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PETITIONER: P.K. GHOSH, I.A.S. AND ANT.

       Vs.

RESPONDENT: J.G. RAJPUT

DATE OF JUDGMENT10/11/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR  513            1995 SCC  (6) 744  JT 1995 (8)   214        1995 SCALE  (6)257

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T J.S. VERMA. J.:      Leave granted.      This appeal by special leave is against the order dated 18.3.1994 made in Misc. Civil Application No.1841 of 1993 in Special Civil  Application No.1497  of 1988,  by a  Division Bench (R.A.Mehta and B.J. Shethna, JJ.) of the High Court of Gujarat.  The   impugned  order   was  passed   in   unusual circumstances which are mentioned hereafter.      Respondent J.G.  Rajput is an employee of the Ahmedabad Municipal Corporation.  He filed  a writ  Petition - Special Civil Application  No. 1497  of 1988  - in the High Court of Gujarat challenging  his suspension by order dated 14.3.1988 in which  he was  represented by  Shri B.J.  Shethna  (later appointed a  Judge of  the High  Court of  Gujarat)  as  his counsel. The  respondent  obtained  an  order  on  28.3.1988 staying his  suspension (Annexure  A). Thereafter, Shri B.J. Shethna was  elevated to the Bench of the Gujarat High Court and the  respondent was  then represented by Shri Adil Mehta as his  counsel. A  settlement was  arrived at  between  the Ahmedabad Municipal  Corporation and  the respondent  before the High  Court which  was recorded  on 28.2.1990 and S.C.A. No. 1497  of 1988  was permitted  to be  withdrawn  by  C.K. Thakkar, J.  before whom  it was  listed (Annexure  B).  The corporation contends  that in  terms of  the settlement, the respondent was  confirmed in service in the scale of Rs.950- 1400 and was also allotted a residential quarter. Thereafter on 8.4.1991,  the respondent  filed Misc.  Civil Application No. 540 of 1991 for review of the final order made in S.C.A. No. 1497  of 1988  which came  up for  hearing  before  C.K. Thakkar, J.  who rejected the review application on 2.4.1992 on his  satisfaction that  the terms  of settlement had been complied with by the Municipal Corporation (Annexure C).      Thereafter on  7.5.1993, the respondent was served with a chargesheet  for theft  of some  municipal  property  vide

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Annexure D.  According to  the Municipal  Corporation,  this chargesheet was  unconnected with  the earlier dispute which had ended  in the  manner aforesaid  and  it  related  to  a subsequent incident  of theft. However, the respondent filed Misc. Civil  Application No.  1109 of 1993 in the High Court wherein it  was prayed that the inquiry pursuant to the said chargesheet  be  stayed  and  the  appellants  who  are  the Municipal Commissioner  and Deputy Municipal Commissioner of the Ahmedabad Municipal Corporation be punished for contempt of the  court and  the earlier Special Civil Application No. 1497 of  1988 be  restored. This M.C.A. No. 1109 of 1993 was dismissed by  C.K. Thakkar,  J. on 30.7.1993 vide Annexure E which reads as under :-      "On the  basis of the compromise arrived      at between  the parties, the main matter      i.e. Spl.  C.A. No. 1497 of 1988 came to      be disposed  of by an order dt. December      29,  1990.  An  application  for  review      being M.C.A.  No. 3  of 1991  came to be      filed by  the present  applicant,  which      was rejected by the order dated April 2,      1992.   Once    again,    the    present      application  is   made.  The  applicant-      party-in-person drew  my attention  to a      charge-sheet  issued   to  him   by  the      Commissioner on  May 7,  1993. I  am not      expressing  any   opinion  so  far  that      charge-sheet is  concerned, but there is      no question  of  reviewing  the  earlier      matter when  the review application came      to   be   disposed   of.   Hence,   this      application is rejected. D.S." However, the  respondent did not accept that the controversy in Special  Civil Application No. 1497 of 1988 had concluded as held  once again  in the  above order by C.K. Thakkar, J. and on  21.12.1993, he  filed a  contempt petition  - Music. Civil Application  No. 1841  of 1993  under the  Contempt of Courts Act,  1971 (Annexure  F). This contempt petition came up for  hearing on 22.12.1993 before a Division Bench of the High Court comprised of R.A. Mehta and B.J. Shethna, JJ. The Division Bench  issued notice  of the  matter returnable  on 29.12.1993. On 29.12.1993 when the matter was again taken up by the  same Division  Bench, the counsel appering on behalf of the  Ahmedabad Municipal  Corporation requested  that the matter may  not be taken up by that Bench, pointing out that B.J. Shethna,  J. who  was on the Bench had earlier appeared as an advocate in the High Court on behalf of the respondent in S.C.A.  No. 1497  of 1988  on  the  basis  of  which  the allegation of  contempt of  court was  made  in  this  compt Petition. A  perusal of  the contempt  petition (Annexure F) shows  that  it  is  based  on  the  earlier  Special  Civil Application No. 1497 of 1988 and issuance of the chargesheet dated 7.5.1993  to  the  respondent  is  alleged  to  be  in contempt of  the orders made therein. The respondent’s case, therefore,  is  clearly  on  that  basis  in  spite  of  the assertion of  the Municipal Corporation that the chargesheet issued to  him later  is a  subsequent  and  an  independent matter.      The above facts and the specific case of the respondent in the contempt petition leave no doubt that the appropriate course for  B.J. Shethna,  J. in  these circumstances was to recuse himself  from hearing this contempt matter on account of the  stand taken  by  the  respondent  for  whom  he  had appeared as counsel in Special Civil Application No. 1497 of 1988. It appears that the constitution of the Division Bench

