CASE NO.: Appeal (civil) 3044-3045 of 2005 PETITIONER: State of Haryana and Anr. RESPONDENT: National Consumer Awareness Group and Ors. DATE OF JUDGMENT: 04/05/2005 BENCH: K.G. Balakrishnan & B.N. Srikrishna JUDGMENT:
JUDGMENT
B.N. SRIKRISHNA, J.
Leave granted.
What is the content of the statutory consultation with the Chief Justice of
the High Court postulated under Section 16(1)(a) of the Consumer Protection
Act, 1986, is the core issue subjected to debate before us in these two
appeals.
The Consumer Protection Act, 1986 (hereinafter referred to as `the Act’)
was brought into force on 24.12.1986. It is an Act “to provide for better
protection of the interests of consumers and for that purpose to make
provision for the establishment of consumer councils and other authorities
for the settlement of consumers’ disputes and for matters connected
therewith.” The Act established fora at district level, state level and
national level and laid down the procedure of appointing the members of the
fora and their respective Chairmen. The dispute pertains to the statutory
procedure contemplated for appointments of the Chairman of the State
Commission-the forum at the State level.
Section 16(1) provides for the composition of the State Commission
including the appointment of the President and members of the State
Commission. As originally enacted, Section 16 read as under :
“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;
(b) two other members who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of, or have shown
capacity in dealing with, problems relating to economics, law, commerce,
accountancy, industry, public affairs and administration, one of whom shall
be a woman.
By (Amendment) Act 50 of 1993, which was retrospectively made effective
with effect from 18.6.1993, an amendment was made to Section 16 by the
addition of a proviso and the amended section read as under :
“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;
(b) two other members who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of, or have shown
capacity in dealing with, problems relating to economics, law, commerce,
accountancy, industry, public affairs and administration, one of whom shall
be a woman:
Provided that every appointment made under this clause shall be
made by the State Government on the recommendation of a Selection
Committee consisting of the following namely:-
(i) President of the State Commission. -Chairman
(ii) Secretary of the Law Department of the State. -Member
(iii) Secretary incharge of the Department dealing with
Consumer Affairs in the State. -Member
By a further amendment, vide (Amendment) Act, 62 of 2002, Section 16 (1)(b)
was substituted by new provision of sub-sections (1A) and (1B) which were
inserted in Section 16. The amended Section 16, brought into force with
effect from 15.3.2003, reads as under :
“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.
(b) not less than two, and not more than such number of members, as may
be prescribed, and one of who shall be a woman, who shall have the
following qualifications, namely :-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor’s degree from a recognised university; and
(iii) be persons of ability, integrity and standing, and have adequate
knowledge and experience of at least ten years in dealing with problems
relating to economics, law, commerce, accountancy, industry, public affairs
or administration:
Provided that not more than fifty per cent. of the members shall be
from amongst persons having a judicial background.
Explanation….
Provided further that ….
(a) …
(b) …
(c) …
(d) …
(e) …
(f) …
(1-A) Every appointment under sub-section (1) shall be made by the
State Government on the recommendation of a Selection Committee
consisting of the following members, namely :-
(i) President of the State Commission-Chairman;
(ii) Secretary of the Law Department of the State-Member;
(iii) Secretary incharge of the Department dealing with Consumer Affairs in
the State-Member :
Provided that where the President of the State Commission is, by
reason of absence or otherwise, unable to act as Chairman of the
Selection Committee, the State Government may refer the matter to
the Chief Justice of the High Court for nominating a sitting Judge
of that High Court to act as Chairman.
(1-B) (i) The jurisdiction, powers and authority of the State Commission
may be exercised by Benches thereof.
(ii) A Bench may be constituted by the President with one or more
members as the President may deem fit.
(iii) If the members of a Bench differ in opinion on any point, the
points shall be decided according to the opinion of the majority, if there
is a majority, but if the members are equally divided, they shall state the
point or points on which they differ, and make a reference to the President
who shall either hear the point or points himself or refer the case for
hearing on such point or points by one or more or the other members and
such point or points shall be decided according to the opinion of the
majority of the members who have heard the case, including those who first
heard it.
(2) The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of, the members of the State
Commission shall be such as may be prescribed by the State Government.
Provided that the appointment of a member on whole-time basis shall
be made by the State Government on the recommendation of the
President of the State Commission taking into consideration such
factors as may be prescribed including the work load of the State
Commission.
(3) …..
(4) …..”
