Punjab-Haryana High Court
Mukesh Rao vs The High Court Of Punjab & Haryana And ... on 18 December, 2012
Bench: Hemant Gupta, Rajiv Narain Raina
1
C.M.No.15703 of 2012
In CWP No.14585 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 18th December, 2012
C.M.No.15703 of 2012
In CWP No.14585 of 2011
Mukesh Rao ...Petitioner
Versus
The High Court of Punjab & Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Rajiv Atma Ram, Senior Advocate, with
Ms. Priyanka, Advocate, for the petitioner.
Mr. Gaurav Chopra, Advocate,
for respondent No.1.
Mr. S.S.Patter, Sr. DAG, Haryana,
for respondent No.2.
HEMANT GUPTA, J.
This order shall dispose of an application filed by the petitioner that the members of this Bench should recuse from hearing the present writ petition for the reason that the Members of this Bench were also the Members of the Full Court, which recommended action against the petitioner which has led to an order passed by the State Government accepting the recommendations of the Full Court, 2 C.M.No.15703 of 2012 In CWP No.14585 of 2011 impugned in the petition. It is, therefore, contended that the matter should be heard by a Bench comprising Judges, who were not Members of the Full Court that took the decision recommending termination of service during the probation period of the petitioner.
2. Along with the present writ petition, CWP No.23041 of 2011; CWP No.11170 of 2012; CWP No.15682 of 2012 & CWP No.20000 of 2012 were also listed for hearing for the reason that any decision on such application would impact the question as to whether this Bench ought to hear the writ petitions challenging the action of the Full Court of which Members of this Bench were also the Members or not?
3. To address the issue which appears to us of wide significance on the conduct of cases involving judicial officers over which this Court exercises control; we shall firstly, set out and examine the constitutional provisions in respect of the subordinate judiciary. In terms of Article 235 of the Constitution of India, the control over district courts and courts subordinate thereto vest in the High Court. The 'High Court' for the purposes of Article 235 means, all Judges of the Court representing the said High Court. Article 235 of the Constitution of India reads as under:
"235. Control over subordinate courts - The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the 3 C.M.No.15703 of 2012 In CWP No.14585 of 2011 conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
4. In The State of West Bengal & another Vs. Nripendra Nath Bagchi AIR 1966 SC 447, the scope of Article 235 of the Constitution of India came up for consideration before the Constitution Bench. It was held that the High Court is the sole custodian of the control over the judiciary, when it observed to the following effect:
"13. .....The word 'control', as we have seen, was used for the first time in the Constitution and it is accompanied by the word 'vest' which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court, but contemplates disciplinary jurisdiction over the presiding Judge. Article 227 gives to the High Court superintendence over these courts and enables the High Court to call for returns etc. The word 'control' in Article 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges. This conclusion is further strengthened by two other indications pointing clearly in the same direction. The first is that the order of the High Court is made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicates an order passed in disciplinary jurisdiction. Secondly, the words are that the High Court shall 'deal' with the judge in accordance with his rules of service and the word 'deal' also points to disciplinary and not mere administrative jurisdiction."
5. The scope and interpretation of Article 235 was examined later by seven Judges' Bench in a judgment reported as Shamsher Singh Vs. State of Punjab (1974) 2 SCC 831, wherein it was held that the Members of the subordinate judiciary are not under the control, but 4 C.M.No.15703 of 2012 In CWP No.14585 of 2011 also under the care and custody of the High Court. It was held to the following effect:
"78. The High Court for reasons which are not stated requested the Government to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High Court which had control over the subordinate judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235. The High Court should have conducted the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance."
6. A Constitution Bench in a judgment reported as Baradakanta Mishra Vs. Registrar of Orissa High Court (1974) 1 SCC 374 held that it is important for the superior Court to be vigilant about the conduct and behavior of the Subordinate Judge as a judge, as it is to administer the law, because both functions are essential for administration of justice. The Judge of the superior Court in whom this disciplinary control is vested functions as much as a judge in such matters as when he hears and disposes of cases before him. The procedures may be different. The place where he sits may be different. But the powers are exercised in both instances in due course of judicial 5 C.M.No.15703 of 2012 In CWP No.14585 of 2011 administration. The administrative function vested in the High Court is regarded as a function in the administration of justice. It was observed as under:
"45. .....If superior Courts neglect to discipline subordinate Courts, they will fail in an essential function of judicial administration and bring the whole administration of justice into contempt and disrepute. The mere function of adjudication between parties is not the whole of administration of justice for any court. It is important to remember that disciplinary control is vested in the Court and not in a judge as a private individual. Control, therefore, is a function as conducive to proper administration of justice as laying down the law or doing justice between the parties.
46. What is commonly described as an administrative function has been, when vested in the High Court, consistently regarded by the statutes as a function in the administration of justice. ...When we come to our Constitution we find that whereas Articles 225 and 227 preserve and to some extent extend these powers in relation to administration of justice, Article 235 vests in the High Court the control over District Courts and courts subordinate thereto. In the State of West Bengal v. Nripendra Nath Bagchi AIR 1966 SC 447 this Court has pointed out that control under Article 235 is control over the conduct and discipline of the Judges. That is a function which, as we have already seen, is undoubtedly connected with administration of justice. The disciplinary control over the misdemeanours of the subordinate judiciary in their judicial administration is a function which the High Court must exercise in the interest of administration of justice. It is a function which is essential for the administration of justice in the wide connotation it has received and, therefore, when the High Court functions in a disciplinary capacity, it only does so in furtherance of administration of justice."
7. Another Constitution Bench in High Court of Punjab & Haryana Vs. State of Haryana (1975) 1 SCC 843, explained the 6 C.M.No.15703 of 2012 In CWP No.14585 of 2011 expression 'control' appearing in Article 235 of the Constitution and observed as under:
"33. On the question of control by the High Court under Article 235 this Court held in Bagchi case AIR 1966 SC 447 that the word "control" as used in Article 235 includes disciplinary control or jurisdiction over District Judges. This control is vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it includes disciplinary control the very object would be frustrated. The word "control" is accompanied by the word "vest" which shows that the High Court is made the sole custodian of the control over the judiciary. Control is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction on the presiding Judge. The word "control" includes something in addition to mere superintendence over these courts. The control is over the conduct and discipline of Judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. The word "deal" in Article 235 also indicates that the control is over disciplinary and not mere administrative jurisdiction. The word "court" in the term "District Court" is used compendiously to denote not only the court proper but also the presiding judge. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and initial posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service, to a right of appeal if granted by the conditions of service and to the giving of an opportunity of showing cause as required by Article 311 (2) unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone will make enquiry into disciplinary conduct."
8. In State of Haryana Vs. Inder Prakash Anand (1976) 2 SCC 977, it was held that the administrative, judicial and disciplinary 7 C.M.No.15703 of 2012 In CWP No.14585 of 2011 control over members of the judicial service is vested solely in the High Court. Premature retirement is made in the exercise of administrative and disciplinary jurisdiction. It is administrative because it is decided in public interest to retire him prematurely and it is disciplinary because the decision is taken in public interest.
9. Another Constitution Bench in a judgment reported as Chief Justice of A.P. Vs. L.V.A.Dixitulu & others (1979) 2 SCC 34, held that control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation and that the entire scheme of Chapters V and VI in Part VI, epitomized in Articles 229 and 235, has been assiduously designed by the Founding Fathers to ensure independence of the High Court and the subordinate judiciary. It was observed as under:
"40. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystallised by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes:
"(a)(i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311(2).8 C.M.No.15703 of 2012 In CWP No.14585 of 2011
(ii) In Article 235, the word 'control' is accompanied by the word 'vest' which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority (State of West Bengal v. Nripendra Nath Bagchi; Samsher Singh v. State of Punjab(1974) 2 SCC 831 and Punjab and Haryana High Court v. State of Haryana (sub nom Narendra Singh Rao (1975) 1 SCC 843).
(iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry.
(b) Transfers, promotions and confirmation of such promotions, of persons holding posts in the judicial service, inferior to that of District Judge. (State of Assam v. S.N. Sen (1971) 2 SCC 889 and State of Assam v. Kuseswar Saikia (1969) 3 SCC 505).
(c) Transfers of District Judges. [State of Assam v. Ranga Mahammad AIR 1976 SC 903 and Chandramouleshwar v. Patna High Court (1969) 3 SCC 56.]
(d) Recall of District Judges posted on ex-cadre posts or on deputation on administrative posts. (State of Orissa v. Sudhansu Sekhar Misra AIR (1968) SC 647).
(e) Award of selection grade to the members of the judicial service, including District Judges, being their further promotion after their initial appointment to the cadre. [State of Assam v. Kuseswar Saikia (1969) 3 SCC 505.]
(f) Confirmation of District Judges, who have been on probation or are officiating, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233. [Punjab and Haryana High Court v. State of Haryana.]
(g) Premature or compulsory retirement of Judges of the District Courts and of Subordinate Courts. [State of U.P. v. Batuk Deo Pati Tripathi (1978) 2 SCC 102.]
