IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 472 of 2009

(Arising out of SLP (C) No. 676 of 2007)

A.U. Kureshi   ... Appellant Versus

High Court of Gujarat & Another      ... Respondents

O R D E R  

Leave granted.  

The present appeal has been filed against the impugned

order of the High Court of Gujarat at Ahmedabad, dated July

25, 2006 which was passed in Special  Civil  Application No.

6164 of 2002, whereby the High Court has dismissed the said

application.   

FACTS :

The  appellant  was  a  Judicial  Officer  who  joined  the

Gujarat  Judicial  Service  in  1991  and  was  posted  as  Civil

Judge  (Junior  Division)  at  the District  Court,  Bharuch.  The

High  Court  of  Gujarat  (respondent)  received  a  complaint

wherein it was alleged that a case bearing Criminal Case No.

2059/89 under the Gambling Act was listed for hearing in the

appellant’s  Court  and  that  the  appellant  had  acquitted  the

accused and also returned the money seized from the accused

from the scene of occurrence. On the basis of this complaint

the respondent issued a charge-sheet to the appellant and the

appellant  submitted  his  reply.  A  departmental  inquiry  was

initiated  against  the  appellant  and  the  concerned  Inquiry

officer  submitted  his  report  to  the  High  Court  of  Gujarat

stating  that  the  charges  levelled  against  the  appellant  had

been proved. On the basis of this report, a show-cause notice

was issued to the appellant. The appellant filed his reply to

this show-cause notice. Dissatisfied with the appellant’s reply,

the High Court decided that it would be appropriate to dismiss

the appellant from service.  By letter dated October 25, 2001,

the  High  Court  of  Gujarat  recommended  to  the  State

Government that the appellant be dismissed from service and

accordingly an order was passed.          

The  appellant,  being  aggrieved,  filed  Special  Civil

Application No. 6164 of 2002 before the High Court of Gujarat

at Ahmedabad, which has been dismissed by the impugned

order.

Hence, this appeal by grant of special leave.  

2

The  learned  counsel  for  the  appellant  has  submitted

before  us  that  one  of  the  members  of  the  Disciplinary

Committee of the High Court of Gujarat which dealt with the

appellant’s appeal was one of the judges on the bench which

heard  Special  Civil  Application  No.  6164  of  2002  on  the

judicial side. This fact has not been contested by the learned

counsel appearing for the respondents.   

In view of this, it is our opinion that the learned judge

who was part of the Disciplinary Committee which suggested

the  appellant’s  dismissal  should  not  have  later  heard  the

matter  on  the  judicial  side.  In  the  present  case,  the

Disciplinary  Committee  had  suggested  the  appellant’s

dismissal  on  the  basis  of  which the  High  Court  of  Gujarat

made  the  subsequent  recommendation  to  the  State

government.  

The decision made by the Disciplinary Committee was a

vital  component  of  the process  by which the High Court  of

Gujarat  made  the recommendation to the State government

for the dismissal of the appellant. It is therefore not proper for

a member of the said Disciplinary Committee to decide on a

challenge against the same dismissal order while acting in a

purely judicial capacity.

3

It is an accepted principle of natural justice that a person

should not be a judge in his or her own cause. In common

law, this principle has been derived from the Latin maxim -

‘nemo debet esse  judex  in  propria sua causa’.  A  reasonable

permutation  of  this  principle  is  that  no  judge  should

adjudicate a dispute which he or she has dealt with in any

capacity,  other  than  a  purely  judicial  one.  The  failure  to

adhere  to this principle  creates an apprehension of  bias on

part  of  the  said  judge.  It  would  be  useful  to  refer  to  the

observations of Justice P.N. Bhagwati in Ashok Kumar Yadav

v. State of Haryana, (1985) 4 SCC 417:   

“One  of  the  fundamental  principles  of  our

jurisprudence is that no man can be a judge in his

own cause. The question is not whether the judge is

actually biased or has in fact decided partially but

whether the circumstances are such as to create a

reasonable apprehension in the mind of others that

there is a likelihood of bias affecting the decision. If

there  is  a  reasonable  likelihood  of  bias  ‘it  is  in

accordance with natural justice and common sense

that  the  judge  likely  to  be  so  biased  should  be

incapacitated  from  sitting’.  The  basic  principle

underlying this rule is that justice must not only be

done but must also appear to be done.”  

4

Accordingly,  we  accept  this  appeal,  set  aside  the

impugned order of the High Court of Gujarat at Ahmedabad

and remit the case to the High Court to decide it afresh in

accordance with law.   

……………………….……CJ I                                                 [ K.G. BALAKRISHNAN ]  

…..……………………..… J.                                            [ P. SATHASIVAM ]   

New Delhi, January 27, 2009.  

5