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PETITIONER: STATES OF RAJASTHAN

       Vs.

RESPONDENT: PRAKASH CHAND & ORS.

DATE OF JUDGMENT:       02/12/1997

BENCH: A.S. ANAND, M.K. MUKHERJEE, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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  the 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 1      Writ Petition  No. 2949  of 1996 was filed, as a Public 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 accommodation 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

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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.2 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  and   12.9.1997.    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  refereed 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 Benchon 10.9.1997, the following order came to be passed:-      10.09.1997      -----------           HON’BLE MR. JUSTICE M.P. SINGH           HON’BLE DR.JUSTICEB.S. CHAUHAN      MR. M. C. Bhoot     )      MR. D. R. Bhandari  ) for the                            petitioners      Mr. I. R. Chaudhary )      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 been  dismissed, the  right  of      the intervenor to be heard does not      survive     for      consideration.      Accordingly, the  application filed      by his mis 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

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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 the  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 partheard" 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". Since,  the Registry could not create a ’separate  board’   for  shethna,   J.,  without   obtaining directions from the chief justice, the matter 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 e 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  a  mention  made  by  the  learned Advocate for  the revision  petitioner, passed  an order  on 8.96.1997,  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. 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 10.09.1997,  it was  no longer  a "part-heard case"  on the Board of Shethna, J. and therefore it was  not listed  alongwith the  "other part-heard cases". Still then,  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, 3. 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  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  heard   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

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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 Justices regarding  the "illegal"  drawl 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 constitution 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 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

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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 case ’aspersions’ on  some of  the former  Chief Justices of that Court, including  the present  Chief Justice  of India,  Mr. Justice J.S. Verma, behind their backs and that too on half- backed 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  and  in particular his prerogative to transfer even a par-heard case from the board of a learned Single Judge to a Division bench for 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,      provides 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  case 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  225  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. Rule 54 provides:      Rule 54:  Constitution of Benches.-      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      direction."

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    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 distributive 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 listening 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 making  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 with particular  reference to  Rule 1 Chapter V of the Rules of that  Court (Which is in pari materia with Rule 54 of The Rajasthan High  Court   Rules, 1952) and held: per Mukherji, J.:           " .....  It is clear to me, on      a  careful   consideration  of  the      constitutional position, that it is      only the  Chief Justice who has the

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    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      Courtly,  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 may  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  a      whole is competent to hear and that      theirs jurisdiction is limited only      to such  cases as  are allotted  to      them by  the Chief Justice or under      his directions."          ( 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 scope  of  the  provisions  of  the Rajasthan High Court  Rules, 1952 and in particular of Rules

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54, 55,  61, 66,  74 etc.  with regard  to the powers of the Chief Justice  in the  matter of constitution of the Benches and allocation  of work  o 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  more Judges      even though it may, ordinarily fall      to be  heard by  a single Judge. it      is well settled that the meaning of      the words  "from time  to time"  is      that "after once acting the done of      the power may act again’ and either      independently 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 the  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 it is appropriate so o      do": Re von Dembinska. 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  or 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      notices 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-

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    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, ATR 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      Judges 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 singly or in      a Division  Bench. When  the  Chief      Justice had  constituted a Division      Bench of  Justice V.  N. Khare  and

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    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  that  the  Chief      Justice could then give 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 behavior      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 required 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      writ  petitions   challenging   the      vires of  the provisions of any Act      or rules  made thereunder and Writs      against the  order of  the Board of      Revenue,   the    RAJASTHAN   State      Service Application 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

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    more Judges,           (b) a  Judge may, if he thinks      fit, refer  a  case  which  may  be      heard by  a Judge  sitting along on      any question  or questions  of  law      arising therein  for decision  to a      Bench of two Judges; and           ...........      Rule 66  of the  High court  Rules deals  with tied  up cases while Rule 74 deals with part- hard cases. These Rules read as follows:-           Rule 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 parted 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 is 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  or  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 or rules or which involve constitutional issues are required to be heard by a Bench of two or more Judges under Rule 55 (xi) (Supra). Under proviso (a) to Rule 55 (xi) (Supra) the Chief Justice may,  from time  to time,  direct that  "any case or class 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-heard 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

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power or jurisdiction to transfer even a part-heard case, in the peculiar  facts and  circumstances of  a  case,  from  a 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  ar   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   this      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 he 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

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    specially determines accordingly."             (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  inter  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  fan 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  the 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  of      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

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    Bench of  two  or  more  Judges  to      decide the  case, he cannot be said      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    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 Chief  Justice  Full  authority      and power to distribute work to the      Judges and  to regulate  distribute      work to  the Judges and to regulate      distribute work  to the  Judges and      to regulate  distribute work to the      Judges and  to regulate  distribute      work to  the Judges and to regulate      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

