On a studied scrutiny of the judgment in entirety we
have no hesitation in holding that the observations made
by the learned single Judge were really not necessary as
an integral part for the decision of the case as stated in
Mohammad Naim’s case. Needless to say, once the
observations are not justified, as a natural corollary, the
directions have to be treated as sensitively susceptible.
In this context, it is necessary to state about the role of
a Judge and the judicial approach. In State of M.P. v.
Nandlal Jaiswal13, Bhagwati, CJ, speaking for the court
expressed strong disapproval of the strictures made by
the learned Judge in these terms: -
13 (1986) 4 SCC 566
“We may observe in conclusion that judges should
not use strong and carping language while
criticising the conduct of parties or their witnesses.
They must act with sobriety, moderation and
restraint. They must have the humility to
recognise that they are not infallible and any
harsh and disparaging strictures passed by them
against any party may be mistaken and unjustified
and if so, they may do considerable harm and
mischief and result in injustice.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1785 OF 2014
(Arising out of S.L.P. (C) No. 14409 of 2010)
Om Prakash Chautala … Appellant
Versus
Kanwar Bhan and others …Respondents
Citation;2014(5) MHLJ498
Dipak Misra, J.
Leave granted.
1. Reputation is fundamentally a glorious amalgam and
unification of virtues which makes a man feel proud of his
ancestry and satisfies him to bequeath it as a part of
inheritance on the posterity. It is a nobility in itself for
which a conscientious man would never barter it with all
the tea of China or for that matter all the pearls of the
sea. The said virtue has both horizontal and vertical
qualities. When reputation is hurt, a man is half-dead. It
is an honour which deserves to be equally preserved by
the down trodden and the privileged. The aroma of
reputation is an excellence which cannot be allowed to be
sullied with the passage of time. The memory of nobility
no one would like to lose; none would conceive of it being
atrophied. It is dear to life and on some occasions it is
dearer than life. And that is why it has become an
inseparable facet of Article 21 of the Constitution. No one
would like to have his reputation dented. One would like
to perceive it as an honour rather than popularity. When
a court deals with a matter that has something likely to
affect a person’s reputation, the normative principles of
law are to be cautiously and carefully adhered to. The
advertence has to be sans emotion and sans populist
perception, and absolutely in accord with the doctrine of
audi alteram partem before anything adverse is said.
Page 3
3
2. We have commenced with aforesaid prefatory note
because the centripodal question that has eminently
emanated for consideration in this appeal, by special
leave, is whether the judgment and order passed by the
learned single Judge of the High Court of Punjab and
Haryana at Chandigarh in CWP No. 12384 of 2008
commenting on the conduct of the appellant and further
directing recovery of interest component awarded to the
employee, the first respondent herein, from the present
appellant and also to realize the cost and seek
compensation in appropriate legal forum, including civil
court, though the appellant was not arrayed as a party to
the writ petition, and denial of expunction of the aforesaid
observations and directions by the Division Bench in L.P.A.
No. 1456 of 2009 on the foundation that the same are
based on the material available on record and, in any
case, grant of liberty to claim compensation or interest
could not be held to be a stricture causing prejudice to the
appellant who would have full opportunity of defending
himself in any proceeding which may be brought by the
Page 4
4
respondent for damages or recovery of interest, is legally
defensible or bound to founder on the ground that the
appellant was not impleaded as a respondent to the
proceeding. Be it noted, the Division Bench has also
opined that the observations made by the learned single
Judge are not conclusive and no prejudice has been
caused to the appellant, the then Chief Minister of the
State of Haryana.
3. Filtering the unnecessary details, the facts which are to be
exposited are that the first respondent was working as
Assistant Registrar of Cooperative Societies in the State of
Haryana. On 4.2.2001 during a state function “Sarkar
Apke Dwar” at Jagadhari constituency the appellant
received a complaint from some person in the public,
including the elected representative, about the working of
the respondent No.1. The appellant after considering the
verbal complaint announced the suspension of the first
respondent during the press conference on the same day.
On 06.02.2001 the first respondent was placed under
suspension by the letter of the Financial Commissioner &
Page 5
5
Secretary to Govt. of Haryana, Cooperation Department,
Chandigarh which was followed by charge sheet dated
27.03.2002. The first respondent filed CWP No. 16025 of
2001 against the suspension order which was disposed of
on 20.03.2002 with direction to the Government. On
28.03.2002 the 1st respondent was reinstated pending
inquiry. After issuance of charge sheet and revocation of
the suspension order, the first respondent submitted his
reply on 5.6.2002.
