http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 34  

PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: PRAKASH CHAND & ORS.

DATE OF JUDGMENT:       25/11/1997

BENCH: S.P. BHARUCHA, S.C. SEN

ACT:

HEADNOTE:

JUDGMENT:                THE 2ND DAY OF DECEMBER, 1997 Present:                Hon’ble Dr. Justice A.S. Anand                Hon’ble Mr.Justice M.K.Mukherjee                Hon’ble Mr.Justice K.Venkataswami Ashok H.Desai,  Attorney General  for India,  Manoj K.  Das, Srilok Nath  Rath, Nikhilesh Ramachandran, Ms.Rina Bagga and Aruneshwar Gupta, Advs. with him for the appellant T.R. Andhayarujina, Solicitor General of India, Subrat Birla and K.L.Janjani, Advs. with him for the Respondent No.2                       J U D G M E N T      The following Judgment of the Court was delivered: DR. ANAND. J.      Leave granted.      This is  an unusual  case.   The observations, comments and allegations  made and  the order  passed  by  a  learned Single Judge  of  the  Rajasthan  High  Court,  Mr.  Justice Shethna, in  relation to  a disposed  of writ  petition,  by sending  for   its  record   in  a   totally  unrelated  and unconnected criminal  revision petition, which have been put in issue  in this appeal, touch not only upon the discipline of the  High Court  and the  powers of  the Chief Justice to assign cases  and allot Benches but also the larger issue of judicial propriety.   The order directing issuance of notice of contempt  to the Chief Justice of the High Court raises a fundamental question  about the  jurisdiction  of  a  single Judge to issue such a notice in the established facts of the case.   It is  not  individuals  but  the  prestige  of  the Institution which  is at  stake in this case.  The manner in which ’allegations’ have been made against the Chief Justice of the  High Court,  the Division  bench of  the High  Court which had  disposed of  the writ  petition and  some of  the former Chief Justices of the Rajasthan High Court, including the present  Chief Justice of India, Mr. Justice J.S. Verma, has caused us much anguish.  We wish we did not have to deal with a  case like this but we shall be singularly failing in our duties  to the  Institution, if  we do not deal with the matter and  take it  to its logical conclusion.  First, some salient facts:      Writ Petition  No. 2949  of 1996 was filed, as a Public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 34  

Interest Litigation,  on  9.9.1996  in  the  High  Court  of Rajasthan at  Jodhpur by  an Advocate  of that  court, inter alia seeking  directions to provide suitable accomodation to the Judges of the Rajasthan High Court and for certain other benefits for the Judges.  During the proceedings of the writ petition certain  interim orders came to be made by Shethna, J. from time to time.  On 29.4.1997 Shethna, J. directed the writ petition  to be  treated as part-heard at the ’request’ of learned  counsel for the parties.  In the meanwhile, Shri D.R. Bhandari,  Advocate, filed  an  application  for  being impleaded as  petitioner No.2  in that  writ petition.    He inter alia  challenged the  legality  and  validity  of  the constitution of  a Bench of the High Court at Jaipur as also the order  of the State Government declaring bungalow No.A/2 at Jaipur  as the  Guest House  for the exclusive use of the Chief Justice  and bungalow  No.A/5 at  Jaipur as  the  high Court Guest House.  Certain other issues were also raised by Shri  Bhandari   in  that   application.    Over-ruling  the objections raised  by the  respondent therein inter alia, to the effect that the application of Shri Bhandari would widen the scope  of the  writ petition,  the application  of  Shri Bhandari was  allowed by Shethna, J. on 29.7.1997 and he was impleaded as petitioner No.3 in the writ petition.  The case was then  adjourned from  time to  time on  being listed  as part-heard  before   the  learned  single  Judge.    In  the meantime,  the  roster  was  changed  and  Shethna,  J.  was required to  sit in  a Division  Bench  instead  of  sitting singly  between  4.9.1997.    On  8.9.1997,  the  Additional Advocate  General  for  the  state  of  Rajasthan  moved  an application under  Rule 55 of the Rules of the High Court of Judicature for  Rajasthan (hereinafter  the Rules)  with the prayer that  since challenge to the legality and validity of the constitution  of a Bench of the High Court at Jaipur had been raised  by petitioner No.2 Shri Bhandari, Writ Petition No.2949/96 should  be  referred  to  a  Division  Bench  for hearing.   By an  administrative order,  the  Chief  Justice directed, on  8.9.97, that  the  application  filed  by  the Additional Advocate General be put up for orders on the next day at  10.30 A.M.  A judicial order then came to be made on 9.9.1997 by  the Chief  Justice,  in  presence  of  all  the parties to  the writ petition. It was directed that the writ petition should  be listed  before a  Division Bench  of the High Court comprising Mr. Justice M.P. Singh and Mr. Justice B.S. Chauhan  since it  involved  constitutional  questions. When the  writ petition was listed before the Division Bench on 10.9.1997, the following order came to be passed:-      10.09.1997      HON’BLE MR. JUSTICE M.P. SINGH      HON’BLE DR. JUSTICE B.S. CHAUHAN      Mr. M.C. Bhoot      )      Mr. D.R.  Bhandari      )  for  the      petitioners      Mr. I R. Choudhary  )      Mr.   L.S.    Udawat)    for    the      respondents      Mr. R.P. Dave       )      Mr. M.C. Bhoot, learned counsel for      the petitioners,  states  that  the      relief  sought  for,  in  the  writ      petition,  do   not   survive   for      consideration  now.      The   writ      petition has become infructuous.      Accordingly, the  writ petition  is      dismissed as infructuous.      Since the  main petition itself has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 34  

    been dismissed,  the right  of  the      intervenor to  be  heard  does  not      survive     for      consideration.      Accordingly, the  application filed      by him is also rejected."      Thus, writ  petition No.2949  of 1996  was dismissed as ’infructuous’ and,.  the proceedings  in that  writ petition concluded.      A Criminal  Revision Petition  No.357 of 1997 was filed by one  Prakash Chand,  respondent No.1,  herein challenging his conviction and sentence for an offence under Section 304 A IPC.   This  petition, as  per the  roster, was listed for admission and  bail before  Shethna, J.  on  3.9.1997.    It appears that  preliminary hearing  of the  petition did  not conclude on  that date  and the  learned Judge directed that the revision  petition be listed before him "alongwith other part-heard" cases on 5.9.1997, even though as per the change of the  roster, he could not take up single bench matters on 5.9.97, since  he was  to sit  in a  Division Bench  on that date.  Shethna, J. directed the Registry to list those cases "on a  separate board". Since, the Registry could not create a  ’separate  board’  for  Shethna,  J.,  without  obtaining directions from  the Chief  Justice, the matt was placed for orders before  the Chief  Justice on   3.9.97  itself.   The Chief Justice directed :      "There  will   be   no   roster for      Hon’ble  Justice   B.J.Shethna  for      sitting   in    Single   Bench   on      5.9.1997.  Those part heard matters      may be  listed on  some  other  day      some time next week as the business      of the  Court would  permit with my      specific order.      Providing roster is the prerogative      of the Chief Justice, which must be      brought to  the  knowledge  of  the      Hon’ble Judge."      Despite the above order Shethna, J. while still sitting in the  Division Bench,  on  mention  made  by  the  learned Advocate for  the revision  petitioner, passed  an order  on 8.9.1997,  as   a  single  Judge,  directing  that  Criminal Revision Petition  No. 357/97  alongwith  "other  part-heard cases" should be listed before him  "on a Separate board" on 9.9.97, knowing  fully well that on that date also he was to continue to  sit in  the Division  Bench and  that no  cases could be listed before him without appropriate directions of the Chief  Justice.    In  view  of  the  earlier  order  of the Chief Justice  dated 3.9.97  (supra) the  Registry could not act  on the directions of Shethna,  J. and therefore the Registry once  again sought directions of the Chief Justice. The Chief  Justice, it  appears accommodated Shethna, J. and directed that  the criminal  revision  petition  and  ’other part-heard cases’  be listed before him on a separate board. That was done.      Since, W.P.  No. 2949/1996 had already been disposed of by the  Division Bench  on 10.9.1997,  it was  no  longer  a "part-heard case" on the Board of Shethna, J. and thereof it was not listed alongwith the "other part-heard cases", Still the,  surprisingly   however   while   hearing   preliminary arguments in  Criminal Revision  Petition No.  357  of  1997 filed by Prakash Chand for admission and bail, the record of the disposed  of writ  petition No.  2949 of  1996 was  also called for  by shethna, J. and in a detailed order, comments and observations were made regarding (and unrelated to) that writ petition  and an exception was taken to its disposal by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 34  

the division  Bench.    Caustic  comments,  and  unjustified allegations in  intemperate  language  were  made  not  only against  the   Chief  Justice  for  transferring  that  writ petition from  his board  to the  Division  Bench  but  also against the  learned Judges  constituting the Division Bench which  head   the  writ   petition.     While  making  those observations that  Shethna, J.  took exception to the manner in which  the writ  petition was transferred to the Division Bench by  the Chief  Justice and  "opined" that by doing so, the  Chief   Justice  had  prima  facie  committed  criminal contempt of court and concluded:      "Thus, the  act of Shri Mukul Gopal      Mukherji,  the   Chief  Justice  of      Rajasthan High Court in withdrawing      the part  heard writ  petition from      this Court  and getting it disposed      of    in    a    most    suspicious      circumstances and  not placing that      petition alongwith other part heard      matters before this Court on 5.9.97      and 9.9.97  as per my earlier order      dated 3.9.97 and 8.8.97 prima facie      constitute a  "criminal  contempt".      Therefore, office  is  directed  to      issue  notice  against  Shri  Mukul      Gopal Mukherji,  the Chief  Justice      of Rajasthan  High  Court  to  show      cause  as   to  why   the  contempt      proceedings should not be initiated      against him for committing criminal      contempt  under   the  contempt  of      Courts Act, 1971.  The office shall      register   this   case   and   give      separate number  to  this  as  S.B.      Cr.Misc.Contempt Petition No..../97      and title as State of Rajasthan vs.      Mukul  Gopal  Mukherji,  the  Chief      Justice of Rajasthan High Court.      In the  course of the order comments were made not only against the  Chief Justice  and the  Judges constituting the Division Bench  but also  against some  of the  former Chief Justice regarding  the "illegal"  drawal by  them  of  daily allowance while sitting at Jaipur.      While   the    judicial   propriety,    validity    and justification for  making  insinuations  against  the  Chief Justice of the High Court, casting aspersions on the learned Judges constituting  the Division  Bench and making comments and allegations against some of the former Chief Justices of that court including the present Chief Justice of India, has been squarely put in issue by the state of Rajasthan in this appeal by special leave, the Chief Justice of Rajasthan High Court-respondent No.2  has   called in  question the  notice directed to  be issued  to him  to show  cause why  contempt proceedings be not initiated against him.      Did Shethna,  J. have  any judicial  or  administrative authority to  send for  the record  of a writ petition which had already  been disposed of by a Division Bench - that too while  hearing   a  wholly   unconnected  criminal  revision petition - and pass "comments" and make "aspersions" against the  Chief   Justice  of  the  High  Court  and  the  Judges constituting the  Division bench regarding the merits of the writ petition and manner of its disposal.      Can a  single Judge  of a  High Court  itself direct  a particular roster for himself, contrary to the determination made by  the Chief Justice of the High Court? Is not such an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 34  