44. In sum, the entire scheme of Chapters v. and VI in Part VI, epitomised in Articles 229 and 235, has been assiduously designed by the Founding Fathers to ensure independence of the High Court and the subordinate judiciary."9 C.M.No.15703 of 2012 In CWP No.14585 of 2011
10. In High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil & another AIR 1997 SC 2631, the Supreme Court observed that the action taken in terms of the Article 235 is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorizing the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein. The Supreme Court noticed that the judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices. It is an office of public trust and in a democracy, the Executive, the Legislature and the judiciary constitutes the three pillars of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the bureaucracy or the members of the other services. While referring to All India Judges' Association Vs. Union of India (1993) 4 SCC 288, the Court observed as under:
"13. .....The Judges do not do an easy job. They repeatedly do what the rest of us seek to avoid i.e. make decisions. Judges, though are mortals, they are called upon to perform a function that is utterly divine in character. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contract with the litigant during the day to day proceedings in the Court. On him lies the responsibility to build solemn atmosphere in 10 C.M.No.15703 of 2012 In CWP No.14585 of 2011 dispensation of justice, the personality, knowledge, judicial restraint, capacity to maintain dignity character, conduct, official as well as personal, and integrity are the additional aspects which make the functioning of the Court successful and acceptable. Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; sometimes even strange hostiles. If law shoots down justice, the people shoot down law and lawlessness paralyses development, disrupts order and retards progress....."
11. It has been further held that a sense of confidence in the Court is essential to maintain the fabric of ordered liberty for free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control of subordinate judiciary and its own self-imposed judicial conduct, on and off the bench, to ensure it. The Court spoke to the following effect:
"15. In Chapter V of the Constitution, by operation of Article 235, total and absolute control over the subordinate judiciary, of the District Courts and Courts subordinate thereto is entrusted and is being exercised by the High Court concerned. All the High Court Judges collectively and individually share that responsibility......"
12. In another judgment reported as High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal & another (1998) 3 SCC 72, the Supreme Court examined the scope of Articles 229 and 235 of the Constitution of India and while approving the judgment of the Full Bench of the Allahabad High Court in Sanjay Kumar Srivastava Vs. Acting Chief Justice, 1996 AWC 644 held that Full Court cannot give direction to the Chief Justice not to fill up posts on the establishment of the High Court. It observed as under:
"30. .....A Judge of the High Court individually or all the Judges sitting collectively, as in the Full Court cannot either alter the 11 C.M.No.15703 of 2012 In CWP No.14585 of 2011 constitutional provisions or the rules made by the Chief Justice. They have no jurisdiction even to suggest any constitutional amendment or amendment in the rules made by the Chief Justice nor can they create any avenue of promotion for the High Court staff so as to be appointed on posts meant for officers from the Rajasthan Higher Judicial Service or Rajasthan Judicial Service. The Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinize his administrative action or order on the judicial side like the action of any other authority......"
13. While considering Article 235, the Court held that the 'control' within the meaning of the said Article is used in a comprehensive sense to include general superintendence of the working of the subordinate courts, disciplinary control over the Presiding Officers of the subordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. It was held that the 'control', referred to in Article 235, vests in the High Court and not in any Judge or Judges or any Committee thereof. It was held as under:
"35. In Tej Pal Singh Vs. State of U.P. (1986) 3 SCC 604 as also in G.S.Nagmoti Vs. State of Mysore (11969) 3 SCC 325, it was held that the 'control' referred to in Article 235 vests in the High Court and not in any judge or Judges or any Committee thereof. In a subsequent decision in Registrar, High Court of Madras Vs. R. Rajiah (1988) 3 SCC 211, it was held that there is no bar to have an enquiry made by a Committee of several Judges against a member of the subordinate judiciary provided the report of the Committee is circulated to all the Judges and the ultimate decision is taken in the meeting of the Full Court.12 C.M.No.15703 of 2012 In CWP No.14585 of 2011
36. What is, therefore, of significance is that although in Article 235, the word 'High Court' has been used, in Article 229 the word "Chief Justice" has been used. The Constitution, therefore, treats them as two separate entities inasmuch as "control over subordinate courts" vests in the High Court, but High Court administration vests in the Chief Justice."
14. In High Court of Judicature at Bombay Vs. Shashikant S. Patil (2000) 1 SCC 416, the Supreme Court said that it is the constitutional duty of every High Court, on the administrative side, to keep guard over the subordinate judiciary functioning within its domain and that when such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by the Court in Shrishkumar Rangrao Patil's case (supra). The Court held to the following effect:
"24. When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the afore- cited decisions. In the present case, as per the judgment under appeal the Division Bench of the Bombay High Court appears to have snipped of the decision of the Disciplinary Committee to the High Court as if the Bench had appeal powers over the decision of the five Judges on the administrative side. At any rate the Division Bench has clearly exceeded its jurisdictional frontiers by interfering with such an order passed by the High Court on the administrative side."
15. In Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, the Supreme Court held that the High Court cannot interfere with the judicial functions of a Subordinate Judge. The extraordinary power 13 C.M.No.15703 of 2012 In CWP No.14585 of 2011 under Article 227 can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority, but it does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The powers of control to be exercised under Article 235 of the Constitution do not extend to interfering with the judicial functions of the subordinate courts. It was held to the following effect:
".....The powers of control to be exercised under Article 235 of the Constitution do not extend to interfering with the judicial functions of the subordinate courts. By virtue of the power under Article 235 the High Court cannot direct the presiding officer to pass a judicial order in a particular manner as that would certainly amount to interfering with the independence of the subordinate judiciary."
16. In Yoginath D. Bagde Vs. State of Maharashtra 1999 (7) SCC 739, the question examined was; whether the word 'High Court' used in Article 235 of the Constitution would mean all the Judges sitting together in a Full Court meeting or merely a Committee of Judges appointed by the Chief Justice, or in other words; whether the Full Court comprising of all the sitting Judges of the Court can act through a Committee of judges for purposes of recommending the major punishment. Such question has been examined by the Supreme Court in State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi & another 1978 (2) SCC 102. The Court has set aside the majority opinion of the Full Bench of the Allahabad High Court, wherein the act of the Court in allowing Administrative Committee to decide the question was said to be an act of 'self-abnegation' and therefore void. 14 C.M.No.15703 of 2012 In CWP No.14585 of 2011 The Court held that the question to be examined is; whether the procedure prescribed by the High Court Rules is in any other manner inconsistent with the terms of Article 235 of the Constitution. The Court observed as under:
"16. It was also argued in that case that since the word "High Court" meant the entire body of Judges appointed to the Court, the control over the subordinate judiciary which was vested by Article 235 in the High Court had to be exercised by the whole body of Judges and that the High Court cannot delegate that power or functions to a Judge or a smaller body of Judges of the Court. This argument was rejected by the Constitution Bench and it was held that there was no delegation involved in the process adopted by the High Court for appointing an Administrative Committee under the Rules made by the High Court in exercise of its power under Article 225 of the Constitution and that the Administrative Committee could recommend imposition of major penalty which could not be questioned on the ground that such recommendation was made not by the High Court but by the Committee of Judges to whom the power could not be delegated. It was further held that if a "power" was given to the High Court by the Constitution, the manner in which that power would be exercised, could also be laid down by the High Court."
17. Such view was reiterated in a number of judgments such as Registrar High Court of Madras Vs. R. Rajiah AIR 1988 SC 1388 and Shirish Kumar Rangrao Patil's case (supra).
18. Perusal of the aforesaid judgments leads to the following conclusions:
1. That Article 235 of the Constitution is designed to ensure independence of the subordinate judiciary by vesting control thereof with the High Court;15 C.M.No.15703 of 2012 In CWP No.14585 of 2011
2. The control of the subordinate judiciary including administrative, judicial or executive is to ensure that the judiciary is free from any external or extraneous influence and the affairs of the judiciary are insulated and managed by the Judiciary itself, that is, by the High Court;
3. The power of control over the subordinate judiciary is vested in the High Court, which control is all permeating, including, appointment, promotion, disciplinary proceedings and that such control is as a Court and not that of or by individual Judges;
4. That all decisions taken are of the High Court cumulatively i.e. Full Court even if a Committee be an administrative or disciplinary committee and recommends action against an officer of the subordinate judiciary; &
5. In terms of Article 235 of the Constitution of India, a Judge acting as a Member of an Administrative Committee or a Disciplinary Committee or in any other form consistent with the rules of allocation of business delegated by the Chief Justice or otherwise, as and when he attends a Full Court meeting to transact business placed before it, he discharges a constitutional obligation reposed in him by the Constitution for maintaining the independence of the judiciary and to achieve that sacred end, exercises control over the subordinate judiciary. His 16 C.M.No.15703 of 2012 In CWP No.14585 of 2011 individual persona merges with the wisdom of the Full Court and gets assimilated in the collective decision making process and in the plurality of the final decision.
In short, the singular voice or voices become plural.
19. We shall now examine the relevant history of this Court in the context of this case and the scope of its jurisdiction conferred by Article 226 and 227 of the Constitution of India.
