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PETITIONER: ALOK KUMAR ROY

       Vs.

RESPONDENT: DR.  S. N. SARMA AND ANR.

DATE OF JUDGMENT: 19/10/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: WANCHOO, K.N. (CJ) BACHAWAT, R.S. RAMASWAMI, V. MITTER, G.K. HEGDE, K.S.

CITATION:  1968 AIR  453            1968 SCR  (1) 813

ACT: High Court, Judge of-Appointed as Commission of  Enquiry--If could  act  as Judge-Effect of High  Court  Judge  receiving petition  and  passing order at a place other than  seat  of High Court--Chief Justice passing remarks against colleague- Propriety.

HEADNOTE: One  of the Judges of the High Court of Assam was  nominated to  be  the  Vacation Judge for  hearing  urgent  civil  and criminal  applications  when the High Court was  closed  for vacation  from  17th September 1966 to 19th  November  1966. Certain  days were fixed as the vacation court days, and  if there  was  an extremely urgent matter  the  Vacation  Judge could  hear  it on any other day by appointment.   At  that time,  the  same Judge was heading a Commission  of  Enquiry under the Commission of Inquiry Act, and in connection  with that  work,  on 2nd November 1966, the Vacation  Judge  went from Gauhati the seat of the High Court, to Sibsagar. The appellant was a student of a college at Gauhati.  He was expelled from the college on 26th October 1966.  He tendered an. unconditional apology the next day and attended  classes till  the  end of the month; but, on 2nd November,  when  he wanted. to pay the fee for an examination to be held on  4th November,  the fee was not received as the Principal of  the College had not accepted the apology.  As the Vacation Judge was not available at Gauhati, the appellant went to Sibsagar and  presented a writ petition to the Vacation  Judge.   The Judge entertained the petition and passed an interim  order. A  copy  of the interim order was prepared at  Sibsagar  and given to the appellant to be taken to Gauhati where it.  was sealed and served on the University.  The appellant was then allowed to sit for the examination subject to the result  of the  writ petition.  Thereafter, the papers relating to  the writ  petition  were sent to the High Court at  Gauhati  and after  the vacation was over, certain  miscellaneous  orders were  passed on the writ petition.  Eventually, it  came  up for  hearing and was dismissed by a Bench consisting of  the Chief  Justice  of the High Court and another  Judge.   The

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Chief  Justice  held  that: (1) the  Vacation  Judge,  while performing the duties of a Commission of Enquiry, could  not also  Perform the duties of a Judge of the High Court (2)  a Judge  of the High Court could not hold a,sitting  anywhere else  except  at the seat of the, High Court’  and  (3)  the Vacation Judge exhibited ’unholy haste and hurry’ and his  I action disclosed ’an unnecessary zeal’ on his part to assist the  appellant.   The other Judge agreed with the  order  of dismissal only on the. second ground. In appeal to this Court, HELD:     (1)  Judges  of the High Court are of  appointed under  the Commission of inquiry act to head commission  for various  head  purposes.  These  Commissions  are  temporary affairs and usually their 814 sittings are not continuous.  A Judge of the High Court when lie  is appointed to head such a Commission does  not  demit his  office as a Judge nor does the appointment deprive  him of  his rights and privileges as a Judge of the High  Court. Therefore,  there was nothing objectionable on the  part  of the  Vacation  Judge working as a Judge of  the  High  Court while   he  was  heading  the  Commission,  for,  when   the Commission was not actually sitting; he was entitled to  sit and act as a Judge of the High Court. [817 G-H; 818 C]. (2)  Assuming that a Judge of the High Court could not  pass orders  as a Judge anywhere else except at the seat  of  the High Court, the effect of such an assumption in the  present case  is,.  that the presentation of the  writ  petition  at Sibsagar was irregular and the interim order passed  thereon was  also  irregular.   But, as the  petition  was  sent  to Gauhati  later and dealt with by the High Court  there,  the petition must be deemed to have been represented to the High Court, and the irregularity in presentation must be held  to have been cured.  It was open to the High Court to  consider whether the irregular interim order should be regularised or to deal with the petition on merits.  But it was not open to the  High  Court  to throw out the petition  merely  on  the ground that the original presentation was irregular. [818 H; 819 A-E]. (3)  Assuming that the Vacation Judge wrongly took the  view that  he could entertain the petition and pass  the  interim order  at Sibsagar, he could only act in the way he  did  in the  view  that  he took, and,  in  the  circumstances,  the observations  of  the Chief Justice were  entirely  uncalled for.    There   was  no  justification  at  all   for   such justification   for  criticism,  the  language   should   be dignified  and rejustification for criticism,  the  language should be dignified and restrained. [820 B-D, G; 821 A]. Principal,  Patna College v. K. S. Raman, [1966],  1  S.C.R. 974, distinguished.

