State
of West Bengal & Ors Vs. Shivananda Pathak
& Ors [1998] INSC 83 (11 February 1998)
S. Saghir
Ahmad, G.B. Pattanaik S. Saghir Ahmad, J.
ACT:
HEAD NOTE:
With civil
appeal no 2567 of 1998 (arising from special leave petition (civil no. 3512/93)
Whether
"judicial obstinacy' can be treated as a form of "bias" is the
question which we intend to answer in these appeals. As the answer depends upon
the peculiar facts involved in these cases, they are being examined in a little
detail.
2.
Leave granted in the Special Leave Petition.
3.
These two appeals are directed against the judgment dated 21st July, 1992 passed by a Division Bench of the
Calcutta High Court comprising of Mr. Justice Ajit Kumar Sengupta and Mr. Justice
Shyamal Kumar Sen.
4.
Promotion to the posts of Inspector of Minimum Wages, Inspector of Trade
Unions, other Inspectors, Investigators, Supervisors, etc, constituting the
West Bengal Subordinate Labour Service, is regulated by Rules made under
Article 309 of the Constitution which were first notified on 25.9.1973 and
again on 1.8.1988 with certain modifications. It was provided in the Rules that
fifty per cent of these posts shall be filled up by direct recruitment on the
basis of the results of the West Bengal Miscellaneous Service Recruitment
Examination and the remaining fifty per cent by promotion.
Originally,
under the 1973 notification, the eligibility for promotion was restricted to
the following :
(a)
Confirmed Upper Division Clerk of the Labour directorate and of the shops and
establishment Directorate, Govt. of West Bengal.
(b)
Confirmed Labour Welfare Worker of the Labour Directorate, West Bengal, who
were at least Matriculates or had equivalent qualification and had rendered not
less than 10 (ten) years continuous service as Labour Welfare Workers under the
labour Directorate.
(c)
Confirmed Assistant Computers in the statistical section of the Labour
Directorate, West
Bengal.
5.
Subsequently, under the 1998 notification, the eligibility was a little
expanded and the promotion was to be made from amongst :
(a)
Confirmed Upper Division Clerk of the Labour Directorate, and of the Shops and
Establishments Directorate.
(b)
Confirmed Labour Welfare Workers of the Labour Directorate, West Bengal (now
placed under the West Bengal Labour Welfare Board constituted under the West
Bengal Labour Welfare Fund Act, 1974) Matriculates or have equivalent
qualification, who were appointed to the same post prior to the 1st July, 1976,
the date on which the West Bengal Labour Welfare Board started functioning, and
have rendered not less than 10 (ten) years continuous service in the post of Labour
Welfare Workers under Labour Directorate.
(c)
Confirmed Assistant Computers in the Statistical Section of the Labour
Directorate.
(d)
Confirmed Upper Division Clerks of the regional offices under the Labour
Directorate and under the Shops and Establishments Directorate, Government of
West Bengal.
6.
Confirmed Assistant computers, thus, constituted, under both the notifications,
one of the feeder posts for promotion to the posts in the Subordinate Labour
Service.
7. Six
of such Assistant Computers (hereinafter referred to as Respondents) filed a
Writ Petition (C.O. No. 6584(W) of 1984) in the Calcutta High Court, setting
out therein that although they were eligible for promotion to the posts ofInspector,
Investigator and Supervisor etc. of the West Bengal Subordinate Labour Service,
the respondents of that Writ Petition, namely, the State of West Bengal,
Commissioner of Labour and the Joint Labour Commissioner (Statistics), had
promoted only 'the confirmed Upper Division Assistants' to those posts in 1978
and their claim for promotion was completely ignored. It was also stated that
although 48 vacancies were available in the Subordinate Labour Service in the Labour
Commissioner's Office under the Labour Directorate, the respondents intended to
fill up those vacancies by promoting only the Upper Division Clerks and not the
persons from other feeder posts, including the Assistant Computers. It was
alleged that although only six permanent Upper Division Clerks were available,
the respondents, namely, the State Govt., Labour Commissioner, etc. of that
Writ Petition intended to fill up the higher posts by promoting the temporary
Upper Division Clerks and not the Assistant Computers who being eligible for
promotion to the posts under the West Bengal Subordinate Labour Service were
entitled to be considered for such promotion.