20. The Punjab and Haryana High Court is a successor Court established by the Letters Patent issued by the "George The Fifth" on 21st March, 1919 constituting the High Court of Judicature at Lahore prior to the partition of the country in 1947. Clause 26 of the Letters Patent contemplates that any function, which is to be performed by the High Court in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose. Such clause reads as under:
"26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."17 C.M.No.15703 of 2012 In CWP No.14585 of 2011
21. Article 214 of the Constitution provides for a High Court for each State and as per Article 215, every High Court shall be Court of record whereas the Administrative and the judicial functioning of the High Court is regulated by Rules and Orders made by it from time to time. Volume V deals with the practice and procedures of this Court in hearing of the causes and other matters. The relevant clause from Chapter 3-A reads as under:
"1. The Judges will sit singly or in Benches of two or more in accordance with a roster to be prepared from time to time. The roster will be prepared by the Deputy - Registrar with the approval of the Honourable the Chief Justice."
22. In terms of Chapter 9-A of Volume V of the High Court Rules and Orders, Honourable the Chief Justice is in the control of the administrative and executive work of the High Court and its distribution amongst the Honourable Judges including the matters to be disposed of at the Judges' meeting. The relevant clauses read as under:
•The Honourable the Chief Justice shall be in control of the administrative and executive work of the High Court and its distribution amongst the Honourable Judges.
•The matters to be placed before and decided at a meeting of the Hon'ble Judges shall inter alia include:
xxx xxx xxx
(v) Disciplinary action against the members of the Punjab Civil Service and Haryana Civil Service (Judicial Branch) and the Superior Judicial Service of Punjab and Haryana.18 C.M.No.15703 of 2012 In CWP No.14585 of 2011
23. The matters delegated to the Administrative Committee are specified in clause 7 of Chapter 9-A, which includes the recording of confidential remarks on the work and conduct of the members of the Punjab and Haryana Judicial Services. The relevant clause reads as under:
"7. (1) There shall be an administrative Committee of Hon'ble Judges which shall consist of the Hon'ble Chief Justice and next six Senior Judges which deal with such matters as may be delegated to it by the Hon'ble Judges at a meeting.
(2) The matters delegated to the Administration Committee shall inter alia include :-
(i) the postings and transfers of the members of Punjab and Haryana Civil Service (Judicial Branch) including those to be sent on deputation.
(ii) The recording of confidential remarks on the work and conduct of members of Punjab and Haryana Civil Service (Judicial Branch) Officers.
Provided, that the annual confidential remarks, recorded by the Administration Committee on the work and conduct of PCS/HCS (Judicial Branch) Officers shall be deemed to be final only after they have been placed and approved in Full Court meeting of Hon'ble Judges."
24. The judicial functioning of the High Court so as to regulate listing of cases including the writ petitions under Article 226 of the Constitution is governed by the Rules called 'the Writ Jurisdiction (Punjab and Haryana) Rules, 1976' published in Chapter 4-F of Volume V of the High Court Rules and Orders. These Rules apply to all petitions under Article 226 of the Constitution of India and have the following provisions:
19C.M.No.15703 of 2012 In CWP No.14585 of 2011
"2. (1) In these rules, unless the context otherwise requires -
•"Chief Justice" means the Chief Justice of the High Court of Punjab and Haryana, and includes a judge of that Court appointed under Article 223 of the Constitution of India to perform the duties of the Chief Justice.
•"Court" means the High Court of Punjab and Haryana and includes any single Bench or Division Bench of the Court."
25. Article 226 of the Constitution confers on every High Court power to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The relevant Article reads as under:
"226. Power of High Courts to issue certain writs - (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within the territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
xxx xxx xxx
227. Power of superintendence over all courts by the High Court -
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may -
(a) call for returns from such courts; 20 C.M.No.15703 of 2012 In CWP No.14585 of 2011 (b) make and issue general rules and prescribed forms
for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
xxx xxx xxx"
26. In Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin (2003) 4 SCC 257, the Supreme Court held that the functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorization. The Court held to the following effect:
"13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the judges as per the rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorization......
14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.21 C.M.No.15703 of 2012 In CWP No.14585 of 2011
"The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the state sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all state officials who are neither legislators nor judges"
(See Constitutional and Administrative Law, Philips and Jackson, Sixth Edition, p. 13). P. Ramnath Aiyer's Law Lexicon defines Judicial Function as the doing of something in the nature or in the course of an action in court, (p. 1015). The distinction between "Judicial" and "Ministerial Acts" is:
"if a judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially." (p. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, may be after making an enquiry, and the decision affects the rights and obligations of the parties. There is duty to act judicially. The judge may construe the law and apply it to a particular state of facts presented for the determination of controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done (Law Lexicon, Ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty."
27. The power of judicial review conferred on the High Court under Article 226 of the Constitution extends so as to issue prerogative writs against all organs of the State being Executive, Legislature or 22 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Judiciary. However, the powers of judicial review are not unbridled, uncontrolled, uncanalized, but are regulated by the precedents defining the scope and extent of judicial review over the actions of the various organs of the State. The power of judicial review under Article 226 is vested only with the High Court or with the Supreme Court and not with any other authority including Courts subordinate to the High Courts. It is a basic structure of the Constitution, as held by the Supreme Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, wherein the Court observed:
"73. We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25, which corresponds to the present Article 32 of the Constitution, Dr B.R. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly stated as follows: (CAD, Vol. VII, p. 953) "If I was asked to name any particular article in this Constitution as the most important -- an article without which this Constitution would be a nullity -- I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance."
xxx xxx xxx
78. ......We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts 23 C.M.No.15703 of 2012 In CWP No.14585 of 2011 and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation is equally to be avoided."
28. The invocation of jurisdiction under Article 226 of the Constitution, the power of judicial review, by any aggrieved person is that of the High Court and not of any individual Judge. It is so apparent from the reading of Clause 26 of the Letters Patent and also the Rules framed by this Court from time to time. The Benches are constituted for the orderly functioning of the Court. The Judges may sit singly or in Division Bench, but the order or judgment is of the High Court. In Union of India Vs. Raghubir Singh, (1989) 2 SCC 754, the Constitution Bench observed as under:
"27. ....It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division 24 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Bench is considered binding on a Division Bench of the same or lesser number of Judges."
29. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673, the Supreme Court quoted from Raghubir Singh's case (supra) and observed as under:
"10. Reference was also made to the doctrine of stare decisis. His Lordship observed by referring to Sher Singh v. State of Punjab (1983) 2 SCC 344 that although the Court sits in divisions of two and three Judges for the sake of convenience but it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three. To do so would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on points of law; consistency and certainty in the development of law and its contemporary status -- both would be immediate casualty."
30. The aforesaid judgments are based upon an order passed by the Court of Appeal in a judgment reported as Young Vs. Bristol Aeroplane Co. Ltd. 1944 (2) All England Law Reports 293, wherein it was observed:
"....The Court of Appeal is a creature of statute and its powers are statutory. It is one court though it usually sits in two or three divisions. Each division has co-ordinate jurisdiction, but the full court has no greater powers or jurisdiction than any division of the court....."
31. In State of Rajasthan Vs. Prakash Chand (1998) 1 SCC 1, the powers of Hon'ble the Chief Justice in the matter of distribution of judicial work amongst the Judges came up for consideration. It was 25 C.M.No.15703 of 2012 In CWP No.14585 of 2011 held that the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted and that no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. The summary of conclusion reads as under:
"59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment:
(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions. (4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice. (5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.
(6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.26 C.M.No.15703 of 2012 In CWP No.14585 of 2011
(8) That Shethna, J. had no authority or jurisdiction to send for the record of the disposed of writ petition and make comments on the manner of transfer of the writ petition to the Division Bench or on the merits of that writ petition.
(9) That all comments, observations and findings recorded by the learned Judge in relation to the disposed of writ petition were not only unjustified and unwarranted but also without jurisdiction and make the Judge coram non judice."
32. In State of Uttar Pradesh Vs. Neeraj Chaubey (2010) 10 SCC 320, the Supreme Court held that the Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub section (3) of Section 51 of the States Reorganization Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The Court observed as under:
"9. The High Court had taken note of various judgments of this Court including State of Maharashtra v. Narayan Shamrao Puranik (1982) 2 SCC 440, Inder Mani v. Matheshwari Prasad(1996) 6 SCC 587, State of Rajasthan v. Prakash Chand (1998) 1 SCC 1, R. Rathinam v. State (2000) 2 SCC 391 and Jasbir Singh v. State of Punjab (2006) 8 SCC 294 and various judgments of the High Courts 27 C.M.No.15703 of 2012 In CWP No.14585 of 2011 and came to the conclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible."
33. The Constitution Bench in Central Board of Dawoodi Bohra Community's case (supra) crystallized the power of the Chief Justice in the matter of distribution of work, when it said as follows:
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
xx xx xx (3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs 28 C.M.No.15703 of 2012 In CWP No.14585 of 2011 correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Union of India Vs. Raghubir Singh (1989) 2 SCC 754 and Union of India Vs. Hansoli Devi (2002) 7 SCC 273."