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in a  case pending  in the  High Court  unless the  case  is allotted to  him  or  them  by  the  Chief  Justice.  Strict adherence of  this procedure  is essential  for  maintaining judicial discipline  and proper functioning of the Court. No departure from 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 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  assume that a part-heard case can under no circumstances be  withdrawn from the Bench and referred to a larger bench,  even where  the Rules  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 Rule 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 rule  55 (supra)  only because a single judge of the 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  placed before  his  Lordship. Since, writ  petition No.  2949/96 had not been put up along with the  other part heard 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 produce  before him on 12.997, 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, J.  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 t was totally unrelated to and  unconnected with  the criminal  revision petition he was to  hear. Therefore, it appears that the record was sent for into  for mere  perusal but  for some other purpose, not strictly judicial.  This becomes quite obvious from the fact that while  stating "brief"  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

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    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      set  and   only  on   one  set  the      Division Bench passed the order." The aforesaid  observations cast uncalled for 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 constitution 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. 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 tot  he 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 that 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

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    at  judicial  personages  in  lower      cadre. It  is well to 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  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      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  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      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 nor 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 they

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    cannot misuse  their  authority  by      intemperate  comments,  undignified      banter  or  scathing  criticism  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      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 controversy  and the 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 judgement but 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 prestige  of the  intemperate language  against them the critics, who ever they may be, strike a blow at the prestige of  the institution and erode its credibility. That must be  avoided at  all costs. Shethana, 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 Chief Justice and his Brother Judges as also the  former Chief  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  but it  amounts to  abuse and  misuse of 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  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 in 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 his acted. We do not wish to say anymore on this aspect.      Thus, for  what has  been said  above, we hold that all

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comments, observations  and aspersions  made by  shethna, J. against the Chief Justice and the learned Judges costituting 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  had been  heard in  part by  shethna J.  to a Division bench  for its  disposal and  for not  placing that writ petition along with "other part heard cases" before the learned Judge  despite his orders to that effect. As already noticed Shethna,  J, had  twice on 3.9.97, 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 an 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 ass to  how and why W.P. 2949/96 was referred by the 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 shethan, 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 statue. 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 the 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 on 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 of their jurisdiction. Immunity from any civil or criminal  action  or  a  charge  of  contempt  of  court  is

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essential for  maintaining independence of the judiciary and for the  strength of  the  administration  of  justice.  The following passage from Oswalds’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      the Supreme  court of  Trinidad for      having (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 tot      he  Governor   of  the  Colony  for      transmission  to   the   Queen   in      Council  a   petition   of   appeal      complaining   of   the   oppressive      conduct of the defendants 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 plaintiff and to the perversion      of "justice". The jury assessed the      damages     at      pounds     500.      Notwithstanding the  verdict,  Lord      coloridge ordered  judgment  to  be      entered  for  the  defendant.  This      judgement 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      quality of  a gross "dereliction of      duty, "  And after  saving  that  a      judge was liable to be removed from      his office  for such  conduct. lord      Eaher  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  "during   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,  he authors  of Salmond  and Heuston on  the Law  Torts, 21st  Edn. 1996  in Chapter  XIX

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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 of      his  judicial  powers.  For  it  is      better  that  occasional  injustice      should   be    done   and    remain      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 office’s his relation to judicial work  done by  them as  well as  for  the  judicial orders made  by them.  They 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  enables      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  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-heard writ  petition is  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

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notice to  him. To  expect the  Chief Justice  to say  so in response to  the show cause notice before the learned single Judge  would   be  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 drawl  of D.A.  and non- payment of  charges for  occupation  of  Bungalow  No.  A/2, Jaipur by some of the former Chief Justices of the Rajasthan 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 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,  1966      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  later  on  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  Court Judges are      Darwin gand  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 been 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

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discussion to  say, in the light of the settled law, that an order of  this type  which violated  potential principles of natural justice  and is made behind the back of the affected is wholly  unsustainable. On  this short  ground, all  those comments/observations 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   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 Judge 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 the,  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 at  Jaipur as  "High Court Guest  House". An  English translation  of that  order reads:      GOVT. OF RAJASTHAN      GENERAL ADMINISTRATION (GRZ) 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,

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    In reference  to your  above DO  letter  No.  PA/R/4211 dated 28.5.97,  use of  bungalow No.  A-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 bungalow, A/2 at Jaipur and c -42 at Jodhpur, were placed at the disposal of the High Court of Rajasthan for their use as High Court  Guest Houses.  Neither or  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 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  NC. 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.      21.6.97.      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 or rent -  nor was  it allotted  exclusively for the use of the Chief Justice  of that High Court as a Guest House till 1997