Consequently,
they prayed for the following reliefs:
"(a)
for a writ of Mandamus commanding the Respondents to promote the petitioners to
the next higher posts, namely, Inspectors, Investigators and Supervisors etc.
in the West Bengal Subordinate Labour Service under the Labour Directorate,
Government of West Bengal and also further commanding the Respondents not to
promote the temporary and/or non-confirmed Upper Division Clerks to the said
posts;
(b) for
a Writ of Certiorari directing the Respondents to produce the records of this
case to this Hon'ble
Court, so that
conscionable justice may be rendered;
(c) A
Rule in terms of prayers (a) and (b);
(d) An
interim order of injunction restraining the Respondents and/or their agents
from giving any promotion to the said higher posts namely Inspector,
Investigator, Supervisor etc, in the West Bengal Subordinate Labour Service
under the Labour Directorate, Government of West Bengal till the disposal of
the Rule;
(e)
Any other order and/or orders as your Lordships may deem fit and proper."
8. This Writ Petition came up for hearing before Mr. Justice Ajit Kumar Sengupta
(since retired), who, by judgment dated 21.8.1984, allowed it with the
following operative order :
"In
my judgment this is a clear case of arbitrary and discriminatory action on the
part of the respondents in depriving at least 9 persons from their legitimate
promotion in the West Bengal Subordinate Labour Service.
In the
result, this application must be allowed. The decision and/or the orders or
promotion, if made on the basis of the approved lists, are set aside. The
respondents are directed to give promotion the West Bengal Subordinate Labour
Service on the basis of the integrated Gradation List (Flag "A" in
the file) and shall give promotion to the Assistant Computors including the
writ petitioners in the West Bengal Subordinate Labour Service. They are
directed to issue the orders of promotion forthwith in terms of this order. The
respondents shall give promotion to the Assistant Computor including the writ
petitioners to the Subordinate Labour Service with effect from 13th March, 1980 when 29 Upper Division Clerks were
promoted ignoring the claim of the Assistant Computors according to the
seniority determined on the basis of the said Rules.
Let
this order be carried out within two weeks from the date of communication of
this order."
9. The
direction to promote the present respondents, namely the Assistant Computors to
the Subordinate Labour Service with effect from 13.3.1980 was obviously given
for the reason that it came out during the course of the proceedings that the
Government, in the meantime, had filled up 31 posts on 13.3.1980 by promoting
29 Upper Division Clerks and 2 Labour Welfare Workers. By another order passed
on the same date, namely on 13.3.1980, five promotions more (two Assistant Computors
and 3 Labour Welfare Workers) were made.
10.
This judgment was challenged by a number of affected employees (about 32
employees), who filed an appeal (F.M.A.T. No. 3213 of 1984) before the Division
Bench and the latter, namely, the Division Bench, by its judgment and order
dated 17.1.1985, allowed the appeal by the following order:
"After
hearing the learned Advocates of the parties and after considering the facts
and circumstances of the case, we modify the impugned order of the learned
Trial Judge and direct that the authorities concerned shall consider the cases
of promotion to the West Bengal Subordinate Labour Service of the appellants as
also of the writ petitioners and the added respondents in accordance with law
and the prescribed rules including the appointment rules, within three months
form date.
It is
made clear that we have not expressed our opinion on the merits of the
respective cases of the parties.
This
order virtually disposes of the appeal. The appeal is treated as on day's list
and both the appeal and the application are disposed of as above. There will be
no order for costs."
11. By
this order, the direction passed by Mr. Justice Ajit Kumar Sengupta for
promotion of Assistant Computers, and that too with effect from 13.3.1980, was
substituted by a fresh direction that the cases of Assistant Computers as also
those of others would be considered in accordance with law and the prescribed
rules, including the appointment rules.
12. In
compliance of this direction, the State of West Bengal and other appellants
before us, after due consideration, promoted 40 employees drawn from all the
three categories of feeder posts, including those namely, the present
respondents, who had filed Writ Petition (C.O.No. 6584 of 1984), by two orders.
(i)
Order No. 1187 G.E. dated 16.4.1985 and
(ii)
Order No. 1832 G.E. dated 6.6.1985 to various posts in the Subordinate Labour
Service.
13.
