Sri Abani
Kanta Ray Vs. State of Orissa & Ors [1995] INSC 555 (13 October 1995)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Venkataswami K. (J) J.S. Verma, J. :
CITATION:
1995 SCC Supl. (4) 169 JT 1995 (7) 467 1995 SCALE (6)41
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by special leave is by the Chairman of the Orissa Administrative
Tribunal to expunge certain remarks made against him in the Order dated
26.8.1993 in Original Application No. 102(C) of 1992 (O.A. 866/1992) by a
Division Bench comprising of S.K. Misra, Vice-Chairman and U.N. Mallik, Member
(Administrative) of the Tribunal. That application was made by respondent No. 3
Dandanirodha Mishra for cancellation of his transfer. The transfer order was
quashed by the Division Bench of the Tribunal. In making that order, strong
adverse comments were made against the appellant as Chairman of the Tribunal.
The
background is of some significance. After some controversy, a Bench of the Orissa
Administrative Tribunal was created at Cuttack but its functioning led to litigation and therein the making of an
order even by this Court about its functioning. However, some grievance
persisted in those favouring creation of the Cuttack Bench and a contempt
petition was filed by an advocate against the Chief Secretary to Government of Orissa,
Ramakanta Rath and the Chairman of the Tribunal, A.K. Ray. That contempt
petition (Org. Crl. Misc. Case No. 73 of 1992) was decided by an order dated
8.5.1992. Reference to this order of the High Court is made because of its
reference in the impugned order of the Tribunal.
Respondent
No. 3 D.N. Mishra was posted at the relevant time as Additional Secretary to
the Revenue Divisional Commissioner, Central Division at Cuttack and in addition he held the charge
of Additional Registrar of the Cuttack Bench of the Tribunal. Apparently, the
appellant as Chairman of the Tribunal was not satisfied with the performance of
D.N. Mishra as the Additional Registrar of the Tribunal. The appellant wrote a
confidential letter dated 10.4.1992 to the Chief Secretary R.K. Rath
recommending that any other officer may be deputed to function as the
Additional Registrar. In that letter, the appellant had stated that the
functioning of the Cuttack Bench of the Tribunal wasunsatisfactory and could
not improve because respondent No. 3 D.N. Mishra was not interested in doing
this work and was only creating confusion and problems in spite of being
explained everything by him as well as the registrar. The letter further stated
that the attitutde of D.N. Mishra was obstructive and, therefore, urgent action
was necessary in compliance with the High Court's direction confirmed by the
Supreme Court. The appellant concluded the letter by stating as under :-
"..... Sri D.N. Misra seems to be determined to undo our effort to hold
circuit at Cuttack. You may take such action as you
think fit against this officer. But I may also suggest the Secretary to R.D.C.
(Central Division) or any other Officer to function as Additional Registrar,
which we shall notify immediately." This letter was written by the
appellant to the Chief Secretary on 1.4.1992 and thereafter the contempt
petition was finally heard in the High Court on 20.4.1992 and decided by order
dated 8.5.1992. The High Court, in its order dated 8.5.1992, stated as under :-
"..... This apart, some affidavits of the practising Advocates have been
filed stating that after the notification of 23.3.1992 had been issued, they
had gone several times to the Additional Secretary for filing new cases, but he
had refused to accept because of which they were compelled to file new cases at
Bhubaneswar. Almost all the members of the Bar who were present on the date of
hearing on 20.4.1992 (it may be stated that quite a large number of members
were so present) had also made a statement that though filing is being
willy-nilly accepted since a few days, the case record is transferred to Bhubaneswar
for registration and after it is numbered there, it can be taken up in the next
circuit Bench of the Tribunal to be held at Cuttack. So, for urgent matters, a
counsel has invariably to go to Bhubaneswar to obtain interim order.
....." The High Court then rejected the stand of respondent No. 1, the
Chief Secretary as an eye wash The order proceeded to hold that the Chief
Secretary had violated the orders of the High Court which were affirmed by the
Supreme Court. However, the High Court considered it appropriate to grant a
further opportunity to the Chief Secretary to implement its order relating to
establishment and functioning of a permanent Bench at Cuttack. The High Court
did not hold anything against the Chairman of the Tribunal who was the 2nd
respondent in the contempt petition. The High Court actually recorded its
satisfaction with the action taken by the Chairman of the Tribunal and
concluded as under:
"......
