Full Judgment Text
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PETITIONER:
P.K. GHOSH, I.A.S. AND ANT.
Vs.
RESPONDENT:
J.G. RAJPUT
DATE OF JUDGMENT10/11/1995
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
VENKATASWAMI K. (J)
CITATION:
1996 AIR 513 1995 SCC (6) 744
JT 1995 (8) 214 1995 SCALE (6)257
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
J.S. VERMA. J.:
Leave granted.
This appeal by special leave is against the order dated
18.3.1994 made in Misc. Civil Application No.1841 of 1993 in
Special Civil Application No.1497 of 1988, by a Division
Bench (R.A.Mehta and B.J. Shethna, JJ.) of the High Court of
Gujarat. The impugned order was passed in unusual
circumstances which are mentioned hereafter.
Respondent J.G. Rajput is an employee of the Ahmedabad
Municipal Corporation. He filed a writ Petition - Special
Civil Application No. 1497 of 1988 - in the High Court of
Gujarat challenging his suspension by order dated 14.3.1988
in which he was represented by Shri B.J. Shethna (later
appointed a Judge of the High Court of Gujarat) as his
counsel. The respondent obtained an order on 28.3.1988
staying his suspension (Annexure A). Thereafter, Shri B.J.
Shethna was elevated to the Bench of the Gujarat High Court
and the respondent was then represented by Shri Adil Mehta
as his counsel. A settlement was arrived at between the
Ahmedabad Municipal Corporation and the respondent before
the High Court which was recorded on 28.2.1990 and S.C.A.
No. 1497 of 1988 was permitted to be withdrawn by C.K.
Thakkar, J. before whom it was listed (Annexure B). The
corporation contends that in terms of the settlement, the
respondent was confirmed in service in the scale of Rs.950-
1400 and was also allotted a residential quarter. Thereafter
on 8.4.1991, the respondent filed Misc. Civil Application
No. 540 of 1991 for review of the final order made in S.C.A.
No. 1497 of 1988 which came up for hearing before C.K.
Thakkar, J. who rejected the review application on 2.4.1992
on his satisfaction that the terms of settlement had been
complied with by the Municipal Corporation (Annexure C).
Thereafter on 7.5.1993, the respondent was served with
a chargesheet for theft of some municipal property vide
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Annexure D. According to the Municipal Corporation, this
chargesheet was unconnected with the earlier dispute which
had ended in the manner aforesaid and it related to a
subsequent incident of theft. However, the respondent filed
Misc. Civil Application No. 1109 of 1993 in the High Court
wherein it was prayed that the inquiry pursuant to the said
chargesheet be stayed and the appellants who are the
Municipal Commissioner and Deputy Municipal Commissioner of
the Ahmedabad Municipal Corporation be punished for contempt
of the court and the earlier Special Civil Application No.
1497 of 1988 be restored. This M.C.A. No. 1109 of 1993 was
dismissed by C.K. Thakkar, J. on 30.7.1993 vide Annexure E
which reads as under :-
"On the basis of the compromise arrived
at between the parties, the main matter
i.e. Spl. C.A. No. 1497 of 1988 came to
be disposed of by an order dt. December
29, 1990. An application for review
being M.C.A. No. 3 of 1991 came to be
filed by the present applicant, which
was rejected by the order dated April 2,
1992. Once again, the present
application is made. The applicant-
party-in-person drew my attention to a
charge-sheet issued to him by the
Commissioner on May 7, 1993. I am not
expressing any opinion so far that
charge-sheet is concerned, but there is
no question of reviewing the earlier
matter when the review application came
to be disposed of. Hence, this
application is rejected. D.S."
However, the respondent did not accept that the controversy
in Special Civil Application No. 1497 of 1988 had concluded
as held once again in the above order by C.K. Thakkar, J.
and on 21.12.1993, he filed a contempt petition - Music.