34. Having crystallized the control of the High Court over the subordinate judiciary contemplated under Article 235 of the Constitution; the jurisdiction to issue prerogative writs in exercise of power of judicial review under Article 226 of the Constitution; exercise of supervisory jurisdiction over the subordinate courts and Tribunals as provided under Article 227 of the Constitution and the role and powers of the Chief Justice in the matter of assignment of work amongst the Judges, the stage is now set to examine the question of bias raised by the petitioner against the Members of the Bench for the reason that they have participated either as a Member of the Administrative Committee or in a Full Court and, thus, their continuation as Member of the Bench hearing the matter on the judicial side is not permissible, as it amounts to automatic disqualification.
35. Mr. Rajiv Atma Ram, learned Senior Advocate appearing for the petitioner relies at the outset upon the judgment of the Supreme Court in Inderpreet Singh Kahlon & others Vs. State of Punjab & others 2006 (11) SCC 356 and in A.U.Kureshi Vs. High Court of Gujarat 2009 (11) SCC 84, to contend that the Supreme Court has 29 C.M.No.15703 of 2012 In CWP No.14585 of 2011 observed against the exercise of power of judicial review by a Judge, who participated earlier administratively. Reference was also made to the judgment of the Supreme Court in P.D.Dinakaran (I) Vs. Judges Inquiry Committee & others (2011) 8 SCC 380, wherein the 'real likelihood' test was applied for deciding whether a particular decision of the judicial or quasi judicial body is vitiated due to bias and that such test has been preferred over the 'reasonable suspicion' test and that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. It is submitted that though the petitioner does not allege any personal bias, but has sought to apply doctrine of automatic disqualification for the reason that having participated in the decision making process at an earlier stage, the Members of this Bench should refuse to hear the matter. Learned counsel for the petitioner also refers to the orders passed by some other Benches of this Court, wherein the Members have recused for the reason that they were the Members of the Full Court, which have taken a decision challenged in the writ petition, to contend that the matter should be placed before some other Bench, who were not the Members of the Full Court, when the decision was taken against the petitioner. Mr. Rajiv Atma Ram also relies upon Shirish Kumar Rangrao Patil's case (supra), to argue that even if the decision is of a Committee constituted as per the decision of the Full Court, it is treated to be a decision as of the Full Court, therefore, the members of the Administrative Committee or any other Committee constituted either by the Chief Justice or by the Full Court, stands 30 C.M.No.15703 of 2012 In CWP No.14585 of 2011 automatically disqualified to exercise the powers of judicial review.
36. On the other hand, Mr. Chopra pointed out that the Hon'ble Judges in Inderpreet Singh Kahlon's case (supra) differ on the question of entertainment of the petition by the Bench, when members of the said Bench have considered the matter administratively. Therefore, the said judgment has been wrongly relied upon as no such principle can be said to be laid down in the said judgment. In respect of A.U. Kureshi's case (supra), it is argued that that was a case where one of the Members of the Disciplinary Committee of the High Court, was the Member of the Bench which heard the writ petition as well. It is contended that the said order is in the facts of that particular case and not laying down as a principle of law that the Members of a Committee cannot hear the matter on the judicial side in exercise of powers of judicial review. It is pointed out that the Kerala High Court in a judgment reported as Mary Teresa Dias Vs. The Hon'ble Acting Chief Justice & others AIR 1985 Kerala 245 and the Full Bench of the Madras High Court in The High Court of Judicature at Madras Vs. T.S.Sankaranarayanan 1997 (3) SCT 171, have examined similar question and held that it is not necessary for the Members of the Bench hearing the matter in exercise of judicial review to recuse from the hearing. It is argued that the Judges of this Court discharge a constitutional obligation in order to maintain independence of judiciary to have control over the subordinate judiciary as contemplated under Article 235 of the Constitution and also have the jurisdiction to decide the matter under 31 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Article 226 of the Constitution in terms of the roster framed by the Chief Justice. The discretion of the Chief Justice in constituting Benches cannot be tinkered with as no such direction can be issued to the Chief Justice to act in a particular manner and that if such an argument is to be accepted, it shall create avoidable uncertainty in respect of constitution of the Bench/Special Benches and that too at the wish and desire of the petitioner as to when he chooses to dispute the constitution of the Bench hearing the matter and which may tend to bring the system of dispensation of justice to disrepute. It is argued that may be in a particular case, some Judges came to be appointed after the consideration of the issue by the Full Court, but that uncertain event will not be a ground to constitute Special Benches at the asking of an aggrieved judicial officer against an action taken by the High Court administratively. It is contended that the principles of natural justice are not absolute. Such principles are subject to statutory exception. The exercise of powers by the Judges of this court either on the administrative side or on the judicial are conferred by the Constitution, therefore, the power of judicial review has to be exercised in the manner, provided by the Constitution and as regulated by the Chief Justice.
37. Relying upon Shirish Kumar Rangrao Patil's case (supra), it is argued that a Member of the Committee even if is not present during the proceedings of the Full Court are yet bound by the conclusion drawn by the Committee and, therefore, on the same analogy, the Judges who were not present in the Full Court on that 32 C.M.No.15703 of 2012 In CWP No.14585 of 2011 particular day or came to be appointed subsequently are deemed to be consenting to the Full Court's decision and as such the decision of the Full Court is a decision taken by not only those Judges who were present in the meeting, but also those Judges, who were not present in the meeting. Therefore, invoking the doctrine of necessity as well, the matter has to be heard by a Bench constituted by Hon'ble the Chief Justice. It is vehemently argued that there is no allegation of personal bias or pecuniary bias, but only of an institutional bias though too in exercise of the constitutional jurisdiction, therefore such bias is not a ground for the constitution of the Special Bench to hear the writ petitions filed by the aggrieved judicial officers. The allegation of bias against an authority exercising constitutional powers cannot be easily levelled or sustained. Therefore, the contention of the petitioner is wholly misconceived and untenable.
38. Mr. Vikas Bahl, learned counsel representing the High Court in CWP No.15682 of 2012, referred to the Full Bench judgment of the Patna High Court reported as Anirudh Prasad Choudhary Vs. High Court of Judicature at Patna 1997 (4) SCT 176 as well as the judgment of the Supreme Court in Election Commission of India Vs. Dr. Subramanian Swamy 1996 (4) SCC 104, wherein the doctrine of necessity was invoked for hearing of petition by the Chief Election Commissioner even in the face of allegations of bias.
39. In Gullappalli Nageswara Rao & others Vs. Andhra Pradesh State Road Transport Corporation & another AIR 1959 SC 308, State Transport Undertaking was established as an 33 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Undertaking to provide road transport services in the State. A scheme was published and objections were invited from the general public. The Secretary to the State Government heard the objectors. Thereafter the State Government found the objections to the scheme to be devoid of substance. In the challenge to the amendment and the scheme published, the Supreme Court held that under the Act and rules framed therein, the State Government was to consider the objections, but the Secretary who has given the hearing is not the State Government. The writ petition was allowed and the scheme was quashed. The State Government was given liberty to make necessary enquiry in respect to the objections filed by the petitioners in accordance with law. Thereafter, the Chief Minister of the State as In-charge of the Transport Department made an order approving the scheme. Such decision of the State Government was challenged under Article 226 of the Constitution before the High Court. The writ petition was dismissed. In an appeal, the Supreme Court in its subsequent judgment reported as Gullappalli Nageswara Rao Vs. State of A.P. AIR 1959 SC 1376, examined the question that when a statute confers a power on an authority and imposes a duty on it to be a Judge of its own cause or to decide a dispute in which it has an official bias, the doctrine of bias is qualified to the extent of the statutory authorization. The Supreme Court noticed that the principles governing the 'doctrine of bias' vis-à- vis Judicial Tribunals are well settled and they are (i) no man shall be a Judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The question raised was 34 C.M.No.15703 of 2012 In CWP No.14585 of 2011 that "when a statute confers a power on an authority and imposes a duty on it to be a Judge of its own cause or to decide a dispute in which it has an official bias, the doctrine of bias is qualified to the extent of the statutory authorization".
40. Referring to the judgment in Rex Vs. Bath Compensation Authority (1925) 1 KB 685 and King Vs. Leicester Justices, (1929) 1 KB 557, the distinction between Bath Compensation Authority's case and the aforesaid case was noticed by observing that in the earlier case, that the Parliament had not sanctioned what was done, in this case. The argument that there was risk of bias if the statutory duty was discharged was rejected with the observations that "some risk of bias is inseparable from the machinery which Parliament has set up". The Court said to the following effect:
"6. ... This decision, therefore, is an authority for the proposition that, unless the legislature clearly and expressly ordained to the contrary, the principles of natural justice cannot be violated. In Rex v. Leicester Justices 1927-I KB 557, a case also arising under the Licensing (Consolidation) Act, 1910, the King's Bench Division held that the mere fact that the licensing Justice has originated an objection to the renewal of a licence does not disqualify him by reason of interest from sitting and adjudicating as a member of that authority upon the matter of that licence. Salter, J., brought out the distinction between the Rex vs. Bath Compensation Authority's case 1925-I KB 685 and the case before him in the following terms, at p. 565:
"The distinction is that, in that case, Parliament had not sanctioned what was done; in this case it has."