4. As the facts would undrape, nothing happened thereafter
and he stood superannuated on 31.01.2005 and was
granted provisional pension, provident fund and amount
of Group Insurance Claim but pension as due and other
retiral benefits like gratuity, leave encashment,
commutation of other leaves, etc. were withheld due to
pendency of disciplinary proceedings. On 6.2.2007 the
first respondent filed CWP No. 2243 of 2007 which was
disposed of by the High Court directing the government to
complete the enquiry within a period of six months from
the date of receipt of copy of the order. As the enquiry
Page 6
6
was not concluded within the stipulated time, the
employee preferred CWP No. 12384 of 2008. The learned
single Judge vide judgment and order dated 20.10.2009
allowed the writ petition and set aside the charge-sheet
and the punishment with further directions to release all
the pension and pensionary benefits due to the first
respondent within a period of one month with interest @
10 % p.a. from the due date to the date of payment. In
course of judgment the learned single Judge made certain
observations against the appellant herein.
5. Grieved by the observations and inclusive directions made
in the judgment the appellant preferred LPA No. 1456 of
2009. The contentions raised by the appellant in the
intra-court appeal that the adverse remarks were not at
all necessary to adjudicate upon the issue involved in the
matter, and further when he was not impleaded as a party
to the writ petition recording of such observations was
totally impermissible, as it fundamentally violated the
principles of natural justice, were not accepted by the
Page 7
7
Division Bench as a consequence of which the appeal did
not meet with success.
6. We have heard Mr. P.P. Rao, learned senior counsel for
the appellant and Mr. Hitesh Malik, Additional Advocate
General appearing for the State. Despite service of notice
there is no appearance on behalf of the private
respondent, that is, respondent No. 1.
7. As has been indicated earlier, the appellant was not a
party to the proceeding. It is manifest that the learned
single Judge has made certain disparaging remarks
against the appellant and, in fact, he has been also visited
with certain adverse consequences. Submission of Mr.
P.P. Rao, learned senior counsel, is that the observations
and the directions are wholly unsustainable when the
appellant was not impleaded as a party to the proceeding
and further they are totally unwarranted for the
adjudication of the controversy that travelled to the Court.
Page 8
8
8. In State of Bihar and another v. P.P. Sharma, IAS
and another1, this Court has laid down that the person
against whom mala fides or bias is imputed should be
impleaded as a party respondent to the proceeding and
be given an opportunity to meet the allegations. In his
absence no enquiry into the allegations should be made,
for such an enquiry would tantamount to violative of the
principles of natural justice as it amounts to condemning a
person without affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat
and others2 the High Court had made certain caustic
observations casting serious aspersions on the appellants
therein, though they were not parties before the High
Court. Verifying the record that the appellants therein
were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned
Judges in the High Court could afford to overlook
such a basic and vitally essential tenet of the “rule
of law”, that no one should be condemned
1 1992 Supp (1) SCC 222
2 (2004) 10 SCC 88
unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions
vulnerable for challenge on account of violating
judicial norms and ethics.”
And again: -
“Time and again this Court has deprecated the
practice of making observations in judgments,
unless the persons in respect of whom comments
and criticisms were being made were parties to
the proceedings, and further were granted an
opportunity of having their say in the matter,
unmindful of the serious repercussions they may
entail on such persons.”
10. In State of W.B. and others v. Babu Chakraborthy
3 the principle was reiterated by stating that the High Court
was not justified and correct in passing observations and
strictures against the appellants 2 and 3 therein without
affording an opportunity of being heard.
11. In Dr. Dilip Kumar Deka and another v. State of
Assam and another4, after referring to the authorities in
State of Uttar Pradesh v. Mohammad Naim5, Jage
Ram v. Hans Raj Midha6, R.K. Lakshmanan v. A.K.