action of the single Judge subversive of judicial discipline and decorum expected of a puisne Judge?      Could a  notice  to  show  cause  as  to  why  contempt proceedings be  not initiated  against the  Chief Justice of the  High   Court  for  passing  a  judicial  order  on  the application of  the additional Advocate General of the State in the presence of counsel for the parties transferring writ petition No.  2949/96, heard in part by Shethna, J., for its disposal in  accordance with  law to  a  Division  Bench  be issued by the learned single Judge?      Did Shethna,  J. have any power or jurisdiction to cast ’aspersions’ on  some of  the former  Chief Justice  of that Court, including  the present  Chief Justice  of India,  Mr. Justice J.S. Verma, behind their backs and that too on half- baked facts  and insinuate  that they  had "illegally" drawn daily allowances  at the full rate of ’Rs.250/-’ per day, to which "they  were not  entitled" and  had thereby  committed "criminal misappropriation  of public  funds"  while  making comments on the merits of the disposed of writ petition?      These  are   some  of  the  important  and  fundamental questions which arise in this case?      Before proceeding  further, it  is necessary  to  first examine the  powers of  the Chief  Justice in  the matter of constitution of  Benches, providing  of  roster  an  din  in particular his  prerogative to  transfer even  a  part-heard case from  the board of a learned Single Judge to a Division bench cor disposal on being satisfied that the case involved constitutional issues,  which under the High Court Rules was required to be heard by a Division Bench.      Para 44  of the  Rajasthan High  Court Ordinance,  1949 deals with  the distribution  of business and administrative control of the High Court.  It provides:      "Distribution   of   business   and      administrative control  -  (1)  The      High Court  may, by  its own rules,      provide as  it thinks  fit for  the      exercise by  one or more Judges, or      by Division  Courts constituted  by      two or  more Judges,  of  the  High      Court,   of    its   original   and      appellate jurisdiction.      (2)  The  Chief  Justice  shall  be      responsible  for  the  distribution      and conduct  of the business of the      High  Court,  and  shall  determine      which Judge  in each will sit alone      and which  Judges of the Court will      constitute a Bench      (3) The  administrative control  of      the High  Court shall  vest in  the      Chief Justice  who may  exercise in      such   manner    and   after   such      consultation with  the other Judges      as he may think fit or may delegate      such of his, functions, as he deems      fit to  any other Judge of the High      Court.      By virtue of the powers conferred by the Rajasthan High Court  Ordinance,   1949  read   with  article  115  of  the Constitution of India, the High Court of Rajasthan, with the approval of  the Governor  of the State, framed Rules of the High Court  of Judicature for Rajasthan, 1952.  Chapter V of the Rules  deals with the constitution of Benches.  Rules 54 provides:      Rule 54.  Constitution of Benches.-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 34  

    Judges shall  sit alone  or in such      Division   Courts,    as   may   be      constituted from  time to  time and      do such work, constituted from time      to time and do such work, as may be      allotted to  them by  order of  the      Chief Justice or in accordance with      his direction."      A careful  reading of  the aforesaid  provisions of the Ordinance and  Rule 54 (supra) shows that the administrative control of  the High Court vests in the Chief Justice of the High  Court   alone  and  that  it  is  his  prerogative  to distribute business  of the  High Court  both  judicial  and administrative.  He alone, has the right and power to decide how the  Benches of  the High  Court are  to be constituted: which Judge  is to  sit alone  and which cases he can and is required to hear as also as to which Judges shall constitute a Division  Bench and  what work those Benches shall do.  In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by  an order of or in accordance with the directions of the Chief  Justice.   That necessarily  means that it is not within the  competence or  domain of  any single or division bench of  the court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice.   Therefore  in the scheme of things judicial discipline demands  that in  the event  a single  Judge or a division bench  considers that a particular case requires to be listed  before it for valid reasons, it should direct the Registry  to   obtain  appropriate  orders  from  the  chief Justice.   The puisne  Judges are  not expected to entertain any request from the advocates of the parties for listing of case which  does not  strictly fall  within  the  determined roster.   In such  cases, it  is appropriate  to direct  the counsel to  make a  mention before  the  Chief  Justice  and obtain appropriate  orders.   This is  essential for  smooth functioning of  the Court.  Though, on the judicial side the Chief Justice is only the ’first amongst the equals’, on the administrative side in the matter of constitution of Benches and   makes of roster, he alone is vested with the necessary powers.   That the power to make roster exclusively vests in the Chief  Justice and  that a  daily cause  list is  to  be prepared under  the directions  of the  Chief Justice  as is borne out from Rule 73, which reads thus:-      Rule 73,  Daily  Cause  List.-  The      Registrar  shall  subject  to  such      directions as the Chief Justice may      give from  time to time cause to be      prepared for  each day on which the      Court sits,  a list  of cases which      may  be   heard  by  the  different      Benches of  the Court.    The  list      shall also  state the hour at which      and the  room in  which each  Bench      shall sit.    Such  list  shall  be      known as the Day’s List."      This is  the consistent  view taken by some of the High Courts and  this Court  which appears  to have  escaped  the attention of  Shethna, J.  in  the  present  case,  when  he directed the  listing of certain part-heard cases before him as a  single judge  by providing  a separate  board for  the purpose, while sitting in a division Bench.      In State  Vs. Devi  Dayal. AIR  1959 Allahabad  421,  a Division Bench  of the  Allahabad High  Court considered the scope and powers of the Chief Justice under the Constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 34  

with particular reference to Rule 1 Chapter V of the Rule of that Court  (which is  in pari  materia with  Rule 54 of The Rajasthan High Court Rules, 1952 and held: per Mukerji, J.      "....It  is   clear  to  me,  on  a      careful   consideration    of   the      constitutional position, that it is      only the  Chief Justice who has the      right and the power to decide which      Judge is  to sit  alone  and  which      cases  such   Judge   can   decide;      further it  is again  for the Chief      Justice to  determine which  Judges      shall constitutes  Division benches      and what  work those  Benches shall      do.  Under the rules of this Court,      the rule  that I have quoted above,      it is  for  the  Chief  Justice  to      allot work to Judges and Judges can      do only such work as is allotted to      them.      It is  not in  my view,  open to  a      Judge to  make an order which could      be  called  an  appropriate  order,      unless and  until the case in which      he makes  the order has been placed      before him for orders either by the      Chief Justice or in accordance with      his directions.   Any order which a      Bench or  a single  Judge my choose      to make  in  a  case  that  is  not      placed before  them or  him by  the      Chief Justice or in accordance with      his directions  is an  order which,      in my  opinion, if made, is without      jurisdiction."             (Emphasis ours)      In his  separate but  concurring opinion H. P. Asthana, J. Observed:      "Rule 1, Chapter V, of the Rules of      this Court,  provides  that  Judges      shall sit alone or in such Division      Courts as  may be  constituted from      time to  time and  do such  work as      may be allotted to them by order of      the Chief  Justice or in accordance      with his directions.      It will  appear from  a perusal  of      the above  provisions that the High      Court as  a whole consisting of the      Chief  Justice  and  his  companion      Judges has  got the jurisdiction to      entertain any  case either  on  the      original side  or on  the appellate      or  on   the  revisional  side  for      decision and  that the other Judges      can hear  only those  matters which      have been  allotted to  them by the      Chief   Justice    or   under   his      directions.  It, therefore, follows      that the  Judges do  not  have  any      general jurisdiction  over all  the      cases which the High Court as whole      is limited  only to  such cases  as      are allotted  to them  by the Chief      Justice or under his directions."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 34  

         (Emphasis supplied)      A Full  Bench of  the Rajasthan  High Court in Niranjan Singh vs.  State, AIR  1974 Rajasthan  171 also examined the ambit and  scope of  the provisions  of the  Rajasthan  High Court Rules, 1952 and in particular of Rules 54, 55, 61, 66, 74 etc.  with regard  to the  powers of the Chief Justice in the matter of constitution of Benches and allocation of work to his companion Judges. The Bench opined:      "It is therefore the responsibility      of the  Chief Justice to constitute      the Division Courts of Benches. The      Judges are required to sit alone or      in the  Division  Benches  and,  in      either case, do such work as may be      allotted to  them by  order of  the      Chief Justice or in accordance with      his direction.  This power to allot      the work  to the  Judges cannot  be      taken away,  in face  of the  clear      provision  of   rule   54,   merely      because a date of hearing, has been      fixed in  a case  by  a  particular      Bench....      The Chief Justice has therefore the      power "from time to time" to direct      that any  particular case  or class      of cases may be heard by a Bench of      two or  class of cases may be heard      by a  Bench of  two or  more Judges      even though it may, ordinarily fall      to be  heard by a single Judge.  It      is well  to time"  is  that  "after      once acting  the  done  of,  or  by      adding  to,   or  taking   from  or      reversing altogether,  his previous      act", Stroud’s Judicial Dictionary.      It cannot,  in such a case, be said      that  person  who has  the power to      act has  "completely discharged his      duty when  he has  once acted." The      words  "from  time  to  time"  have      therefore been  interpreted to mean      "as and  when Ex  party The Debtor,      (1954) 2  ALL ER  46.   It is  thus      clearly permissible  for the  Chief      Justice  to   reverse  any  earlier      order   of    allotment   of    any      particular case  of class  of cases      to a  Judge sitting  alone, and  to      direct that  it may  be heard  by a      Bench of two or more Judges....      There is  nothing in  the  rule  to      justify the  argument that  such  a      case should  always be  treated  as      "tied  up"   with  a  Bench  simply      because it  has once fixed the date      of its  hearing or  that  with  the      exception of  a  case  in  which  a      Bench has  directed  the  issue  of      notice to  the  opposite  party  or      passed an  ex party order all other      cases should  be deemed to be part-      heard.   On the other hand, the use      of the  word "ordinarily"  goes  to      show  that   if  there  are  extra-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 34  

    ordinarily" goes  to show  that  if      there are  extra-ordinary  reasons,      even a  part-heard case  may not be      laid  before  the  same  Bench  for      disposal.   So far  as  the  Second      sentence   of    Rule   66(1)    is      concerned,  it  is  really  in  the      nature of  an illustration,  or  an      explanation."             (Emphasis ours)      In State  of Maharashtra  vs, Narayan  Shamrao Puranik, AIR 1982  SC 1198,  referring to  the  power  of  the  Chief Justice to make roster, this court opined:      "The Chief Justice is the master of      the roster.   He  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-s (3)  of S.51  of the Act, but      inheres in  him in  the very nature      of things."      Again, a  Full  Bench  of  the  Madras  High  Court  in Mayavaram Financial  Corporation Ltd.  vs. The  registrar of Chits. 1991 (2) L.W. 80, opined:      "The Hon’ble  the Chief Justice has      the inherent  power to allocate the      judicial business of the High Court      including who  of the judges should      sit alone and who should constitute      the Bench  of two  or more  Judges.      No  litigant   shall,   upon   such      constitution   of    a   Bench   or      allotment of a case to a particular      Judge of  the  Court  will  have  a      right to  question the jurisdiction      of the  Judges or the Judge hearing      the case.  No person can claim as a      matter of  right that this petition      be heard  by a  single Judge  or  a      Division  Bench   or  a  particular      single  Judge   or   a   particular      Division Bench.    No  Judge  or  a      Bench   of   Judges   will   assume      jurisdiction  unless  the  case  is      allotted to  him or  them under the      orders of  the  Hon’ble  the  Chief      Justice."      More  recently,   in  the   case  of  Inder  Mani  [vs. Matheshwari Prasad,  (1996) 6  SCC 587,  a Division Bench of this Court has opined:      "It is the prerogative of the Chief      Justice to  constitute  benches  of      his High Court and to allocate work      to    such     benches,    Judicial      discipline requires that the puisne      Judges of  the  High  Court  comply      with  directions   given  in   this      regard by  their chief Justice.  In      fact it  is their  duty to  do  so.      Individual  puisne   Judges  cannot      pick and  choose the  matters  they      will hear  or decide  nor can  they      decide whether  to sit  Justice had      constituted  a  Division  Bench  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 34  