Justice Amarjeet Chaudhary, the then incumbent, was to demit his office on
4.9.2003 on completion of his term as President of the Haryana State
Consumer Disputes Redressal Commission (hereinafter referred to as `the
State Commission’). On 25.8.2003 the Chief Minister of Haryana addressed a
letter to the Chief Justice of Punjab & Haryana High Court drawing his
attention to the vacancy that was likely to arise on 5.9.2003, and
expressed his view that Justice R.S. Mongia, retired Chief Justice of
Gauhati High Court, would be a befitting incumbent to be appointed to the
said post and requested for communication of the views of the Chief Justice
of Punjab and Haryana High Court. By a communication dated 26.8.2003, the
Chief Justice of the Punjab & Haryana High Court drew the attention of the
Chief Minister to the decision of this Court in Ashish Handa v. Hon‘ble the
Chief Justice of High Court of Punjab & Haryana and Ors.1 and took the
stand: “…even for initiation of the proposal…the executive is expected
to approach the Chief Justice when the appointment is to be made for taking
the steps to initiate the proposal, and the procedure followed should be
the same as for appointment of a High Court Judge. That would give greater
credibility to the appointment made.” He, however, postponed a decision, as
the seniormost Judge of the collegium was out of station. By a confidential
communication dated 27.8.2003, the Chief Justice informed the Chief
Minister that the collegium of the High Court had met and considered the
names of several persons, and unanimously decided to recommend Justice R.C.
Kathuria (retired) of the Punjab & Haryana High Court as most suitable and
fit for appointment as President of the State Commission. A copy of the
relevant resolution was forwarded for information. The resolution took note
of the credentials of the three retired Judges, whose suitability was
considered, and decided to recommend Mr. Justice R.C. Kathuria as most
suitable and fit for appointment. Justice R.S. Mongia was also one of the
three retired Judges, whose suitability was considered by the said
resolution.
By a letter dated 29.10.2003 the Chief Minister, Haryana, raised certain
objections to the proposal made by the Chief Justice. The collegium of the
High Court considered the letter dated 29.10.2003 of the Chief Minister,
Haryana and reiterated its earlier recommendation. By a letter of 1.12.2003
the Chief Minister drew the attention of the Chief Justice to what he
considered were the deficiencies in the candidature of the learned Judge,
whose name was proposed by the High Court. Once again, the High Court after
calling for several records and considering various other aspects of the
matter reiterated its stand that there was no reason to recall the earlier
recommendations to appoint Justice R.C. Kathuria (Retired) as the President
of the State Commission. By another letter dated 7.1.2004, the Chief
Minister of Haryana drew the attention of the Chief Justice of Punjab &
Haryana High Court to the newly introduced Section 16(1A), vide (Amendment)
Act 62 of 2002, and stated that since the post of the President of the
State Commission was vacant at the moment, a Hon’ble sitting Judge of the
Punjab & Haryana High Court was required to be nominated to act as Chairman
of the Selection Committee to be constituted under Section 16(1A). There
was certain other correspondence about certain representations made, which
is not material.
In response to a representation dated 22.12.2003 received from the National
Consumer Awareness Group, Respondent No. 1, on 31.12.2003 the Government of
India, Department of Consumer Affairs, issued a clarification to all the
State Governments/ U.T. Administration including the Government of Haryana
State inter alia opining, in substance, that the procedure contemplated for
constitution of a Selection Committee would be equally applicable for
appointment of the President of the State Commission, though for that
purpose the Chief Justice of the High Court be requested to nominate a
sitting Judge of the High Court to act as Chairman of the Selection
Committee.
In the meanwhile, Civil Writ Petition No. 174/04 was filed by the first
respondent before the High Court of Punjab & Haryana at Chandigarh invoking
Articles 226/227 of the Constitution for a mandamus to the Union of India,
the Chief Justice of Punjab and Haryana High Court, State of Haryana and
Department of Consumer Affairs, State of Haryana, to follow the procedure
as laid down in Section 16 of the Consumer Protection Act in its letter and
spirit for the appointment of the President of the State Commission.
