Fairness is backbone of show cause notice, stresses Apex court

The Supreme Court has said that a quasi-judicial authority acting in exercise of its statutory powers ‘must act fairly and must act with an open mind’ while initiating a show cause proceeding.

‘Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also,’ said the apex court bench of Justice G.S. Singhvi and Justice Asok Kumar Ganguly said in their judgment Friday.

Speaking for the bench Justice Ganguly said: ‘If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness.’

Its fairness was obviously to be manifested by the language in which charges were couched and conveyed to the person proceeded against, the judgment said.

The court said that a show cause proceeding was meant to give the person a reasonable opportunity to make his objections against the proposed charges indicated in the notice.

‘If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure…,’ the court said.

The court said while issuing a show-cause notice, the authorities must take care to keep an open mind as they were to act fairly in adjudging the guilt or otherwise of the person proceeded against.

‘It is obvious that at that stage (issuance of show cause notice) the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt,’ the judgment said.

‘If that is done, as has been done in this instant case, the entire proceedings initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony,’ the court said.

The apex court said this while setting aside a Bombay High Court verdict upholding the cancellation of the registration of ORYX Fisheries Private Limited by the Marine Products Export Development Authority (MPEDA).

The MPEDA acted on the complaint of Sharjah-based Cascade Marine Food LLC that ORYX had supplied it shrimps worth $83,000 which were decomposed and unfit for human consumption. ORYX denied the charge.

While quashing the high court order and restoring the registration of ORYX, the judgment said that if the authorities were so inclined ‘they can proceed from the stage of show cause notice afresh but strictly in accordance with law and following the fair procedure indicated in this judgment’.

In this case from the show cause notice it was clear that the MPEDA demonstrated a ‘totally closed mind at the stage of show cause notice itself’, the apex court said.

Such a closed mind is inconsistent with the scheme of rule 43 of the MPEDA which deals with the cancellation of the registration of a company engaged in the production, procurement, processing and export of sea-foods.

Apex court issues notice to Amit Shah on bail

The Supreme Court Saturday issued notice to former Gujarat minister Amit Shah on a petition by the Central Bureau of Investigation (CBI) seeking stay of the Gujarat High Court order granting him bail in the Sohrabuddin Sheikh fake encounter case.

Shah, former minister of state for home, was arrested by the CBI July 25 for his alleged involvement in the killing.

He was granted bail by the high court Friday on his executing a personal bond of Rs.1 lakh along with a surety of like amount.

The apex court bench of Justice Aftab Alam and Justice R.M. Lodha, directed Shah to stay away from the territorial limits of Gujarat till Nov 15 – the next date of hearing.

The court said this after the CBI told the court that if his bail could not be cancelled then he should not be allowed to stay in Gujarat as he could influence witnesses.

The matter was heard by the apex court judges at the Krishna Menon Marg residence of Justice Alam here.

Shah has been given time till Nov 10 to file his reply to the CBI appeal against the high court order.

The apex court gave the CBI time till Nov 12 to file its rejoinder to Shah’s response. K.T.S. Tulsi, appearing for the CBI, told the court that his release at 10.30 p.m. Friday night was in violation of the jail rules.

Opposing the CBI plea, Shah’s counsel Bhupinder Yadav said that now that he had been released on bail, his liberty could not be taken away without substantive grounds.

The counsel told the court that as it was a festive season, Amit Shah’s right to celebrate Diwali with his family should not be taken away. The court said that “Diwali was everywhere”.

The CBI in its appeal accused Amit Shah being a part of “criminal conspiracy” who gave “illegal instructions” to then Additional Director General of Police, CID (crime) G.C. Raiger regarding investigations into the encounter case.

The appeal said that Raiger had to suffer being “immediately and unceremoniously” transferred Feb 3, 2007, for not carrying out the wishes of Shah.

The appeal said that on Shah’s instructions, the case papers of the Sohrabuddin case were sought to be changed to exclude the names of police officers D.G. Vanzara, R.K. Pandiyan and others.

The CBI said the investigations revealed that Amit Shah and Abhay Chudasama “while in judicial custody, conspired with some Gujarat Police officers to destroy the crucial evidence to shield the accused from the law”.

The appeal cited the instance when one of the witnesses, Mohammed Azam Khan, was allegedly abducted Sep 21, 2009, and was forced to “prepare and sign a false affidavit” retracting his statement given to CBI before a magistrate.

Citing various instances and chain of events, the CBI told the court that Shah was the “main conspirator and has committed the offences punishable under various provisions of criminal law”.

States issued notice on common medical entrance tests

The Supreme Court on Friday asked all states and associations of private medical colleges for their views on the Medical Council of India’s petition for common entrance tests for admissions to MBBS and post-graduate courses across the country.

