Alok Kumar Roy Vs. Dr. S. N. Sarma
& ANR  INSC 236 (19 October 1967)
19/10/1967 WANCHOO, K.N. (CJ)
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
CITATION: 1968 AIR 453 1968 SCR (1) 813
High Court, Judge of-Appointed as Commission
of Enquiry--If could act as Judge-Effect of High Court Judge receiving petition
and passing order at a place other than seat of High Court--Chief Justice
passing remarks against colleague- Propriety.
One of the Judges of the High Court of Assam
was nominated to be the Vacation Judge for hearing urgent civil and criminal
applications when the High Court was closed for vacation from 17th September 1966 to 19th November 1966.
Certain days were fixed as the vacation court
days, and if there was an extremely urgent matter the Vacation Judge could hear
it on any other day by appointment. At that time, the same Judge was heading a
Commission of Enquiry under the Commission of Inquiry Act, and in connection
with that work, on 2nd November 1966, the Vacation Judge went from Gauhati the
seat of the High Court, to Sibsagar.
The appellant was a student of a college at
Gauhati. He was expelled from the college on 26th October 1966. He tendered an. unconditional apology the next day and attended classes till the end of the
month; but, on 2nd November, when he wanted. to pay the fee for an examination
to be held on 4th November, the fee was not received as the Principal of the
College had not accepted the apology. As the Vacation Judge was not available
at Gauhati, the appellant went to Sibsagar and presented a writ petition to the
Vacation Judge. The Judge entertained the petition and passed an interim order.
A copy of the interim order was prepared at
Sibsagar and given to the appellant to be taken to Gauhati where it. was sealed
and served on the University. The appellant was then allowed to sit for the
examination subject to the result of the writ petition. Thereafter, the papers
relating to the writ petition were sent to the High Court at Gauhati and after
the vacation was over, certain miscellaneous orders were passed on the writ
petition. Eventually, it came up for hearing and was dismissed by a Bench
consisting of the Chief Justice of the High Court and another Judge. The Chief
Justice held that: (1) the Vacation Judge, while performing the duties of a
Commission of Enquiry, could not also Perform the duties of a Judge of the High
Court (2) a Judge of the High Court could not hold a sitting anywhere else
except at the seat of the, High Court' and (3) the Vacation Judge exhibited
'unholy haste and hurry' and his I action disclosed 'an unnecessary zeal' on
his part to assist the appellant. The other Judge agreed with the order of
dismissal only on the. second ground.
In appeal to this Court,
HELD: (1) Judges of the High Court are of
appointed under the Commission of inquiry act to head commission for various
head purposes. These Commissions are temporary affairs and usually their 814
sittings are not continuous. A Judge of the High Court when lie is appointed to
head such a Commission does not demit his office as a Judge nor does the
appointment deprive him of his rights and privileges as a Judge of the High
Therefore, there was nothing objectionable on
the part of the Vacation Judge working as a Judge of the High Court while he
was heading the Commission, for, when the Commission was not actually sitting;
he was entitled to sit and act as a Judge of the High Court. [817 G-H; 818 C].
(2) Assuming that a Judge of the High Court
could not pass orders as a Judge anywhere else except at the seat of the High
Court, the effect of such an assumption in the present case is,. that the
presentation of the writ petition at Sibsagar was irregular and the interim
order passed thereon was also irregular. But, as the petition was sent to
Gauhati later and dealt with by the High Court there, the petition must be
deemed to have been represented to the High Court, and the irregularity in
presentation must be held to have been cured. It was open to the High Court to
consider whether the irregular interim order should be regularised or to deal
with the petition on merits. But it was not open to the High Court to throw out
the petition merely on the ground that the original presentation was irregular.
(3) Assuming that the Vacation Judge wrongly
took the view that he could entertain the petition and pass the interim order
at Sibsagar, he could only act in the way he did in the view that he took, and,
in the circumstances, the observations of the Chief Justice were entirely
uncalled for. There was no justification at all for such justification for
criticism, the language should be dignified and rejustification for criticism,
the language should be dignified and restrained. [820 B-D, G; 821 A].
Principal, Patna College v. K. S. Raman,
, 1 S.C.R.
CIVIL APPELATE JURISDICTION: Civil Appeal No.
1028 of 1967.
Appeal by special leave from the judgment and
order dated May 24, 1967 of the Assam and Nagaland High Court in Civil Rule No.
425 of 1966.
Sarjoo Prasad, Barthakur and R.
Gopalakrishnan, for the appellant.
C. K. Daphtary, Attorney-General and Naunit
Lal, for the respondent The Judgment of the Court was delivered by Wanchoo, C.