JUDGMENT: CIVIL  APPELATE  JURISDICTION: Civil Appeal    No.  1028  of 1967. Appeal  by special leave from the judgment and  order  dated May  24, 1967 of the Assam and Nagaland High Court in  Civil Rule No. 425 of 1966. Sarjoo  Prasad,  Barthakur and R.  Gopalakrishnan,  for  the appellant. C.  K.  Daphtary, Attorney-General and Naunit Lal,  for  the respondent The Judgment of the Court was delivered by Wanchoo, C. J This is an appeal by special leave against the

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judgment of the Assam High Court by which the writ  petition filed by the appellant was dismissed.  Brief facts necessary for  present  purposes  are  these.   It  appears  that  the appellant was expelled from the Medical College, Gauhati  on October  26, 1966.  It is said that the  appellant  tendered unqualified  apology  on  October  27,  1966  and  attended, classes  up  to  the end of October  1966.   The  Principal, however, does not seem to have accepted the apology and when the appellant went on, November 2, 1966, to deposit the  fee for  the examination which was to be held from  November  4, 1966,  he was told that as he had been expelled and  as  the order  of  expulsion  stood  no  examination  fee  would  be accepted from him It was thereafter that the 815 appellant  filed the writ petition on November 3, 1966,  out of which the present appeal has arisen. It may be mentioned that the High Court was in vacation from September 17, 1966 to November 19, 1966.  Mr. Justice S.  K. Dutta  was nominated as the Vacation Judge for the  vacation and certain dates were fixed on which he was to sit and hear urgent civil and criminal appliciations.  One of these dates was October 31, 1966 and another was November 10, 1966.   It was  also stated in the order that if there was  any  matter which  was extremely urgent it would be heard on  any  other day by appointment through the Registrar. It  appears  that Mr. Justice Dutta was also  working  as  a Commission of Enquiry during that time.  For that purpose he had  to  go out of Gauhati, which is the seat  of  the  High Court.   It  seems  that  Mr. Justice  Dutta  went  Away  to Sibsagar  after  the vacation sitting on October  31,  1966. Therefore  on  November  2, 1966 he  was  not  available  at Gauhati,  even  though he was the Vacation  Judge  and  even though the order relating to vacation sittings said, that if any  matter  was extremely urgent it could be heard  on  any other  day  by appointment through the  Registrar.   As  the examination was to be held from November 4, 1966, the filing of  the  writ petition against the order  of  expulsion  was undoubtedly  a  very urgent matter, if any order was  to  be obtained  before  November 4, 1966.  What the  appellant  is said  to  have done was this.  He gave notice  to  the  Gov- ernment Advocate on November 2, 1966 at Gauhati as  required by  the  Rules  and thereafter went to  Sibsagar  where  Mr. Justice Dutta was holding the Commission of Enquiry and pre- sented   the  writ  petition  there.   This   petition   was entertained  by  Mr.  Justice Dutta and  be  passed  interim orders thereon.  A copy of the interim order was prepared at Sibsagar  and given to the appellant to be taken to  Gauhati where it was to be sealed.  The appellant took the order  to Gauhati  and  after  getting  it sealed  served  it  on  the university.   He  was  thereupon  allowed  to  sit  at   the examination subject to the result of the writ petition.   It also appears that thereafter the papers relating to the writ petition  were  sent  to  Gauhati and  the  High  Court  had occasion   to  deal  with  the  writ  petition  and   passed miscellaneous  orders thereon at Gauhati after the  vacation was over.  Eventually, the writ petition came up for hearing in  May  1967.  A preliminary objection was  raised  to  the maintainability of the petition on behalf of the respondent. It  was  urged  that as Mr. Justice,  Dutta  was  holding  a Commission  of  Enquiry he could not act as a Judge  of  the High Court.  It was also urged in the alternative that  even if  he had the jurisdiction to. act as a Judge of  the  High Court,  he  could not exercise that  jurisdiction  while  at Sibsagar for the seat of the High Court was at Gauhati. 816