The Medical Council of India told the court that it sought common entrance tests to remove difficulties that students face in appearing for 14-15 different entrances examinations. The court issued notices to states and medical colleges’ associations on Friday

Supreme Court issues notice to Raja on 2G allocation

The Supreme Court on Monday issued a notice to Communications and IT Minister A. Raja in connection with the 2G spectrum scam.

The apex court also slammed the Central Bureau of Investigation (CBI) for filing a case against unnamed officials, and said that the investigating agency should have named them.

The petitioner wants the apex court to monitor the CBI probe or set up a Special Investigation Team.

Earlier on September 9, upping the ante against the Centre over the appointment of the former Telecom Secretary, P.J. Thomas, as the Central Vigilance Commissioner (CVC), the Bharatiya Janata Party said it was done to “cover up” the huge financial scam in the allotment of 2G spectrum.

Terming the 2G spectrum allocation to private companies at “throwaway prices” a “maha-Bofors” scam, BJP spokesperson Prakash Javadekar said Thomas’s appointment was done to derail the entire investigation into the scam.

Javadekar said that in its note prepared on August 12, 2010, the Department of Telecommunications (DoT) – then headed by Thomas – raised a query before the Law Ministry saying that spectrum allocation was a matter of policy, and that the CAG and the CVC had no role to play in the inquiry into it.

“And now the same person [Thomas], who earlier objected to the CVC probing the scam, is heading the organisation…and now no one is expecting a fair inquiry into the entire matter,” Javadekar said.

He said both the DoT and the Law Ministry favoured the note prepared against the role of the CVC and the CAG, which proved that the government purposely appointed Thomas for the cover-up.

“The Congress-led UPA government has undermined institutions like the CAG and CVC on account of the compulsions of coalition politics, the UPA government is under pressure to derail the investigation,” alleged Javadekar.

Pointing out that A. Raja had time and again, in his defence, claimed that he was working under the guidance of the Prime Minister, Dr. Manmohan Singh, Javadekar said: “He has made the Prime Minister a co-accused in the scam. The formulation of policy at the behest of Raja was consciously and deliberately framed to cause loss to the government and gain to private parties. But still Dr. Singh has been defending the Minister.”

Last month, the Telecom Department headed by Thomas had sought the legal advisor’s opinion on whether the CAG had the authority to challenge policy decisions taken by the government.

The ministry’s legal advisor said neither the CVC nor the CAG had the authority to question the government’s policy decisions

Court issues notice to defence secretary, IAF

The Delhi High Court Friday issued notices to the defence secretary and the Indian Air Force (IAF) over a plea seeking contempt proceedings against them for not granting permanent commission (PC) to nine serving women officers.

Justice G.S. Sistani issued show cause notices to Defence Secretary Pradeep Kumar and Air Marshal K.J. Mathews, air officer-in-charge (personnel), and sought their response by Dec 14 on a contempt petition filed by a group of nine serving IAF women officers.

Rekha Palli, appearing for the petitioners, said they were only granted extension in service but the IAF did not comply with the March 12 order of the court regarding granting PC to woman officers.

The counsel claimed that these officers have served the nation for 15 years and the high court while disposing their petitions in March had specifically directed that ‘the serving officers who wish to be considered for PC ought to be extended the benefit of grant of permanent commission’.

Short service commission officers can serve for a maximum of 14 years, while officers granted permanent commissions can serve upto the age of 60, depending on the rank they rise to.

Bhopal tragedy convicts get Supreme Court notice

The Supreme Court Tuesday issued notices to all the seven convicts in the Bhopal gas tragedy on a petition of the Central Bureau of Investigation (CBI) that seeks review of the court’s 1996 judgment which diluted offences against them.

The judgment diluted the charge against the accused, including former chief of Union Carbide India’s operations Keshub Mahindra, from culpable homicide not amounting to murder to causing death by negligence.

The serious charge of culpable homicide not amounting to murder carries a maximum imprisonment of up to 10 years.

The charge under which the accused were convicted by a Bhopal court in June this year carries a maximum sentence of two years.

An apex court bench of Chief Justice S.H. Kapadia, Justice Altamas Kabir and Justice R.V. Raveendran Tuesday said: “The curative petition should be listed for hearing soon after the service of the notice.”

The apex court judgment of 1996 was delivered by a bench headed by then chief justice A.M. Ahmadi.

Following this judgment, all the seven accused were tried under the lesser serious charge.

A trial court in Bhopal convicted all the accused June 7, 2010, and awarded them two years’ jail terms.

Soon after their conviction and sentencing, they were granted bail. Their petition challenging the trial court verdict is pending.

At least 3,500 people were killed instantly and thousands more later after the deadly methyl isocyanate gas leaked from the Union Carbide’s pesticides plant in Bhopal on the night of Dec 2-3, 1984.