Another writ petition, C.W.P. No. 17262/03, which had been filed earlier by
one Dharminder Singh Rawat, Advocate, on the connected subject of
initiation of the proposal, was heard along with C.W.P. No. 174/04 filed by
the first respondent. The High Court by a common judgment allowed the two
writ petitions and made appropriate directions to the State Government
therein. The High Court followed the decision of this Court in Ashish Handa
(supra) which held the field at the material time. By taking the view that
the process of consultation contemplated under Section 16 (1)(a) of the Act
was almost identical to the process of consultation required under Article
217 of the Constitution, the High Court upheld the appointment of Justice
M.R. Agnihotri, a retired Judge of the High Court, as the President of the
State Commission, as communicated by the Registrar of the High Court to the
Haryana Government on 10.6.1994. Finding that there was substantial
compliance with Section 16(1)(a) of the Act, the appointment of Justice
Agnihotri was upheld and the writ petition challenging his appointment was
dismissed. On the question of interpretation of the newly introduced
Section 16(1A), the High Court was of the view that there was no conflict
between the provisions of Sections 16(1)(a) and 16(1A) of the Act as they
could effectively operate in their respective fields, which did not
overlap. The High Court was further of the view that the provisions of
Section 16(1A) would have hardly any, much less an effective, role in the
appointment of the President of the State Commission in terms of Section
16(1)(a), and that the Selection Committee contemplated by Section 16(1A)
could not be utilized for the selection of the President for which a
separate provision was made under Section 16(1)(a). The writ petition was
accordingly allowed and appropriate directions were issued.
At the outset, Mr. Shanti Bhushan, learned counsel appearing for the
appellant-State of Haryana submitted that the appeal was being pursued not
so much for appointment or non-appointment of a particular incumbent – in
any event, time the great healer having solved the problem, but only for
the purpose of settling the question of interpretation to be placed on the
provisions of Sections 16(1)(a) and 16 (1A) of the Act.
In a recent judgment in Ashok Tanwar and Anr. v. State of Himachal Pradesh
and Ors.2, (to which both of us were parties), the Constitution Bench of
this Court had occasion to consider the issue of “consultation with the
Chief Justice of High Court” under Section 16 of the Consumer Protection
Act, 1986. The Constitution Bench specifically overruled the decision in
Ashish Handa (supra) only on this issue holding that the process and
context of “consultation with the Chief Justice of the State High Court”
within the meaning of Section 16(1)(a) is not to be equated with the
consultation contemplated under Article 217 of the Constitution for
appointment of a High Court Judge, observing :
“It is thus clear that the expression “consultation” used in Article 217 of
the Constitution in relation to appointment of High Court Judges cannot be
read in the same way into “consultation” as contemplated under Section 16
of the Act in the light of what is stated above in Supreme Court Advocates-
on-Record Assn.3″ (vide paragraph 19)
The Constitution Bench pointed out that, though the process may be similar
in several other aspects, the two consultations cannot be held to be
qualitatively identical as one was for appointment to a statutory post,
while the other was a Constitutional appointment. It was also held (vide
paragraph 20) that the requirement of consultation with two seniormost
Judges of the High Court could not be read into the consultation required
under Section 16 (1A) for appointment of the Chairman of the State
Commission, and that consultation with the Chief Justice of the High Court
was sufficient. Although overruling Ashish Handa (supra) on this aspect of
the matter, the Constitution Bench referred with approval to the said
judgment and said :
“In Ashish Handa (supra) this Court, having regard to what is stated above,
held that it is the Chief Justice of the High Court, who should initiate
the process in the matter of appointment of a Judge, sitting or retired, as
President of the State Commission.” (vide paragraph 21)
Finally, it concluded thus :
“Certain statements made by this Court in Ashish Handa (supra) in para 3,
give an impression that the Chief Justice of a High Court has to consult
his two seniormost colleagues before recommending a sitting or retired
Judge for appointment as President of a State Commission as per Section 16
of the Act. In our view that is not the correct position and we do not
approve the same. To put it positively, we state that for the purpose of
Section 16 of the Act, a Chief Justice of a High Court need not consult his
two seniormost colleagues in the High Court for recommending a sitting or
retired Judge of a High Court for appointment as President of a State
Commission.” (vide paragraph 22)
A careful reading of Ashok Tanwar (supra) shows that the Constitution Bench
differed from Ashish Handa (supra) only on the issue whether consultation
with the Chief Justice meant consultation with the collegium of the High
Court. In other respects, Ashish Handa (supra) is approved.