    Justice V.N.Khare  and the  learned      Judge, it  was incumbent  upon  the      learned Judge  to sit in a Division      Bench with  Justice V.N.  Khare and      dispose of  the  work  assigned  to      this Division  Bench.   It was most      improper on  his part  to disregard      the administrative directions given      by the  Chief Justice  of the  High      Court and to sit singly to take up,      matters that  he thought  he should      take up.  Even if he was originally      shown   as    sitting   singly   on      22.12.1995,  when   the  Bench  was      reconstituted   and   he   was   so      informed, he was required to sit in      a Division  Bench on  that day  and      was  bound   to  carry   out   this      direction.     If  there   was  any      difficulty, it  was his  duty to go      to the  Chief Justice  and  explain      the   situation    so   appropriate      directions in that connection.  But      he could  not  have,  on  his  own,      disregarded the directions given by      the Chief Justice and chosen to sit      singly.       We   deprecate   this      behaviour which  totally undermines      judicial  discipline   and   proper      functioning of High Court."           (Emphasis supplied)      The power  of the  Chief Justice  of the Rajasthan High Court to  direct that any case or cases which may ordinarily be heard  by a Judge sitting alone shall be heard by a Bench of two  or more  Judges is  traceable not only to his powers under Rule  54 (supra)  but also  specifically to rule 55 of the Rules.   Cases  involving  constitutional  questions  or issues are requires to be heard not by a single Judge but by a Bench of at least two judges.      Rule 55.  Jurisdiction of  a Single      Judge Except  as provided  by these      Rules or  other Law,  the following      cases shall ordinarily be admitted,      heard and  disposed of  by a  Judge      sitting alone, namely;      (xi)  the   writ   petition   under      Article  226   and   227   of   the      Constitution of  India, except  the      provisions of any Act or Rules made      thereunder and  Writs  against  the      order of  the Board of Revenue, the      RAJASTHAN State  Service  Appellate      Tribunal.      (xii) an  application under Article      228 of  the Constitution  of  India      and the  case withdrawn  under  the      said Article:      Provided that-      (a) the  Chief  Justice  may,  from      time to  time direct  that any case      or class  of  cases  which  may  be      heard  by  a  Judge  sitting  alone      shall be heard by a Bench of two or      more Judges.      (b) a  Judge may, if he thinks fit,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 34  

    refer a  case which may be heard by      a  Judge   sitting  alone   on  any      question  or   questions   of   law      arising therein  for decision  to a      Bench two Judges; and      Rule 66  of the  High  Court  Rules      deals with tied up cases while Rule      74  deals  with  part-hears  cases.      These Rules read as follows:-      Rules 66 Tied up cases.- (1) A case      partly  heard   by  a  Bench  shall      ordinarily be  laid before the same      Bench for  disposal.    A  case  in      which a  Bench has  merely directed      notice to  issue  to  the  opposite      party or  passed an  ex parte order      shall not  be deemed  to be  a case      partly heard by such Bench.      (2) Where  a criminal  revision has      been admitted  on the  question  of      severity of  the sentence  only, it      shall ordinarily  be heard  by  the      Bench admitting it."      Rule 74.  Part-heard cases.- A case      which remains part-heard at the end      of the  day shall, unless otherwise      ordered  by  the  Judge  or  Judges      concerned, be  placed  first  after      miscellaneous cases, if any, in the      Day’s List  for the  day  on  which      such  Judge  or  Judges  next  sit.      Every part-heard   case  entered in      the Day’s  List  may  be  proceeded      with whether any Advocate appearing      in the case in present or not.      Provided  that  if  any  part-heard      case cannot  be heard for more than      two  months   on  account   of  the      absence  of  any  Judge  on  Judges      constituting the  Bench, the  Chief      Justice may  order such  part-heard      case to  be laid  before any  other      Judge  or   Judges  to   be   heard      afresh."      Thus, cases involving challenge to the vires of any Act of Rules or which involve constitutional issues are required to be  heard by  a Bench of two or more Judges under rule 55 (ix) (supra).  Under proviso (a) to Rule 55 (xi) (supra) the Chief Justice may, from time to time, direct that "any cases or class  of cases  which may  be heard  by a  Judge sitting alone shall  be heard  by a  bench of  two or  more Judges". Proviso (b)  to the  Rule enables  reference to the Division Bench of  a case  on any  question or  questions by a single Judge himself.   The  jurisdiction under  proviso (a) can be exercised by  the Chief  Justice "at any time" and therefore it makes  no difference  that the case to be referred to the larger bench  under the  Rules is a part-hears case before a particular single Judge.      Under Rule  74 (supra), a case which remains part heard at the end of the day, is ordinarily required to be heard by the concerned  Judge or the Judges sitting next and is to be placed first  after miscellaneous cases in the next list but that does not imply that the Chief Justice does not have the power or jurisdiction to transfer even a part-heard case, in the peculiar  facts and  circumstances of  a  case,  from  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 34  

single  judge  to  a  Division  Bench  in  exercise  of  the jurisdiction vested  in the  Chief Justice under proviso (a) to Rule 55 (xi) (supra).      A Division Bench of the Calcutta High Court in the case of Sohan  Lal Baid  vs.  State  of  West  Bengal,  AIR  1990 Calcutta 168  has dealt with this aspect elaborately.  After referring to  the provisions  of the Government of India Act 1935, the  Calcutta High Court Rules and a number of decided cases, the Bench observed:-      "The  foregoing   review   of   the      constitutional    and     statutory      provisions and the  case law on the      subject leaves no room for doubt or      debate that  once the Chief Justice      has determined  what Judges  of the      Court  are   to  sit  alone  or  to      constitute  the   several  Division      courts  and   has   allocated   the      judicial  business   of  the  Court      amongst   them,   the   power   and      jurisdiction to  take cognizance of      the    respective     classes    or      categories of  cases presented in a      formal  way   for  their  decision,      according to such determination, is      acquired.   To put  it  negatively,      the power  and jurisdiction to take      cognizance of and to hear specified      categories or  classes of cases and      to  adjudicate   and  exercise  any      judicial power  in respect  of them      is   derived    only    from    the      determination  made  by  the  Chief      Justice   in    exercise   of   his      constitutional,    statutory    and      inherent powers  and from  no other      source and  no cases  which is  not      covered by  such determination  can      be  entertained,   dealt  with   or      decided  by   the  Judges   sitting      singly or  in Division  Courts till      such     determination      remains      operative. Till  any  determination      made by the Chief Justice lasts, no      Judge who  sits singly can sit in a      Division Bench  nor can  a Division      Bench be  split up  and one or both      of  the  Judges  constituting  such      Bench sit  singly or  constitute  a      Division Bench  with another  Judge      and  take  up  any  other  kind  of      judicial  business.     Even  cases      which are required to be heard only      by a  particular  single  Judge  or      Division Bench,  such as part-heard      matters, review  cases et..  cannot      be heard unless the Judge concerned      is  sitting   singly  or  the  same      Division Bench  has  assembled  and      has   been   taking   up   judicial      business    under     the    extant      determination. Such  reconstitution      of Benches  can take  place only if      the   Chief    Justice    specially      determines accordingly.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 34  

           (Emphasis ours)      A Full  Bench of  the Allahabad  High Court  in  Sanjay Kumar Srivastava  Vs. Acting Chief Justice & Ors. (W.P. 2332 (H.B) of  1993 decided on 7.10.1993) (1996) Allahabad Weekly cases 644 was confronted with a similar situation.  The Full Bench precisely  dealt with an objection raised in that case to the  effect that since the writ petition was a part-heard matter of  the Division  Bench, it was not open to the Chief Justice of the High Court to refer that part-heard case to a Full Bench  for hearing  and decision.  It was argued before the Full  Bench, that  once the  hearing  of  the  case  had started before the Division Bench, the jurisdiction to refer the case  or the question involved therein to a larger bench vests only  in the  Judges hearing  the case  and not in the chief Justice.   It  was also  argued that the Chief Justice could not, even on an application made by the Chief Standing Counsel. refer  the case  which had  been heard in part by a Division Bench for decision by a Full Bench of that Court.      After referring  to the  provisions of the Rules of the Allahabad High  Court and in particular Rule 1 of Chapter V, which provides  that Judges  shall  sit  alone  or  in  such division courts  as may  be constituted by the Chief Justice from time  to time  and do  such work  as may be allotted to them by order of the Chief Justice or in accordance with his directions and Rule 6 of Chapter V which alia provides:      "The Chief Justice may constitute a      Bench of  two  or  more  Judges  to      decide a  case or  any question  of      law formulated by a Bench hearing a      case.  In   the  latter  event  the      decision  of   such  Bench  on  the      question  so  formulated  shall  be      returned to  the Bench  hearing the      case and  that Bench  shall  follow      that decision  on such question and      dispose of  the case after deciding      the remaining  questions,  if  any,      arising therein."      And a  catena of authorities, rejected the arguments of the learned  counsel and  opined that the order of the Chief Justice, on  an application  filed  by  the  Chief  Standing Counsel, to  refer a  case,  which  was  being  heard  by  a Division Bench,  for hearing  by a  larger  Bench  of  three Judges because  of the  peculiar facts  and circumstances as disclosed in  the application of the Chief Standing Counsel, was a  perfectly valid and a legally sound order.  The Bench speaking through  S. Saghir  Ahmad, J. (As His Lordship then was) said:      "Under Rule  6 of  Chapter V of the      Rules of  Court,  it  can  well  be      brought to  the notice of the Chief      Justice through  an application  or      even otherwise  that  there  was  a      case which  is required to be heard      by a  larger Bench on account of an      important  question  of  law  being      involved in  the case or because of      the conflicting  decisions  on  the      point in  issue in  that case.   If      the Chief  Justice takes cognizance      of an  application laid  before him      under Rule  6 of  Chapter V  of the      Rules of  Court and  constitutes  a      Bench of  two  or  more  Judges  to      decide the  case, he cannot be said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 34  

