State Bank of India and Anr. Vs. Ajay Kumar Sood
[Civil Appeal No. 5305 of 2022 arising out of S.L.P. (C) No. 4038 of 2021]
Dr. Justice Dhananjaya Y Chandrachud, J
1. Leave granted.
2. This appeal arises from a judgment dated 27 November 2020 of a Division Bench of the High Court of Himachal Pradesh. The High Court affirmed the order of the Central Government Industrial Tribunal1 dated 09 July 2019.
3. In 2013, the appellant issued a charge sheet to the respondent in a disciplinary enquiry on a charge of gross misconduct. The respondent was charged with (i) gross misconduct including disrupting the functioning of the branch of the bank and misbehavior with the branch manager; (ii) use of abusive language and threatening the branch manager; (iii) organizing demonstrations without prior notice; (iv) disrupting smooth functioning by preventing other employees from carrying out their functions; (v) deliberately flouting systems and procedures with the intention to undermine the branch manager's authority and increasing the operational risk of the branch; (vi) unauthorized absence from duty; (vii) disobedience of office orders; (viii) proceeding on medical leave without providing relevant medical certificates; and (ix) issuance of cheques from a bank account which did not have sufficient balance. The enquiry officer submitted an enquiry report dated 19 October 2013 finding the respondent guilty of all the charges.
4. The disciplinary authority issued a show-cause notice to the respondent on 22 October 2013 to explain why he should not be dismissed from service in view of the findings of the enquiry officer. The respondent sought an extension of 15 days. The disciplinary authority noted that it had granted an extension of 5 days but not having received any response, it imposed the penalty of dismissal from service by its order dated 06 November 2013. The appellate authority of the bank rejected the respondent's appeal on 03 January 2014.
5. The respondent raised an industrial dispute under the Industrial Disputes Act 1947 to challenge his termination before the CGIT. The enquiry proceedings and report were held to be vitiated as they were found to be in violation of the principles of natural justice by the Tribunal's order dated 25 September 2018. However, the bank was allowed to lead evidence to justify the charges against the respondent.
6. Based on the evidence led before the Tribunal on the charge of misconduct, the CGIT by its order dated 09 July 2019 came to the conclusion that the first charge against the respondent was proved. The CGIT found the penalty of dismissal to be harsh and disproportionate and modified the punishment to compulsory retirement.
7. The appellant as well as the respondent instituted writ petitions before the High Court of Himachal Pradesh to challenge the order of the CGIT. The High Court affirmed the order of the CGIT. The High Court also directed the Tribunal to compute the consequential benefits conferred upon the respondent. The High Court directed the Tribunal to pass an order in accordance with Section 10(9) and Section 10(10) of the Industrial Disputes Act 1947.
8. On 12 March 2021, this Court issued notice against the impugned judgment of the Division Bench of the High Court while entertaining the Special Leave Petition under Article 136 of the Constitution. This court observed
3 Prima facie, in our view, a serious act of misconduct stands established from the evidentiary findings contained in paragraphs 16 and 17 of the award of the CGIT (Annexure P-9). We are inclined to issue notice for this reason and for an additional reason as well.
4 The reasons set out in the judgment of the Division Bench of the High Court dated 27 November 2020 dismissing the petition filed by the petitioners under Article 226 of the Constitution, span over eighteen pages but are incomprehensible. For this purpose, it is necessary to extract paragraphs 3,4,5 and 6 of the judgment of the High Court, which read as follows:
"3. All the afore infirmities noticed in the impugned award, to, occur, in, Annexure P-18, remain neither contested nor any endeavor, is made by the learned counsel, appearing for the employer to scuttle all the legal effects thereof. Consequently, the afore apposite noticed infirmities, as, echoed in the impugned award, to occur in Annexure P-18, and, appertaining, to, affirmative conclusion(s), being made qua the workman, vis-à-vis, the apposite thereto charges drawn against him, do, necessarily acquire overwhelming legal weight, and, also enjoin theirs being revered.
