Madras High Court
Vijayalakshmi Shanmugam vs The Chief Justice on 7 September, 2012
Author: K.N. Basha
Bench: K.N.Basha, N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-9-2012 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION No.23570 of 2012 Vijayalakshmi Shanmugam .. Petitioner Vs. 1. The Chief Justice, Madras High Court, Chennai. 2. Government of Tamil Nadu, rep.by its Secretary, Consumer Department, Fort St.George, Chennai. 3. R. Ragupathi, President, T.N.Consumer Disputes Redressal Commission, Mylapore, Chennai. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration, Certiorari or quo warranto, propounding the appointment of the third respondent Shri.Ragupathi, by gazette notification dated 28.3.12 as President of the Tamil Nadu Consumer Disputes Redressal Commission as being ultra vires to proviso to Sections 16(1)(a) and 16(1)(b)(e) of the Consumer Protection Act, 1986, Regulation 5 of Consumer Protection Regulations 2005, Articles 14 & 21 of the Constitution of India, besides being a repeat violation of Article 141 vis-a-vis para 163(IV) & (V) of the Supreme Court diktat in re Kannadasan, (2009) 7 SCC 1. For Petitioner : Mr.Manikandan Vathan Chettiar For 2nd Respondent : Mr.A.Navaneethakrishnan, Advocate General assisted by Mr.V.Subbiah, Spl.G.P. O R D E R
N. PAUL VASANTHAKUMAR, J.
This writ petition is filed challenging the appointment of the third respondent as the President of the Tamil Nadu Consumer Disputes Redressal Commission, on the ground that the said appointment is ultra vires to proviso to Section 16(1)(a), 16(1)(b)(e) of the Consumer Protection Act, 1986, Regulation 5 of Consumer Protection Regulations 2005, Articles 14 & 21 of the Constitution of India, besides para 163(IV) & (V) of the Supreme Court decision reported in (2009) 7 SCC 1.
2. Petitioner, who is a practising Advocate, claims herself as an Activist of India Against Corruption Movement and the writ petition is filed under pro bono publico. It is the contention of the petitioner that on 7.3.2012, Mr.Justice M.Thanikachalam, former Judge of this Court, retired as President of the Tamil Nadu Consumer Disputes Redressal Commission and on 8.3.2012 the third respondent Mr.Justice R.Ragupathi, a retired Judge of this Court was appointed as the President of the Tamil Nadu Consumer Disputes Redressal Commission. According to the petitioner, the said appointment is in violation of the provisions mentioned above and judgment of the Supreme Court referred above. In the grounds it is further stated that the respondents 1 and 2 have overlooked the fact that the third respondent is already holding the post of Member of the Tamil Nadu Advisory Board, constituted under the Tamil Nadu Act 14 of 1982 and due to holding of the said post, the third respondent cannot function in the full time post of the President of the Tamil Nadu Consumer Disputes Redressal Commission and therefore the third respondent cannot be appointed as the President of the Tamil Nadu Consumer Disputes Redressal Commission.
3. In the supplementary affidavit filed it is further stated that the third respondent was also appointed as One-man Commission of Inquiry to probe the irregularities in construction of new Tamil Nadu Secretariat Complex, by Government Order dated 2.12.2011. According to the petitioner, the Commission of Inquiry will have to work throughout the day. Therefore the recommendation made by the Hon'ble Chief Justice to appoint the third respondent as the President of the Tamil Nadu Consumer Disputes Redressal Commission is not proper.
4. The learned counsel appearing for the petitioner during his arguments reiterated the contentions raised in the affidavit by reading the provisions of Consumer Protection Act, 1986 and Regulations, 2005 and supplementary affidavit filed along with the writ petition and cited the following decisions:
a) AIR 1964 SC 1636 (Himansu Kumar Bose v. Jyoti Prokash Mitter)
b) (2009) 7 SCC 1 (N. Kannadasan v. Ajoy Khose)
c) 2009 (1) LW 87 (Anna Mathew v. N. Kannadasan)
d) AIR 1971 Calcutta 354 (E.H.Tippoo v. The Hon'ble Chief Justice of India).
5. The learned Advocate General, after taking notice for the second respondent, produced the relevant Government Orders and submitted that the post of the President of the Tamil Nadu Consumer Disputes Redressal Commission alone is the full-time post and the Member of the Advisory Board as well as One-man Commission of Inquiry are not full time/whole time post. The learned Advocate General further submitted that the third respondent is entitled to get only the sitting fee while sitting as Member of the Advisory Board and One-man Commission of Inquiry.