    to have  acted in  violation of any      statutory provisions."      The learned  Judge then  went on to      observe:      "In view  of the above, it is clear      that the  Chief  Justice  enjoys  a      special  status   not  only   under      Constitution but  also under  Rules      of Court,  1952 made in exercise of      powers conferred  by Article 225 of      the  Constitution.      The   Chief      Justice   alone    can    determine      jurisdiction of  various Judges  of      the Court.   He  alone  can  assign      work to  a Judge  sitting alone and      to the  Judges sitting  in Division      Bench or  to Judges sitting in Full      Bench.       He   alone   has   the      jurisdiction to  decide which  case      will be  heard by  a Judge  sitting      alone or  which case  will be heard      by two or more Judges.      The  conferment   of   this   power      exclusively on the Chief Justice is      necessary so  that  various  Courts      comprising of  the  Judges  sitting      alone or  in Division  Bench  etc.,      work in  a co-ordinated  manner and      the jurisdiction  of one  court  is      not overlapped  by other Court.  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      functioning  of   the  Court  would      cease  by  generation  of  internal      strife on  account of hankering for      a  particular   jurisdiction  or  a      particular case.   The  nucleus for      proper functioning  of the Court is      the    "self"     and    "judicial"      discipline  of   Judges  which   is      sought to  be achieved  by Rules of      Court by  placing in  the hands  of      the rules  of Court  by placing  in      the hands of the Chief Justice full      authority and  power to  distribute      work to  the Judges and to regulate      their jurisdiction and sittings."             (Emphasis ours)      The above  opinion appeals  to us and we agree with it. Therefore, from a review of the statutory provisions and the cases on  the subject  as rightly  decided by  various  High Courts, to  which reference  has been made by us, it follows that no  judge or  a Bench of judges can assume jurisdiction in a  case pending  in the  High Court  unless the  case  in 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 it can be permitted. If every judge of a High Court starts picking and choosing cases for disposal by him, the discipline  in the  High Court would be the casualty and the administration of Justice would suffer.  No legal system

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 34  

can permit  machinery of  the court  to collapse.  The Chief Justice has the authority and the jurisdiction to refer even a part-heard  case to  a Division  Bench for its disposal in accordance with  law where  the Rules  so demand.  It  is  a complete fallacy  to assume that a part-heard case can under no circumstances be withdrawn from the Bench and referred to a larger   bench,  even where the Rule make it essential for such a case to be heard by a larger Bench.      In the  instant case,  it was the statutory duty of the Chief Justice  to assign writ petition No. 2949 of 1996 to a Division Bench  of the  High  Court  for  hearing  since  it involved constitutional  issues and  Rules 55  of  the  High Court Rules  required such  a case  to  be  so  heard.    No exception whatsoever could, therefore, be taken to the order of the  Chief Justice  made on  9.9.97, referring  that writ petition for  hearing to a Division Bench.  In the facts and circumstances of  the case the Chief Justice was statutorily obliged to  take cognizance  of the application filed by the additional  Advocate   General  of   the  state   and   pass appropriate orders.   He  could not shut his eyes as regards the requirements  of Rules  55 (supra) only because a single judge of  t High  Court was treating the case as part-heard. The correctness of the order of the Chief Justice could only be tested  in judicial proceedings in a manner known to law. No single Judge was competent to find fault with it.      As earlier  noticed, on  11.9.97 a  separate board  was prepared for  Shethna, J.  under  directions  of  the  Chief Justice in  view of the order made by Shethna, J on 8.9.1997 and  part   heard  criminal   revision  petitions  and  writ petitions were  placed before  his Lordship.    Since,  writ petition No.  2949/96 had  not been  put up  along with  the other part  hears cases, Shethna, J., as it appears from the impugned order,  sent for  Mr. Madani  (the dealing  officer from the  registry) to  explain as to why that writ petition had not  been placed before him? Mr. Madani informed him, as is noticed  in the  impugned  order,  that  since  the  writ petition had  already been  disposed of  it was  not  listed before him.   The  learned  Judge  directed  Mr.  Madani  to produce the  original record of that writ petition which was produced before  him on  12.9.97, on  which date the learned Judge directed  that  the  papers  of  (SB  Civil  W.P.  No. 2949/96) "be  kept with  this case" (Crl. Revision Petition) even though there was no connection or relevance between the two cases.   In  our considered  opinion Shethna, H. did not have any  authority, statutory  or otherwise  - nor  was  it necessary -  to call  for  the  record  of  the  above  writ Petition: firstly  because it stood already disposed of by a Division Bench and secondly because it was totally unrelated to and  connected with the criminal revision petition he was to hear.  Therefore, it appears that the record was went for not for  mere  perusal  but  for  some  other  purpose,  not strictly judicial.  This becomes quite obvious from the fact that while  stating, "brie  reasons  for  not  placing  Writ Petition No. 2949/96" before him, Shethna, J. observed:      "If the  writ petition  had  really      become infructuous  then  the  same      statement  could   have  been  made      before this  court when  this court      treated the  matter as  part  heard      and  this  court  would  have  also      passed the  same order  provided it      had really become infructuous.  The      most interesting part of it is that      the  matter   was  disposed  of  by      Division Bench  without the  second

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 34  

    set  and   only  on   one  set  the      Division Bench passed the order."      The aforesaid observations cast uncalled fir aspersions not only against the learned counsel for the writ petitioner who had  made the  statement before  the Division  Bench but also against  the learned  Judges constituting  the Division Bench.   To say the least it was improper on the part of the learned judge  to have cast aspersions on the conduct of the counsel and  the Bench  in relation to a disposed of matter, in a wholly unconnected judicial proceedings. In doing so he transgressed  all   bounds   of   judicial   propriety   and discipline.      The insinuations  made by  Shethna, J against the Chief Justice of the High Court for transferring the Writ Petition to the Division bench are not only uncalled for, unwarranted and unjustified but are also   subversive of proper judicial discipline.   To insinuate,  as the learned Judge does, that the writ  petition was  got ’disposed  of’  in  ’suspicious’ circumstances  is   wholly  wrong  and  devoid  of  sobriety expected of a judicial officer. The insinuation also amounts to contempt  of the  Division Bench  as it  implies that the Judges of  the Division  Bench  were  so  "amenable".    The insinuations are  aimed at  bringing the  administration  of justice into  disrepute and  tend to shake public confidence in the  impartiality of  the judiciary.   The  observations, insinuations and  aspersions lack  courtesy and  good faith. Judicial restraint  has been  thrown to  the winds.   It  is unbecoming of a Judge of the High Court to travel out of the confines of  the issue before him (in this case the criminal revision petition) and to fish out material to unjustifiably malign someone  more particularly  when that someone happens to be  the one who is the head of the judicial family in the High Court.  We most strongly deprecate this practice.      In the  case of Braj Kishore Thakur vs. Union of India, (1997) 4  SCC 65,  while expunging some adverse remarks made by the  High Court against a Judge of the subordinate court, this court said:      "Judicial restraint  is a virtue. A      virtue which  shall be  concomitant      of every  judicial disposition.  It      is an attribute of a Judge which he      is obliged to keep refurbished from      time to  time,  particularly  while      dealing  with  matters  before  him      whether in exercise of appellate or      revisional  or   other  supervisory      jurisdiction.   Higher courts  must      remind themselves  constantly  that      higher tiers  are provided  in  the      judicial  hierarchy  to  set  right      errors which  could  possibly  have      crept  in  findings  or  orders  of      courts at  the lower  tiers.   Such      powers  are   certainly   not   for      belching   diatribe   at   judicial      personages in  lower cadre.   It is      well to  remember the  words  of  a      jurist that  " a  Judge who has not      committed any  error is  yet to  be      born....      No greater  damage can be caused to      the administration  of justice  and      to  the  confidence  of  people  in      judicial institutions  when  Judges      of higher  courts publicly  express

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 34  

    lack of  faith in  the  subordinate      Judges.  it has been said, time and      again, that  respect for  judiciary      is   not    in   hands   by   using      intemperate language and by casting      aspersions against lower judiciary.      It  is  well  to  remember  that  a      judicial   officer   against   whom      aspersions are made in the judgment      could not  appear before the higher      court to  defend his order.  Judges      of higher  courts must,  therefore,      exercise greater judicial restraint      and adopt  greater care  when  they      are tempted  to employ strong terms      against the lower judiciary."      What was  said in  relation to  the Judges of the lower judiciary applies  with equal  force to  the judges  of  the superior judiciary.      In A.M.  Mathur vs.  Pramod Kumar  Gupta, (1990)  2 SCC 533, this court said:      "Judicial restraint  and discipline      are as  necessary  to  the  orderly      administration of  justice as  they      are to  the  effectiveness  of  the      army.   The duty of restraint, this      humility  of   function  should  be      constant theme of our judges.  This      quality in  decision making  is  as      much  necessary   for   judges   to      command respect  as to  protect the      independence  of   the   judiciary.      Respect to  those who  come  before      the court  as  well  to  other  co-      ordinate branches of the State, the      executive  and   the   legislature.      There must be mutual respect,  When      these  qualities   fail   or   when      litigants and  public believe  that      the  judge   has  failed  in  these      qualities, it  will be neither good      for the  judge not for the judicial      process.      The Judge’s  Bench  is  a  seat  of      power.   Not only  do  Judges  have      power  to  make  binding  decision,      their decisions  legitimate the use      of power  by other  officials.  The      judges  have   the   absolute   and      unchallengeable  control   of   the      court  domain.    But  they  cannot      misuse    their     authority    by      intemperate  comments,  undignified      banter  or  scathing  oriticism  of      counsel, parties  or witnesses.  We      concede  that  the  court  has  the      inherent power  to act  freely upon      its own  conviction on  any  matter      coming before  it for adjudication,      but it  is a  general principle  of      the  highest   importance  to   the      proper  administration  of  justice      that derogatory  remarks ought  not      to  be   made  against  persons  or      authorities  whose   conduct  comes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 34  

    into  consideration  unless  it  is      absolutely   necessary    for   the      decision of the case.           (Emphasis supplied)      There is one other disquieting and disturbing aspect of the matter  and that  is that  the learned  judge  has  cast aspersions and  made insinuations  against the Chief Justice and the  Judges constituting  the Division  bench,  who  had passed judicial  orders in the writ petition.  They have had no chance  or opportunity  to reply  to those aspersions and insinuations.   By the  very nature  of  their  office,  the Judges of  the Supreme Court or the High Court, cannot enter into a  public constroversy and file affidavits to repudiate any criticism or allegations made against them.  Silence, as an option,  becomes necessary  by the  very  nature  of  the office which  the Judges  hold.   Those  who  criticise  the Judges in relation to their judicial or administrative work, must remember  that the  criticism, even  if outspoken,  can only be  of the  judgment by  not of  the Judge.  By casting aspersions on  the Judges  personally or  using  intemperate language against  them, the  critics, who  ever they may be, strike a  blow at  the prestive of the institution and erode its credibility.    That  must  be  avoided  at  all  costs. Shethna, J  must be  presumed to be aware of this and yet he permitted himself  the liberty  to make intemperate comments and disparaging  and derogatory  remarks against  the  Cheif Justice and  his Brother  Judges as  also the  former  Cheif Justices of  that court  including the present Chief Justice of India  who cannot  reply  or  respond  to  the  unfounded charges.   It is  not merely  a case  of  lack  of  judicial restraint bu  it amounts  to abuse  and misuse  of  judicial authority and betrays lack or respect for judicial authority and  betrays  lack  of  respect  for  judicial  institution. Besides when  made recklessly  (as in  the instant  case) it amounts to  interference with  the judicial  process.    The foundation of  our system which is based on the independence and impartiality  of those  who man  it, will  be shaken  if disparaging and  derogatory remarks are permitted to be made against brother  Judges with impunity.  It is high time that we realise that the much cherished judicial independence has to be  protected not  only from outside forces but also from those who  are an integral part of the system.  Dangers from within have  much larger and greater potential for harm than dangers from  outside.   We alone in the judicial family can guard against  such dangers  from within.  One of  the  sure means to  achieve it  is by the Judges remaining circumspect and self-disciplined  in the  discharge  of  their  judicial functions.   We have been really distressed by the manner in which the  learned Judge  has acted.   We do not wish to say anymore on the this aspect.      Thus, for  what has  been said  above, we hold that all comments, observations  and aspersions  made by  Shethna, J. against  the   Chief  Justice   and   the   learned   Judges constituting   the    Division   Bench   are   without   any justification or  jurisdiction and  bear no relevance to the case which was before the learned Judge and the same deserve to be set aside and expunged from the record.      That  brings  us to  the next  question relating to the propriety of  issuance of notice to the Chief Justice of the High Court  to show  cause why  contempt proceedings  be not initiated against  him.   In substance  the contempt that is alleged to  have been  committed by the Chief Justice of the High Court  respondent No.2,  is in  "transferring" W.P. No. 2949/96 which  has been  heard in  part by  Shethna J.  to a Division Bench  for its  disposal and  for not  placing that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 34  

