proviso to Rule 3(2) of the Family Courts (Kerala) Additional Rules, 1990.
13.In the aforesaid view of the matter, the guiding beacon ought to be that the Family Courts Act is enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. A piece of law in the nature of Family Courts Act having been made, WPC1547/14 -: 17 :- the necessity to promptly operate its provisions and institutions constituted and governed by it is a constitutional requirement in view of the affirmative conferment of equality before law and equal protection of the laws as part of Right to Equality among the Fundamental Rights in Part III of the Constitution. Family Courts Act is canopied by the constitutional goal of access to justice; social and economic, and expressly emanating out of Article 39A, which aims at free, timely and hassle-free access to justice. Recall here, Family Courts Act has restricted the strict rules of procedure to pave way to substantial justice in the institution "family" with the core preference to harmony.
14.Article 37 of the Constitution enjoins that the principles laid down in Part IV - Directive Principles of State Policy, though shall not be enforceable by any court, are nevertheless fundamental in the governance of the country. Article 38(1) enjoins that the State shall strive to promote the welfare of the people by securing WPC1547/14 -: 18 :- and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The executive and judiciary, which are conferred with the authority to give effect to Sections 3 and 4 of the Family Courts Act, are institutions of the national life. The illuminating doctrines of constitutional wisdom and values which lie interspersed among the Directive Principles of State Policy in Part IV and as part of the Fundamental Duties of citizens in terms of Article 51A do not give room for delay in ensuring that institutions like Family Courts, meant to cater to the fundamental unit of the society, namely, "family", operate and discharge duties and functions with no impairment in their constitution and appointment of Judges to those courts.
15.The pivotal role that the Family Courts are expected to play is not merely adjudication of adversarial litigations, but also to promote conciliation in, and secure speedy settlement of WPC1547/14 -: 19 :- disputes relating to marriage and family affairs. This is why provisions are made in the Family Courts Act making it obligatory on the part of the Family Court to endeavour, in the first instance, to effect a reconciliation or a settlement between the parties to a family dispute. The provisions for association of social welfare agencies, counsellors etc. during conciliation stage and also to secure the service of medical and welfare experts are also aimed to promoting the welfare of family as a unit. This is the endeavour and achievement aimed at by the Family Courts Act. The nation through such legislations had constantly risen to higher levels of endeavour and achievement promoting harmony and values which are to be preserved in consonance with the rich heritage of our composite structure.
16.In terms of Article 51A(j) of the Constitution, it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the WPC1547/14 -: 20 :- nation constantly rises to higher levels of endeavour and achievement. Therefore, when the Constitution dictates to the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement, it necessarily obliges every individual involved in the process of governance to strive towards excellence in all spheres of collective activity. In a sovereign, socialist, democratic republic, the collective adherence of the individual citizens who are Government servants is absolutely essential for the cohesive deliverance of the objects sought to be achieved by requiring citizens to strive towards excellence in collective activity.
17.Contextually, the bare minimum that those in governance have to ensure is that notifications are promptly issued to ensure that Family Courts do not have to remain defunct or non-functional on account of any delay in making appointments. Therefore, executive prudence in administration WPC1547/14 -: 21 :- ought to necessarily trigger the process of issuance of notification immediately on the receipt of the concurrence of the High Court following the issuance of general or other transfer orders of judicial officers. The Government have, therefore, the constitutional, public and statutory duty to act immediately on such concurrence and issue notification appointing Judges of Family Courts without any delay, upon receipt of the concurrence of the High Court.
18.Before concluding, it needs to be mentioned that when such suo motu proceedings are drawn up, more so, on the basis of inputs from subordinate judicial officers, which happens only in exceptional and extraordinary situations, it is not necessary to show any individual officer as a party to the proceedings or in the cause title. It is, therefore, that this judgment is issued with the caption in re some Tribunals and Courts. These proceedings shall carry only that caption; nothing more. It is so directed.
WPC1547/14 -: 22 :- In the result, it is hereby declared and directed that:
i.following general transfers or other transfer orders of judicial officers in the Subordinate Judiciary from time to time, the person manning any Claims Tribunal constituted under Section 165 of the Motor Vehicles Act, 1988, during the currency of the notifications constituting the Tribunals as noted above and during the currency of similar notifications as may be issued from time to time, will handover charge as may be ordered by the High Court in its proceedings on the administrative side, and such handing over charge of the Claims Tribunal is sufficient to clothe the person put in charge to discharge all functions and powers of the Claims Tribunal in terms of that Act, and a Judicial Officer, who is transferred and posted to a particular Claims Tribunal under Section 165 of the 1988 Act, would WPC1547/14 -: 23 :- stand appointed so in terms of the notifications already issued by the Government constituting the Tribunal and would, upon such transfer and posting and assumption of charge, discharge all functions, powers, duties and responsibilities as Claims Tribunal to which that officer is transferred and posted. No further notification is necessary for that person to discharge functions under the 1988 Act.
ii.as and when concurrence of the Hon'ble Chief Justice is informed by the High Court, the Government shall proceed immediately to make appointment of the Judge of the Special Court, in terms of the provisions of Section 36 of the NDPS Act, as concurred to by the Hon'ble Chief Justice.
iii.as and when the concurrence of the High Court following the issuance of general or other transfer orders is received, the WPC1547/14 -: 24 :- Government shall proceed immediately to issue notification appointing Judge of the Family Court or Courts concerned without any delay.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
A.Muhamed Mustaque Judge Sha/
-true copy-
PS to Judge