Secondly, we do hope that the Registry at Cuttack functions properly.
We may
also state that we have noted with satisfaction the statement made in the
affidavit filed on 30.4.1992 that remedial measures in this regard, after
knowing about the coplaints from his Advocates, have already been taken by the
Chairman." There is thus nothing in the High Court's order against the
Chairman of the Tribunal, the appellant, and in fact there is a record of its
satisfaction with the steps taken by the Chairman to ensure proper functioning
of the cuttack Bench in accordance with its
directions. It is in this background the order dated 11.5.1992 was made by the
State Government transferring D.N. Mishra to the post of Additional District Magistrate,
Koraput, which had the effect of his ceasing to function as the Additional
Registrar of the Cuttack Bench of the Tribunal.
Respondent
No. 3 challenged his transfer order dated 11.5.1992 by an application made to
the Tribunal. There was no allegation of any kind, much less of mala fides,
against the Chairman of the Tribunal, in the application so made. On 15.5.1992,
a Division Bench comprising of S.K.. Misra, Vice- Chairman and U.N. Mallik,
Member (Administrative) granted ex parte stay of the transfer order of D.N. Mishra
as the Additional Registrar of the Cuttack Bench in spite of the above
background. On 29.5.1992, the State Government filed an application in that
proceeding for vacating the interim stay order stating therein the facts and
circumstances in which D.N. Mishra had been transferred to facilitate proper
functioning of the Cuttack Bench of the Tribunal. D.N. Mishra then made an
application to implead the appellant- Chairman of the Tribunal as a party in
that proceeding and made allegation of personal malice against him because of
the letter dated 10.4.1992, he had writ-ten to the Chief Secretary for
relieving D.N. Mishra of the responsibility of functioning as the Additional
Registrar of the Tribunal. The State Government's application came before the
appellant as Chairman of the Tribunal because of the vacation of the Tribunal.
The appellant then transferred the matter to I. Roy, Member (Judicial) by order
dated 29.5.1992 with a note refuting the allegation of malice made by D.N. Mishra
and Stating that his request to the Chief Secretary to change Mishra from the
post of Additional Registrar was occa-Sioned by the fact that his improper
functioning re-sulted in inconvenience to the lawyers of Cuttack who had a
legitimate grievance against the improper functioning of the Registry at the Cuttack
Bench. The appellant stated in the note that as Chairman of the Tribunal, it
was his duty to see that the Circuit Bench at Cuttack functions properly and, therefore, he had to adopt such a
course. The Member (Judicial) then directed the matter to be placed before the
Chairman for listing it before a Division Bench of which he did not wish to be
a member. The appellant as Chairman then made an order on 29.6.1992
constituting a Division Bench of the Vice- chairman and Member (Admn.) to hear
the matter. This is how the matter came to be heard by the Vice-Chairman S.K. Mishra
and Member (Administrative) U.N. Mallik who have made the order dated 26.8.1993
in which strong critical comments and adverse remarks have been made against
the appellant as Chairman of the Tribunal while quashing the transfer order of
D.N. Mishra.
We are
informed that D.N. Mishra has thereafter been transferred by the Government and
he is no longer functioning as the Additional Registrar of the Cuttack Bench of
the Tribunal. The quashing of the transfer order is not challenged in this
appeal. The only question is of the legality and propriety of the critical
comments and adverse remarks made against the appellant in the impugned order
dated 26.8.1993.
The
background in which the transfer order dated 11.5.1992 was issued by the
Government posting D.N. Mishra as Additional District Magistrate. Koraput
resulting in his ceasing to function as Additional Registrar of the Cuttack
Bench of the Tribunal is sufficient to indicate that the transfer of D.N. Mishra
was made in public interest and it was to ensure proper functioning of the Cuttack
Bench of the Tribunal. The attitude of D.N. Mishra as Additional Registrar of
the Cuttack Bench had led to legitimate grievance in the Bar requiring the
Chairman of the Tribunal to take prompt steps for proper functioning of the
Registry at the Cuttack Bench of which D.N. Mishra was Incharge. The resentment
of the Bar escalated to a contempt proceeding before the High Court alleging
violation of the court's order for establishment of the Cuttack Bench and
ensuring its proper functioning. Even the Chairman of the Tribunal was impleaded
therein as a respondent and he escaped therein because of the High Court's
conclusion that the Chairman had properly discharged his responsibilities to
ensure proper functioning of the Cuttack Bench and for that purpose he had also
written to the Chief Secretary on 10.4.1992 to shift D.N. Mishra who was making
the functioning of the Registry difficult. In fact, notice of the contempt
petition against the appellant was discharged only because of this favourable
conclusion reached by the High Court in respect of the appellant. This alone is
sufficient to indicate total lack of justification for any adverse command
against the appellant.