3 (2004) 12 SCC 201
4 (1996) 6 SCC 234
5 AIR 1964 SC 703
6 (1972) 1 SCC 181
Page 10
10
Srinivasan7 and Niranjan Patnaik v. Sashibhusan
Kar8, this Court opined thus: -
“7. We are surprised to find that in spite of the
above catena of decisions of this Court, the
learned Judge did not, before making the remarks,
give any opportunity to the appellants, who were
admittedly not parties to the revision petition, to
defend themselves. It cannot be gainsaid that the
nature of remarks the learned Judge has made,
has cast a serious aspersion on the appellants
affecting their character and reputation and may,
ultimately affect their career also. Condemnation
of the appellants without giving them an
opportunity of being heard was a complete
negation of the fundamental principle of natural
justice.”
12. At this juncture, it may be clearly stated that singularly
on the basis of the aforesaid principle the disparaging
remarks and directions, which are going to be referred to
hereinafter, deserve to be annulled but we also think it
seemly to advert to the facet whether the remarks were
really necessary to render the decision by the learned
single Judge and the finding recorded by the Division
Bench that the observations are based on the material on
record and they do not cause any prejudice, are legally
7 (1975) 2 SCC 466
8 (1986) 2 SCC 569
Page 11
11
sustainable. As far as finding of the Division Bench is
concerned that they are based on materials brought on
record is absolutely unjustified in view of the following
principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the
matter of making disparaging remarks against
persons or authorities whose conduct comes into
consideration before courts of law in cases to be
decided by them, it is relevant to consider (a)
whether the party whose conduct is in question is
before the court or has an opportunity of
explaining or defending himself; (b) whether there
is evidence on record bearing on that conduct
justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an
integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are
clear, namely, (i) that the appellant was not before the
court, and (ii) by no stretch of logic the observations and
the directions were required to decide the lis. We are
disposed to think so as we find that the learned single
Judge has opined that the order of suspension was
unjustified and that is why it was revoked. He has also
ruled that there has been arbitrary exercise of power
Page 12
12
which was amenable to judicial review and, more so, when
the charges were dropped against the employee.
Commenting on the second charge-sheet dated 15.3.2004
the learned single Judge, referring to the decisions in
State of Andhra Pradesh v. N. Radhakishan9, State
of Punjab and others v. Chaman Lal Goyal10, The
State of Madhya Pradesh v. Bani Singh and
another11 and P.V. Mahadevan v. M.D. T.N. Housing
Board12, thought it appropriate to quash the same on the
ground of delay. The conclusion could have been arrived
at without making series of comments on the appellant,
who, at the relevant time, was the Chief Minister of the
State.
14. At this juncture, we think it apt to point out some of the
observations made against the appellant: -
“Arrogance of power by the Chief Minister seems
to be at play in this case”
xxx xxx xxx
9 (1998) 4 SCC 154
10 (1995) 2 SCC 570
11 JT 1990 (2) SC 54
12 (2005) 6 SCC 636
Page 13
13
“The petitioner is also justified in making a
grievance that first the Chief Minister had
suspended him on the basis of a loose talk in the
press conference and thereafter the officials of the
Government have attempted to justify their own
mistakes on the one pretext or the other. The
petitioner would term this case to be “a proof of
worst ugly look of Indian democracy”. He may be
an aggrieved person but his anger is justified to
refer this treatment to be an ugly face of
democracy. Is not it dictatorial display of power in
democratic set up? Final order is yet to be passed
regarding this charge sheet. It is orally pointed
out that the charge sheet is finalized on
16.9.2009. It is done without holding any enquiry
or associating the petitioner in any manner. How
can this be sustained in this background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the
well known maxim “be you ever so high, the law is
above you”.
xxx xxx xxx
“The respondents, thus, have made themselves
fully responsible for this plight of the petitioner on
account of the illegalities that have been pointed
out and which the respondents have failed to
justify in any cogent or reasonable manner. They
all are to be held accountable for this. This would
include even the then Chief Minister, who initiated
this illegal process and did not intervene to correct
the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from
all the officers and including the Chief Minister,
Page 14
14
who were either responsible for placing the
petitioner under suspension or in perpetuating the
illegality and had unnecessarily charged and
harassed the petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to
seek compensation for the harassment caused to
him by approaching any appropriate Forum,
including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
15. On a studied scrutiny of the judgment in entirety we
have no hesitation in holding that the observations made
by the learned single Judge were really not necessary as
an integral part for the decision of the case as stated in
Mohammad Naim’s case. Needless to say, once the
observations are not justified, as a natural corollary, the
directions have to be treated as sensitively susceptible.
16. In this context, it is necessary to state about the role of
a Judge and the judicial approach. In State of M.P. v.
