JUDGES ARE AT TIMES POOR JUDGES OF JUDGES by Adv. Aires Rodrigues, Ribandar

PANJIM: Where there is unity there is strength. People have demonstrated this by gathering in large numbers to oppose the unfair suspension of Judge Desmond D’Costa and the further injustice being meted to another distinguished Judge Anuja Prabhudesai who though exonerated of all charges by the enquiry officer, was served a show cause notice by the High Court as to why she should not be held guilty of the charges.

Public anger has been building up due to inaction on complaints against judges who are incompetent, self-indulgent, abusive, or corrupt and who by their bad behaviour impair the functioning of the legal system. Their conduct undermines public confidence in the rule of law and the justice delivery system. Though such judges should not be allowed to continue in office, yet many of them retain prestigious positions. This too, even after their shortcomings are brought to light and being guilty of flaws, shortcomings or violations. Public criticism is the only way judges can be corrected.

When we ponder on the prejudice against upright and honest Goan judges ‘Desmond & Anuja’ we are reminded of the observation made by the Division Bench of the Gujarat High Court comprising Chief Justice K S Radhakrishnan (now a sitting Supreme Court Judge) and Justice A L Dave which said ‘Judges are at times poor judges of Judges’ especially in judicial administration. The observation came while setting aside the decision of a Disciplinary Committee of the High Court to dismiss an Additional Sessions Judge in Gujarat on charges of misconduct.

In that landmark judgment, the High Court not only reinstated the dismissed judge, but also asked the court to pay him Rs 15,000 towards legal expenses incurred by him.

This case pertains to Additional Sessions Judge S J Pathak who was suspended on charges of misconduct. A departmental inquiry was initiated against him and he was subsequently served two charge sheets. Judge Pathak was accused of granting bail to some people charged with serious offences, allegedly in return for considerations and gratifications.

Following this, the High Court appointed an Enquiry Officer who concluded that the charges leveled against the judge had not been proved. The report was placed before the Disciplinary Committee consisting High Court Judges B J Shethna and D K Trivedi. But the committee disagreed with the report of the Enquiry Officer and directed that notice be issued to Pathak to show-cause as to why he should not be dismissed from service.

Later, Pathak was asked to respond to the show-cause notice and directed to present himself before the Disciplinary Committee consisting of another set of High Court Judges N G Nandi and M S Shah. This committee again exonerated Pathak of all the charges leveled against him.

The committee’s decision was placed before a meeting of all the Gujarat High Court judges. The meeting resolved not to accept the report exonerating Pathak. It was also resolved that the earlier disciplinary committee consisting of Justices Shethna and Trivedi would proceed against Pathak.

Subsequently, the committee headed by Justice Shethna ordered Pathak’s dismissal holding that the charges against him have been proved. The state government accordingly dismissed Pathak from service on April 13, 2006. Judge Pathak then challenged his dismissal in the High Court.

The Division Bench of the Gujarat High Court comprising of Chief Justice K S Radhakrishnan and Justice A L Dave came down heavily on the procedure followed by the court in dismissing Pathak by entrusting the departmental inquiry again to the committee headed by Justice Shethna. The court observed, “…Full court of the High Court has committed a serious error in entrusting the Departmental Enquiry again to the Disciplinary Committee headed by Justice B J Shethna…when that committee had earlier recorded a clear finding, that all charges leveled against the delinquent officer were established…We fail to see how the High Court could again entrust the enquiry to the same Disciplinary Committee, especially in the wake of a contrary report.”

The Court further observed: “The procedure followed by the High Court, in our view, is illegal, arbitrary and violative of the principles of natural justice….”

Calling the decision taken at the High Court judges meeting to entrust the inquiry again to the committee headed by Justice Shethna as lacking ‘application of mind’, the Division Bench observed: “Larger the committee, lesser the application of mind, which is a hard reality… at times, too much view and opinions take the House from the real issue and leads to unchartered areas just like the present case.”

While setting aside the dismissal of Pathak, the Bench ordered that Judge Pathak be reinstated forthwith and be entitled to all service benefits. Chief Justice K S Radhakrishnan and Justice A S Shah also directed the High Court to pay Judge Pathak costs of Rs 15,000 towards legal expenses incurred by him.

For Judge Pathak the journey to get Justice took a ten long years. In the case of Anuja and Desmond let us hope that such a travesty does not occur again and that justice and fair play prevails.