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had undergone  a change  in the  meantime  and  the  regular Division Bench  comprised of R.A. Mehta and M.S. Parikh, JJ. but the  matter was  treated as  part-heard by  the  earlier Division Bench  of R.A. Mehta and B.J. Shethna, JJ. in spite of  the   objection  taken   on  behalf   of  the  Municipal Corporation to  the hearing of the contempt petition by B.J. Shethna, J., as earlier indicated.      The appellants  then opposed  admission of the contempt petition by  filing affidavits on 13.1.1994 contending inter alia that  B.J. Shethna,  J. may not hear the matter for the reason stated;  and that  C.K. Thakkar,  J. had examined the matter twice  earlier and  held that the terms of settlement arrived at  between the parties had been fully complied with by the  Municipal Corporation on account of which no case of contempt could  be made  out. The  matter came  to be listed before the same Division Bench (R.A. Mehta and B.J. Shethna, JJ.). Thereafter,  on several  dates, in  spite of the above objection which  indicated a strong reason for B.J. Shethna, J. to  recuse himself  from the  Bench hearing  the contempt petition, he  chose to  hear the matter and on 18.3.1994 the Bench of  R.A. Mehta and B.J. Shethna, JJ. made the impugned order as follows :-           "Heard.           Rule. Interim  stay of the inquiry in pursuance of      the Charge sheet dt. 7.5.1993.      dt. 18.3.1994.                sd/- (R.A.MEHTA, J)                                    sd/- (B.J.SHETHNA, J.)" Aggrieved by the impugned order dated 18.3.1994, this appeal has been filed by special leave.      On 11.7.1994,  this Court (C.J.I. and Mohan, J.) issued notice in  this matter  and granted  interim  stay.  In  the counter affidavit  filed by the respondent, he has expressly admitted as under :-      "2.  Respondent had  been  suspended  on      14-3-1988 by  the Municipal Corporation.      Respondent    filed     Special    Civil      Application No.  1497/1988 in  the  High      Court of  Gujarat (hereinafter  referred      as  High  Court)  challenging  the  said      order  of  suspension  dated  14.3.1988.      Shri  B.J.   Shethna  (now  elevated  as      Judge) appeared  and obtained  an  order      for     staying     suspension     order      (interlocutory). Thereafter  he did  not      appear since  he had  been  elevated  as      Judge."      "9.  The Respondent  being  harassed  by      the  Corporation  left  with  no  remedy      except to  initiate contempt proceedings      against the  Petitioners since they have      not complied  with  the  undertaking  as      mentioned in  the  terms  of  compromise      vide dated  28-2-1990, on  21-12-1993 in      the High  Court which  was registered as      Misc. Civil Application 1841/1993.      10.  The said  Civil  Misc.  Application      came before  Hon’ble  Mr.  Justice  R.A.      Mehta and  Hon’ble  Mr.  Justice  B.  J.      Shethna and notice was issued returnable      on 29.12.1993.  When it came for hearing      before the  said judges.  Objection  was      raised that  it be not heard by the said      Bench because  Hon’ble Mr.  Justice B.J.      Shethna had appeared as a counsel on the      first hearing  in Spl  Civil Application