Two years later, the same persons, namely, the present respondents, except Smt,
Shyamali Ghatak (nee Chakraborty), who had earlier filed Writ Petition (C.O.
No. 6584 of 1984), filed another Writ Petition (registered as Matter No. 1449
of 1987) in the Calcutta High Court, praying that they may be paid arrears of
salary and allowances with effect from 13.3.1980 in terms of the judgment and
order dated 21.8.1984 passed by Mr. Justice Ajit Kumar Sengupta. This Writ
Petition was disposed of by Mr. Justice Prabir Kumar Majumdar by his judgment
and order dated 22.4.1988 by observing, inter alia, as under :" "I
have considered the respective submissions of the parties. It appears that the
order of the learned trial judge made on the earlier writ petition dated August 24, 1984 was modified and it was observed by
the court of appeal that :
'After
hearing the learned advocates of the parties and after considering the facts
and circumstances of the case, we modify the impugned order of the learned
Trial Judge and direct that the authorities concerned shall consider the cases
of the promotion to the West Bengal Subordinate Labour Services of the
appellants as also of the Writ Petitioners and the added respondents in
accordance with law and the prescribed rules including the appointment rules
within the three months from date.' Therefore, it was a direction of the court
of appeal upon the concerned authorities to consider the cases of the appellants,
writ petitioners as also the added respondents in accordance with law and the
prescribed Rules including the appointment rules. Therefore, it appear to me
that whatever entitlement, so far as the writ petitioners are concerned, is
there in the relevant rules, the petitioners will get it and their claim to the
benefits as also seniority will be considered accordingly and in complying such
authorities concerned will comply with the direction of the court of appeal as
also the learned trial court so far modified by the Court of Appeal.
In the
facts and circumstances of the case, I do not see any ground to interfere in
this case and the authorities will be free to consider the case of the writ
petitioners as also other persons concerned with the matter in accordance with
the directions contained in the order of the appeal court in F.M.A.T. No. 3213
of 1984.
The
writ petition is thus disposed of."
14.
This judgment was challenged before the Division Bench which, at the time of
hearing, incidentally, comprised of Mr. Justice Ajit Kumar Sengupta and Mr.
Justice Shyamal Kumar Sen and they, by their impugned judgment dated 21.7.1992,
allowed the appeal with the direction that the respondents (appellants before
us) shall treat the Assistant Computors to have been promoted to the
Subordinate Labour Service with effect from 13.3.1980. It was further directed
that although they will not be entitled to any arrears of salary with effect
from that date, their basic pay in the scale of pay would be fixed by treating
13th March, 1980 as the date of their promotion without, however, affecting the
seniority and other benefits of the persons already promoted to the Subordinate
Labour Service. The pay so fixed, was made payable to them with effect from
July, 1992.
15. It
is this judgment which is challenged before us in both the appeals.
16.
Learned counsel appearing on behalf of State of West Bengal as also the counsel
appearing on behalf of the appellants in the connected appeal have assailed the
judgment not only on merits but also on the technical plea that Mr. justice Ajit
Kumar Sengupta having expressed his views when he had decided, as a
Single-Judge, the first Writ Petition, namely C.O. No. 6584(W) of 1984, should
not have sat in the Division Bench to hear the appeal in the same matter
between the same parties though initiated on a subsequent Writ Petition. It is
contended that although the direction of Mr. Justice Ajit Kumar Sengupta to the
effect that the Assistant computors (some of the respondents herein) shall be
promoted with effect from 13.3.1980, had ceased to exist as the appeal against
the judgment, in which this direction was contained, was disposed of by the
Division Bench by issuing a fresh direction, the respondents herein, filed
another Writ Petition seeking enforcement of the old direction of Mr. Justice Ajit
Kumar Sengupta by requiring the State Government to pay to them, the arrears of
salary of the higher post with effect from that date, namely, 13.3.1980. It is
contended that the learned Single- Judge having disposed of this Writ Petition
by observing that the direction issued by the Division Bench alone was
enforceable, no interference was called for in the matter but Mr. Justice Ajit
Kumar Sengupta reiterated his earlier view and held that the respondents shall
be treated to have been promoted to the Subordinate Labour Service with effect
from 13.3.1980.
17.