6. We have considered the rival submissions. We have also called for the file relating to the appointment of the third respondent from the Registrar General of this Court and perused the same.
7. The points that arise for consideration in this writ petition are,
(i) Whether the third respondent's appointment as the President of the Tamil Nadu Consumer Disputes Redressal Commission is in any way conflict with Section 16(1) of the Consumer Protection Act, 1986 ? and
(ii) Whether the Membership of the third respondent in the Advisory Board under Tamil Nadu Act 14 of 1982 and the post of One-man Commission of Inquiry, are full-time employment ?
8. Section 16 of the Consumer Protection Act, 1986 is a statutory provision to constitute the State Commission. Section 16(1)(a) reads as follows:
"16. Composition of the State Commission.- (1) Each State Commission shall consist of-
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President:
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court."
The above statutory provision clearly states that the President of the Commission should be a person, who is or has been a Judge of the High Court, appointed by the State Government and such appointment shall be made only after consultation with the Chief Justice of the High Court.
9. The then President of the State Commission viz., Mr.Justice M.Thanikachalam had completed his term of office on 7.3.2012 afternoon. One month prior to that date, that was on 3.2.2012, the Government addressed a letter to the Registrar General of this Court to send a panel of eligible names of retired High Court Judges to Government after approval by the Chief Justice, for consideration of the Government for appointment to the post of the President of the Tamil Nadu Consumer Disputes Redressal Commission, Chennai. The Registrar General furnished the list of names of retired Judges, who retired during the years 2010, 2011 and due to retire during the year 2012. Four names of the retired Judges, retired in the year 2010; one name of the retired Judge, retired on 16.2.2011; and three names of the Judges, who will be retiring in the year 2012 were placed before the Hon'ble Chief Justice, of which one retired Judge was already holding the post of Chairman of Intellectual Property Appellate Tribunal, Chennai. On consideration of the proposal, the Hon'ble Chief Justice recommended the name of the third respondent, who retired as Judge of this Court on 28.5.2010 to be appointed as the President of the Tamil Nadu Consumer Disputes Redressal Commission, based on which the third respondent was appointed by G.O.Ms.No.36 Co-Operation, Food and Consumer Protection (H1) Department, dated 8.3.2012 in terms of Section 16(1)(a) of the Consumer Protection Act, 1986 and he also assumed office on 10.3.2012.
10. It is the contention of the petitioner that the third respondent is already a Member of the Advisory Board under Act 14 of 1982 as per G.O.Ms.No.41 Home, Prohibition and Excise (XVI) Department, dated 28.7.2011. For the members of the Advisory Board, a daily allowance alone is fixed at the rate of Rs.3,500/- per day, which was previously Rs.2,000/- per day. The same is made clear in G.O.Ms.No.185 Public (Law and Order-F) Department, dated 25.2.2011. The third respondent was also appointed as One-man Commission of Inquiry and he assumed the said office on 3.12.2011. The third respondent is entitled to get Rs.6,000/- per day as sitting fee with a further condition that the monthly sitting fee should not exceed the sum of Rs.80,000/-. The said sitting fee per day was fixed by the Government vide G.O.Ms.No.314 Public (Buildings) Department, dated 30.3.2012.
11. From the above referred Government orders it is evident that functioning of the third respondent as One-man Commission of Inquiry as well as Member of Advisory Board are not on full-time basis and only on the dates of sitting, the third respondent can claim sitting fee as mentioned above. Neither in the Commission of Inquiry notification nor in the order constituting the Advisory Board under Act 14 of 1982, the timings of sitting of the Commission/Advisory Board is mentioned. The said fact is also admitted by the learned counsel for the petitioner during the course of the hearing.
12. Regulation 5 of the Consumer Protection Regulation 2005 fix the hearing hours of the Consumer Forum, which reads as follows:
"5. Hearing hours.- Subject to the provisions of the rules, the normal working hours of the Consumer Forum for hearing matters shall be from 10.30 a.m. to 1.00 p.m. and 2.00 p.m. to 4.00 p.m. on all working days of the Central Government in the case of the National Commission and on all working days of the State Government in the case of the State Commission and the District Forum."