Civil Application No. 1841 of 1993 under the Contempt of
Courts Act, 1971 (Annexure F). This contempt petition came
up for hearing on 22.12.1993 before a Division Bench of the
High Court comprised of R.A. Mehta and B.J. Shethna, JJ. The
Division Bench issued notice of the matter returnable on
29.12.1993. On 29.12.1993 when the matter was again taken up
by the same Division Bench, the counsel appering on behalf
of the Ahmedabad Municipal Corporation requested that the
matter may not be taken up by that Bench, pointing out that
B.J. Shethna, J. who was on the Bench had earlier appeared
as an advocate in the High Court on behalf of the respondent
in S.C.A. No. 1497 of 1988 on the basis of which the
allegation of contempt of court was made in this compt
Petition. A perusal of the contempt petition (Annexure F)
shows that it is based on the earlier Special Civil
Application No. 1497 of 1988 and issuance of the chargesheet
dated 7.5.1993 to the respondent is alleged to be in
contempt of the orders made therein. The respondent’s case,
therefore, is clearly on that basis in spite of the
assertion of the Municipal Corporation that the chargesheet
issued to him later is a subsequent and an independent
matter.
The above facts and the specific case of the respondent
in the contempt petition leave no doubt that the appropriate
course for B.J. Shethna, J. in these circumstances was to
recuse himself from hearing this contempt matter on account
of the stand taken by the respondent for whom he had
appeared as counsel in Special Civil Application No. 1497 of
1988. It appears that the constitution of the Division Bench
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had undergone a change in the meantime and the regular
Division Bench comprised of R.A. Mehta and M.S. Parikh, JJ.
but the matter was treated as part-heard by the earlier
Division Bench of R.A. Mehta and B.J. Shethna, JJ. in spite
of the objection taken on behalf of the Municipal
Corporation to the hearing of the contempt petition by B.J.
Shethna, J., as earlier indicated.
The appellants then opposed admission of the contempt
petition by filing affidavits on 13.1.1994 contending inter
alia that B.J. Shethna, J. may not hear the matter for the
reason stated; and that C.K. Thakkar, J. had examined the
matter twice earlier and held that the terms of settlement
arrived at between the parties had been fully complied with
by the Municipal Corporation on account of which no case of
contempt could be made out. The matter came to be listed
before the same Division Bench (R.A. Mehta and B.J. Shethna,
JJ.). Thereafter, on several dates, in spite of the above
objection which indicated a strong reason for B.J. Shethna,
J. to recuse himself from the Bench hearing the contempt
petition, he chose to hear the matter and on 18.3.1994 the
Bench of R.A. Mehta and B.J. Shethna, JJ. made the impugned
order as follows :-
"Heard.
Rule. Interim stay of the inquiry in pursuance of
the Charge sheet dt. 7.5.1993.
dt. 18.3.1994. sd/- (R.A.MEHTA, J)
sd/- (B.J.SHETHNA, J.)"
Aggrieved by the impugned order dated 18.3.1994, this appeal
has been filed by special leave.
On 11.7.1994, this Court (C.J.I. and Mohan, J.) issued
notice in this matter and granted interim stay. In the
counter affidavit filed by the respondent, he has expressly
admitted as under :-
"2. Respondent had been suspended on
14-3-1988 by the Municipal Corporation.
Respondent filed Special Civil
Application No. 1497/1988 in the High
Court of Gujarat (hereinafter referred
as High Court) challenging the said
order of suspension dated 14.3.1988.
Shri B.J. Shethna (now elevated as
Judge) appeared and obtained an order
for staying suspension order
(interlocutory). Thereafter he did not
appear since he had been elevated as
Judge."
"9. The Respondent being harassed by
the Corporation left with no remedy
except to initiate contempt proceedings
against the Petitioners since they have
not complied with the undertaking as
mentioned in the terms of compromise
vide dated 28-2-1990, on 21-12-1993 in
the High Court which was registered as
Misc. Civil Application 1841/1993.
10. The said Civil Misc. Application
came before Hon’ble Mr. Justice R.A.
Mehta and Hon’ble Mr. Justice B. J.
Shethna and notice was issued returnable
on 29.12.1993. When it came for hearing
before the said judges. Objection was
raised that it be not heard by the said
Bench because Hon’ble Mr. Justice B.J.