Dealing with the argument that there was some risk of bias if the statutory duty was discharged, the learned Judge rejected it with the observation that "some risk of bias is inseparable from the machinery which Parliament has set up". At first sight this judgment 35 C.M.No.15703 of 2012 In CWP No.14585 of 2011 appears to be inconsistent with the decision of the House of Lords in Rex Vs. Bath Compensation Authority's case 1925-I KB 685 but a scrutiny of the latter case shows that in that case the licensing Justices had themselves actively opposed the renewal of the licence before the compensation authority and instructed a solicitor to do so on their behalf. This is not a duty cast on them by the statute whereas the licensing Justices in dealing with an application for renewal of a licence and, when the question of renewal was referred for decision to the compensation authority, in sitting as members of that authority are merely carrying out the duties in accordance with the procedure prescribed by the legislature. These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions, but the invasion is confined strictly to the limits of the statutory exception. It is not out of place here to notice that in England the Parliament is supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid; whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution."
41. Examining the question; whether the State Government has acted in violation of principles of natural justice, the Court noticed that under the Constitution and the Rules framed there under, the Minister-in-charge of a department shall be primarily responsible for the disposal of the business pertaining to that department, but the ultimate responsibility for the advice is on the entire ministry. The position of the Secretary of a department is different, as he is part of the department. The Court noticed distinction between the functioning of the Secretary or a Minister and did not find merit in the argument that the Chief Minister is part of the department constituted as a statutory authority under the Act. Examining the argument; whether the Chief Minister by his acts and speeches disqualified himself to act 36 C.M.No.15703 of 2012 In CWP No.14585 of 2011 for the State Government in deciding the dispute, excluding the newspaper cuttings from evidence, a finding was returned that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization. The findings recorded therein are to the effect that the principles of natural justice are subject to statutory limitations including the maxim that no one shall be a Judge in his own cause is subject to statutory exceptions.
42. In J.Y.Kondala Rao & others Vs. Andhra Pradesh State Road Transport Corporation & others AIR 1961 SC 82, the scheme for nationalization of the road transport in respect of different parts of West Godavari, State of Andhra Pradesh was subject matter of challenge. The validity of the scheme was challenged, inter alia, on the ground that the Government is actuated by bias against the private operators of buses and that the Government itself was made a Judge in its own cause. Therefore, its decision was vitiated by legal bias. Referring to the judgment in Gullappalli Nageswara Rao's case (supra), it was held that when the State Government decided the dispute between the said undertaking and the operators of private buses, it is only discharging its statutory functions and that the Minister-in- charge of the portfolio of transport can not be said to have any personal bias. It was observed as under:
"14. ...... In the above cases, the transport department of the Government was the transport undertaking, but here the State Road Transport Corporation, which is a body corporate having a perpetual succession and common seal, is the transport authority. Though under the provisions of the Act, the State Government has some control, it cannot be said either legally or factually that the said 37 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Corporation is a department of the State Government. The State Government, therefore, in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions. This objection, therefore, has no merits. Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias. The fact that he presided over the sub-committee constituted to implement the scheme of nationalization of bus services in the West Godavari District does not in itself establish any such bias. Indeed, in the counter-affidavit filed on behalf of the first respondent the contents and authenticity of the reports of the proceedings of the sub-committee published in the Telugu daily "Andhra Patricia" were not admitted. Even if the sub-committee came to such a decision, it is not possible to hold that it was a final and irrevocable decision in derogation of the provisions of the Act. It was only a policy decision and in the circumstances could only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision could not either expressly or by necessary implication involve a predetermination of the issue; it can only mean that the policy would be implemented subject to the provisions of the Act. It is not suggested that the Minister in charge of the concerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has not been established that the Minister in charge of the portfolio of transport had personal bias against the operators of private buses and, therefore, disqualified himself from hearing the objections under Ch. IV A of the Act."
43. In the same strain a constitution Bench of the Supreme Court while dealing with the rule against bias and acts committed and decisions taken in official capacity again in the context of Motor Vehicles Act, 1988 held in H.C.Narayanappa Vs. State of Mysore, AIR 1960 SC 1073 that:-
38C.M.No.15703 of 2012 In CWP No.14585 of 2011
"13. It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question merely because he is a limb of the Government."
44. In A.K.Kraipak & others Vs. Union of India & others AIR 1970 SC 150, it was held that rules of natural justice operate if no law is made. It was observed as under:
"18. The aim of the rules of natural justice is to secure justice or to put in negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably....."
45. In R.S.Dass Vs. Union of India, AIR 1987 SC 593 while dealing with the exclusion of inapplicability of rules of natural justice held :-
"25. Rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail its application depends upon the 39 C.M.No.15703 of 2012 In CWP No.14585 of 2011 facts and circumstances of each case. These principles do not apply to all cases and situations. Application of these uncodified rules is excluded in the interest of administrative efficiency and expedition. Sometimes legislation itself excludes the application of the rules by express provision or by implication."
46. A Constitution Bench in a judgment reported as Union of India Vs. Tulsiram Patel (1985) 3 SCC 398 examined maxims i.e. nemo judex in causa sua; nemo debet esse judex in propria sua causa; and aliquis non debet esse judex in propria causa, quia non potest esse judex et pars, that 'no man ought to be a judge in his own cause, because he cannot act as a judge and at the same time be a party'. The other principle of natural justice examined in the said case was 'audi alteram partem'. It was held that these two rules of natural justice have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are none the less not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. It was observed that:
"97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed. There is no difference in this 40 C.M.No.15703 of 2012 In CWP No.14585 of 2011 respect between the law in England and in India. It is unnecessary to refer to various English decisions which have held so. It will suffice to reproduce what Ormond, L.J., said in Norwest Holst Ltd. v. Secretary of State for Trade (1978) 3 All ER 280 (at p. 227):
"The House of Lords and this Court have repeatedly emphasised that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case. One of the most important of these circumstances, as has been said throughout the argument, is, of course, the provisions of the Act in question, in this case Sections 164 and 165 of the 1948 Act."
xxx xxx xxx
101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa (1984) 4 SCC 103. So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi Vs. Union of India (1978) 1 SCC 248 at p.
681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision........."41 C.M.No.15703 of 2012 In CWP No.14585 of 2011
47. In Delhi Transport Corporation Vs. D.T.C. Mazdoor Sabha, AIR 1991 SC 101, the Constitution Bench of the Supreme Court observed in paragraph 31 of the judgment:
"The principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The principles of natural justice are not incapable of exclusion in a given situation. For example, Article 311(2) of the Constitution which essentially embodies the concept of natural justice, itself contemplates that there may be situations which warrant or permit the non-applicability of the principles underlying Article 311(2) of the Constitution. Reference may be made to the second proviso to Article 311 of the Constitution. This court has also recognised that the rule of audi alteram partem can be excluded where having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its application and even warrants its exclusion. If importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands, natural justice could be avoided."
48. In Canara Bank Vs. V.K.Awasthy, (2005) 6 SCC 321, it was observed that natural justice is another name of common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. The expressions 'natural justice' and 'legal justice' do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. It was observed that concept of natural justice has undergone a great deal of change in recent years and that rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may 42 C.M.No.15703 of 2012 In CWP No.14585 of 2011 be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. It was held:
"14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life"
49. In Union of India Vs. Vipin Kumar Jain, (2005) 9 SCC 579, the Supreme Court was seized of the issue where the Assessing Officer having been appointed as the authorized officer for the purposes of Section 132 of the Income Tax Act, 1961 had searched the premises of the respondents and thereafter completed their assessments had been faulted by the High Court and the assessments were set aside on the ground that the Assessing Officer was the same person who had conducted the search and therefore, acted as a Judge in his own cause and the assessments suffered from bias and principles of natural 43 C.M.No.15703 of 2012 In CWP No.14585 of 2011 justice. The judgment was reversed by the Supreme Court holding that:-
"6. ....That the assessing officer has, either directly or by virtue of his appointment or authorization by a superior authority under the Act, been given the power of gathering information for the purposes of assessment. The mode of gathering such information may vary from the mere issuance of a notice under Section 142 to the more intrusive method of entry and search envisaged under Sections 133- A and 133-B and seizure under Section 132.
7. Even though it could be said that in a sense since the assessing officer was acting on behalf of the Revenue, in discharging the functions as an assessing officer, he was a party to the dispute, nevertheless there is no presumption of bias in such a situation.
8. There is nothing inherently unconstitutional in permitting the assessing officer to gather the information and to assess the value of the information himself.
9. It is true that there may be cases where the outcome of the assessment may be influenced by the fact that the raiding assessing officer had himself in the course of the raid been witness to any incriminating material against the assessee. The assessing officer's decision on the basis of such material is not the final word in the matter. The assessment order is appealable under the provisions of the statute itself and ultimately by way of judicial review.