On a perusal of the above Regulation it is evident that the normal working hours of the State Consumer Commission shall be from 10.30 a.m. to 1.00 p.m. and 2.00 p.m. to 4.00 p.m. on all working days of the State Government.
13. It is not the case of the petitioner that the third respondent is bound to sit as Member of the Advisory Board between the said working hours on working days and also as Commission of Inquiry. After the working hours, the third respondent can sit as Member of the Advisory Board and also as the Commission of Inquiry and the said sittings need not be on the working days. Thus, the contention of the petitioner that by holding the post of the Member of the Advisory Board and Commission of Inquiry, the third respondent may not be in a position to discharge the duties of the President of the Tamil Nadu Consumer Disputes Redressal Commission fully in terms of Section 16(1)(b) proviso (e) is without any basis.
14. The Supreme Court in the decision reported in (2002) 6 SCC 184 (T.Fenn Walter v. Union of India), considered an issue regarding the appointment of the President of Consumer Disputes Redressal Commission, Pondicherry. In the said decision it is held that a sitting Judge of the High Court may be appointed as a Commission of Inquiry under the Commission of Inquiry Act, however, appointment of a sitting Judge to a Tribunal is not desirable.
15. Here in this case, the third respondent is not a sitting Judge and he is appointed as the President of the Tamil Nadu Consumer Disputes Redressal Commission in terms of Section 16(1)(a) of the Consumer Protection Act, 1986, which is also a full-time appointment. When a sitting Judge of the High Court, who is serving in full-time post can still be appointed as Commission of Inquiry, there may not be any impediment for the President of the Tamil Nadu Consumer Disputes Redressal Commission, who was appointed after retirement, which is a full-time post, to head the Commission of Inquiry, which is admittedly not a full-time or whole-time post. Similarly, the Advisory Board Members are not expected to sit on working hours/days and their services are not required on full-time basis. The Board will sit only on certain days.
16. From the narration of above facts and Government orders it is evident that the third respondent is receiving only sitting fees while sitting as Member of the Advisory Board and as One-man Commission of Inquiry, on day basis, subject to limitation. Hence the recommendation of the Hon'ble Chief Justice to appoint the third respondent as President of the Tamil Nadu Consumer Disputes Redressal Commission, is not in any way contrary to Section 16(1) of the Consumer Protection Act, 1986 and functioning of the third respondent as President of the Tamil Nadu State Consumer Disputes Redressal commission cannot be treated as ultra vires or violative of the Constitution of India.
17. The decision cited by the learned counsel for the petitioner viz., (2009) 1 LW 87 (Anna Mathew v. N.Kannadasan) is in respect of appointment of the President of the Tamil Nadu Consumer Disputes Redressal Commission and the person appointed was found to be not qualified for appointment under section 16(1)(a). In the said judgment it is further held that to satisfy Section 16(1) of the Consumer Protection Act, 1986, the Chief Justice alone is the competent authority to send recommendations. In the judgment of the Supreme Court reported in (2005) 5 SCC 284 (State of Haryana v. National Consumer Awareness Group), the Supreme Court held that in the matter of appointment of a sitting or retired Judge of the High Court as the President of the State Commission, process must be initiated by the Chief Justice under Section 16 of the Act. The said decision is fully complied with in this case, as appointment of the third respondent was initiated by the Honourable Chief Justice, after receiving an intimation about the retirement of the then President of the Tamil Nadu Consumer Disputes Redressal Commission. The said fact is evident from the letter addressed by the Secretary to Government of Tamil Nadu, Co-Operation, Food and Consumer Protection Department, Chennai-9 dated 3.2.2012 to the Registrar General of this Court.
18. The decision of the Division Bench reported in 2009 (1) LW 87 (cited supra) was confirmed by the Supreme Court in the decision reported in (2009) 7 SCC 1 (cited supra). In the said case, whether an additional Judge, who was not made permanent Judge could be treated as a retired Judge, was the issue and the Supreme Court held that the appointment of the person, who was an additional Judge and was not made as Permanent Judge, was not legal. No such contention can be raised in this writ petition as the third respondent was appointed as Judge of this Court on 10.12.2005, made permanent in the year 2007 and retired as Permanent Judge of this Court on 29.5.2010.
19. Further, the facts of functioning of the third respondent as a Member of the Advisory Board as well as One-man Commission of Inquiry, are known to the Chief Justice, who is serving in this Court for over two years, unlike in the decision reported in (2009) 7 SCC 1, wherein a finding was given that the name of the person appointed then was recommended by the Chief Justice then, had joined only few weeks before sending such recommendations.