4. Be that as it may, since the impugned award, is made, in pursuance to a petition filed, before the learned Tribunal, by the Workman, under Section 2-A, of the Industrial Disputes Act 1947, and, when after affording, the, fullest adequate opportunities, to the contesting litigants, to adduce their respective evidence(s), on the issues, falling for consideration, the learned Tribunal proceeded to make the impugned award, (i) thereupon the effect, if any, or the legal effect, of, Annexure P-18, inasmuch as, it containing evidence, in support of the conclusion(s), borne therein, does, emphatically, become(s) subsumed, within the canvas, and, contours, of, the evidence adduced, respectively, by the workman, and, by the employer, before the learned Tribunal, (ii) unless evidence emerged through the witnesses', who testified before the learned Tribunal, and, upon theirs being confronted with their statement(s), previously made before the Inquiry Officer, and, its making unearthing(s), vis-à-vis, hence no credibility, being assigned, vis-à-vis, theirs respective testification(s), made before the learned Tribunal.
However, a perusal, of, evidence, adduced before the learned Tribunal, both by the Workman, and, the employer, unveils, (iii) that the afore evidence, became testified, by all the witnesses concerned, rather with the fullest opportunity, being afforded to the counsel, for the workman, and, to the counsel for the employer, (iv) and, also unveils that the counsel, for, the employer, rather omitting to, during the process, of, his conducting their cross-examination, hence confront them, with their previous statement, recorded before the Inquiry Officer, for therethrough(s), his obviously attempting to, hence impeach their respective credibility(ies). In summa, hence the evidence adduced before the Tribunal concerned, alone enjoins its, if deemed fit, being appraised by this Court.
5. The learned Tribunal, had, upon consideration, of evidence adduced, vis-à-vis, charges No. 2, 3, 4, 5, 6, 7, 8 and 9, hence concluded, qua theirs, not therethrough, becoming proven, rather it made a conclusion, vis-à-vis, their being lack, of, cogent evidence, or their being want, of, adduction, of, cogent evidence, qua therewith, by the employer, and, obviously, returned thereon(s) finding(s), adversarial, to the employer. Consequently, hence the appraisal, of, evidence, adduced by the department/employer, vis-à-vis, the afore charges, does not, merit any interference, as reading(s) thereof, obviously, unfold qua the appraisal, of, evidence, adduced, vis-à-vis, the afore drawn charges, hence by the learned Tribunal, hence not, suffering from any gross mis-appraisal thereof, nor from any stain, of, non-appraisal, of, germane evidence, hence adduced qua therewith, by the department/employer.
6. The ire res-controversia, erupting interse the litigants, appertains, to findings, adversarial, to the workman, becoming returned upon charge No. 1. Though the learned counsel appearing for the workman, contends with much vigor, before this Court, that since the CCTV footage, does not vividly pronounce, qua the workman, tearing the apposite letter, thereupon findings, adversarial, to the workman, were not amenable, to be returned upon charge No. 1(supra). However, the afore made submission, before this Court, by the learned counsel for the workman, is, made without his bearing in mind, the further facet, vis-à-vis, the workman, in his cross-examination, making articulation(s), coined in the phraseology, "No Branch Manager has dared to issue me letter prior to this".
In addition, with the Workman, despite his coming into possession, of, the apposite letter, issued to him, by the Branch Manger, especially when no evidence, contra therewith, became adduced, by him, hence became enjoined, to dispel the factum, of, his not tearing it, rather ensure its production, before the Officer concerned. However, he failed to adduce/produce the afore letter before the Officer concerned, thereupon, dehors the CCTV footage, not graphically displaying his tearing the apposite letter, rather not cementing or filliping any conclusion, vis-à-vis, perse therefrom, any exculpatory finding, becoming amenable to be returned upon charge No. 1."