writ petition  alongwith "other part heard cases" before the learned Judges  despite his  orders  to  that  effect.    As already noticed  Shethna, J. had twice on 3.9.97 and 8.9.97, directed criminal  revision petition No. 354/97 to be listed alongwith "other  part heard  cases" before  him.  The great anxiety to  hear  "other  part-heard  cases"  alongwith  the criminal revision petition, on a date when the learned Judge was sitting in the Division Bench exposes and undue interest in some  matter, which again is against judicial discipline. Perhaps Writ  Petition No.  2949/96 was  one such part-heard case which the learned Judge, for reasons best known to him, was keen  to hear.  We have dealt with in an earlier part of this Judgment as to how and why W.P. 2949/96 was referred by learned Chief Justice for hearing to the Division bench.  We need not  repeat it.   Suffice it, to notice that a judicial order had  been passed  by the  Chief Justice  allowing  the application filed  by the  Additional Advocate General under Rule 55  for referring  the writ petition, for its disposal, to  a   Division  Bench,   Shethna,  J.   Therefore  had  no jurisdiction to  question the correctness of that order more so in some unconnected and unrelated collateral proceedings. The withdrawal  of the  part-heard writ  petition  from  the board of  Shethna, J. and its transfer to the Division bench for its disposal in view of the requirements of Rule 55, was an action  squarely permitted by the Rules and in conformity with the  statute.   It was  an action  of the Chief Justice backed by  statutory sanction.   That  order  of  the  Chief Justice was legally valid and unexceptionable.      We entirely  agree with  the learned  Solicitor General that the  issuance of  a notice to the Chief Justice to show cause why proceedings under the Contempt of Court act be not initiated against  him for  transferring the part-heard writ petition No.  2949/96 to  the Division Bench for hearing, is not only  subversive of  judicial discipline and illegal but is also  without jurisdiction.   No  such  notice  could  be issued to  the Chief  Justice since  the order referring the case to  the Division bench was an order legally made by the Chief Justice  in exercise of his statutory powers.  Such an order can  never invite  initiation of  contempt proceedings against him.   The  issuance of  notice smacks  of  judicial authoritarianism and is not permissible in law.      Even otherwise,  it is  a fundamental  principle of our jurisprudence and  it is  in public  interest also  that  no action can  lie against  a Judge  of a Court of Record for a judicial act done by the Judge.  The remedy of the aggrieved party against  such an order is to approach the higher forum through appropriate proceedings.  This immunity is essential to enable  the Judges  of the  Court of  Record to discharge their duties without fear or favour, though remaining within the bounds f their jurisdiction.  Immunity from any civil or criminal  action  or  a  charge  of  contempt  of  court  is essential for  maintaining independence of the judiciary and for the  strength of  the administration  of justice.    The following passage  from Oswald’s Contempt of Court, 3rd Edn. 1993 (Reprint) in this behalf is apposite:      "An action  will not  lie against a      Judge of  a Court  of Record  for a      wrongful commitment in the exercise      of his  judicial duties,  any  more      than for  an erroneous judgment(s).      But the Divisional Court refused to      strike out  as disclosing  no cause      of action  a statement  of claim in      an action for malicious prosecution      brought against  certain Judges  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 34  

    the Supreme  Court of  Trinidad for      having (as it was alleged) of their      own motion, and (as it was alleged)      of their  own motion,  and  without      any evidence,  caused the plaintiff      to be  prosecuted and  committed to      prison for  an alleged  contempt of      the Supreme  Court in forwarding to      the  Governor  of  the  Colony  for      transmission  to   the   Queen   in      Council  a   petition   of   appeal      complaining   of   the   oppressive      conduct  of   the     defendant  as      Judges(t). At  the  trial  of  this      case before  Lord  Coleridge,  C.J.      the jury  found as  regards one  of      the   defendants   that   "he   had      overstrained "his  judicial powers,      and had acted in the administration      of   justice    oppressively    and      maliciously to  the  "prejudice  of      the palintiff and to the perversion      of "justice". The jury assessed the      damages     at      pounds     500.      Notwithstanding the  verdict.  Lord      Coleridge ordered  judgment  to  be      entered for  the defendant.    This      judgment was  affirmed by the Court      of Appeal.   Lord  Esher.  M.R.  in      delivering  the   judgment  of  the      court,   said,    "If   any   Judge      exercises  his   jurisdiction  from      "malicious  motives   he  has  been      quilty of  a gross  "dereliction of      duty."  And  after  saying  that  a      Judge was liable to be removed from      his office  for such conduct.  Lord      Esher  went  on  to  say  that  the      common  law  clearly  was  that  no      action lay  against a  Judge  of  a      Court  of   Record  "   for   doing      something within  his  jurisdiction      but  "doing   it  maliciously   and      contrary to good faith"             (Emphasis ours)      Thus no  action could  lie against  the  Chief  Justice acting   judicially   for   doing   something   within   his jurisdiction even  if the  order is  patently erroneous  and unsustainable on  merits.   Commenting upon  the  extent  of immunity which  the Judges  of the superior courts must have for preserving independence of the judiciary, the authors of Salmond and  Heuston on  the Law of Torts, 21st Edn. 1996 in Chapter XIX observe:      "A judge  of one  of  the  superior      courts is  absolutely  exempt  from      all civil  liability for  acts done      by him  in  the  execution  of  his      judicial functions.   His exemption      from civil  liability is  absolute,      extending not  merely to  errors of      law and fact, but to the malicious,      corrupt, or  oppressive exercise  f      his judicial  powers.   for  it  is      better  that  occasional  injustice      should   be    done   and    remain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 34  

    unredressed under the cover of this      immunity than that the independence      of the  judicature and the strength      of the  administration  of  justice      should be weakened by the liability      of   judges    to   unfounded   and      vexatious   charges    of   errors,      malice,  or   incompetence  brought      against   them    by   disappointed      litigants- " otherwise no man but a      beggar or a fool, would be a judge.      (See Arenson  Vs.  Casson,  Beckman      Rutley &  Co. (1997)  AC 405  at p.      440, per Lord Fraser)           (Emphasis supplied)      Even under  the Judicial  Officers’ Protection Act 1985 immunity has  been given to judicial officers in relation to judicial work  done by  them as  well as  for  the  judicial orders made  by them.   The statement of objects and reasons for introducing  the Bill  in relation to the 1985 Act which reads thus is instructive:      "Judiciary  is   one  of  the  main      pillars of  parliamentary democracy      as envisaged  by the  Constitution.      It is  essential to provide for all      immunities  necessary   to   enable      Judges  to   act   fearlessly   and      impartially  in  the  discharge  of      their judicial  duties.  It will be      difficult   for   the   Judges   to      function if  their actions in court      are   made    subject   to    legal      proceedings,   either    civil   or      criminal."      Section 16(1)  of the  Contempt of  Court Act 1971 does not apply  to the  Judges of the court of record but only to the subordinate judiciary.      The issuance  of a  notice to  show cause  why contempt proceedings be  not initiated  against respondent. No.2, the Chief Justice of the High Court, by shethna, J. in the facts and circumstances  of this  case  is  thus  wholly  illegal, unwarranted and  without jurisdiction.   Issuance  of such a notice  is   also  misconceived   since  by  no  stretch  of imagination can  it be  said that there was any interference in the  administration of  justice by  the Chief  Justice in exercising his  statutory powers  to allocate work to puisne Judges and  to the division benches.  The order of reference of the  part-hears writ  petition to  the Division Bench for its disposal,  as already  noticed, was  legally  sound  and statutorily valid.   Such  an action  on the part of a Chief Justice could  never become a cause for issuance of contempt notice to  him.   To expect  the Chief  Justice to say so in response to  the show cause notice before the learned single Judge  would   to  adding  insult  to  injury.    We  cannot countenance such  a situation.   The direction to issue show cause notice  to the  Chief Justice,  respondent No.2  being totally misconceived,  illegal and  without any jurisdiction and is wholly unsustainable,  We quash the same.      This now  takes us  to that  part of the order in which comments have  been made  regarding drawal  of D.A. and non- payment of  charges for  occupation  of  Bungalow  No.  A/2, Jaipur by  some of  the former Chief Justice of the Rajsthan High Court including the present Chief Justice of India, Mr. Justice J.S. Verma, till 1994.  The insinuation made is that all  of   them   had   "illegally"   drawn   full   dearness