Nandlal Jaiswal13, Bhagwati, CJ, speaking for the court
expressed strong disapproval of the strictures made by
the learned Judge in these terms: -
13 (1986) 4 SCC 566
Page 15
15
“We may observe in conclusion that judges should
not use strong and carping language while
criticising the conduct of parties or their witnesses.
They must act with sobriety, moderation and
restraint. They must have the humility to
recognise that they are not infallible and any
harsh and disparaging strictures passed by them
against any party may be mistaken and unjustified
and if so, they may do considerable harm and
mischief and result in injustice.”
17. In A.M. Mathur v. Pramod Kumar Gupta and
others14 the Court observed that judicial restraint and
discipline are necessary to the orderly administration of
justice. The duty of restraint and the humility of function
has to be the constant theme for a Judge, for the said
quality in decision making is as much necessary for Judges
to command respect as to protect the independence of
the judiciary. Further proceeding the two-Judge Bench
stated thus: -
“Judicial restraint in this regard might better be
called judicial respect, that is, respect by 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.”
14 (1990) 2 SCC 533
Page 16
16
18. In Amar Pal Singh v. State of Uttar Pradesh and
another15, it has been emphasized that intemperate
language should be avoided in the judgments and while
penning down the same the control over the language
should not be forgotten and a committed comprehensive
endeavour has to be made to put the concept to practice
so that as a conception it gets concretized and fructified.
19. It needs no special emphasis to state that a Judge is not
to be guided by any kind of notion. The decision making
process expects a Judge or an adjudicator to apply
restraint, ostracise perceptual subjectivity, make one’s
emotions subservient to one’s reasoning and think
dispassionately. He is expected to be guided by the
established norms of judicial process and decorum. A
judgment may have rhetorics but the said rhetoric has to
be dressed with reason and must be in accord with the
legal principles. Otherwise a mere rhetoric, especially in a
judgment, may likely to cause prejudice to a person and
courts are not expected to give any kind of prejudicial
15 (2012) 6 SCC 491
Page 17
17
remarks against a person, especially so, when he is not a
party before it. In that context, the rhetoric becomes sans
reason, and without root. It is likely to blinden the
thinking process. A Judge is required to remember that
humility and respect for temperance and chastity of
thought are at the bedrock of apposite expression. In this
regard, we may profitably refer to a passage from
Frankfurter, Felix, in Clark, Tom C.,16:
“For the highest exercise of judicial duty is to
subordinate one’s personal pulls and one’s private
views to the law of which we are all guardians –
those impersonal convictions that make a society
a civilized community, and not the victims of
personal rule,”
20. The said learned Judge had said: -
“What becomes decisive to a Justice’s functioning
on the Court in the large area within which his
individuality moves is his general attitude towards
law, the habits of mind that he has formed or is
capable of unforming, his capacity for detachment,
his temperament or training for putting his passion
behind his judgment instead of in front of it.17”
16 Mr. Justice Frankfurter : ‘A Heritage for all Who Love the Law,’ 51 A.B.A.J. 330, 332 (1965)
17 -FRANKFURTER, Felix, Foreword, to Memorial issue for Robert H. Jackson, 55 Columbia Law
Review (April, 1955) P. 436
Page 18
18
21. Thus, a Judge should abandon his passion. He must
constantly remind himself that he has a singular master
“duty to truth” and such truth is to be arrived at within the
legal parameters. No heroism, no rehtorics.
22. Another facet gaining significance and deserves to be
adverted to, when caustic observations are made which
are not necessary as an integral part of adjudication and it
affects the person’s reputation – a cherished right under
Article 21 of the Constitution. In Umesh Kumar v. State
of Andhra Pradesh and another18 this Court has
observed: -
“Personal rights of a human being include the right
of reputation. A good reputation is an element of
personal security and is protected by the
Constitution equally with the right to the
enjoyment of life, liberty and property. Therefore,
it has been held to be a necessary element in
regard to right to life of a citizen under Article 21
of the Constitution. The International Covenant on
Civil and Political Rights, 1966 recognises the right
to have opinions and the right to freedom of
expression under Article 19 is subject to the right
of reputation of others.”
18 (2013) 10 SCC 591
Page 19
19
23. In Kiran Bedi v. Committee of Inquiry and
another19 this Court reproduced the following
observations from the decision in D.F. Marion v. Davis20:
“25. … ‘The right to the enjoyment of a private
reputation, unassailed by malicious slander is of
ancient origin, and is necessary to human society.