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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 the 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 fro the first time and conveyed to the High Courty  on 30.3.1991  regarding  drawl  of  full  daily allowance by  the Chief Justices who had been provided "free 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      31.3.1997 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 conducted 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 with regard to      Hon’ble  Chief  Justice  Shri  J.S.      Verma and  Shri M. C. Jain remained      the  same  whereas  the  among  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

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    of this  period was  conducted from      13.2.1995  to   6.3.1995  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 wheres 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      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 circuit      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 10.6.94 BY REGISTRAR      " 1.  Regarding the payment of D.A.      to the  Chief Justices during their      stay  at   Jaipur  Audit  Party  of      Accountant gen.  has  objected  the      use of  House No. A- 2 by the Chief      Justices  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 bed -  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  charge.      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

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    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 drawl 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. There  was no  audit objection  raised for any period prior to  1.9.88, even though the High Court Guest House, as already 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           and       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           headquarters  for   less  than

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         twenty-four hours,  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 head           quarters  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 on different           dates, the  period of  absence           form  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     form      headquarters,  the   absence  being      reckoned from the time to departure      from headquarters  to the  time  to      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      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  for      each  completed   day,   that   is,      reckoned  from  mid-night  to  mid-      night;           (ii)    for    absence    from      headquarters fro  less than twenty-

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    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 allowances 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   under    takings    or      corporation or  a statutory body or      a   local   authority,   in   which      government funds  have ben invested      or in  which  Government  have  any      other interest, the daily allowance      shall be  restricted to  25 percent      of   the   amount   admissible   or      sanctioned, and  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, 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 whit  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 one of      the former  Chief Justice  of  this      Court from  1986 to  1989. He  also      initially stayed  at Jaipur  for 15      days and  later on  sat more 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  Judge  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

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Justice of Rajasthan High Court had 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,  J. 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  tenures 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, if he has ben  declared either  as a  State Guest or is allowed to avail of  free broad  and lodging  at  the  expense  of  the Central or the State Government or any autonomous industrial or commercial  under takings  or corporation  or a statutory 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 disposed of the High Court of  Rajasthan. It had not been allotted as a 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 be used as a Guest House of  the High  court and  placed under  control of they High Court, not exclusively for the chief Justices from 1979 to 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 any stretchy of imagination be said  that  the  Chief  Justices  had  been  allotted  "free Government accommodation"  for their  stay at  Jaipur in the

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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 Guest  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 not  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 drawl  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  drawl 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. NBY  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 observations of Shethna, J. that:           "  It   is  nothing  but  mis-      appropriation of  the  public  fund      which is  a criminal  offence under      the penal Code." 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  filled   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

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    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 guilty 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,  established 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 him to the State Government.      We,  therefore,   unhesitatingly  com   to   the   firm conclusion that the observations, comments, insinuations and allegations made  by shethna,  J in  the matter  of drawl of full daily  allowances  by  the  former  Chief  justices  of Rajasthan High  Court including the present Chief Justice of 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  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 concedes 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 cardazo, the great Jurist in the 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

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    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    authoritarianism   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,  is   greatest  threat   to  t   he independence of  the judiciary.  Eternal  vigilance  by  the Judges to  guard against any such latent internal danger is, therefore, necessary,  lest we  "suffer form  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 detaced 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 on  public   confidence  and   public  confidence  rests  on 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 unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable.      From  the  preceding  discussion  the  following  broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the 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 allocate cases to the benches so constituted. (3)  That the  puisne Judges  can only  do that  work as  is allotted  to   them  by  the  Chief  Justice  or  under  his directions. (4)  That till  any determination  made by the Chief Justice lasts, no  Judge who  is to sit singly can sit in a Division Bench and  no Division   Bench can be split up by the Judges constituting the Bench themselves and one or both the Judges constituting such bench sit singly and take up any otherkind of judicial  business not  otherwise assigned  to them by or

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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  the can exercise this  jurisdiction even in relation to a part-heard case. (6)  That the  puisne judges  cannot "pick  and Choose"  any case pending  in   the High  Court and  assign the  same  to himself  or  themselves  for  disposal  without  appropriate orders of the Chief Justice. (7)  That no  Judge or  judges can  give directions  to  the Registry for  listing any case before him or them which runs counter to the directions given by the Chief Justice. (8)  That Shethna,  J. had  no authority  or jurisdiction to send for  the record  of the  disposed of  writ petition and made 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 Judge  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, 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 not 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 fro 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

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quashed and set aside.      Nothing said here inabove shall however be construed as any expression  of opinion  of the pending criminal revision petition field 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.