Learned counsel for the respondents contended that the direction of the
subsequent Division Bench, presided over by Mr. Justice Ajit Kumar Sengupta,
that the respondents shall be teated to have been promoted with effect from
13.3.1980 was innocuous inasmuch as neither the arrears of salary with effect
from that date was to be paid nor were they to affect the seniority of persons
already promoted tot he Subordinate Labour Service. In this situation, it is
contended, it would not be proper to interfere with the impugned judgment.
18. A
copy of the Writ Petition filed before the Calcutta High Court by the
respondents a second time (being Matter No. 1449 of 1987) has been filed before
us. In order to indicate the real controversy involved in that Writ Petition,
the relevant paragraphs of that Writ Petitions are reproduced below :
"Your
petitioner sate that against the aforesaid illegalities namely the denial of
promotion seniority and other benefits to the petitioners as prescribed in law,
a writ application was filed on behalf of the petitioners before this Hon'ble
Court which was numbered as C.O. 6584 /(W)/84.
After
hearing of the parties the Hon'ble Mr. Justice A.K. Sen Gupta was pleased to
allow the said application of the petitioners directing the authorities to give
promotion on the basis of the seniority. His Lordship was further pleased to
direct the authorities to give promotion to the Writ Petitioners to the
sub-ordinate Labour service w.e.f. 13th March, 1980. His Lordship was further pleased
to direct the authorities to give promotion to the petitioners to the West
Bengal Sub- Ordinate Labour Service forthwith.
But
against the said Judgment of His Lordship Mr. A.K. Sen Gupta and Appeal having
the Tender No. FMAT 3213 was preferred before this Hon'ble Court. The Division Bench after hearing
the parties was pleased to dispose of the said appeal directing the Respondent
authorities to follow and or to give promotions in accordance with the above
prescribed rules.
Therefore
the judgment and the order of the Trial Judge stood upheld. Accordingly,
pursuant to the judgment of the Trial Court, authorities promoted the Writ
Petitioners on 17.4.85 to the posts of Investigators/Inspectors under West
Bengal Sub-ordinate Labour Services, Labour Directorate, Government of West
Bengal and the petitioners have been posted in different places in the said
posts where they are new served. A copy of the Judgment in C.O. No. 6584 (W) /
84 passed by the Hon'ble Mr. Justice A.K. Sengupta annexed herewith and along
with the order passed by the Division Bench in FMAT 3213/84 and marked as
Annexure -
5.
Your petitioners state that now they have been promoted in the West Bengal
Sub-ordinate Labour Services, but as per the order of this Hon'ble Court they are deemed to be promoted and
or in service since 13th
March, 1980.
Accordingly,
the petitioners are entitled to get the seniority and also the monetary
benefits of West Bengal Sub-ordinate Labour Services with retrospective effect
from 13th March, 1980.
6.
Your petitioners state that there has been arrear dues to the petitioners since
13th march, 1980.
The
petitioners made several representations before the authorities for the payment
of the said arrear dues but the Respondent authorities have not paid the same
to the petitioners. On 12.12.86, the petitioners made a written representation
to the Respondent No. 1 along with the statement of arrear dues praying
immediate payment of the said arrear dues from 13.3.80 to 16.4.85 and in that
letter demanding justice. The petitioners also pointed out that for the above
non-payment of the arrear dues, the petitioners were facing acutefinancial
troubles. But until now the authorities have done nothing for the grant and or
payment of the said dues from 13th March, 1980
to 16.4.85 to the petitioners. A copy of the said representation dated 12.12.86
along with the statements of the said arrear dues are collectively marked as
Annexure "B" and B1 to this application.
7.
Your petitioners state that the authorities denied equal opportunities of
promotion to them.
The
authorities gave promotions to West Bengal Sub-ordinate Labour Services only
from the Upper Division Clerks, even some of these clerks were not confirmed.
Thus the authorities denied Computer Assistants and labour Welfare workers of
the Labour Department equal promotion seniority and other benefits for a long
time. Thus the whole activities regarding promotion was totally illegal and or malafide.
That is why the Hon'ble Mr. Justice A.K. Sengupta in C.O. 6384 (W)/84 was
pleased to direct that the petitioners whose claim for promotion accrued long
ago should be deemed to be promoted to West Bengal Sub-ordinate Labour Service
on and from 13th March, 1980, because on that date many junior persons and even
unconfirmed Upper Divisions Clerks were promoted to the Labour service. But the
petitioners were illegally deprived of the said promotion and or seniority.