A good reputation is an element of personal
security, and is protected by the Constitution
equally with the right to the enjoyment of life,
liberty, and property.”
24.In Vishwanath Agrawal v. Sarla Vishwanath
Agrawal21, although in a different context, while dealing
with the aspect of reputation, this Court has observed that
reputation is not only the salt of life, but also the purest
treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the
grave. It is a revenue generator for the present as well as
for the posterity.”
25. In Mehmood Nayyar Azam v. State of
Chhattisgarh and others22 this Court has ruled that the
reverence of life is insegregably associated with the
19 (1989) 1 SCC 494
20 217 Ala 16 : 114 So 357 : 55 ALR 171 (1927)
21 (2012) 7 SCC 288
22 (2012) 8 SCC 1
Page 20
20
dignity of a human being who is basically divine, not
servile. A human personality is endowed with potential
infinity and it blossoms when dignity is sustained. The
sustenance of such dignity has to be the superlative
concern of every sensitive soul. The essence of dignity
can never be treated as a momentary spark of light or, for
that matter, “a brief candle”, or “a hollow bubble”. The
spark of life gets more resplendent when man is treated
with dignity sans humiliation, for every man is expected to
lead an honourable life which is a splendid gift of “creative
intelligence”. When a dent is created in the reputation,
humanism is paralysed.
26. In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni and
others23, while dealing with the value of reputation, a
two-Judge Bench expressed thus: -
“The expression ‘life’ has a much wider meaning.
Where therefore the outcome of a departmental
enquiry is likely to adversely affect reputation or
livelihood of a person, some of the finer graces of
human civilization which make life worth living
23 (1983) 1 SCC 124
Page 21
21
would be jeopardized and the same can be put in
jeopardy only by law which inheres fair
procedures. In this context one can recall the
famous words of Chapter II of Bhagwad-Gita :
Sambhavitasya Cha Kirti Marnadati Richyate”
27. The aforesaid principle has been reiterated in State of
Maharashtra v. Public Concern for Governance
Trust and others24.
28. In view of the aforesaid analysis, we have no hesitation
in holding that disparaging remarks, as recorded by the
learned single Judge, are not necessary for arriving at the
decision which he has rendered, the same being not an
integral part and further that could not have been done
when the appellant was not a party before the court and
also he was never afforded an opportunity to explain his
conduct, and the affirmation of the same by the Division
Bench on the foundation that it has not caused any
prejudice and he can fully defend himself when a
subsequent litigation is instituted, are legally
unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have
24 (2007) 3 SCC 587
Page 22
22
been made that are likely to affect the reputation of the
appellant. Since, the appeal is confined only to expunging
of adverse remarks, the same is allowed. There shall be
no order as to costs.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
January 31, 2014.
Print Page
have no hesitation in holding that the observations made
by the learned single Judge were really not necessary as
an integral part for the decision of the case as stated in
Mohammad Naim’s case. Needless to say, once the
observations are not justified, as a natural corollary, the
directions have to be treated as sensitively susceptible.
In this context, it is necessary to state about the role of
a Judge and the judicial approach. In State of M.P. v.
Nandlal Jaiswal13, Bhagwati, CJ, speaking for the court
expressed strong disapproval of the strictures made by
the learned Judge in these terms: -
13 (1986) 4 SCC 566
“We may observe in conclusion that judges should
not use strong and carping language while
criticising the conduct of parties or their witnesses.
They must act with sobriety, moderation and
restraint. They must have the humility to
recognise that they are not infallible and any
harsh and disparaging strictures passed by them
against any party may be mistaken and unjustified
and if so, they may do considerable harm and
mischief and result in injustice.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1785 OF 2014
(Arising out of S.L.P. (C) No. 14409 of 2010)
Om Prakash Chautala … Appellant
Versus
Kanwar Bhan and others …Respondents
Citation;2014(5) MHLJ498
Dipak Misra, J.
Leave granted.