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    No. 1477/1988  for the  Respondent. This      request  was   not  acceded   to.  Again      similar   objection    was   raised   on      10.3.1994  but   not  acceded   to.   On      18.3.1994 notice  was issued and inquiry      Proceedings against this Respondent were      stayed." Rest of the affidavit is not material in this context.      It appears  that the  learned Chief  Justice  of  India apprised B.J.  Shethna, J.  of this allegation to elicit his comments. A  letter dated  12.8.1994 of  B.J. Shethna, J. to the then  Chief Justice  of India  and another  letter dated 9.10.1995 to  the present  Chief Justice  of India  in  this connection are  on record.  In none  of these  letters,  the basic facts relevant in the present context have been denied and the  tenor of both the letters indicates, unfortunately, an attempt to justify the course adopted by B.J. Shethna, J. of hearing  the contempt  petition and  making the  impugned order in spite of the above objection expressly taken to his presence in  the Bench which heard the contempt Petition. In his  letter   dated  12.8.1994,   B.J.  Shethna,   J.  while justifying the course adopted by him also said as under :-      ".......Thus, except  the fact  that the      contempt proceedings were arising out of      the final order passed in SCA 1497/88 on      26-12-90 and  subsequent petitions filed      in that  petition being  MCA 540/91  and      MCA  1109/93   note  for   speaking   to      minutes, there  was no nexus. Therefore,      that objection was over-ruled by us." These letters also indicate his disappointment that contempt proceedings were  not initiated  against the  appellants for raising such an objection. The expression of this opinion by him is even more unfortunate.      We are  indeed sad  that in  these circumstances,  B.J. Shethna, J.  should have  persisted in  hearing the contempt petition, in spite of the specific objection which cannot be called unreasonable  on the  undisputed facts, and in making the impugned  order accepting  prima facie  the respondent’s above noted  contention. Ordinarily,  at least at that stage it should  have been  appreciated that  the more appropriate course for him to adopt was to recuse himself from the Bench hearing this  contempt petition, even if it did not occur to him to  take that  step earlier when he began hearing it. It is on  account of the lack even now of the proper perception needed of  the appropriate  course for  a Judge  to adopt in these circumstances  that it  has become our painful duty to emphasise on  this fact  most unwillingly. We do so with the fervent hope  that no  such occasions  arise in future which may  tend   to  erode  the  credibility  of  the  course  of administration of justice.      A basic  postulate of  the rule of law is that ‘justice should not  only be  done but  it must  also be  seen to  be done.’ If  there be  a basis  which  cannot  be  treated  as unreasonable for a litigant to expect that his matter should not  be  heard  by  a  particular  judge  and  there  is  no compelling necessity, such as the absence of an alternative, it is  appropriate that  the  learned  judge  should  recuse himself from  the Bench  hearing that  mater. This  step  is required to  be taken by the learned judge not because he is likely to be influenced in any manner in dong justice in the cause, but  because his hearing the matter is likely to give rise to  a  reasonable  apprehension  in  the  mind  of  the litigant  that  the  mind  of  the  learned  judge,  may  be subconsciously,  has  been  influenced  by  some  extraneous

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factor in making the decision, particularly if it happens to be in  favour of  the opposite  party.  Credibility  in  the functioning  of   the  justice   delivery  system   and  the reasonable Perception  of the  affected parties are relevant considerations  to   ensure  the   continuance   of   public confidence  in  the  credibility  and  impartiality  of  the judiciary. This  is necessary not only for doing justice but also for ensuring that justice is seen to be done.      In the  facts and  circumstances of  this case,  we are afraid that  this facet  of the rule of law has been eroded. We are  satisfied that  B.J. Shethna,  J., in  the facts and circumstances of this case, should have recused himself from hearing this  contempt petition,  particularly when specific objection to this effect was taken by the appellants in view of the  respondent’s case  in the  contempt petition wherein the impugned  order came  to be  made in  his favour. In our opinion, the  impugned order  is vitiated  for  this  reason alone.      Consequently, this  appeal  is  allowed.  The  impugned order dated 18.3.1994 is set aside. In view of the fact that B.J. Shethna,  J. has  since then  been transferred from the High Court  of Gujarat to the High Court of Rajasthan, it is needless to  direct that the matter be now heard in the High Court of Gujarat by a Bench of which he is not a member.