It is
settled that a transfer which is an incident of service is not to be interfered
with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides
or infraction of any professed norm or principle governing the transfer [See
N.K. Singh vs. Union of India and Others, 1994 (6) SCC 98]. The transfer of
D.N. Mishra in this background being clearly in public interest, there was no
permissible ground available to the Tribunal for quashing it. We are
constrained to observe that the Division Bench of the Tribunal which made the
impugned order dated 26.8.1993 quashing the transfer of D.N. Mishra on the
ground of malice of the appellant as the Chairman of the Tribunal did so
against the material on record and the facts beyond controversy which borders
on judicial impropriety. It may also be noted that such comments were made
against the Chairman without even a notice to him and as state in the order
itself after treasting the application for impleading the Chairman to be deemed
rejected.
We are
distressed at the tenor of the impugned order which lacks judicial propriety
and sobriety at many places.
We may
quote some portions of that order which compel us to make this observation.
Some of the extracts from the order of U.N. Mallik, Member (Administrative) are
as under :
".....
The Chairman of the Tribunal who had practically nothing to do in the matter
with regard to providing infrastructure for smooth functioning of the Bench,
had no reason to join hands with Chief Secretary and though there was no notice
to the Chairman by the Hon'ble High Court in the contempt matter, he
volunteered himself to be dragged into the litigation and through a common
lawyer both Respondent-2 and the Chairman of the Tribunal filed their
affidavits stating to have provided already all facilities to the Registry at Cuttack
The Hon'ble High Court did not believe the plea taken by both Respondent-2 and
the Chairman of the Tribunal and strongly commented upon it to be an 'eye wash'
and 'travesty of truth' We are in absolute agreement with judgment of the Orissa
High Court in this regard. ....." 'Now we come to the litigation stage in
the present case. Even during pendency of this litigation a judicial restraint
which was expected from any judicial officer as was given a complete go-by.
Whether
the petitioner had any case or not. Whether he would have succeeded or failed
in the litigation is a complete different position altogether. The amount of
haste, anxiety and interest shown by the Chairman of the Tribunal to hear and
dispose of this case in a vacation Bench without the case being listed speaks
volumes by itself. We are not able to appreciate the initial action before the
transfer order was issued in respect of the applicant and the subsequent action
during pendency of the litigation by a responsible person discharging judicial
function like the Chairman of the Tribunal. .....
Judged
the conduct of the Chairman in the light of the observations of the Apex Court. I find that he had completely
transferred the minimum judicial norm and constraints required.
In the
premises, for the discussions made in the foregoing paragraphs we have
absolutely no hesitation to hold that the impugned order of transfer is
arbitrary and actuated by mala fids of Respondent-2 for which the order has
become unsustainable and untenable in law. Accordingly, we quash the order of
transfer relating to the applicant, ....." Thereafter, in a separate
order, the Vice Chairman S.K. Mishra expressed his agreement with the
conclusion of the Member (Administrative) and after observing that the
application for impleading the Chairman was deemed to be rejected, proceeded to
say as under :
"In
the Judgment of the Hon'ble Member (Administrative) though mention has been
made in regard to the application filed by the applicant for impleading the
Chairman of this Tribunal as a party- respondent, it must be assumed to have
been rejected since without the Chairman being made a party the case has been
disposed of. I think I should mention here that rightly the prayer of the
applicant in that regard has not been allowed, since the Chairman in View of
what is stated above does not appear to be a necessary or proper party,
..........
This
proceeding which I would term to be an unfortunate one so far as the dignity of
the Tribunal is concerned gave occasion for discussion on the conduct of the
Chairman The Chairman on account of his own indiscretion landed himself in the
present situation. Had he been discreet, he would not have landed would not
become relevant for discussion for arriving at the conclusion in regard to mala
fide alleged against the Chief Secretary. The sequence of events which are
relied upon by the applicant to substantiate the allegation of mala fide made
against the Chief Secretary which brought about the impugned the Chairman of
the tribunal came to the picture.