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The petition. was heard by a Bench consisting of the learned Chief  Justice and Mr. Justice Goswami.  The  learned  Chief Justice  seems  to have held that Mr.  Justice  Dutta  while performing  the duties of a Commission of Enquiry could  not also  perform the duties of a Judge of the High  Court.   He further  held  that  in any case as the seat  of  the  High, Court, was at Gauhati, Mr. Justice Dutta could not pass  any order  as a Judge of the High Court at Sibsagar, which,  was not the seat of the High Court.  Finally, the learned  Chief Justice  made  certain remarks as to the "unholy  haste  and hurry exhibited in dealing with this matter by Dutta J."  at Sibsagar and set aside the order of stay granted by Dutta J. on  November  3, 1966 and also set aside the  order  issuing rule  nisi, and dismissed the petition.  Goswami J. did  not fully  agree  with  the learned Chief  Justice,  though,  he agreed  with the order setting aside ’the stay  granted’  by Dutta J. and also agreed with. the order dismissing the writ petition.   He  observed that "I shall  content’  myself  in assuming  that  Dutta  J. had no  anxiety  other  than  what prompted  him  to do in the interest of  what  his  Lordship thought  to  be  justice".  when he  passed  the  order  in. question on November 3, 1966.  But he was of the view.  that a Judge of the High Court could not hold a sitting  anywhere in  Assam  except  at the seat of the  High  Court,  namely, Gauhati, and therefore the order passed on November 3,  1966 by Dutta J.  was without jurisdiction. The  present  appeal has been brought before us  by  special leave and it is urged on behalf of the appellant that it was not  correct to hold that Dutta J. could not act as a  Judge of  the High Court while he was working as a; Commission  of Enquiry and further that Dutta J. had no jurisdiction  while at  Sibsagar to entertain the petition and to pass the  stay order. We shall deal with the two contentions in that order. We  are  of opinion that the learned Chief Justice  was  not right  when he held that Dutta J.; could not act as a  Judge of  the High Court While he was working as a  Commission  of Enquiry’ Learned Attorney-General appearing for the State of Assam did not support that view It also appears that Goswami J. has said nothing on this aspect of the matter; presumably he  did  riot  agree  with the view  of  the  learned  Chief justice.   Often times, Judges 6f High Courts are  appointed under  the- Commission ’of Enquiry Act to  head  Commissions for  various  purposes.   These  Commissions  are  temporary affairs  and many a time their sittings are not  continuous. A  Judge  of the High Court when he is appointed to  head  a Commission,  of  this kind does not demit his  office  as  a Judge and when the Commission is not actually sitting he  is entitled  to sit as a Judge of the High Court.  It  is  only where  a  Judge of the High Court is  appointed  to  another post, which is a whole time post that it may be said that on such  appointment  he can no longer work as a Judge  of  the High 817 Court  for the time being, though even in such a case,  when the  work is over, he reverts as a Judge of the  High  Court without fresh appointment.  Such, for example, was the  case of Incometax Investigation Commission where the appointments were whole time and a, Judge. of the High Court appointed as a  member of the Investigation Commission could not  at  the same  time  work as a Judge of the High Court.   But  Judges appointed  to  head  Commissions  under  the  Commission  of Enquiry Act stand in a different position altogether.  As we have  said,  these.  Commissions are temporary and  are  not whole time posts and their sittings are not even continuous. In such a case we, are of opinion that a Judge appointed to’