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12. Ultimately, the question of bias will have to be decided on the facts of each case. If the assessee is able to establish that the assessing officer was in fact biased in the sense that he was involved or interested in his personal capacity in the outcome of the assessment or the procedure for assessment, no doubt, it would be a good ground for setting aside the assessment order. But to hold, as the High Court has that bias is established only because the authorized officer under Section 132 and the assessing officer are the same person is, in our view, an incorrect approach."44 C.M.No.15703 of 2012 In CWP No.14585 of 2011
50. A reading of the above judgments leaves no manner of doubt that rules on natural justice including the rule that no one shall be a Judge in his own cause are subject to statutory provisions. Such rules of natural justice can be altered, modified and varied by the statutory provisions. The constitutional provisions such as jurisdiction conferred on a High court under Article 235 of the Constitution to control the subordinate judiciary in furtherance of the cause of an independent judiciary, and the power of the High Court to exercise jurisdiction of judicial review over all actions be they administrative, judicial or legislative in terms of Articles 226/227 of the Constitution are the exceptions to the general rule of natural justice. It is more so that the constitutional provisions have far greater and all pervading sanctity than a statutory provision.
51. In a recent judgment reported as N.K.Bajpai Vs. Union of India (2012) 4 SCC 653, it has been held that suspicion of bias and likelihood of bias are two categories. It is the likelihood of bias, the decision would attract judicial chastisement, but in case of suspicion of bias, it would hardly affect the decision. It was held to the following effect:
"48. Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action with reference to the facts and 45 C.M.No.15703 of 2012 In CWP No.14585 of 2011 circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial chastisement but if it falls in the latter, it would hardly affect the decision, much less adversely."
52. In Lalit Kumar Modi Vs. Board of Control for Cricket in India (2011) 10 SCC 106, the challenge was to the constitution of the Disciplinary Committee on the principle that no man should be Judge in his own cause. It was alleged that the Members of the Disciplinary Committee are part of the institution and, therefore, suffer from institutional bias. Relying upon Maclean Vs. Workers' Union 1929 All ER 468, wherein the question posed was in respect of a Tribunal entrusted with the duty to appear to act as prosecutors as well as that of Judges, the Court observed as under:
"28. In reply, Shri Sundaram, learned counsel for BCCI submitted that the members of a society have to abide by the rules and regulations thereof and submit themselves to the jurisdiction of the domestic tribunal, though some of the members of the tribunal may even appear to him to be acting like prosecutors. A member cannot place himself above the institution. He is bound by the rules, and cannot complain unless the inquiry disclosed mala fides or unfair treatment. A society is comparable to a club or a Masonic Lodge. A judgment in T.P. Daver v. Lodge Victoria AIR 1963 SC 1144 is relevant in this behalf wherein this Court has held in para 8 thereof as follows: (AIR pp. 1146-47) "8. Another aspect which may also be noticed is how far and to what extent the doctrine of bias may be invoked in the case of domestic tribunals like those of clubs. The observations of Maugham, J. in Maclean case 1929 All ER 46 C.M.No.15703 of 2012 In CWP No.14585 of 2011 468 in this context may be noticed. The learned Judge observed in that case thus: (Ch pp. 624-25) 'A person who joins an association governed by rules under which he may be expelled ... has in my judgment no legal right of redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may be provided that it acts in good faith.... The phrase, "the principles of natural justice", can only mean in this connection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports that the accused should be given his chance of defence and explanation. On that point there is no difficulty. Nor do I doubt that in most cases it is a reasonable inference from the rules that if there is anything of the nature of a lis between two persons, neither of them should sit on the tribunal.' Another difficulty that one is confronted with in proceedings held by committees constituted by clubs is to demarcate precisely the line between the prosecutor and the Judge. Maugham, J. noticed this difficulty and observed in Maclean case 1929 All ER 468, Ch at p. 626 thus:
'... In many cases the tribunal is necessarily entrusted with the duty of appearing to act as prosecutors as well as that of Judges; for there is no one else to prosecute. For example, in a case where a council is charged with the duty of considering the conduct of any member whose conduct is disgraceful and of expelling him if found guilty of such an offence, it constantly occurs that the matter is brought to the attention of the council by a report of legal proceedings in the press. The member is summoned to appear before the council. The council's duty is to cause him to appear and to explain his conduct. It may be said that in so acting the council are the prosecutors. In one sense they are; but if the regulations show that the council is bound to act as I 47 C.M.No.15703 of 2012 In CWP No.14585 of 2011 have mentioned and to that extent to act as prosecutors, it seems to be clear that the council is not disqualified from taking the further steps which the rules require.' Though it is advisable for a club to frame rules to avoid conflict of duties, if the rules sanction such a procedure, the party, who has bound himself by those rules, cannot complain, unless the enquiry held pursuant to such rules discloses mala fides or unfair treatment." (.....emphasis supplied) xxx xxx xxx
37. The Rules lay down the terms of the contract amongst the members of the society, and the terms can be altered only with the consent of the members concerned. As far as this submission is concerned, we must note that firstly, the Rule does not say that if the President cannot be a member of the Committee no substitution shall take place, nor does it say that the substituting member should be one not objected by the delinquent against whom the enquiry is proposed. This rule is being canvassed as a term of the contract of membership. A member of the society having accepted the rules, agrees to the disciplinary authority of the three-member Committee which is to be constituted under these Rules. He cannot claim a right to dictate as to who should be the members of the Committee. Any such interpretation will lead to a situation that the delinquent will decide as to who should be the members of the Disciplinary Committee. Such a submission cannot be accepted. In our understanding the rule is elastic enough, and in an appropriate situation the word "shall" can be read as "may". It is very clear that, normally the President shall be a member of three-member Committee, but if for any reason his presence on the Committee is objected to on grounds of unfairness, and he recuses himself therefrom, Respondent 1 certainly has the power to substitute him by some other person. The action of the respondents is sought to be defended on the basis of necessity.
38. The doctrine of necessity is a common law doctrine, and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Otherwise, as proposed by Shri Jethmalani one will have to wait for one more year 48 C.M.No.15703 of 2012 In CWP No.14585 of 2011 for a new President to be elected, which submission cannot be accepted.
39. As far as the disciplinary actions by societies and associations are concerned, many of the societies under the Tamil Nadu Societies Registration Act and similar State Acts, are smaller societies. It is another matter that the first respondent society is a large body having large resources. If the members or the Managing Committee of a Society receive a complaint of any misconduct on the part of any of its office bearers, surely the subject is expected to be taken up in the General Body Meeting of the Society. These societies are expected to sort out the future course of action with respect to such allegations on their own on the basis of their internal disciplinary mechanism.
Merely because all the members of a society have participated in the discussion concerning such allegation, the Society cannot be expected to appoint an outsider to hold the disciplinary proceeding. It may not be financially possible as well for such small societies. That apart, only a prima facie opinion is formed in such meetings. Merely because a member has participated in such a meeting he cannot be accused of bias to disentitle him from being appointed on the Disciplinary Committee." (.... emphasis supplied)
53. Rejecting the allegation of institutional bias, the Court observed that:
"41. As we have noted, the petitioner has, in clear terms stated that he was not making any personal allegations against two members of the Disciplinary Committee viz. Shri Jaitely and Shri Scindia. Even the grievance against the third member Shri Amin cannot be said to be well founded. The petitioner was alleging institutional bias against the members of the Committee, which was only on the basis of their participation in the meetings of the first respondent society. In this way, institutional bias can be alleged against every member of the Governing Council of IPL and the General Body of the first respondent which cannot be accepted. The petitioner may have an apprehension, but it is not possible to say from the material on record that he was facing a real danger of bias. We cannot presume 49 C.M.No.15703 of 2012 In CWP No.14585 of 2011 that the three-member Committee will not afford the petitioner a fair hearing, or that it will not render unbiased findings. Taking a view as canvassed by the petitioner will lead to a demand for interference in the enquiries conducted by all other societies in such situations, and that cannot be approved in view of the law already laid down by this Court. This is apart from the view that we have taken, that the Committee is validly constituted under Rule 1(q) in view of the necessity arising due to the recusal of the President of BCCI from the Committee."
54. With the above said concepts in place, we will now examine the judgments dealing with the power of judicial review over the action taken by the High Court administratively in terms of Article 235 of the Constitution of India.
55. A Full Bench of the Kerala High Court in a judgment reported as K. Prabhakaran Nair Vs. State of Kerala & others AIR 1970 Kerala 27, considered the question of maintainability of a writ petition under Article 226 of the Constitution against a decision taken by the High Court under Article 235 of the Constitution. It was held that the writ petition is maintainable, when the Court observed as follows:
"The result of adopting a contrary view would lead to the anomalous position that while all other civil servants who may feel aggrieved by orders passed against them by other heads of Departments of Government, can in appropriate cases challenge such orders before the High Court under Article 226, the benefit of such opportunity is denied to the personnel belonging to the staff of the High Court and the subordinate courts, and they will be left without the benefit of the efficacious and comparatively cheap remedy provided for by Article 226 even if the ground of challenge against the, order be a violation of Article 311 of the Constitution or of the statutory rules framed under Article 309. We do not think that the framers of the 50 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Constitution while enacting Article 226 intended to restrict its scope so as to lead to such hardship and anomaly. We therefore overrule the preliminary objection and hold that the petition is maintainable".