5 We are constrained to observe that the language in the judgment of the High Court is incomprehensible. Judgments are intended to convey the reasoning and process of thought which leads to the final conclusion of the adjudicating forum. The purpose of writing a judgment is to communicate the basis of the decision not only to the members of the Bar, who appear in the case and to others to whom it serves as a precedent but above all, to provide meaning to citizens who approach courts for pursuing their remedies under the law. Such orders of the High Court as in the present case do dis-service to the cause of ensuring accessible and understandable justice to citizens.
6 Since the High Court has affirmed the award of the CGIT, we have been able to arrive at an understanding of the basic facts from the order which was challenged before the High Court. From the record of the Court, more particularly the award of the CGIT, it emerges that though a serious charge of misconduct was held to be established against the respondent, it has been interfered with and the High Court has dismissed the petition under Article 226."
9. Following the return of notice, we have heard Mr Sanjay Kapur, counsel for the appellant and Mr Colin Gonsalves, senior counsel for the respondent.
10. The judgment of the Division Bench of the High Court of Himachal Pradesh is incomprehensible. This Court in appeal found it difficult to navigate through the maze of incomprehensible language in the decision of the High Court. A litigant for whom the judgment is primarily meant would be placed in an even more difficult position. Untrained in the law, the litigant is confronted with language which is not heard, written or spoken in contemporary expression. Language of the kind in a judgment defeats the purpose of judicial writing. Judgment writing of the genre before us in appeal detracts from the efficacy of the judicial process.
The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language. The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse.
Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded.
11. We are constrained to remit the proceedings back to the High Court for consideration afresh. The judgment of the High Court is simply incomprehensible leaving this Court with no option than to remand the proceedings. The High Court must appreciate the delay and expense occasioned as a consequence and must make an effort to record reasons which are understood by all stake-holders.
12. Earlier too, in State of Himachal Pradesh v. Himachal Aluminium and Conductors,2 Sarla Sood v. Pawan Kumar Sharma,3 this Court had to remand the proceedings arising out of similar judgments of the High Court of Himachal Pradesh, so that orders could be passed afresh in language which is capable of being understood. In Shakuntala Shukla v. State of Uttar Pradesh as well,4 a two Judge Bench of this Court, was faced with an order of the High Court of Judicature at Allahabad which made it difficult to discern between the submissions of counsel and the reasons of the court. Laying emphasis on the purpose of a judgment, this Court elaborated on what should be the content of a judgment. The court observed that:
33. [...] "Judgment" means a judicial opinion which tells the story of the case; what the case is about; how the court is resolving the case and why. "Judgment" is defined as any decision given by a court on a question or questions or issue between the parties to a proceeding properly before court. It is also defined as the decision or the sentence of a court in a legal proceeding along with the reasoning of a judge which leads him to his decision. The term "judgment" is loosely used as judicial opinion or decision. Roslyn Atkinson, J., Supreme Court of Queensland, in her speech once stated that there are four purposes for any judgment that is written:
i) to spell out judges own thoughts;
ii) to explain your decision to the parties;
iii) to communicate the reasons for the decision to the public; and
iv) to provide reasons for an appeal court to consider
34. It is not adequate that a decision is accurate, it must also be reasonable, logical and easily comprehensible. [....] What the court says, and how it says it, is equally important as what the court decides.
35. Every judgment contains four basic elements and they are (i) statement of material (relevant) facts, (ii) legal issues or questions, (iii) deliberation to reach at decision and (iv) the ratio or conclusive decision. A judgment should be coherent, systematic and logically organised. It should enable the reader to trace the fact to a logical conclusion on the basis of legal principles. It is pertinent to examine the important elements in a judgment in order to fully understand the art of reading a judgment. In the Path of Law, Holmes J. has stressed the insentient factors that persuade a judge. A judgment has to formulate findings of fact, it has to decide what the relevant principles of law are, and it has to apply those legal principles to the facts. The important elements of a judgment are:
ii) Case number and citation
v) Summary of arguments by both the parties
vi) Application of law
vii) Final conclusive verdict
36. The judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution. The reasoning in the judgment should be intelligible and logical. Clarity and precision should be the goal. All conclusions should be supported by reasons duly recorded. The findings and directions should be precise and specific. Writing judgments is an art, though it involves skillful application of law and logic. We are conscious of the fact that the judges may be overburdened with the pending cases and the arrears, but at the same time, quality can never be sacrificed for quantity. Unless judgment is not in a precise manner, it would not have a sweeping impact.