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 34  

allowance of Rs. 250/-  per  day  to  which  they  were  not entitled and  their action, amounted to "misappropriation of public funds"  because it  is alleged  that each one of them had been  "allotted free  accommodation by the Government of Rajasthan" Shethna,  J discussed  this aspect of the case in some details  after relying  upon materials  which we do not find available  in the  record of  Writ Petition No. 2949/96 and concluded:      "From the  above, it  is clear that      no Chief  Justice of this court was      paying any  amount for  his stay in      Bungalow No.A/2  at Jaipur prior to      10.6.1994  but  all  of  them  have      illegally drawn  full D.A.  of  Rs.      250/- per  day which  is clear from      Rule 2  (1) (e)  of the  High Court      Travelling  Allowance  Rules,  1996      and  sub-rule  (iv)  of  the  Rules      which is  quoted in  para 4  of the      reply affidavit  by the  High Court      itself.   The present  CJI  Hon’ble      Mr.Justice J.S.  Verma was also one      of the former Chief Justice of this      court from  1986 to  1989.  He also      initially stayed  at Jaipur  for 15      days and lateron sat more at Jaipur      than Jodhpur  and illegal drew full      D.A. of  Rs. 250/-  per day for his      stay at  Jaipur without  paying any      charges to which there was an audit      objection which  fact  was  on  the      record of  this High  Court.    The      High   Judges   are   drawing   and      disbursing authorities  and  nobody      else would  come to  know  then  in      that  case  they  should  be;  more      careful  while  drawing  such  D.A.      amount.   It is  nothing but a mis-      appropriation of  the  public  fund      which is  a criminal  offence under      the Penal Code."      Justification or  propriety for  making these  comments apart, the  validity of these comments/observations needs to be tested  for procedural  propriety  factual  accuracy  and visible legal support.      So far  as the  procedural propriety  is concerned,  it need not detain us much as admittedly, the comments have ben made in  respect of  all the  former Chief  Justices of  the Rajasthan High  Court who  held that  high office till 1994, without putting  them on  any notice  and behind their back. All of  them have  been condemned  unheard.    it  needs  no discussion to  say, in the light of the settled law, that an order of  this type  which violates  principles  of  natural justice and  is made  behind the  back of  the  affectee  is wholly unsustainable  .   On this  short ground,  all  those comments/observations  and   conclusions   and   conclusions arrived at  by Shethna,  J. are  required to  be quashed and expunged.   the learned  Attorney General submitted that the observations (supra)  were both  factually and  legally  not sustainable and  urged that  keeping in view the high office of Chief  Justice of  India we should test legal and factual validity of  the observations  also.   We therefore  do  not propose  to   rest  our   order  on  grounds  of  procedural infirmities and  judicial propriety only.  Both factually as well as  legally the  observations/comments,  tend,  as  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 34  

discussion shall presently expose, to be the result of total disregard for  propriety and  decency as to make the motives of the author suspect and in the process the Judges has made himself Coram-non-judice.      Vide   Section   2   of   High   Court   of   Rajasthan (Establishment of a Permanent Bench at Jaipur) Order 1976, a permanent Bench  of the  Rajasthan High  Court at Jaipur was established at Jaipur.      Sec.2.    "Establishment    of    a      Permanent Bench  of  the  RAJASTHAN      High Court  at Jaipur-  There shall      be established a permanent Bench of      the  High  Court  of  Rajasthan  at      Jaipur, and such Judges of the High      Court of  Rajasthan, being not less      than five  in number,  as the Chief      Justice of that High Court may from      time to  time, nominate,  shall sit      at Jaipur  in order to exercise the      jurisdiction and power for the time      being vested  in that High Court in      respect of  cases  arising  in  the      districts    of    Ajmer,    Alwar,      Bharatpur, Bundi  Jaipur, Jhalawar,      Jhunjhunu, Kotah,  Sawai  Madhopur,      Sikar and Tonk:      Provided...........................      ...      According to  the above  provision, it is for the Chief Justice after  the constitution  of the  Bench at  Jaipur to nominate, from  time to time, at least five Judges to sit at Jaipur to  hear cases.   The Judges so nominated are obliged to sit  at Jaipur  and do  such work as is assigned to them. It is their duty to do so.  The duration of their sitting at Jaipur is  to be  determined by the Chief Justice and he may determine it from time to time. After the  establishment of  the Bench  of the High Court at Jaipur in  1979, an  order came to be made by the Government of Rajasthan  bearing No.  F(116)/R.G./11/78  on  18.12.1979 declaring bungalow  No. A/2  a Jaipur  as "High  Court Guest House". An English translation of that order reaus:      GOVT. OF RAJASTHAN      GENERAL ADMINISTRATION (GR2) DEPTT.      To. The Registrar,      Rajasthan High Court,      Jodhpur.      No. F(116)G.A./11/78         Jaipur      Dt. 18.12.79      Sub:   Regarding    conversion   of      bungalow no  A-2 Gandhi Nagar, as a      guest house. Sir,      In  reference   to  your  above  DO      letter No. PA/R/4211 dated 28.5.97,      use of  bungalow  No.  8-2,  Gandhi      Nagar, as High Court Guest House is      hereby sanctioned.                  Yours                   sd/-     Special Secretary to the Govt."      By  another   order  of   the  State  Government  dated 21.8.1991, Bungalow  No. C-42  at Jodhpur was also converted and declared  as  "High  Court  Guest  House".,    Both  the bungalows, A/2 at Jaipur and C-42 at Jodhpur, were placed at the disposal of the High Court of Rajasthan for their use as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 34  

High Court  Guest Court  of Rajasthan  for their use as High Court  Guest  Houses.  Neither  of  the  two  bungalows  was allotted free  of rent  to any  Chief Justice  of  the  High Court.   Chief Justice  of the  High Court has been provided with a  rent free  official residence  only at Jodhpur under Rules even  though providing  of an official bungalow to the Chief Justice  at Jaipur would also have been in order since by the very nature of his office, the Chief Justice could be required to  sit at  Jaipur also  both for administrative as well as  judicial work, depending upon the exigencies of the situation.   It was only on 21.6.97, when for the first time the Government  of Rajasthan  allotted  Bungalow  No.A/c  at Jaipur for  the Exclusive  use  of  the  Chief  Justice  and Bungalow No.A/5  at Jaipur  was declared  as the  High Court Guest House  and placed  under the control of Rajasthan High Court.  That order dated 21.6.1997 reads thus:      "Govt. Bungalow  No.A-2 Gandhi  Nagar, Jaipur  has been allotted for the exclusive use of the  Hon’ble Chief Justice of Rajasthan  and Bungalow  No.A-5, Gandhi Nagar, Jaipur has been converted  and allowed  to be used as Guest House under the Control of Rajasthan High Court.      The Governor of Rajasthan hereby accords sanction.      By order of the Governor                             sd/-                        (Jagat Singh)                    Secretary to the Govt.      The order  dated 21.6.97  was amended  on 1.8.97 in the following manner:      "In continuation  of the  Order  of      this  Office   even  number   dated      21.6.97,   the   Bungalow   No.A-2,      Gandhi  Nagar,   Jaipur  is  hereby      converted for  the exclusive use of      Hon’ble  Chief  Justice,  Rajasthan      High Court  as  Guest  House  w.e.f      21.06.97.      The Governor has accorded sanction.      By order of the Governor                   sd/             ( JAGAT SINGH )          Secretary to the Govt.      Thus, what  transpires from the record is that Bungalow No.A/2 at  Jaipur was  declared as High Court Guest House by the Government  of Rajasthan  as early as in 1979 and placed under the  control of  the Rajasthan High Court.  it was not allotted to  the Chief  Justice of  the High Court - free of rent   - nor  was it allotted exclusively for the use of the Chief Justice  of that High Court as a Guest House till 1997 when that bungalow was allotted for the exclusive use of the Chief Justice  and by  a subsequent  order that  Bungalow at Jaipur was declared as a "Guest House" for the exclusive use of the  chief Justice.   The  High Court  of Rajasthan under whose control  Bungalow No. A/2 at Jaipur had been placed by the Government  of Rajasthan since 1979, did not fix or levy any charges  for the  occupation of that Bungalow till 1994. It was  being maintained  by the High Court as a Guest House though there  were no  boarding facilities  provided in that Guest House.      Audit of  the accounts  of the high Court are conducted by the  Accountant General  of Rajasthan  from time to time. According to  the affidavit  filed by  the Registrar  of the High Court,  Shri  Manak  Mohta  in  this  Court,  an  audit objection was  raised for the first time and conveyed to the High Court  on  30.3.1991  regarding  drawl  of  full  daily allowance by  the Chief Justice, who had been provided "free

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 34  

Government accommodation"  for their  stay at  Jaipur.    It would be useful to refer to that affidavit at this stage:      "Since  the  establishment  of  the      permanent  Bench   at   Jaipur   on      31.1.1977 till  31.8.1988 there was      no audit  objection raised  by  the      Accountant General  of Rajasthan in      any  of   its  audit  reports  with      regards to drawl of daily allowance      by former  Hon’ble Chief Justice or      Judges for their stay at Jaipur.      That for  the first  time an  audit      objection with  regard to  drawl of      full  daily   allowance  by  former      Hon’ble Chief  Justices  for  their      stay at  Jaipur was  raised by  the      Accountant General of Rajasthan for      the audit  period from  1.9.1988 to      31.12.1990.    The  audit  of  this      period was  conducted from 8.1.1991      to 2.2.1991  which was communicated      by the  Accountant General  to  the      Registrar of  Rajasthan High  Court      and received  on 30.3.1991.  During      the tenure  of former Hon’ble Chief      Justice   Shri   K.C.Agarwal,   who      occupied the  office of  the  Chief      Justice of  Rajasthan  with  effect      from 16.4.1990.      That similar  audit objections were      again   raised   for   the   period      1.1.1991 to  31.5.1993.   The audit      for this  period  was  communicated      from 15.6.93  to 9.7.93    and  the      audit report  was  communicated  by      the  Accountant   General  to   the      Registrar, Rajasthan High Court and      was received  by  him  on  12.5.94.      During this audit period the amount      of audit objections which regard to      Hon’ble  Chief  Justice  Shri  J.S.      Verma and  Shri M.C.  Jain remained      the same  whereas  the  amount  got      increased for Hon’ble Chief Justice      Shri K.S. Agarwal.      That a  similar audit objection was      again raised  in the  audit  period      from 1.6.93 to 1.1.1995.  The audit      of this  period was  conducted from      13.2.1995  to   6.3.1885  and   the      communication  was   made  by   the      Accountant    General     to    the      Registrar,  Rajasthan   High  Court      which  was   received  by   him  on      5.4.1995. During  this  period  the      amount shown  recoverable  remained      the same  with  regard  to  Hon’ble      Chief Justice  Shri J.S.  Verma and      Shri M.C. Jain whereas it increased      in  the   case  of   Hon’ble  Chief      Justice Shri K.C. Agarwal.      However prior  to  the  receipt  of      such report,  a decision  was taken      by the  Hon’ble Chief  Justice Shri      G.C. Mital  on 10.6.1994  that  His