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head  a  Commission of Enquiry remains as part of  the  High Court  and  if  the Commission of  Enquiry  is  not  working continuously  he is entitled to sit and ,act as a  Judge  of the  High Court in the intervals.  It is not  disputed  that Dutta  J.  was  heading  a Commission  of  Enquiry  of  this temporary nature, and as such we are of opinion that he  was entitled  to sit and’act as a Judge of the High Court  when- ever  he had time to do so.  It is remarkable that Dutta  J. was appointed Vacation Judge while he was working as Commis- sion  of  Enquiry and that appointment was  in  our  opinion quite  in order. for by heading the Commission  of  Enquiry, Dutta  J.  did not demit his office as a Judge of  the  High Court.   We cannot therefore agree with the  observation  of the  learned  Chief  Justice that Dutta J.  could  not  have assumed  to himself the’ role and duties of a Judge  of  the High  Court exercising jurisdiction as a Bench ’of the  High Court.   We  also disagree with the view  expressed  by  the learned  Chief Justice that it was highly  objectionable  on the  part of Dutta J. to work as a Judge of the  High  Court while  be was heading the Commission of Enquiry.  We are  of opinion  that where a Judge heads temporary  Commissions  of Enquiry  under the Commission of Enquiry Act. he  remains  a part of the High Court and is entitled to sit and, act as  a Judge  of  the  High  Court whenever  be  thinks  fit.   The appointment  of  a Judge as Commission of Enquiry  does  not deprive  him of the rights and privileges of a Judge of  the High Court.  Whenever he finds time to attend to his  duties as  a Judge of the High Court while acting as a.  Commission of Enquiry, he can do so. The  next question is whether Dutta J. could act as a  Judge of  the High Court at Sibsagar when Gauhati is the  seat  of the  High Court under the notification issued under Art.  10 of.  the Assam High Court Order, 1948.  We do not  think  it necessary to decide this question in the present appeal.  We shall assume that Dutta J. could not pass orders as a  Judge of  the High Court anywhere else except at Gauhati which  is the  seat of the High Court.  Even assuming that,  all  that can  be said is that the presentation of the  writ  petition before Dutta J. at Sibsagar was irregular.  As we have  said already.  he  was  still a Judge of  the  High  Court  while holding a Commission of Enquiry at Sibsagar, 818 and if he received the petition at Sibsagar, all that can be said  is that the petition was irregularly  presented  there when it should have been presented at Gauhati.  But assuming that  the  presentation  of the  petition  at  Sibsagar  was irregular,  the fact remains that the petition was  sent  to Gauhati  later and was dealt with there.  We do not see  why the  petition  should  have  been  dismissed  because   the’ presentation  was  irregular.  There is in  out  opinion  no difficulty  in  holding that the petition was  repre  sented when it was sent to Gauhati and was dealt with there in  the High Court.  The presentation should have been taken in such circumstances to have been made at Gauhati when the petition reached Gauhati and the petition should have been dealt with as such.  Of course, if the presentation of the petition  at Sibsagar  was irregular, the order passed by Dutta J.  would also  be irregular, But when the petition came to  the  High Court  thereafter, the irregularity in presentation must  be held to have been cured.  It was open to the High Court  to, consider  whether  the  irregular order of  stay  should  be regularised.   Apart  from that even if the  irregular  stay could  not  be  regularised, there was  no  reason  why  the petition  should  have been dismissed merely on  the  ground that it was irregularly presented, when it finally did reach