.........
I am also baffled as to what for the Chairman of this Tribunal against whom no
notice of contempt had been issued chose to appear before the High Court alongwith
the Chief Secretary through common lawyer. It is suggested that he did so only
to bail out the Chief Secretary from a difficult situation. This suggestion
appears to be quite reasonable and acceptable. .....
Unfortunately,
for the Chairman of this Tribunal and the Chief Secretary of the State
Government, adverse comments were made by the High Court and it was said that
the aforesaid plea advanced before the wash. ..... Applicant's assertions in
this regard appear to be reasonable and true. Events, prior and subsequent, to
issuance of the impugned order of transfer in respect of the applicant bear out
such an inference.
I
express my extreme unhappiness to be in a situation like this and associate
myself with the observations made in regard to the actions of the Chairman of
this Tribunal which became necessary while dealing with the allegation of mala
fide advanced against the Chief Secretary, which again became necessary for
disposal of the present proceeding." A bare perusal of the High Court's
order dated 8.5.1992 referred earlier, the letter dated 10.4.1992 of the
appellant to the Chief Secretary and the proceedings of the case before the
Tribunal containing the note dated 29.5.1992 of the Chairman transferring the matter
to be heard by some one else in the Tribunal and later the order constituting
the Division Bench comprising of S.K. Mishra, Vice-Chairman and U.N. Mallik,
Member (Administrative) to hear the matter finally leaves no doubt that in
making the above observations against the appellant, the Division Bench of the
Tribunal has completely misread the unambiguous language of these documents to
make the wholly unwarranted adverse remarks against the appellant without even
notice to him Appearance of the appellant before the High Court in the contempt
petition was on account of he being responsible for the proper functioning of
the Registry which is under the control of the Chairman of the Tribunal since
the functioning of the Registry at the Cuttack Bench of which D.N. Mishra was incharge
was the subject matter of that contempt petition. The Division Bench appears to
have been totally oblivious to the responsibility of the Chairman of the
Tribunal in this behalf. Just as the responsibility for the proper functioning
of the Registry and control over it in the High Court is of the Chief Justice
alone by virtue of Article 229 and that in the Supreme Court of the Chief
Justice of India So virtue of Article 146, so also it is the Chairman of an
Administrative Tribunal who has the responsibility for proper functioning of
the Registry and he alone exercises direct control over it In such a situation,
the appellant as Chairman of the Tribunal had a duty to explain to the High
Court the actual position with regard to the functioning of the Registry at the
Cuttack Bench to enable the High Court to decide properly the contempt petition
moved by the members of the Bar This has been unfairly described by the
Division Bench of the Tribunal as undue zeal of the chairman what we have said
is sufficient to indicate the illegality and impropriety of the observations
made by the Division Bench of the Tribunal against the appellant as Chairman of
the Tribunal This is sufficient to indicate that it is the duty of this Court
to exchange these unwarranted remarks made unfairly against the appellant We
are informed that the appellant as well as the Vice-Chairman and Member
(Administrative) who constituted the Division Bench of the Tribunal have all by
new retired.
It is,
therefore, not necessary to discuss these remarks nay further.
Before
parting with this case, We consider it necessary to refer to the observations
in some earlier decisions of this Court in similar context indicating the need
for sobriety and restraining in making adverse and critical comments. In Niranjan
Patnaik vs. Sashibhusan Kar & Anr., 1986 (2) SCR 47. in a similar contex,
after referring to earlier authorities, it was stated as under:
"It
is, therefore, settled law that harsh or disparaging remarks are not to be made
against persons and authorities whose conduct comes into consideration before
courts of law unless it is really necessary for the decision of the case, as an
integral part thereof to animadvert on that conduct We hold that the adverse
remarks made against the appellant were neither justified nor called for."
(at page 483)
In
State of Madhya Pradesh & Ors. vs. Nandlal Jaiswal
& Ors., 1987 (1) SCR 1, one of the questions raised was the propriety of
certain observations and some disappearing remarks made by a learned Judge of
the High Court in his separate concurring opinion in a matter decided by a
Division Bench While holdings that those disparaging remarks were unwarranted,
this Court expressed its strong disapproval of the same as follows:
"Before
we part with this we must express our strong disapproval of the observations
made by B.M. Lal, J. in paragraphs 1, 9, 17, 18, 19 and 34 of his concurring
opinion The learned Judge made sweeping observations attributing mala fides,
corruption and under-hand dealing to the State Government. These observations
are in our opinion not at all justified by the record. ....." (at page 62)
" ..... What the learned Judge has said is based entirely on conjecture
and suspicion judicial disposition of a case. .....