J This is an appeal by special leave against the judgment of the Assam High
Court by which the writ petition filed by the appellant was dismissed. Brief
facts necessary for present purposes are these. It appears that the appellant
was expelled from the Medical College, Gauhati on October 26, 1966. It is said
that the appellant tendered unqualified apology on October 27, 1966 and
attended, classes up to the end of October 1966. The Principal, however, does
not seem to have accepted the apology and when the appellant went on, November
2, 1966, to deposit the fee for the examination which was to be held from
November 4, 1966, he was told that as he had been expelled and as the order of
expulsion stood no examination fee would be accepted from him It was thereafter
that the 815 appellant filed the writ petition on November 3, 1966, out of
which the present appeal has arisen.
It may be mentioned that the High Court was
in vacation from September 17, 1966 to November 19, 1966. Mr. Justice S. K. Dutta
was nominated as the Vacation Judge for the vacation and certain dates were
fixed on which he was to sit and hear urgent civil and criminal appliciations.
One of these dates was October 31, 1966 and another was November 10, 1966. It
was also stated in the order that if there was any matter which was extremely
urgent it would be heard on any other day by appointment through the Registrar.
It appears that Mr. Justice Dutta was also
working as a Commission of Enquiry during that time. For that purpose he had to
go out of Gauhati, which is the seat of the High Court. It seems that Mr.
Justice Dutta went Away to Sibsagar after the vacation sitting on October 31,
Therefore on November 2, 1966 he was not
available at Gauhati, even though he was the Vacation Judge and even though the
order relating to vacation sittings said, that if any matter was extremely
urgent it could be heard on any other day by appointment through the Registrar.
As the examination was to be held from November 4, 1966, the filing of the writ
petition against the order of expulsion was undoubtedly a very urgent matter,
if any order was to be obtained before November 4, 1966. What the appellant is
said to have done was this. He gave notice to the Gov- ernment Advocate on
November 2, 1966 at Gauhati as required by the Rules and thereafter went to
Sibsagar where Mr. Justice Dutta was holding the Commission of Enquiry and pre-
sented the writ petition there. This petition was entertained by Mr. Justice
Dutta and be passed interim orders thereon. A copy of the interim order was
prepared at Sibsagar and given to the appellant to be taken to Gauhati where it
was to be sealed. The appellant took the order to Gauhati and after getting it
sealed served it on the university. He was thereupon allowed to sit at the
examination subject to the result of the writ petition. It also appears that
thereafter the papers relating to the writ petition were sent to Gauhati and
the High Court had occasion to deal with the writ petition and passed
miscellaneous orders thereon at Gauhati after the vacation was over.
Eventually, the writ petition came up for hearing in May 1967. A preliminary
objection was raised to the maintainability of the petition on behalf of the
It was urged that as Mr. Justice, Dutta was
holding a Commission of Enquiry he could not act as a Judge of the High Court.
It was also urged in the alternative that even if he had the jurisdiction to.
act as a Judge of the High Court, he could not exercise that jurisdiction while
at Sibsagar for the seat of the High Court was at Gauhati.
816 The petition. was heard by a Bench
consisting of the learned Chief Justice and Mr. Justice Goswami. The learned
Chief Justice seems to have held that Mr. Justice Dutta while performing the
duties of a Commission of Enquiry could not also perform the duties of a Judge
of the High Court. He further held that in any case as the seat of the High,
Court, was at Gauhati, Mr. Justice Dutta could not pass any order as a Judge of
the High Court at Sibsagar, which, was not the seat of the High Court. Finally,
the learned Chief Justice made certain remarks as to the "unholy haste and
hurry exhibited in dealing with this matter by Dutta J." at Sibsagar and
set aside the order of stay granted by Dutta J.
on November 3, 1966 and also set aside the
order issuing rule nisi, and dismissed the petition. Goswami J. did not fully
agree with the learned Chief Justice, though, he agreed with the order setting
aside 'the stay granted' by Dutta J. and also agreed with. the order dismissing
the writ petition. He observed that "I shall content' myself in assuming
that Dutta J. had no anxiety other than what prompted him to do in the interest
of what his Lordship thought to be justice". when he passed the order in.
question on November 3, 1966. But he was of
the view. that a Judge of the High Court could not hold a sitting anywhere in
Assam except at the seat of the High Court, namely, Gauhati, and therefore the
order passed on November 3, 1966 by Dutta J. was without jurisdiction.