1. Reputation is fundamentally a glorious amalgam and
unification of virtues which makes a man feel proud of his
ancestry and satisfies him to bequeath it as a part of
inheritance on the posterity. It is a nobility in itself for
which a conscientious man would never barter it with all
the tea of China or for that matter all the pearls of the
sea. The said virtue has both horizontal and vertical
qualities. When reputation is hurt, a man is half-dead. It
is an honour which deserves to be equally preserved by
the down trodden and the privileged. The aroma of
reputation is an excellence which cannot be allowed to be
sullied with the passage of time. The memory of nobility
no one would like to lose; none would conceive of it being
atrophied. It is dear to life and on some occasions it is
dearer than life. And that is why it has become an
inseparable facet of Article 21 of the Constitution. No one
would like to have his reputation dented. One would like
to perceive it as an honour rather than popularity. When
a court deals with a matter that has something likely to
affect a person’s reputation, the normative principles of
law are to be cautiously and carefully adhered to. The
advertence has to be sans emotion and sans populist
perception, and absolutely in accord with the doctrine of
audi alteram partem before anything adverse is said.
Page 3
3
2. We have commenced with aforesaid prefatory note
because the centripodal question that has eminently
emanated for consideration in this appeal, by special
leave, is whether the judgment and order passed by the
learned single Judge of the High Court of Punjab and
Haryana at Chandigarh in CWP No. 12384 of 2008
commenting on the conduct of the appellant and further
directing recovery of interest component awarded to the
employee, the first respondent herein, from the present
appellant and also to realize the cost and seek
compensation in appropriate legal forum, including civil
court, though the appellant was not arrayed as a party to
the writ petition, and denial of expunction of the aforesaid
observations and directions by the Division Bench in L.P.A.
No. 1456 of 2009 on the foundation that the same are
based on the material available on record and, in any
case, grant of liberty to claim compensation or interest
could not be held to be a stricture causing prejudice to the
appellant who would have full opportunity of defending
himself in any proceeding which may be brought by the
Page 4
4
respondent for damages or recovery of interest, is legally
defensible or bound to founder on the ground that the
appellant was not impleaded as a respondent to the
proceeding. Be it noted, the Division Bench has also
opined that the observations made by the learned single
Judge are not conclusive and no prejudice has been
caused to the appellant, the then Chief Minister of the
State of Haryana.
3. Filtering the unnecessary details, the facts which are to be
exposited are that the first respondent was working as
Assistant Registrar of Cooperative Societies in the State of
Haryana. On 4.2.2001 during a state function “Sarkar
Apke Dwar” at Jagadhari constituency the appellant
received a complaint from some person in the public,
including the elected representative, about the working of
the respondent No.1. The appellant after considering the
verbal complaint announced the suspension of the first
respondent during the press conference on the same day.
On 06.02.2001 the first respondent was placed under
suspension by the letter of the Financial Commissioner &
Page 5
5
Secretary to Govt. of Haryana, Cooperation Department,
Chandigarh which was followed by charge sheet dated
27.03.2002. The first respondent filed CWP No. 16025 of
2001 against the suspension order which was disposed of
on 20.03.2002 with direction to the Government. On
28.03.2002 the 1st respondent was reinstated pending
inquiry. After issuance of charge sheet and revocation of
the suspension order, the first respondent submitted his
reply on 5.6.2002.
4. As the facts would undrape, nothing happened thereafter
and he stood superannuated on 31.01.2005 and was
granted provisional pension, provident fund and amount
of Group Insurance Claim but pension as due and other
retiral benefits like gratuity, leave encashment,
commutation of other leaves, etc. were withheld due to
pendency of disciplinary proceedings. On 6.2.2007 the
first respondent filed CWP No. 2243 of 2007 which was
disposed of by the High Court directing the government to
complete the enquiry within a period of six months from
the date of receipt of copy of the order. As the enquiry
Page 6
6
was not concluded within the stipulated time, the
employee preferred CWP No. 12384 of 2008. The learned
single Judge vide judgment and order dated 20.10.2009
allowed the writ petition and set aside the charge-sheet
and the punishment with further directions to release all
the pension and pensionary benefits due to the first
respondent within a period of one month with interest @
10 % p.a. from the due date to the date of payment. In
course of judgment the learned single Judge made certain
observations against the appellant herein.
5. Grieved by the observations and inclusive directions made
in the judgment the appellant preferred LPA No. 1456 of
2009. The contentions raised by the appellant in the
intra-court appeal that the adverse remarks were not at
all necessary to adjudicate upon the issue involved in the
matter, and further when he was not impleaded as a party
to the writ petition recording of such observations was
totally impermissible, as it fundamentally violated the
principles of natural justice, were not accepted by the
Page 7
7
Division Bench as a consequence of which the appeal did
not meet with success.