Mr. Shanti Bhushan, learned counsel for the appellants, urged that even
with the interpretation of Section 16(1)(a), as decided by the Constitution
Bench in Ashok Tanwar (supra), it still leaves undecided the question as to
who should initiate the proposal for appointment to be made under Section
16(1)(a). He contended that `consultation’ meant meeting of minds between
two Constitutional authorities of equal rank and there was no reason why
the Chief Justice should not initiate the proposal. We are unable to accept
this contention. In the first place, the processual mechanics of
`consultation’ was decided in Supreme Court Advocates-on-Record Association
(supra) judgment by a decision of nine learned Judges and reiterated in
Ashish Handa (supra), with which the Constitution Bench in Ashok Tanwar
(supra) did not disagree. The only point of disagreement between Ashish
Handa (supra) and Ashok Tanwar (supra) was on the issue whether the
consultation with the Chief Justice meant consultation with the collegium
of the High Court. The manner of initiation of proposal has remained same
throughout and it is not open for us to take a different view of the
matter. Learned counsel attempted to pursuade us to refer the matter to a
larger Bench. We decline to do so as the law is quite settled; it is
binding on us and we agree with it. Thus, the manner of initiation of
proposal for a consultation with the Chief Justice under Section 16(1)(a)
of the Act must take place in the manner as laid down by the judgment of
this Court in Ashish Handa’s case (supra).
The next contentious issue raised before us is with regard to the import of
the amendment in the Act by introduction of Section 16(1A). Shri M. N.
Krishnamani, learned counsel for the Union of India, sought to canvass the
interpretation given by Government of India (vide D.O. letter dated
31.12.2003) that the provisions of Section 16(1A) may also be used for
appointment of the President of the State Commission.
Learned counsel for the Union of India urged that sub-section (1A) of
Section 16 itself contemplates that every appointment made under sub-
section (1) of Section 16 has to be made on the recommendation of a
Selection Committee consisting of – (i) President of the State Commission
as Chairman; (ii) Secretary of the Law Department of the State; and (iii)
Secretary incharge of the Department dealing with Consumer Affairs in the
State as Members. He also emphasized the proviso to sub-section (1A) which
has been added to take care of the situation where the President of the
State Commission is absent, or otherwise unable to act as Chairman of the
Selection Committee in which case the State Government may request the
Chief Justice of the High Court to nominate a sitting Judge of that High
Court to act as Chairman.
We are unable to accept this contention of the learned counsel for the
Union of India. It is inconceivable that sub-section (1A) is intended for
appointment of the President of the State Commission itself. In the first
place, we cannot accede to the contention that the Chairman of the State
Commission, who is or has been a Judge of the High Court, can be selected
by a Selection Committee comprising two Secretaries of the State
Government. Nothing could be more erosive of judicial independence than
such interpretation of sub-section (1A). This conclusion of ours is driven
home by the proviso to sub-section (1A). This proviso is intended to take
care of a contingency where there exists a President of the State
Commission, who is unable to Chair the Selection Committee meeting because
of absence or other similar reasons. It is only in such a situation, that
the State Government may request the Chief Justice of the High Court to
nominate a sitting Judge to act as Chairman of the Selection Committee. If
the argument of the learned counsel of the Union of India and the
construction canvassed by him is admitted, it would mean that even where
the President of the State Commission is appointed for the first time, the
procedure would be that he would be appointed by a Committee of which two
Secretaries would be members. That would be obviously destructive of
judicial independence.
The learned counsel, alternatively, argued that the scheme contemplated by
sub-section (1A) is quite workable even in a situation where there exists
already a President, but the question arises of his re-appointment which
would make him unable to act as Chairman of the Selection Committee. In
such cases, a sitting Judge of the High Court could be nominated by the
Chief Justice of the High Court to act as a Chairman. Even this argument
does not commend itself to us. A literal reading of sub-section (1A) may
prima facie suggest that appointments under clauses (a) and (b) of sub-
section (1) are also governed by the procedure contemplated therein, under
sub-section (1A), but as rightly held by the High Court the two sub-
sections have to be harmoniously construed. The procedure contemplated
under sub-section (1A) can apply only in respect of appointment of members
falling within the contemplation of clause (b) of sub-section (1) of
Section 16. In our view, the High Court has given adequate and justifiable
reasons for this interpretation with which we agree. The interpretation
given by the circular, and the view taken by the Union of India in the
matter of Section 16(1A), is incorrect and we hold that the procedure
contemplated therein applies only to the appointments made under clause (b)
of sub-section (1) of Section 16.
In our view, no fault can be found with the impugned judgment of the High
Court on both the counts. Seeing no merit in these appeals, we dismiss the
appeals.
No order as to costs.