The present appeal has been brought before us
by special leave and it is urged on behalf of the appellant that it was not
correct to hold that Dutta J. could not act as a Judge of the High Court while
he was working as a; Commission of Enquiry and further that Dutta J. had no
jurisdiction while at Sibsagar to entertain the petition and to pass the stay
order. We shall deal with the two contentions in that order.
We are of opinion that the learned Chief
Justice was not right when he held that Dutta J.; could not act as a Judge of
the High Court While he was working as a Commission of Enquiry' Learned
Attorney-General appearing for the State of Assam did not support that view It
also appears that Goswami J. has said nothing on this aspect of the matter;
presumably he did riot agree with the view of the learned Chief justice. Often
times, Judges 6f High Courts are appointed under the- Commission 'of Enquiry
Act to head Commissions for various purposes. These Commissions are temporary
affairs and many a time their sittings are not continuous.
A Judge of the High Court when he is
appointed to head a Commission, of this kind does not demit his office as a
Judge and when the Commission is not actually sitting he is entitled to sit as
a Judge of the High Court. It is only where a Judge of the High Court is appointed
to another post, which is a whole time post that it may be said that on such
appointment he can no longer work as a Judge of the High 817 Court for the time
being, though even in such a case, when the work is over, he reverts as a Judge
of the High Court without fresh appointment. Such, for example, was the case of
Income tax Investigation Commission where the appointments were whole time and
a, Judge. of the High Court appointed as a member of the Investigation
Commission could not at the same time work as a Judge of the High Court. But
Judges appointed to head Commissions under the Commission of Enquiry Act stand
in a different position altogether. As we have said, these. Commissions are
temporary and are not whole time posts and their sittings are not even
In such a case we, are of opinion that a
Judge appointed to' head a Commission of Enquiry remains as part of the High
Court and if the Commission of Enquiry is not working continuously he is
entitled to sit and ,act as a Judge of the High Court in the intervals. It is
not disputed that Dutta J. was heading a Commission of Enquiry of this
temporary nature, and as such we are of opinion that he was entitled to sit
and'act as a Judge of the High Court when- ever he had time to do so. It is remarkable
that Dutta J.
was appointed Vacation Judge while he was
working as Commis- sion of Enquiry and that appointment was in our opinion
quite in order. for by heading the Commission of Enquiry, Dutta J. did not
demit his office as a Judge of the High Court. We cannot therefore agree with
the observation of the learned Chief Justice that Dutta J. could not have
assumed to himself the' role and duties of a Judge of the High Court exercising
jurisdiction as a Bench 'of the High Court. We also disagree with the view
expressed by the learned Chief Justice that it was highly objectionable on the
part of Dutta J. to work as a Judge of the High Court while be was heading the
Commission of Enquiry. We are of opinion that where a Judge heads temporary
Commissions of Enquiry under the Commission of Enquiry Act. he remains a part
of the High Court and is entitled to sit and, act as a Judge of the High Court
whenever be thinks fit. The appointment of a Judge as Commission of Enquiry
does not deprive him of the rights and privileges of a Judge of the High Court.
Whenever he finds time to attend to his duties as a Judge of the High Court
while acting as a. Commission of Enquiry, he can do so.
The next question is whether Dutta J. could
act as a Judge of the High Court at Sibsagar when Gauhati is the seat of the
High Court under the notification issued under Art. 10 of. the Assam High Court
Order, 1948. We do not think it necessary to decide this question in the
present appeal. We shall assume that Dutta J. could not pass orders as a Judge
of the High Court anywhere else except at Gauhati which is the seat of the High
Court. Even assuming that, all that can be said is that the presentation of the
writ petition before Dutta J. at Sibsagar was irregular. As we have said already.
he was still a Judge of the High Court while holding a Commission of Enquiry at
Sibsagar, 818 and if he received the petition at Sibsagar, all that can be said
is that the petition was irregularly presented there when it should have been
presented at Gauhati. But assuming that the presentation of the petition at
Sibsagar was irregular, the fact remains that the petition was sent to Gauhati
later and was dealt with there. We do not see why the petition should have been
dismissed because the' presentation was irregular. There is in our opinion no
difficulty in holding that the petition was repre sented when it was sent to
Gauhati and was dealt with there in the High Court. The presentation should
have been taken in such circumstances to have been made at Gauhati when the
petition reached Gauhati and the petition should have been dealt with as such.
Of course, if the presentation of the petition at Sibsagar was irregular, the
order passed by Dutta J. would also be irregular, But when the petition came to
the High Court thereafter, the irregularity in presentation must be held to
have been cured. It was open to the High Court to, consider whether the
irregular order of stay should be regularised. Apart from that even if the
irregular stay could not be regularised, there was no reason why the petition
should have been dismissed merely on the ground that it was irregularly
presented, when it finally did reach the High Court at Gauhati. Whatever
therefore may be said a:.bout the order under appeal setting aside the
irregular order of stay, we are of opinion that the High Court was not right in
dismissing the petition as it did on May 24, 1967.