Thus the petitioners are entitled to the arrear financial benefits and
Seniority on and from 13th
March, 1980.
8.
Your petitioners state that they made series of representations before the
authorities for the promotion and payment of their arrear benefits since 13th March, 1980, but the authorities had not yet
paid the said arrear. Thus the petitioners have been put to unnecessary
financial hardships by the aforesaid non payment of arrear dues." 19. The
following prayer was made in the Writ Petition :
"10.
Your petitioners humbly state and submit that the authorities illegally
withheld their promotion for a long time but only pursuant to the direction and
or order of this Hon'ble Court they got promotion in the West Bengal Sub-
ordinate Labour service which has been illegally withheld for a long time.
Therefore, the direction of this Hon'ble Court that the petitioners should be
deemed to be promoted since 13th March, 1980 should be complied with by the
authorities by paying all arrear benefits and or dues to the West Bengal
Sub-ordinate Labour Service to the petitioners immediately, otherwise they will
suffer irreparable loss and or injury."
20.
The real question which was, therefore, involved in that Writ Petition was
whether the direction given by Mr. Justice Ajit Kumar Sengupta on 21.8.1984
while disposing of the earlier Writ Petition (C.O. No. 6584/(W) /84) , was in
existence or had ceased to be an operative direction after the disposal of
F.M.A.T. No. 3213 of 1984 by a Division Bench on 17.1.1985. The ultimate order
passed by the Division Bench in that appeal has already been extracted in the
earlier part of the judgment which would show that the direction that the
respondents shall be promoted with effect from 13th March, 1980 was set aside
and was substituted by a fresh direction that the cause of the respondents
along with other eligible candidates for promotion to the Subordinate Labour
Service shall be considered in accordance with law and the prescribed rules
including the appointment rules. It was in pursuance of this direction that the
State Government considered the matter of promotion and by its order dated
16.4.1985, it made promotions of the eligible candidates drawn from all the
three sources (including the respondents who had filed Writ Petition (C.O. No.
6584/(W)/84), to various posts in the Sub-ordinate Labour Service. This order
does not indicate that the respondents were promoted with effect from 13th
March, 1980; may be this was not indicated as that direction had been set aside
in appeal by the Division Bench.
21.
When the respondents claimed arrears of salary with effect from 13th March,
1980 in pursuance of the direction issued by Mr. Justice Ajit Kumar Sengupta
through a fresh petition (Matter No. 1449 of 1987) filed in the Calcutta High
Court, the learned Single Judge did not grant the relief and instead observed
that since the direction issued by Mr. Justice Ajit Kumar Sengupta was
modified, it was for the State Government to consider their claims in
accordance with the Rules in terms of directions of the Divisions Bench (Court
of Appeal).
22. An
appeal against this judgment was disposed of by a Division Bench which included
Mr. Justice Ajit Kumar Sengupta. The question which, therefore, arises is
whether Mr. Justice Ajit Kumar Sengupta could sit in the Division Bench to
decide the appeal against that judgment?
23.
All judicial functionaries have necessarily to have an unflinching character to
decide a case with an unbiased mind. Judicial proceedings are held in open
court to ensure transparency. Access to judicial record by way of inspection by
the litigant or his lawyer and the facility of providing certified copies of
that record are factors which not only ensure transparency but also instil and
inspire confidence in the impartiality of the court proceedings.
24. Unlike
suits, proceedings under Article 226 of the Constitution are not conducted
strictly following the provisions contained in the Code of Civil Procedure but
are held in accordance with the Procedure devised by the High Court itself
under which a fair hearing is provided to the parties concerned before a
decision is rendered. In other words, principles of natural justice are
observed strictly in letter and spirit. One of the requirements of Natural
Justice is that the hearing should be done by a Judge with an unbiased mind.
25.
Bias may be defined as a pre-conceived opinion or a pre-disposition or
pre-determination to decide a case or an issue in a particular manner, so much
so that such pre- disposition does not leave the mind open to conviction. It
is, in fact, a condition of mind, which sways judgments and renders the Judge
unable to exercise impartially in a particular case.
26.