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 34  

    Lordship would pay Rs. 10/- per day      as room  rent and  Rs. 6/-  per day      for  geyser/heater/air-conditioner,      total being  Rs. 16/- per day which      was at  par with prevalent Circuits      House charges."      With a view to meet audit objection, it appears that on 10.6.1994, following  proposal was  made by the Registrar of the High Court of Rajasthan relating to the charges for stay in the High Court Guest House.      FIXATION OF  CHARGES FOR  HIGH COURT  GUEST  HOUSE  A-2 JAIPUR ORDER DATED 10.06.94 BY REGISTRAR "1.   Regarding  the payment  of D.A.  to the  Chief Justice during their  stay at  Jaipur Audit Party of Accountant Gen. has objected  the use  of House No.A- 2 by the Chief Justice during their  stay at Jaipur because they have been allotted free government accommodation: 1.   Hon’ble J.S. Verma 2.   Hon’ble M.C. Jain 3.   Hon’ble K.C. Aggarwal 2.   In  the   above  Govt.   Accommodation  there   is   no arrangement of  boarding and  breakfast and  no post for the maintenance  of   A-2  has  been  sanctioned  by  the  state Government.   Therefore, in  connection with  the objections the accommodation  may be  taken in  the category of Circuit House for which the rates prescribed by the State Government is as under: 1.   Single use        Double - Rs. 10 2.   Two persons       Double bed - Rs. 10 3.   If there  is arrangement  of geyser/heater/cooler Rs. 4 will be  charged extra  and if  air conditioning  machine is there Rs.  6 instead  of Rs.  4 will  be charged.  Hence the above mentioned  residence may  be taken  in the category of the Circuit House. 4.   So if Hon’ble Chief Justice is ready to pay the charges at the  rate of  Circuit House,  they may  claim  full  D.A. during their stay at Jaipur.                             Sd/-   The above proposal was followed by the following noting:      "I have  apprised the  Hon’ble Chief Justice, the Rules position.   His Lordships  has agreed to pay the charges for his stay  in the Guest House as per Circuit House rate.  The P.P.S. may  be requested to deposit the charges for the stay of Hon’ble Chief Justice in the Guest House, A-2 at Jaipur."                             sd/-                        ( G.L. Gupta )                           18.6.94      Therefore, what emerges is that an objection was raised by the  audit party, while conducting audit from 8.1.1991 to 2.2.1991 for  the period  1.9.1988 to  31.12.1990  regarding drawal of  full Daily  Allowance by  the Chief  Justices who according  to  the  audit  party  had  been  provided  "free government  accommodation"  at  Jaipur  presumably  treating Bungalow No. A/2 as "free Government accommodation" allotted to the  Chief Justices.   The audit objection, for the first time,  was   conveyed  by  the  Accountant  General  to  the Registrar  of  the  High  Court  and  was  received  by  the Registrar on  30.3.1991.   The audit  objection, thereafter, continued to  be repeated  in  the  subsequent  years  after audits were  conducted.   Thus, it  is obvious that prior to 30.3.91, no  audit objection  had ever been conveyed to  the High Court  let alone  to any  former Chief  Justice of that Court let  alone to any former Chief Justice of that Court., There was  no audit objection raised for any period prior to 1.9.88, even  though the  High Court Guest House, as already

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 34  

noticed, was  being used  for their  stay by  various  Chief Justices since 1979.  Even after 10.6.94, the Chief Justices of Rajasthan  High Court  kept on  drawing their  full daily allowance though  they started paying charges for occupation of the High Court Guest House, Bungalow No.A/2 at Jaipur, at the rates  indicated in the Registrar’s note dated 10.6.1994 (supra). The charges were being paid to the High Court since the bungalow had been allotted to the High Court for its use as a  Guest House.  Admittedly, at no, point of time did the High Court call upon any former Chief Justice to deposit the arrears of  charges for  occupation of the Guest House after the charges were fixed in 1994.      Under the  High Court Judges Travelling Allowance Rules 1956, the  Judges of  the High  Court w.e.f  12.5.1976  were entitled:      "(c) to  a daily  allowance at  the      rate of  Rs. 35/-  for  the  entire      period     of      absence     from      headquarters,  the   absence  being      reckoned from the time of departure      from headquarters  to the  time  of      return to headquarters:      Provided that  the daily  allowance      so admissible shall be regulated as      follows:-      (i) full  daily allowance  for each      completed day,  that  is,  reckoned      from mid-night to mid-night:      (ii) for  absence from  headquarter      for less  than twenty-four  hourse,      the daily allowance shall be at the      following rates, namely:-      (1)    if    the    absence    from      headquarters does  not  exceed  six      hours,  90%   of  the   full  daily      allowance.      (2)    if    the    absence    from      headquarters exceeds six hours, but      does not  exceed twelve  hours, 50%      of the full daily allowance;      (3)    if    the    absence    from      headquarters exceeds  twelve hours,      full daily allowance:      (iii) if the date of departure from      and return  to headquarters fall in      fall in  different dates the period      of absence  from headquarters shall      be reckoned  as two  days and daily      allowance shall  be calculated  for      each day as in clause (ii):"      Subsequently, the  rate of  daily allowance was revised vide G.S.R.  1194 (E)  dated 7.11.1986  and the  Judges were entitled:      "to a  daily allowance  at the rate      of Rs.  100/- for the entire period      of absence  from headquarters,  the      absence  being  reckoned  from  the      time to departure from headquarters      to   the    time   of   return   to      headquarters to  the time of return      to headquarters.      Provided that  the daily  allowance      so admissible shall be regulated as      follows:-      (i) full  daily allowance  for each

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 34  

    completed day,  that  is,  reckoned      from mid-night to mid-night:      (ii) for  absence from headquarters      for less  than  twenty-four  hours,      the daily allowance shall be at the      following rates, namely:-      With effect  from 4.12.1991 the rate of daily allowance was further enhanced:      "(e) to  a daily  allowance at  the      rate of  (Rs. 250/-) for the entire      period     of      absence     from      headquarters,  the   absence  being      reckoned from the time of departure      from headquarters  to the  time  of      return to headquarters.      Provided that  the daily  allowance      so admissible shall be regulated as      follows:-      (i) full  daily allowance  fro each      completed day,  that  is,  reckoned      from mid-night to mid-night;      (ii) for  absence from headquarters      for less  than  twenty-four  hours,      the daily allowance shall be at the      following rates, namely:-      Thus, from  1976  to  7.11.1986,  the  daily  allowance admissible to  the Judges,  including the Chief Justice, was at the  rate of  Rs. 35/-  per day.   It was enhanced to Rs. 100/- per  day w.e.f.  7.11.1986 and further enhanced to Rs. 250/- per day w.e.f. 4.12.1991.      The provision on the basis of which the audit party has raised the  objection as  is apparent from the audit report, is sub-clause  (E)(ii) of  para 2  of the  High Court Judges Travelling Allowance Rules, 1956 which reads:      "When a  Judge is  a State Guest or      is allowed  to avail free board and      lodging  at   the  expense  of  the      Central or  State Government or any      autonomous industrial or commercial      undertakings or  corporation  or  a      statutory   body    or   a    local      authority,  in   which   Government      funds  have  been  invested  or  in      which  Government  have  any  other      interest, the daily allowance shall      be restricted  to 25 percent of the      amount admissible or sanctioned, an      if only board or lodging is allowed      free,  the  Judge  may  draw  daily      allowance  at   one  half   of  the      admissible rate."      Before considering  the application  of  the  aforesaid provision to  the cases  of the  former  Chief  Justices  of Rajasthan High  Court, who  drew full  daily allowance while staying in  the High  Court Guest  House at  Jaipur,  it  is desirable to  examine the  factual accuracy  of the comments made by the learned single Judge.      From an  analysis of  the rule position relating to the drawl of  daily allowance  by the Judges, it follows that it is a  factually incorrect observation of Shethna, J that all the Chief Justices till 1994 had "illegally drawn full daily allowance of  Rs. 250/-  per day".   Till  1991,  the  daily allowance, was  payable to  the Judges either at the rate of Rs. 35/- or Rs. 100/- per day.  It was enhanced to Rs. 250/- per day  only w.e.f 4.12.1991.  No Chief Justice, therefore,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 34  

could have  drawn a  daily allowance  of Rs.  250/- prior to 4.12.91. Specific  reference has  been made by Shethna, J to the present Chief Justice of India Mr. Justice J.S.Verma who it is  alleged had "illegally" drawn full daily allowance of Rs.250/- per  day inspite  of an "audit objection", known to the High Court.  According to Shethna, J:      "The  present   CJI   Hon’ble   Mr.      Justice J.S.  Verma was also of the      former Chief  Justice of this Court      from  1986   to  1989.     He  also      initially stayed  at Jaipur  for 15      days and lateron sat more at Jaipur      than Jodhpur  and illegal drew full      D.A. of  Rs. 250/-  per day for his      stay at  Jaipur without  paying any      charges to which there was an audit      objection which  fact  was  on  the      record of this High Court."      One really  wonders where  the learned  Judges got  the figure of Rs. 250/- per day as the D.A. for the period 1986- 89, during  which period  Verma, J. was the Chief Justice of the Rajasthan High Court.  At no point of time, as the Chief Justice of  Rajasthan High Court has Justice J.S.Verma drawn a daily  allowance at  the rate of Rs. 250/- per day for his stay at  Jaipur.   Therefore, it  is wrong  to  allege  that Verma, J. had drawn daily allowance at the rate of Rs. 250/- per day,  which rate became effective much after Mr. Justice J.S. Verma  had relinquished his office as the Chief Justice of Rajasthan  High Court  on his  elevation to  the  Supreme Court,   Surely, Shethna,  H. could not have been unaware of this position.    Why  then  did  he  choose  to  record  an incorrect fact  is not understandable?  Insofar as the audit objection  is  concerned,  as  already  noticed,  the  audit objection was  raised for the first time after the audit was conducted between  8.1.1991 to  2.2.1991 and conveyed to the High Court  on 30.3.1991.  That audit objection pertained to the period  1.9.1988 to  31.12.1990.  There was therefore no question of  any audit objection having been conveyed to the High Court  till Justice  Verma was  elevated to the Supreme Court w.e.f.  3.6.1989.   No audit  objection had admittedly been raised  during the tenure of Mr. Justice J.S. Verma and it is  an incorrect  statement to  say that  such  an  audit objection "was on the record of the High Court".  Even after the audit  objection was  for the first time conveyed to the Registrar of  the High  Court on  31.3.1991,  it  was  never communicated to Verma, J. at any point of time.  Shethna, J. has unfortunately  ’distorted’ facts,  for reasons which can be any  body’s guess.  Thus, the allegations (supra) against Mr. Justice  J.S.Verma are factually incorrect and appear to have been made recklessly.      Legally, also the observations and comments of Shethna, J. are not sustainable.  According to sub-clause (E) (ii) of Para 2 of the High Court Judges Travelling Allowances Rules, 1956, (supra)  a Judge  including a  Chief  Justice  is  not entitled to  draw the admissible full daily allowance, of he has been  declared either  as a State Guest or is allowed to avail of  free board  and lodging  at  the  expense  of  the Central or the State Government or any autonomous industrial or commercial  undertakings or  corporation or  a  statutory body or a local authority in which the Government funds body or a local authority in which the Government funds have been invested or  in which the Government has any other interest. As already  noticed, bungalow  No.A/2  at  Jaipur  had  been declared as a High Court Guest House by the State Government in 1979  and placed  at the  disposal of  the High  Court of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 34  