(at
page 63) "We may observe in conclusion that Judges should not use strong
and carping language while criticizing the conduct of parties or their
witnesses. They must act with sobriety, moderation and restraint They must have
the humility to recognize that they are not infallible and any harsh and
disparaging strictures passed by them against any party may be mistaken and
unjustified and if so, they may do considerable harm and mischief and result in
injustice. here, in the present case, the observations made and strictures
passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought
not to have been made." (at page 66) Again this Court in A.M. Mathur vs. Pramod
Kumar Gupta, 1990 (2) SCR 1100, reiterated this position while expunging the diappearing
remarks made against an advocate who was also the former Advocate General of
the State while dismissing a review petition. These disparaging remarks were
also contained only in the separate concurring order of one of the learned
Judges of the division Bench. Incidentally, this matter was the aftermath of Nandlal
Jaiswal (supra) which made it worse While expunging the disparaging remarks
made by the learned Judge in a separate concurring order, this Court stated as
under :
"It
may be noted that C.P. Sen, J dismissed the review petition on the ground of
maintainability, limitation and locus standing of the petitioner.
Thereafter
the application was filed to pass strictures against the appellant in the light
of Vidhan Sabha proceedings.
B.M. Lal,
J. seems to have acceded to that request. No doubt each Judge is independent to
form an opinion of his own in deciding ses or in any phase of the decisional
function, But the facts of the present case against the background of the views
expressed by this Court apropos to the earlier strictures against the
Government clear he was in his mind, not to criticise the appellant The
evidence of even the appearances of bitterns. so important in a judge required
him not to cast aspersing on the professional conduct of the appellant." (at
page 116) "Judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the effectiveness of the army.
The duty of restraint, this humility of function should be a constant theme of
our judges. This quality in decision making is as much necessary for judges to
command respect as to protect the independence of the judiciary Judicial
restraint in this regard might better be called judicial respect: that is,
respect by the judiciary. Respect to those who come before the Court as well to
other co-ordinate branches of the state. the Executive and Legislature.
There
must be mutual respect. When these qualities fail or when litigants and public
believe that the judge has failed in these qualities, it will neither good for
the judge nor for the judicial process.
The
Judges Branch is a seat of power Not only do judges have power to make binding
decisions, their decisions legitimate the use of power by other officials. The
Judges have the absolute and unchallenged control of the Court domain, But they
cannot misuse their authority by intemperate comments, undignified banter or
scathing criticism of counsel, parties or witnesses. We concede that the Court
has the inherent power to act freely upon its own conviction on any matter
coming before it for adjudication, but it is a general principle of the highest
importance to the proper administration of justice that derogatory remarks
ought not to be made against persons or authorities whose conduct comes into consideration
unless it is absolutely necessary for the decision of the case to animadvert on
their conduct. (See (i) R.K. Lakshmanan v. A.K. Srinivasan, [1976] 1 SCR 204
and (ii) Niranjan Patnaik v. Sashibhushan Kar, [1986] 2 SCC 567 at 576)."
(at page 117) "We therefore, allow the appeal and expunge all the remarks
made by B.M. Lal, J. against the appellant in the impugned order." (at
page 118) What we have said above is nothing new and is only a reiteration of
the established norms of judicial propriety and restraint expected from
everyone discharging judicial functions. Use of intemperate language or making
disparaging remarks against any one unless that be the requirement for deciding
the case, is inconsistent with judicial behaviour.
written
words in judicial orders form permanent record which make it even more
necessary to practise self-restraint in exercise of judicial power while making
written orders. It is helpful to recall this facet to remind ourselves and
avoid pitfalls arising even from provocation at times. The Division Bench of
the Tribunal overlooked this aspect and misread the documents in the record
including the High Court's judgment to make disparaging remarks against the
appellant as Chairman of the Tribunal based on a non- existing foundation. All
the disparaging remarks in the impugned order against the appellant are,
therefore, expunged. This being the limited scope of this appeal, nothing else
needs consideration. The appeal is allowed, accordingly.
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