Bias has many forms. It may be pecuniary bias, personal bias, bias as to
subject matter in dispute, or policy bias etc. In the instant case, we are not
concerned with any of these forms of bias. We have to deal, as we shall
presently see, a new form of bias, namely, bias on account of judicial
obstinacy.
27.
Judges, unfortunately, are not infallible. As human beings, they can commit
mistakes even in the best of their judgements reflective of their hard labour,
impartial thinking and objective assessment of the problem put before them. In
the matter of interpretation of statutory provisions of while assessing the
evidence in a particular case or deciding questions of law or facts, mistakes
may be committed bona fide which are corrected at the appellate stage. This
explains the philosophy behind the hierarchy of courts. Such a mistake can be
committed even by a Judge of the High Court which are corrected in the Letters
Patent Appeal, if available.
28. If
a judgment is over-ruled by the higher court, the judicial discipline required
that the Judge whole judgment is over-ruled must submit to that judgment. He
cannot, in the same proceedings or in collateral proceedings between the same
parties, re-write the over-ruled judgment. Even if it was a decision on a pure
question of law which came to be over-ruled, it cannot be reiterated in the
same proceedings at the subsequent stage by reason of the fact that the
judgment of the higher court which has over-ruled that judgment, not only binds
the parties to the proceedings but also the Judge who had earlier rendered that
decision. That Judge may have his occasion to reiterate his dogmatic views on a
particular question of common law or constitutional law in some other case but
not in the same case. If it is done, it would be exhibitive of his bias in his
own favour to satisfy his egoistic judicial obstinacy.
29. As
pointed out earlier, an essential requirement of judicial adjudication is that
the Judge is impartial and neutral and is in a position to apply his mind
objectively to the facts of the case put up before him. If he is pre- disposed
or suffers from prejudices or has a biased mind, he disqualifies himself from
acting as a Judge. But frank, J..
of the
United States in In re Linahan, 138 F. 2nd 650 says:- "If, however, 'bias'
and 'particularly' be defined to mean the total absence of preconceptions in
the mind of the judge, then no one has ever had a fair trial and no one will.
The human mind, even, at infancy, is no blank piece of paper. We are born with
predispositions....Much harm is done by the myth that, merely by.... taking the
oath of office as a judge, a man ceases to be human and strips himself of all
predilections, becomes a passionless thinking machine." (See also Griffith
and Street, Principles of Administrative Law (1973 Edn.) 155; Judicial Review
of Administrative Action by de Smith (1980 Edn.) 272; II Administrative Law
Treatise by Davis (1958 Edn.) 130.)
30.
These remarks imply a distinction between pre-judging of facts specifically
relating to a party, as against pre- conceptions or pre-dispositions about
general questions of law, policy or discretion. The implication is that though
in the former case, a Judge would disqualify himself, in the latter case, he
may not. But this question does not arise here and is left as it is.
31.
This Court has already, innumerable times, beginning with its classic decision
in A.K. Karaipak vs. Union of India AIR 1970 SC 150, laid down the need of
"fair play" or "fair hearing" in quasi-judicial and
administrative matters.
The
hearing has to be by a person sitting with an unbiased mind. To the same effect
is the decision in S.P. Kapoor vs. State of Himachal Pradesh AIR 1981 SC 2181. In an earlier decision in Mineral Development
Limited vs. State of Bihar AIR 1960 SC 468, it was held that the Revenue
Minister, who had cancelled the petitioner's licence or the lease of certain
land, could not have taken part in the proceedings for cancellation of licence
as there was political rivalry between the petitioner and the Minister, who had
also filed a criminal case against the petitioner. This principle has also been
applied in cases under labour laws or service laws, except where the cases were
covered by the doctrine of necessity. In Financial commissioner (Taxation),
Punjab vs. Harbhajan Singh (1996)_ 9 SCC 281, the settlement Commissioner was
held to be not competent to sit over his own earlier order passed as Settlement
Officer under the Displaced Persons (Compensation & Rehabilitation) Act,
1954.
The
maxim Nemo Debet Esse Judex In Propria Sua Causa was invoked in Gurdip Singh
vs. State of Punjab (1997) 10 SCC 641.
32.
The above maxim as also the other principle based on the most frequently quoted
dictum of Lord Hewart C.J. in R. V. Sussex JJ., ex p. Mc Carthy (1924) 1 K.B.