Shethna had appeared as a counsel on the
first hearing in Spl Civil Application
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No. 1477/1988 for the Respondent. This
request was not acceded to. Again
similar objection was raised on
10.3.1994 but not acceded to. On
18.3.1994 notice was issued and inquiry
Proceedings against this Respondent were
stayed."
Rest of the affidavit is not material in this context.
It appears that the learned Chief Justice of India
apprised B.J. Shethna, J. of this allegation to elicit his
comments. A letter dated 12.8.1994 of B.J. Shethna, J. to
the then Chief Justice of India and another letter dated
9.10.1995 to the present Chief Justice of India in this
connection are on record. In none of these letters, the
basic facts relevant in the present context have been denied
and the tenor of both the letters indicates, unfortunately,
an attempt to justify the course adopted by B.J. Shethna, J.
of hearing the contempt petition and making the impugned
order in spite of the above objection expressly taken to his
presence in the Bench which heard the contempt Petition. In
his letter dated 12.8.1994, B.J. Shethna, J. while
justifying the course adopted by him also said as under :-
".......Thus, except the fact that the
contempt proceedings were arising out of
the final order passed in SCA 1497/88 on
26-12-90 and subsequent petitions filed
in that petition being MCA 540/91 and
MCA 1109/93 note for speaking to
minutes, there was no nexus. Therefore,
that objection was over-ruled by us."
These letters also indicate his disappointment that contempt
proceedings were not initiated against the appellants for
raising such an objection. The expression of this opinion by
him is even more unfortunate.
We are indeed sad that in these circumstances, B.J.
Shethna, J. should have persisted in hearing the contempt
petition, in spite of the specific objection which cannot be
called unreasonable on the undisputed facts, and in making
the impugned order accepting prima facie the respondent’s
above noted contention. Ordinarily, at least at that stage
it should have been appreciated that the more appropriate
course for him to adopt was to recuse himself from the Bench
hearing this contempt petition, even if it did not occur to
him to take that step earlier when he began hearing it. It
is on account of the lack even now of the proper perception
needed of the appropriate course for a Judge to adopt in
these circumstances that it has become our painful duty to
emphasise on this fact most unwillingly. We do so with the
fervent hope that no such occasions arise in future which
may tend to erode the credibility of the course of
administration of justice.
A basic postulate of the rule of law is that ‘justice
should not only be done but it must also be seen to be
done.’ If there be a basis which cannot be treated as
unreasonable for a litigant to expect that his matter should
not be heard by a particular judge and there is no
compelling necessity, such as the absence of an alternative,
it is appropriate that the learned judge should recuse
himself from the Bench hearing that mater. This step is
required to be taken by the learned judge not because he is
likely to be influenced in any manner in dong justice in the
cause, but because his hearing the matter is likely to give
rise to a reasonable apprehension in the mind of the
litigant that the mind of the learned judge, may be
subconsciously, has been influenced by some extraneous
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factor in making the decision, particularly if it happens to
be in favour of the opposite party. Credibility in the
functioning of the justice delivery system and the
reasonable Perception of the affected parties are relevant
considerations to ensure the continuance of public
confidence in the credibility and impartiality of the
judiciary. This is necessary not only for doing justice but
also for ensuring that justice is seen to be done.
In the facts and circumstances of this case, we are
afraid that this facet of the rule of law has been eroded.
We are satisfied that B.J. Shethna, J., in the facts and
circumstances of this case, should have recused himself from
hearing this contempt petition, particularly when specific
objection to this effect was taken by the appellants in view
of the respondent’s case in the contempt petition wherein
the impugned order came to be made in his favour. In our
opinion, the impugned order is vitiated for this reason
alone.
Consequently, this appeal is allowed. The impugned
order dated 18.3.1994 is set aside. In view of the fact that
B.J. Shethna, J. has since then been transferred from the
High Court of Gujarat to the High Court of Rajasthan, it is
needless to direct that the matter be now heard in the High
Court of Gujarat by a Bench of which he is not a member.