There are some judgments that eventually get overruled because of lack of clarity. Therefore, whenever a judgment is written, it should have clarity on facts; on submissions made on behalf of the rival parties; discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order. There must be a clarity on the final relief granted. A party to the litigation must know what actually he has got by way of final relief. The aforesaid aspects are to be borne in mind while writing the judgment, which would reduce the burden of the appellate court too. We have come across many judgments which lack clarity on facts, reasoning and the findings and many a times it is very difficult to appreciate what the learned judge wants to convey through the judgment and because of that, matters are required to be remanded for fresh consideration. Therefore, it is desirable that the judgment should have a clarity, both on facts and law and on submissions, findings, reasonings and the ultimate relief granted.
13. Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.
14. Lord Burrows of the Supreme Court of the United Kingdom, in his speech at the Annual Conference of Judges of the Superior Courts in Ireland stressed upon the importance of clarity, coherence and conciseness in judgment writing.5 Lord Burrows also noted the importance of the judgment being written in a manner that it is accessible to all considering its wide and varied potential audience. He noted:6
For senior judges, one's target audience must include the parties themselves, the legal advisers to those parties, other judges, other practising lawyers, academic lawyers and students, and last but by no means least the public at large.
Lord Burrows also reiterates the view of Lord Bingham, that a judgment which is unclear or not concise and therefore inaccessible may contradict the rule of law:7
(T)here is the view that a judgment that is unclear or not concise and therefore inaccessible may contradict the rule of law. The great Lord Bingham - a master of judgment-writing if ever there was one - suggested this in his book, The Rule of Law. Having laid down as his first concretised element of the rule of law that 'the law must be accessible' he went on as follows:
'The judges are quite ready to criticise the obscurity and complexity of legislation. But those who live in glass houses are ill-advised to throw stones. The length, elaboration and prolixity of some common law judgments... can in themselves have the effect of making the law to some extent inaccessible.'
15. In a piece of academic writing, Justice Daphne Barak-Erez of the Supreme Court of Israel distinguished between academic writing and judgment writing. While alluding to the importance of judgments being written in an accessible manner,8 Justice Daphne Barak-Erez notes:
For judges, the professional community is only one of their several audiences. Judges write first and foremost for the parties appearing before them, for the state's agents who are in charge of enforcement, and for the public. Although judgments are professional legal documents, and sometimes involve complex technical and legal analyses, they should also be accessible, or at least explicable, to people who are not professionals, as they define the law for a larger community.
16. A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge's work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest.
The scrutiny is first and foremost by the person for whom the decision is meant - the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrument in fostering the rule of law and in curbing rule by the law.
17. Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window - an insight - into the work of the court in espousing these values as an integral element of the judicial function.
18. Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cut-copy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.9
19. Lord Neuberger, the former President of the Supreme Court of the United Kingdom, discussed in the course of a lecture10 the importance of clearly written judgments:
A second small change worth considering would be for more judges to give better guidance to the structure and contents of their longer Judgments. Some judges already provide a clear framework, sometimes with a table of contents, a roadmap, at the beginning, and often with appropriate headings, signposts, throughout the Judgment. Kimble's study confirms that this is not just a good discipline but it is what the legal professional readers want, and, if it is what lawyers want, it is a fortiori what non-lawyers will want. A clear structure aids accessibility.