56. In Mary Teresa Dias's case (supra), the Kerala High Court dealt with a question arising when the High Court did not recommend the name of the petitioner for appointment to the post of District Judge. It was observed that natural justice is not a static concept. It is part of a judicial vocabulary in the administration of justice. It was held that the power of this court under Article 233 is not that of any Judge of the High Court, but of a superior Court, the collective constitutional entity, the High Court. The relevant extract reads as under:
"18. Natural justice is not a static concept. It is part of a judicial vocabulary in the administration of justice. It is not 'extra legal' though it may be 'extra legislative'. It is recognized as a guiding factor in administrative law and forms the constitutional basis for judicial scrutiny of legislative and executive actions. It is the sense of justice that represents the ethics of judicial conscience. While a statute may expressly abrogate the principles of natural justice, these principles may also have to yield to the "demands of necessity"
where the "jurisdiction is exclusive and there is no legal provision for calling a substitute".
19. In this case, the counsel for the petitioner has submitted fairly and clearly that the petitioner does not impute any personal bias to both of us or to any of the Judges who participated at the Judges' meeting on 12th June, 1984. An administrative decision of the High Court is open to challenge on the judicial side in the same High Court and there are several instances in this court itself where administrative decisions were in fact successfully challenged under Article 226 of the Constitution. (See for instance Madhavan Nair vs. Registrar, High Court, Kerala, AIR 1968 Ker. 17 (FB), Krishna Nair vs. State of Kerala 1974 Ker. LT 313, and Jamer Thoman vs. 51 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Chief Justice AIR 1977 Ker 166 (FB). The plea therefore that a participation of the Judges on the administrative side disqualifies them from hearing the matter on the judicial side cannot be accepted. It has also to be noted that the recommendation under Article 233 is not that of any Judge of the High Court, but of a superior Court, the collective constitutional entity, the High Court. The High Court cannot be said to be prejudiced simply because it did not recommend a person to be appointed as a District Judge....."
57. The Full Bench of the Madras High Court in T.S. Sankaranarayanan's case (supra), was considering a case of disciplinary action taken against a District Judge, wherein an enquiry was conducted by two Judges appointed by the Chief Justice. On the basis of such enquiry, minor penalty was imposed by the Full Court. One of the questions examined was one of bias as one of the Judges had participated in the disciplinary proceedings earlier. The Court observed as under:
"56. Administrative Committee No.1 is comprised of the Honorable Chief Justice and three other Honorable Judges. The impugned order was issued by the Administrative Committee No.1 and not by one learned Judge who was one of the inquiring Judges on the earlier occasion. Apart from that, the apprehension of bias in the mind of the person concerned should not be a mere apprehension. It must be a reasonable apprehension as judged by ordinary prudent men. Apprehension of bias in mind of the respondent in this regard, in our opinion, cannot be said to be the reasonable apprehension, particularly so when it is alleged on account of the participation of one of the Honourable Judges in the earlier enquiry proceedings.
57. Constitutional functionaries like the Honourable Judges engaged in the administration of the justice cannot be said to be biased merely because one of the Judges has participated in the earlier disciplinary proceedings as one of the Enquiring Judges. The Honourable Judges are credited for judicious and unbiased approach 52 C.M.No.15703 of 2012 In CWP No.14585 of 2011 in relation to the matters that come up for their consideration and decision, be it on judicial side or administrative side, as the judicial minds are trained in that way by reason of the background, knowledge, experience and the nature of the duties and functions they perform. It is not uncommon that Judges taking one view tentatively are persuaded to take a different view; even on review applications there are occasions where the Honourable Judges revise their orders and even correct errors without hesitation in accordance with law and in the interest of justice. This indicates the openness of the mind of the Honourable Judges negativing the apprehensions of bias. If the argument relating to bias is to be accepted, then, none of the Judges of this Court will be able to hold enquiry into the charges framed against the respondent and take further action in the matter, inasmuch as on earlier occasion based on the findings of the Inquiring Judges, the matter was placed before the Full Court and it is the Full Court which took a final decision to impose a minor penalty of stoppage to two increments without cumulative effect on the respondent. Hence the argument of the learned senior counsel on this aspect, cannot be accepted."
58. A Full Bench of the Patna High Court in Anirudh Prasad Choudhary's case (supra) examined the question- whether the writ petition would be maintainable even though on administrative side, the impugned order was passed directing that the petitioners were not entitled to enhancement of the age of superannuation from 58 to 60 years, as every member of the bench had participated in the deliberations of the Full Court. The Full Bench also examined the 'doctrine of necessity'. The Bench observed that the Members of the Bench participated in the discussions in the Full Court, but no member has any interest one way or the other nor he can be said to be personally interested in the matter. It was observed as under: 53 C.M.No.15703 of 2012 In CWP No.14585 of 2011
"17. The members of the present special Bench alongwith other members of the Full Court have dispassionately participated in the deliberations and discussions, keeping in view the aforesaid dictum laid down by the Apex Court that only those members of the Higher Judicial Services must be awarded enhancement of the age of superannuation upto 60 years from 58 years, who have a potential for continued useful service. Every one of us was more particular that enhancement of the age of superannuation was given to a deserving member of the Superior Judicial Service. The matter was thrashed out for each and every petitioner, and thereafter the decision was taken. As the decision on the administrative side in usually challenged before the judicial side, there is very little hope for possibility of bias.
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30. In view of the aforesaid discussions made about the concept of the likelihood of bias and its impression given to other people, but in such matters no Member of the Full Court has any interest in one way or the other, nor he can be said to be interested in any Member of the Subordinate Judiciary in the matters of enhancement of the age of superannuation, rather every Member of the Full Court was conscious about the responsibility he was holding to ascertain about the suitability of a member of superior Judicial Service as to whether he fulfilled the guidelines laid down by their Lordship of the Supreme Court in All India Judges' Association Vs. Union of India, AIR 1993 SC 2493 and whether a particular Judicial Officer may be a District Judge or Additional District Judge or otherwise, has potential for continued useful service and that the benefit was not given to indolent, infirm and those of doubtful integrity, reputation and utility. To ascertain that potential, Judicial Officers' past record of service, character rolls, quality of judgments and other relevant matters were taken into account."
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32. The Members of the Full Court, therefore, in my opinion, cannot be said to be biased against any judicial officers and while deciding the age of superannuation against the administrative order of the Full Court, these petitions were maintainable.
33. It is also not inapt to mention that what I could notice that every member of the Full Court was so engrossed in his work and was 54 C.M.No.15703 of 2012 In CWP No.14585 of 2011 conscious about the high standard of justice and sincerity off the purpose that it is beyond imagination. It was manifest as if every member has full knowledge of following classical Sanskrit shlokas indicating sacred duties of a Judge........."
59. In Manak Lal, Advocate Vs. Prem Chand Singhvi & others AIR 1957 SC 425, an enquiry was conducted against Manak Lal, Advocate in respect of allegations of professional misconduct in which Shri Chhangani had put in appearance on behalf of the respondent Prem Chand Singhvi. Since Shri Chhangani had participated in the proceedings, a finding was returned that he was disqualified from functioning as Member of the Tribunal and that it shall not be necessary to prove any prejudice in fact has been caused. The said judgment does not advance the cause of the petitioner in any manner since that was a case of an enquiry under the then Legal Practitioners Act and in which the Chairman of the Tribunal had put in appearance on behalf of one of the parties.
60. In Inderpreet Singh Kahlon's case (supra), the Members of the Bench differ on the question of hearing of the matter by the Judges, who were the Members of the Committee considering the issue administratively. The petitioner relies upon the following observations made by Hon'ble Mr. Justice S.B.Sinha:
"51. ....We also fail to understand as to why two senior Judges who had headed the Committee should have been made part of the Bench. It was not a case where the doctrine of necessity was required to be invoked. It may be that the counsel appearing on behalf of the judicial Officers did not object to the learned Judges, who were members of the Committee to hear the matter."55 C.M.No.15703 of 2012 In CWP No.14585 of 2011
61. However, the said opinion was not agreed to by another Member of the Bench (Hon'ble Mr. Justice Dalveer Bhandari), when it was observed as under:
"87. The appellants submitted that the judicial officers have not been fairly treated by the High Court. It was urged that the two senior judges who were members of the Committee (appointed by the High Court) should not have been part of the Full Bench constituted by the Chief Justice. In the facts and circumstances of this case, I do not find any merit in this submission of the appellants. In these cases, before hearing commenced, the learned counsel appearing for the appellants clearly consented to hearing of the matter by the judges of the full bench. After giving clear consent before the High Court, they cannot be permitted to make any grievance before this Court.