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the  High Court at Gauhati.  Whatever therefore may be  said a:.bout  the order under appeal setting aside the  irregular order of stay, we are of opinion that the High Court was not right in dismissing the petition as it did on May 24,  1967. The  petition must be held to have been represented  to  the High  Court  when it reached the seat of the High  Court  at Gauhati  and should have been dealt with as such  and  could not  have  been  thrown out merely on the  ground  that  the original presentation on November 3, 1966 was irregular.  We are  therefore  of  opinion that the  order  dismissing  the petition must be set aside and the High, Court should now go into  the question whether the petition should  be  admitted and  whether it should be set down for hearing.  Finally  we consider  it our duty to refer to certain observations  made by  the  learned Chief Justice with respect to  Dutte,  J.is handling of the petition.  In this connection reference  was made  by  the learned Cheif Justice to a  decision  of  this Court in Principal, Patna College V. K. S. Raman(1).  It  is enough to say that the facts of that case are very different from  the facts of the present case and the observations  on which  the learned Chief Justice relies do not apply to  the facts  of  the  present  case.  In  the  present  case,  the petition  was  presented during vacation when no  Judge  was actually  sitting  at Gauhati and in the  circumstances  the action taken by the appellant in presenting the petition  at Sibsagar before Dutta J. who was the Vacation Judge and  the only Judge available, after giving notice to the  Government Advocate on November 2, 1966 at Gauhati, seen* to have  been the  only course open to him in the circumstances,  for  the examination (1)  [1966] 1 S.C.R. 974: A.I.R. 1966 S.C. 707. 819 was to be held from November 4, 1966 and the appellant  came to know on November 2, 1966 when the examination fee was not accepted   that  he  would  not  be  able  to  sit  at   the examination.   In the circumstances the observation  of  the learned Chief Justice that there was "unholy haste and hurry exhibited  in  dealing  with this’ matter by  Dutta  J."  is entirely uncalled for.  Assuming that Dutta J. wrongly  took the  view that he could entertain the petition and pass  the stay order at Sibsagar, he could only act in the way he  did in  the view that he took, and’ it cannot be said that  this was  a  case of "unholy haste and hurry".   We  also  cannot agree with learned Chief Justice that the notion of  sending a) copy to Gauhati for getting it sealed so that it might be properly  authenticated was in any way  objectionable.   The situation being what it was, that seems to us to be the only way open, once it is clear that Dutta J. took the view  that he could entertain the petition and pass orders thereon even though  that view may not be correct.  Nor do we think  that the  learned Chief Justice was justified in  observing  that "the  whole thing discloses an unnecessary zeal on the  part of  Dutta J. to assist the appellant".  Once Dutta  J.  took the view that he had jurisdiction to entertain the  petition and  pass orders thereon, the order he passed and the  steps he took so that the order was served before November 4, 1966 (which  was the date of the examination) appear to us to  be the  only steps that could have been taken, and  such  steps cannot  be said to be opposed to the great  traditions  that obtain  in a High Court; nor can it be said that Dutta  J.’s action reflected adversely on the judicial independence  and aloofness of that august institution.  There is no reason to hold  that  any unnecessary zeal was shown by  Dutta  J.  in assisting  the appellant when he passed the order  which  he did,   once  Dutta  J.  took  the  view  that  he  had   the

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jurisdiction  to  entertain  the  petition  and  pass  order thereon  at Sibsagar.  All that happened thereafter  appears to  us to be quite proper and cannot in any way  reflect  on the  conduct  of Dutta J. in this case.  It is a  matter  of regret  that the learned Chief Justice thought fit  to  make these  remarks  in  his judgment  against  a  colleague  and assumed   without  any  justification  or  basis  that   his colleague  had  acted improperly.   Such  observations  even about  Judges  of  subordinate  courts  with  the   clearest evidence  of  impropriety are uncalled for  in  a  judgment. When  made  against a colleague they are even more  open  to objections  We  are glad that Goswami J. did  not  associate himself with these remarks of the learned Chief Justice and, was  fair when he asaumed that Dutta J. acted as he  did  in his  anxiety  to  do what he thought  was  required  in  the interest of justice.  We wish the learned Chief Justice  had equally  made the same assumption and had I not  made  these observations  castigating Dutta J. for they appear to us  to be  without  any basis.  It is necessary  to  emphasis  that judicial decorum has to be maintained at all times and  even where  criticism  is  justified it must be  in  language  of utmost  restraint,  keeping always in view that  the  person making the comment is L/P(N)78CI-13 820 also  fallible.  Remarks such as these made by  the  learned Chief Justice make a sorry reading and bring the High  Court over  which he presides into disrepute.  Even when there  is justification   for  criticism,  the  language   should   be dignified  and restrained.  But in this case we do  not  see any justification at an for such remarks. We  therefore allow the appeal and) set aside the  order  of the High Court dismissing the writ petition and send it back to  the  High Court with the direction that the  High  Court should  reconsider whether the petition should be  admitted, taking it as represented on the day it reached Gauhati, and’ if  so it should be set down for hearing in due course.   In the circumstances we make no order as to costs. V.P.S. Appeal allowed. 821