256, 259, that;
"It
is of fundamental importance that justice should not only be done but should
manifestly and undoubtedly be seen to be done", constitute the well-recognised
Rule Against Bias.
33.
Bias, as pointed out earlier, it a condition of mind and, therefore, it may not
always be possible to furnish actual proof of bias. but the courts, for this
reason, cannot be said to be in a crippled state. There are many ways to
discover bias; for example, by evaluating the facts and circumstances of the
case or applying the tests of "real likelihood of bias" or
"reasonable suspicion of bias." de Smith in Judicial Review of
Administrative Action, 1980 Edn., 262, 264, has explained that "reasonable
suspicion" test looks mainly to outward appearances while "real
likelihood" test focuses on the court's own evaluation of the
probabilities.
34. In
Metropolitan Properties Co. v. Lannon, (198) W.L.R. 815, it was observed
"whether there was a real likelihood of bias or not has to be ascertained
with reference to right minded persons; whether they would consider that there
was a real likelihood of bias". Almost the same test has also been applied
here in an old decision, namely, in Manak Lal vs. Prem Chand, Air 1957 SC 425.
In that case, although the Court found that Chairman of the Bar Council
Tribunal, appointed by the chief Justice of the Rajasthan High Court, to
enquire into the misconduct of manak Lal, an advocate, on the complaint of one Prem
chand, was not biased towards him, it was held that he should not have presided
over the proceedings to give effect to the salutory principle that justice
should not only be done, it should also be seen to be done in view of the fact
that the Chairman, who, undoubtedly, was a senior advocate and an ex-Advocate
General, had, at one time, represented prem chand in some case. These
principles have had their evolution in the field of Administrative law but the
Courts performing judicial functions only cannot be excepted from the rule of
bias as the Presiding Officers of the Court have to hear and decide contentious
issues with an unbiased mind. the maxim Nemo Debet Esse Judex In Propria Sua Causa
and the principle "Justice should not only be done but should manifestly
be seen to be done" can be legitimately invoked in their cases.
35.
Applying these principles in the instant case, it will be seen that although
the judgment passed by Mr. Justice Ajit kumar Sengupta in the first writ
Petition in which he had given a direction that the respondents shall be
promoted with effect from 13.3.1980 was set aside, he (Mr.Justice Ajit Kumar Sengupta),
in the subsequent writ Petition between the same parties, gave a declaration that
the respondents shall be treated to have been promoted with effect from
13.3.1980. Significantly, such a declaration was not prayed for and what was
prayed in the subsequent Writ Petition was a direction to the State Government
to pay arrears of salary of the higher post with effect from 13.3.1980. To put
it differently, in the first Writ Petition, Mr. Justice Ajit Kumar Sengupta
commanded "Promote the respondents with effect from 13.3.1980"; in
the second Writ Petition, he directed "Treat the respondents as promoted
with effect from 13.3.1980". There is hardly any difference between the
two judgments. In fact, the second Writ Petition constitutes a crude attempt to
revive the directions passed by Mr. Justice Ajit Kumar Sengupta in the first
judgment and, curiously, Mr. Justice Ajit Kumar Sengupta, sitting in the
Division Bench, wrote, a second time, a judgment which was already over-ruled.
He garnished the judgment by innocuously providing that arrears would not be
payable to the respondents nor will the respondents affect the seniority of
other. But the garniture cannot conceal the deceptive innocence as it is
obvious, on a judicial scrutiny, that paramount purpose was to re-write the
over-ruled judgment.
36. In
view of these facts, we are constrained to observe that it was not competent
for Mr. Justice Ajit Kumar Sengupta to have presided over the Bench in which
the impugned judgment was passed as he had already expressed his opinion in the
earlier writ petition which was over-ruled.
He
should have disassociated himself from that Bench in keeping with the high
traditions of the institution so as to give effect to the rule that
"justice should not only be done, it should manifestly be seen to have
been done" apart from sitting in appeal, though collaterally, over his own
judgment.
37.
The appeals are consequently allowed. The judgment and order dated 21.7.1992
passed by the division Bench of the Calcutta High Court is set aside and the
Writ Petition (Matter No. 1449 of 1987) is dismissed without any order as to
costs.
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