20. As we have called for the file regarding the proposal submitted to the Chief Justice and the recommendation made regarding the appointment of the third respondent, the other two decisions cited by the learned counsel for the petitioner has no application to the facts of this case.
21. Before parting with this case, we are constrained to observe that it is very unfortunate that the petitioner, who claims to be an Advocate, practising in this Chartered High Court, and who has been considered as an Officer of the Court, has come forward with certain unwarranted and contemptuous comments and remarks in the supplementary affidavit dated 30.7.2012, not only against the third respondent, but also against the first respondent. We make it clear that if such unwarranted averments are made in future, we would be forced to take appropriate action in the manner known to law. At this juncture, we are constrained to reiterate and incorporate the principles laid down by the Hon'ble Apex Court regarding the duties and responsibilities of an Advocate, which we have pointed out in our earlier decision reported in 2012 (2) LW 267 (S.Padma v. The Chief Justice, High Court of Madras), which reads thus, "A. The Hon'ble Apex Court has held in M.Y.Shareef and another V. The Hon'ble Judges of the High Court of Nagpur and Others reported in AIR 1955 SC 19 as hereunder :
It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and that it is no duty of a counsel to his client to take any interest-in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. (Emphasis supplied by us) The Hon'ble Apex Court in the same decision also observed as hereunder :
We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients."
B. It is also relevant to refer the decision of the Hon'ble Supreme Court in S.K.Sundaram In Re. reported in 2001 (2) SCC 171 = 2000 (1) L.W. 26. In the said decision earlier decision of the Hon'ble Supreme Court in Dr.DtC.Saxena V. Hon'ble the Chief Justice of India reported in 1966 Crl.L.J. 3274 was referred to, wherein, after holding the contemnor as guilty of criminal contempt, the Hon'ble Apex Court observed as hereunder :
"Scandalizing the court, therefore, would mean hostile criticism of Judges as Judges or judiciary. Any personal attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a Judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice."
In the same decision, the Hon'ble Apex Court further observed as follows :
"19. Dealing with the imputation that the then Chief Justice of India deliberately and willfully failed to perform his duties the three Bench Judge Bench further observed thus :
"It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar propensity to undermine the authority of the Court or the judiciary as a whole ; he crossed all boundaries of recklessness and indulged in wild accusations."
C. In yet another decision in Vishram Singh Taghubanshi V. State of U.P. reported in AIR 2011 SC 2275, the Hon'ble Apex Court in paragraph 16 held as follows :
16. The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the Judiciary. A Lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the institution of judiciary. An advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Emphasis supplied by us) D. In yet another decision O.P.Sharma V. High Court of Punjab & Haryana reported in (2011) 6 SCC 86, the Hon'ble Apex Court held as follows :
The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation's administration was to be governed by the rule of law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the court in the administration of justice. The Bench as well as the bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in no one's interest. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of a judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. E. In the same decision, the Hon'ble Apex Court referred to an earlier decision in Chetak Construction Ltd. V. Om Prakash reported in (1998) 4 SCC 577, wherein it was held as hereunder :
16. Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to terrorize or intimidate Judges with a view to secure orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it."
F. The principles laid down by the Hon'ble Apex Court in the decisions cited supra make it crystal clear that scandalising the Court and the hostile criticism of Judges is termed as diverting the due course of justice and signing the petition filed based on such affidavits in support of the petition amounts to an act of criminal contempt."
In view of the above said principles laid down by the Hon'ble Apex Court, we strongly deprecate the manner in which such unwarranted remarks are made by the petitioner, who claims to be an Advocate, in the supplementary affidavit date 30.7.2012.
There is no merit in the writ petition and consequently the writ petition is dismissed. No costs.
Index : Yes/No (K.N.B.,J.) (N.P.V.,J.)
Internet : Yes/No 7-9-2012
vr
To
1. The Registrar, Madras High Court, Madras.
2. The Secretary, Government of Tamil Nadu,
Consumer Department, Fort St.George, Chennai.
3. The President, T.N.Consumer Disputes Redressal Commission,
Mylapore, Chennai.
K.N. BASHA, J.
& N. PAUL VASANTHAKUMAR, J.
vr
Pre-Delivery Order in
W.P.No.23570 of 2012
7-9-2012