The petition must be held to have been
represented to the High Court when it reached the seat of the High Court at
Gauhati and should have been dealt with as such and could not have been thrown
out merely on the ground that the original presentation on November 3, 1966 was
irregular. We are therefore of opinion that the order dismissing the petition
must be set aside and the High, Court should now go into the question whether
the petition should be admitted and whether it should be set down for hearing.
Finally we consider it our duty to refer to certain observations made by the
learned Chief Justice with respect to Dutte, J.is handling of the petition. In
this connection reference was made by the learned Cheif Justice to a decision
of this Court in Principal, Patna College V. K. S. Raman(1). It is enough to
say that the facts of that case are very different from the facts of the
present case and the observations on which the learned Chief Justice relies do
not apply to the facts of the present case. In the present case, the petition
was presented during vacation when no Judge was actually sitting at Gauhati and
in the circumstances the action taken by the appellant in presenting the
petition at Sibsagar before Dutta J. who was the Vacation Judge and the only
Judge available, after giving notice to the Government Advocate on November 2,
1966 at Gauhati, seen* to have been the only course open to him in the
circumstances, for the examination (1)  1 S.C.R. 974: A.I.R. 1966 S.C.
819 was to be held from November 4, 1966 and
the appellant came to know on November 2, 1966 when the examination fee was not
accepted that he would not be able to sit at the examination. In the
circumstances the observation of the learned Chief Justice that there was
"unholy haste and hurry exhibited in dealing with this' matter by Dutta
J." is entirely uncalled for. Assuming that Dutta J. wrongly took the view
that he could entertain the petition and pass the stay order at Sibsagar, he
could only act in the way he did in the view that he took, and' it cannot be
said that this was a case of "unholy haste and hurry". We also cannot
agree with learned Chief Justice that the notion of sending a) copy to Gauhati
for getting it sealed so that it might be properly authenticated was in any way
objectionable. The situation being what it was, that seems to us to be the only
way open, once it is clear that Dutta J. took the view that he could entertain
the petition and pass orders thereon even though that view may not be correct.
Nor do we think that the learned Chief Justice was justified in observing that
"the whole thing discloses an unnecessary zeal on the part of Dutta J. to
assist the appellant". Once Dutta J. took the view that he had
jurisdiction to entertain the petition and pass orders thereon, the order he
passed and the steps he took so that the order was served before November 4,
1966 (which was the date of the examination) appear to us to be the only steps
that could have been taken, and such steps cannot be said to be opposed to the
great traditions that obtain in a High Court; nor can it be said that Dutta
J.'s action reflected adversely on the judicial independence and aloofness of
that august institution. There is no reason to hold that any unnecessary zeal
was shown by Dutta J. in assisting the appellant when he passed the order which
he did, once Dutta J. took the view that he had the jurisdiction to entertain
the petition and pass order thereon at Sibsagar. All that happened thereafter
appears to us to be quite proper and cannot in any way reflect on the conduct
of Dutta J. in this case. It is a matter of regret that the learned Chief
Justice thought fit to make these remarks in his judgment against a colleague
and assumed without any justification or basis that his colleague had acted
improperly. Such observations even about Judges of subordinate courts with the
clearest evidence of impropriety are uncalled for in a judgment.
When made against a colleague they are even
more open to objections We are glad that Goswami J. did not associate himself
with these remarks of the learned Chief Justice and, was fair when he asaumed
that Dutta J. acted as he did in his anxiety to do what he thought was required
in the interest of justice. We wish the learned Chief Justice had equally made
the same assumption and had I not made these observations castigating Dutta J.
for they appear to us to be without any basis. It is necessary to emphasis that
judicial decorum has to be maintained at all times and even where criticism is
justified it must be in language of utmost restraint, keeping always in view
that the person making the comment is L/P(N)78CI-13 820 also fallible. Remarks
such as these made by the learned Chief Justice make a sorry reading and bring
the High Court over which he presides into disrepute. Even when there is
justification for criticism, the language should be dignified and restrained.
But in this case we do not see any justification at an for such remarks.
We therefore allow the appeal and) set aside
the order of the High Court dismissing the writ petition and send it back to
the High Court with the direction that the High Court should reconsider whether
the petition should be admitted, taking it as represented on the day it reached
Gauhati, and' if so it should be set down for hearing in due course. In the
circumstances we make no order as to costs.