This tendency should not be encouraged.
88. The report submitted by the judges of the Committee was placed before the Full Court and after thorough examination and discussion on the report by the full court, the same was approved by all the judges of the High Court unanimously. All the judges after threadbare deliberations on the report had put their seal of approval. The report, in fact became the report of the High Court. On the same analogy no judge of the Punjab and Haryana High Court should have heard this matter.
89. The respondents have placed reliance on famous case Pinochet (1999) 1 All ER 577 which has been referred and relied by the Supreme Court in Rupa Hurra (2002) 4 SCC 388 at prs.21 read with prs.37-9 and Kumaon Vikas Mandal (2001) 1 SCC 182 at prs.30-2. There is no quarrel with the principles which have been laid down in Pinochet's case. But in the facts and circumstances of this case after giving clear consent before the commencement of the hearing in the High Court, it is not fair and appropriate for the appellants to take this objection before this Court for the first time after the Division Bench's judgment. ....
The two judges, who were part of the full bench, did not have bias of any kind against the appellants. They had no pecuniary or any other interest in the matter. They have discharged their judicial functions as judges. Therefore, I find no merit in the 56 C.M.No.15703 of 2012 In CWP No.14585 of 2011 submission that the two judges, who were part of the Committee, ought not to have heard this matter. (....emphasis supplied)
90. In the facts and circumstances of the case, in my considered opinion, the appellants are not justified in making any grievance before this Court regarding the hearing of the cases by the full bench of which two judges who had submitted the Report, were also members. Admittedly, those judges constituting the full Bench had no interest of any kind in deciding the matter one way or the other. The appellants before the commencement of hearing categorically submitted that they had no objection whatsoever to the hearing of the matter by the said full bench. Even assuming, those judges had any bias against the appellants, the appellants had waived their right, if any. In these circumstances, the doctrine of 'waiver' is fully applicable.
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93. I respectfully agree with all the findings of my learned brother Justice Sinha expect on this issue. On consideration of the cumulative facts and circumstances I entirely endorse the directions given by my learned brother Justice Sinha. Consequently, the learned Chief Justice of Punjab and Haryana High Court is requested to set up two independent committees, one, with regard to the executive officers and another with regard to the judicial officers. They should delineate the area which falls for consideration by the said Committees and the Committees be requested to reconsider all the cases and submit a Report to the Punjab and Haryana High Court as expeditiously as possible."
62. Since the Members of the Bench have not agreed on the said question, the reliance of the petitioner on the said judgment is not helpful as there is no binding final opinion of the court.
63. Learned counsel for the petitioner has emphatically relied upon a recent judgment of the Supreme Court in P.D.Dinakaran (1) 57 C.M.No.15703 of 2012 In CWP No.14585 of 2011 Vs. Judges Inquiry Committee & others (2011) 8 SCC 380, wherein the Court opined as follows:
"The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non- pecuniary bias, the `real likelihood' test has been preferred over the `reasonable suspicion' test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries."
64. In the aforesaid case, after returning a finding that in cases of non-pecuniary bias, the 'real likelihood' test has been preferred over the 'reasonable suspicion' test and the courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct, the Court held that apprehension of the petitioner of likelihood of bias against 58 C.M.No.15703 of 2012 In CWP No.14585 of 2011 respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased. The Court noticed that the Judges and lawyers are trained to be objective and have the capacity to winnow the grain from the chaff, the truth from the falsehood.
65. In Cantonment Executive Officer & another Vs. Vijay D. Wani & others (2008) 12 SCC 230 and Institute of Chartered Accountants of India Vs. L.K.Ratna & others (1986) 4 SCC 537, are the judgments wherein the persons who conducted the enquiry into the legality of the allegations were part of the decision making process. The reliance on the judgment reported as State of W.B. & others Vs. Shivananda Pathak & others (1998) 5 SCC 513, is again not tenable for the reason that in the aforesaid case, the judgment passed by an Hon'ble Judge was set aside in appeal, but in another proceedings the directions were given by said Hon'ble Judge while sitting in the Division Bench. It was found that the Hon'ble Judge garnished the judgment by innocuously providing that arrears would not be payable to the respondents nor will the respondents affect the seniority of others. It was found that the "garniture cannot conceal the deceptive innocence as it is obvious, on a judicial scrutiny, that the paramount purpose was to rewrite the overruled judgment".
66. In all the cases referred to by learned counsel for the petitioner, the persons who conducted an enquiry were later associated in the decision leading to an action against the delinquent in a non statutory circumstances. As observed in P.D.Dinakaran's case (supra), the question required to be examined is; whether the Judges of the 59 C.M.No.15703 of 2012 In CWP No.14585 of 2011 High Court have any interest in the subject matter of the cause i.e. disciplinary proceedings against a Judicial officer so as to preclude him from acting as a Judge in exercise of powers of judicial review.
67. Reliance of the petitioner on the judgment of Hon'ble Supreme Court in Madan Mohan Choudhary Vs. State of Bihar 1999 (3) SCC 396 is again not tenable. A perusal of the order shows that the finding recorded by the Supreme Court was against the administrative decision of the High Court, which decision was not interfered with on the judicial side. In fact, it was observed that on administrative side, the Judges might have acted as ordinary bureaucrat, but once they don the robes they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision making process, yet they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary. The relevant observations are as under:
"2. The recommendation of the High Court on the basis of which the appellant, who held the rank of Addl. District & Sessions Judge, was compulsorily retired from service, exhibits the tragic fact that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. Still, the plea that High Court Judges suffer from "split personality" cannot be accepted for the pleasant fact that though on the administrative side they might have had acted as ordinary bureaucrat, once they don the robes they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of 60 C.M.No.15703 of 2012 In CWP No.14585 of 2011 the decision making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary in which the people have always reposed tremendous faith. In the instant case, however, the order of compulsory retirement dated 02.08.1997 passed by the State Government on the High Court's recommendation has been upheld and it has fallen to our lot, in this appeal, to scrutinise the validity of this order."
68. In the aforesaid case, the plea of split personality of the High Court Judge was negated. It was observed that though on administrative side, the High Court Judges might have acted as ordinary bureaucrats, but while exercising jurisdiction as a Judge, they forget all their past associations and connections. The transformation being complete and real even though they themselves were part of the decision making process. Therefore, the mere fact that one of us participated in the decision making process administratively, is not a ground compelling recusal by this Bench from hearing the writ petition in exercise of the power of judicial review of the High Court under Article 226.
69. Therefore, when the High Court discharges its administrative functions under Article 235 of the Constitution of India, the decision is taken collectively, which is binding on all Judges, who may not be present in the meeting on the said date. It is the decision of the High Court taken in the meeting conducted as per the Rules. Whereas, while exercising jurisdiction under Article 226 of the Constitution of India, though a Judge may sit singly or in Division Bench, but the Judge speaks for the High Court.
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70. In view of the above, we hold:
(i) That the maxims i.e. nemo judex in causa sua;
nemo debet esse judex in propria sua causa; and aliquis non debet esse judex in propria causa, quia non potest esse judex et pars, that 'no man ought to be a judge in his own cause, because he cannot act as a judge and at the same time be a party' though are parts of principles of natural justice, but such principles of natural justice are subject to statutory exceptions;
(ii) That the administrative decision under Article 235 of the Constitution if taken by a Committee or Delegate of Hon'ble the Chief Justice or of the Full Court, it is a decision of the Full Court binding on all Judges, who may not be present in the meeting in which such decision was taken including the Judges, who came to be appointed subsequently;
(iii) That the administrative decision taken by the High Court under Article 235 of the Constitution is subject to power of judicial review conferred on the High Court under Article 226 of the Constitution and such power has to be exercised in terms of distribution of work at the sole discretion of Hon'ble the Chief Justice being master of the roster;
(iv) That there cannot be any direction to Hon'ble the Chief Justice to frame roster in such a manner so as to 62 C.M.No.15703 of 2012 In CWP No.14585 of 2011 exclude Judges who have participated administratively, from exercising powers of judicial review;
(v) That the Judges, when take a decision administratively in exercise of powers under Article 235 of the Constitution, have no personal interest, but are discharging constitutional obligation so as to maintain independence of subordinate judiciary; and
(vi) That there cannot be any principle of law that the Judges, who were Members of the Committee, be it a Disciplinary Committee, Administrative Committee or the Full Court should recuse themselves from hearing of the writ petition except the Judge, who has conducted an enquiry as an Enquiry Officer against any judicial Officer. Such Judge alone will stand disqualified from exercising the powers of judicial review as it is his findings as a quasi judicial Tribunal, which are to be tested on the touch-stone of principles of law, as are applicable to such proceedings.
With the said observations, the present application stands disposed of. The hearing of the writ petition is adjourned to March 11, 2013. The matter be placed before the Hon'ble Chief Justice to reconstitute Bench, if it is considered appropriate, before the said date of hearing of the writ petition.
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(HEMANT GUPTA) JUDGE (RAJIV NARAIN RAINA) JUDGE 18th December, 2012 Vimal