20. It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments. A Table of Contents in a longer version assists access to the reader.
21. On the note of accessibility, the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.
22. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the 'Issue, Rule, Application and Conclusion' are easily identifiable. The well-renowned 'IRAC' method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
23. The 'Issue' refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment. The 'Rule' refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the 'Application' section.
24. Finally, it is always useful for a court to summarize and lay out the 'Conclusion' on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.
25. Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, in a lecture at an orientation course for new judges,11 recommended a similar structure which facilitates orderliness and produces a logical, flowing judgment:
(a) An introductory section;
(b) Setting out of the facts:
(c) The law and the issues;
(d) Applying the law to the facts;
(e) Determining the relief (including order for costs); and
(f) Finally, the order of the Court.
26. Although it is unfortunate that we have to set aside the impugned judgment and direct its remand due to its incoherence, we have taken the opportunity to lay out the above discussion on judgment writing. Incoherent judgments have a serious impact upon the dignity of our institutions.
27. While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles. This has also been captured by Justice Corbett,12 in the following extract:
For lucidity should be the prime aim of any judgment-writer. At the same time, certain aspects of style have a bearing on lucidity. In this connection, my advice (for what it is worth) is to keep your language and your sentence construction simple. Write in short sentences and do not try to pack too many ideas into a single sentence. Particularly in setting out facts, try to maintain a simple, straightforward flow to your narrative. Try to avoid the repetition of words or phrases and observe the normal rules of grammar. A well-known exponent of simple language and the simple sentence was Lord Denning.
28. Echoing a similar sentiment, Justice Michael Kirby, a distinguished former judge of the High Court of Australia notes:13
Brevity, simplicity and clarity. These are the hallmarks of good judgment writing. But the greatest of these is clarity.
29. In view of the incomprehensibility of the impugned judgment, we allow the appeal and set aside the judgment of the High Court of Himachal Pradesh dated 27 November 2020 in CWPs No 3597 of 2020 along with 4844 of 2020.
30. CWPs No 3597 of 2020 along with 4844 of 2020 are restored to the file of the High Court of Himachal Pradesh for being considered afresh. In paragraphs 3 and 6 of the earlier order of this Court dated 12 March 2021, certain observations are contained on the merits of the award of the CGIT and on the finding of misconduct which was arrived at against the respondent in the disciplinary proceedings. Since the proceedings are being remitted back to the High Court, it is clarified on the request of counsel for the respondent, that all the rights and contentions of the parties on merits are kept open.
31. Considering that the writ petitions were filed in 2020 and the termination of service goes back to the year 2013, we would request the High Court to expedite the disposal of the writ petitions.
32. Pending applications, if any, stand disposed of.
........................................................J. [Dr Dhananjaya Y Chandrachud]
........................................................J. [A S Bopanna]
August 16, 2022
2 Civil Appeal No. 5032 of 2022, Supreme Court of India
3 Special Leave to Appeal (C) No. 7768-7769 of 2017, Supreme Court of India
4 (2021) SCC OnLine SC 672
5 Lord Burrows, Justice of the Supreme Court of the United Kingdom, Judgment-Writing: A Personal Perspective, Annual Conference of Judges of the Superior Courts in Ireland, 20 May 2021
8 Justice Daphne Barak-Erez, Writing Law: Reflections on Judicial Decisions and Academic Scholarship, (2015) 41-1 QUEEN'S LAW JOURNAL 255
9 Supra (Lord Burrows)
10 Lord Neuberger, No Judgment - No Justice, First Annual British and Irish Legal Information Institute (BAILII) Lecture (20 November 2012)
11 Justice M.M. Corbett, Writing a Judgment - Address at the First Orientation Course for New Judges, (1998) 115 SOUTH AFRICAN LAW JOURNAL 116
13 Justice Michael Kirby, On the Writing of Judgments, (1990) 64 AUSTRALIAN LAW JOURNAL 691