Rajasthan.     It  had   not  been  allotted  as  rent  free Accommodation in  favour of  any Chief Justice.  The charges of rent  of Bungalow  No. A/2  at Jaipur were debited to the account  of  the  High  Court  of  Rajasthan  by  the  State Government.  The Bungalow was in possession of and under the control of  the High court of Rajasthan.  Occupation of such a building,  with or  without payment  of charges  was to be regulated by  the High  Court  of  Rajasthan  itself.    The charges, if  any, were  to be  fixed by  the High  Court  of Rajasthan for  occupation  of  the  Guest  House  and  those charges were recoverable by the High Court of Rajasthan from the persons  occupying the  Guest House.   May  be, the High Court only  permitted the  Chief Justices  to stay  in  that Guest House,  but that  was an  internal arrangement  of the High Court  and the  Government had  no  say  in  it.    The Bungalow had  been declared by the Government to the used as a Guest  House of the High Court and placed under control of the High  Court and  the Government  had no say in it.,  The Bungalow had been declared by the Government to be used as a Guest House  of the  High Court  and placed under control of the High  court, not exclusively for the Chief Justices from 1979 of  1997.   If the  High Court  chose not  to  fix  any charges ever since 1979 when the Guest House was allotted to the High  Court till  1994,  it  cannot  by  ay  stretch  of imagination be  said  that  the  Chief  Justices,  had  been allotted "free  Government accommodation"  for their stay at Jaipur in  the High  Court Guest  House, so as to disentitle them to draw full daily allowance at the admissible rates.      Providing free  boarding/lodging at  the expense of the central or the State Government or declaring the occupant as a "State  Guest" is  the sine  qua non  for attracting  sub- clause (E)  (ii)  of  Para  2  of  the  Rules  (supra),  not entitling a  Judge including  the Chief Justice to draw full daily allowance.  After bungalow No.A/2 had been declared as the High  Court Quest  House in  1979, and  placed under the control of  High Court, the State Government went out of the picture insofar  as its  use and  occupation was  concerned. The stay in that Guest House even without charges, cannot by any rule  of construction,  be construed  as providing "free lodging" at  the expense  of the Central or State Government so as  to attract the provision of Para 2(ii) E of the rules (supra).     The  Chief   Justices  were,   therefore,   not disentitled to draw their full daily allowances at the rates admissible at  the relevant  time.   Even after  the charges were fixed  at the  rate of Rs. 10/- or Rs. 16/- per day for occupation of the Guest House in 1994 by the High Court, the Chief Justices  have continued  to  draw  their  full  daily allowance and  no 50^ of the D.A.  They have paid charges to the High  court for  the use  of the Guest House at the rate fixed by  the High Court w.e.f. 10.6.1994.  This  appears to be quite  in order  and  shows  that  the  drawal  of  daily allowance at  the full  rate has nothing to do with the stay in the  High  Court  Guest  House.    Admittedly,  no  audit objection has  been raised  to the  drawal of the full daily allowance by  the Chief  Justices and payment of Rs. 10/- or Rs. 16/-  per day  for the  occupation of the Guest house to the  High   Court  since  June  1994.    By  no  stretch  of imagination can, therefore, it be said that any of the Chief Justices, till  1994, had  "illegally" drawn  the full daily allowance to  which they  were not entitled to.  The further observation of Shethna, J. that:      "It   is   nothing   but   a   mis-      appropriation of  the  public  fund      which is  a criminal  offence under      the Penal Code."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 34  

    Are not  only based  on wrong  assumptions but are also legally unsound and untenable.      It is  also relevant  in this  connection to notice the contents of the additional affidavit filed by the Registrar, High Court of Rajasthan in this Court.  The relevant portion of that affidavit reads:-      "By way of a supplemental affidavit      to  my   earlier  affidavit   dated      2.11.1997,   it   is   respectfully      submitted that  the Hon’ble  Judges      as and  when they  retired  or  are      transferred  or  are  appointed  as      Judges of the Hon’ble Supreme Court      are issued  Last Pay certificate by      the  Concerned   District  Treasury      Officer  of   the   Government   of      Rajasthan.      The Last Pay Certificates issued to      Hon’ble  Mr.   Chief  Justice  J.S.      Verma (the  then Chief  Justice  of      High   Court   of   Rajasthan)   on      appointment  as   Judge   of   this      Hon’ble  Court,   and  Hon’ble  Mr.      Justice  K.C.   Agarwal  (the  then      Chief  Justice  of  High  Court  of      Rajasthan) on his transfer as Chief      Justice  of   Calcutta  High  Court      showed in the case of Hon’ble Chief      Justice Mr.  J.S.Verma  that  "nil"      recoveries were to be made from his      pay and,  in the  case  of  Hon’ble      Chief  Justice   K.C.  Agarwal,  no      amount  was  shown  as  recoverable      from his  pay.   Annexed hereto and      marked as  Annexures R1  and R2 are      the Last  Pay Certificates  of  the      Hon’ble Chief  Justice Mr.  Justice      J.S.Verma and  Hon’ble Mr.  Justice      K.C. Agarwal."      Copies of  the Last  pay Certificates in support of the above deposition  have been  placed on record.  The last pay certificates was  issued by  the District  Treasury  of  the Government of  Rajasthan in 1989.  When the Treasury Officer has certified that ’no’ recoveries were due from Mr. Justice J.S. Verma,  on his  relinquishing the  office of  the Chief Justice  of   Rajasthan  High  Court,  it  puts  the  matter completely beyond  doubt that  neither Mr. Justice J.S.Verma had, drawn any daily allowance "illegally" nor was he quilty of  any  "criminal  misappropriation  of  public  funds"  as alleged by  the learned  Judge.   The "last pay certificate" could not  have been  issued without  proper verification by the District Treasury Officer and the declaration therein to the effect  that "no  dues" were recoverable from the pay of Mr. Justice  J.S. Verma,  establishes beyond  any doubt that nothing had  been "illegally" drawn by Verma, J. and that no public funds  were "misappropriated"  by him and nothing was ’due’ from his to the State Government.      We,  therefore,   unhesitatingly  come   to  the   firm conclusion that the observations, comments, insinuations and allegations made  by Shethna,  J in  the matter of drawal of full  daily  allowance  by  the  former  Chief  Justices  of Rajasthan High  Court including the present Chief Justice of India, Mr.  Justice J.S.Verma,  who used to stay in bungalow No.A/2  at   Jaipur  without   payment  of   rent,  are  not sustainable both  in law and on facts.  The allegations have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 34  

been  made  irresponsibly  and  recklessly.    There  is  no question of  any "misappropriation" of "public funds" by any former Chief  Justice of  the High Court of Rajasthan in the established facts of the case.  Strong expressions have been used against  the head of the Indian Judicial Family without any factual  matrix and legal justification.  We express our serious disapproval  of the  manner  in  which  the  learned single Judge  has done so as it does no credit to the office that he holds.      Whereas we  concede that a Judge has the inherent power to act  freely upon  his own conviction on any matter coming before him,  but it  is a principle of highest importance to the proper  administration of  justice that  the Judge  must exercise his  powers within the bounds of law and should not use intemperate  language or pass derogatory remarks against other  judicial   functionaries,  unless  it  is  absolutely essential for  the decision  of the  case and  is backed  by factual accuracy and legal provisions.      It is educative to quote the views of Benjiman Cardozo, the great Jurist in this behalf:      "The judge,  even when  he is free,      is still  not wholly  free.   He is      not to innovate at pleasure.  He is      not a knight-errant roaming at will      in pursuit  of  his  own  ideal  of      beauty or  of goodness.   He  is to      draw    his     inspiration    from      consecrated principles.   He is not      to yield to spasmodic sentiment, to      vague and  unregulated benevolence.      He  is   to   exercise   discretion      informed by  tradition,  methodized      by analogy,  disciplined by system,      and subordinated to "the primordial      necessity of  order in  the  social      life."      It must  be remembered  that it  is the  duty of  every member of  the legal  fraternity to ensure that the image of the  judiciary  is  not  tarnished  and  its  respectability eroded.   The manner  in which proceedings were taken by the learned Judge  in relation  to the writ petition disposed of by a  Division Bench  exposes a  total lack  of respect  for judicial discipline.   Judicial authoritariansim is what the proceedings in  the instant  case smack  of.   It cannot  be permitted under  any guise.   Judges must be circumspect and self  disciplined   in  the   discharge  of  their  judicial functions.   The virtue  of humility  in the  Judges  and  a constant awareness that investment of power in them is meant for use in public interest and to uphold the majesty of rule of law,  would to  a large  extent ensure  self restraint in discharge  of   all  judicial  functions  and  preserve  the independence of judiciary.  it needs no emphasis to say that all actions  of a  Judge must  be  judicious  in  character. Erosion of credibility of the judiciary, in the public mind, for whatever  reasons, s greatest threat to the independence of the  judiciary.  Eternal vigilance by the Judges to guard against any  such  latent  internal  danger  is,  therefore, necessary,  lest   we  "suffer  from  self-inflicted  mortal wounds".   We must  remember that  the constitution does not give unlimited  powers to any one including the Judge of all levels.  The societal perception of Judges as being detached and impartial  referees is  the  greatest  strength  of  the judiciary and every member of the judiciary must ensure that this perception  does not  receive a set back consciously or unconsciously.   Authenticity of  the judicial process rests

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 34  

on  public   confidence  and   public  confidence  rests  on legitimacy of  judicial process.   Sources of legitimacy are in the  impersonal application  by the  Judge of  recognised objective principles  which owe  their existence to a system as  distinguished   from  subjective  moods,  predilections, emotions and  prejudices.   it is  most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable.      From  the  preceding  discussion  the  following  broad CONCLUSIONS merge.  This, of course, is not to be treated as a summary  of our judgment and the conclusion 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 allocated 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  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 "pack  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. (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. (10) That the  "allegations"  and  "comments"  made  by  the learned Judges  against the Chief Justice of the High Court, the Advocate  of the petitioner in the writ petition and the learned  Judges   constituting  the   Division  Bench  which disposed of  Writ Petition  No. 2949  of 1996  were uncalled for, baseless and without any legal sanction. (11) That the  observations of the learned Judge against the former Chief  Justices of the High Court of Rajasthan to the effect that  they had "illegally" drawn full daily allowance while sitting  at Jaipur to which they were not entitled, is factually  incorrect,  procedurally  untenable  and  legally unsustainable. (12) That  the  "finding"  recorded  by  the  learned  Judge against the  present Chief Justice of India Mr. Justice J.S. Verma, that till his elevation to the Supreme Court, he had,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 34  

as Chief  Justice of  the Rajasthan  High Court, "illegally" drawn a daily allowance of Rs. 250/- while sitting at Jaipur and had  thereby  committed  "Criminal  misappropriation  of public funds"  lacks procedural  propriety, factual accuracy and legal authenticity.  The finding is wholly incorrect and legally unsound and makes the motive of the author not above personal pique so wholly taking away dignity of the judicial process. (13) That the  disparaging and  derogatory comments  made in most intemperate  language in  the order  under appeal do no credit to  the high  office of a High Court Judge. (14) That the direction  of Shethna,  J. to  issue notice to the Chief Justice of  the  High  Court  to  show  cause  why  contempt proceedings be not initiated against him, for transferring a part-heard writ  petition from  his Bench  to  the  Division bench for  disposal, is  not  only  subversive  of  judicial discipline and  illegal but  is also wholly misconceived and without jurisdiction.      We, therefore.  hold that  all observations,  comments, insinuations, allegations  and orders  made by  the  learned Judge in  connection with  and relating  to the  disposed of Writ  Petition  No.  2949/96  in  the  impugned  order,  are illegal, misconceived  and without  jurisdiction.   The same are quashed  and are hereby directed to be expunged from the record.      The direction  to issue  show cause notice to the Chief Justice of  the High  Court Respondent  No.2,  being  wholly unwarranted, unjustified and legally unsustainable is hereby quashed and set aside.      Nothing said  hereinavoce shall however be construed as any expression  of opinion  on the pending criminal revision petition filed  by respondent  No.1, which has been admitted to hearing  and in  which respondent  No.1 has  been granted bail.   That criminal  revision petition shall be decided by the High Court on its own merits.      Before parting  with this Judgment, we wish to say that we hope there shall not be any other occasion for us to deal with such a case.      The appeal therefore succeeds and is allowed.