6. We have heard Mr. P.P. Rao, learned senior counsel for
the appellant and Mr. Hitesh Malik, Additional Advocate
General appearing for the State. Despite service of notice
there is no appearance on behalf of the private
respondent, that is, respondent No. 1.
7. As has been indicated earlier, the appellant was not a
party to the proceeding. It is manifest that the learned
single Judge has made certain disparaging remarks
against the appellant and, in fact, he has been also visited
with certain adverse consequences. Submission of Mr.
P.P. Rao, learned senior counsel, is that the observations
and the directions are wholly unsustainable when the
appellant was not impleaded as a party to the proceeding
and further they are totally unwarranted for the
adjudication of the controversy that travelled to the Court.
Page 8
8
8. In State of Bihar and another v. P.P. Sharma, IAS
and another1, this Court has laid down that the person
against whom mala fides or bias is imputed should be
impleaded as a party respondent to the proceeding and
be given an opportunity to meet the allegations. In his
absence no enquiry into the allegations should be made,
for such an enquiry would tantamount to violative of the
principles of natural justice as it amounts to condemning a
person without affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat
and others2 the High Court had made certain caustic
observations casting serious aspersions on the appellants
therein, though they were not parties before the High
Court. Verifying the record that the appellants therein
were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned
Judges in the High Court could afford to overlook
such a basic and vitally essential tenet of the “rule
of law”, that no one should be condemned
1 1992 Supp (1) SCC 222
2 (2004) 10 SCC 88
unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions
vulnerable for challenge on account of violating
judicial norms and ethics.”
And again: -
“Time and again this Court has deprecated the
practice of making observations in judgments,
unless the persons in respect of whom comments
and criticisms were being made were parties to
the proceedings, and further were granted an
opportunity of having their say in the matter,
unmindful of the serious repercussions they may
entail on such persons.”
10. In State of W.B. and others v. Babu Chakraborthy
3 the principle was reiterated by stating that the High Court
was not justified and correct in passing observations and
strictures against the appellants 2 and 3 therein without
affording an opportunity of being heard.
11. In Dr. Dilip Kumar Deka and another v. State of
Assam and another4, after referring to the authorities in
State of Uttar Pradesh v. Mohammad Naim5, Jage
Ram v. Hans Raj Midha6, R.K. Lakshmanan v. A.K.
3 (2004) 12 SCC 201
4 (1996) 6 SCC 234
5 AIR 1964 SC 703
6 (1972) 1 SCC 181
Page 10
10
Srinivasan7 and Niranjan Patnaik v. Sashibhusan
Kar8, this Court opined thus: -
“7. We are surprised to find that in spite of the
above catena of decisions of this Court, the
learned Judge did not, before making the remarks,
give any opportunity to the appellants, who were
admittedly not parties to the revision petition, to
defend themselves. It cannot be gainsaid that the
nature of remarks the learned Judge has made,
has cast a serious aspersion on the appellants
affecting their character and reputation and may,
ultimately affect their career also. Condemnation
of the appellants without giving them an
opportunity of being heard was a complete
negation of the fundamental principle of natural
justice.”
12. At this juncture, it may be clearly stated that singularly
on the basis of the aforesaid principle the disparaging
remarks and directions, which are going to be referred to
hereinafter, deserve to be annulled but we also think it
seemly to advert to the facet whether the remarks were
really necessary to render the decision by the learned
single Judge and the finding recorded by the Division
Bench that the observations are based on the material on
record and they do not cause any prejudice, are legally
7 (1975) 2 SCC 466
8 (1986) 2 SCC 569
Page 11
11
sustainable. As far as finding of the Division Bench is
concerned that they are based on materials brought on
record is absolutely unjustified in view of the following
principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the
matter of making disparaging remarks against
persons or authorities whose conduct comes into
consideration before courts of law in cases to be
decided by them, it is relevant to consider (a)
whether the party whose conduct is in question is
before the court or has an opportunity of
explaining or defending himself; (b) whether there
is evidence on record bearing on that conduct
justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an
integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are
clear, namely, (i) that the appellant was not before the
court, and (ii) by no stretch of logic the observations and
the directions were required to decide the lis. We are
disposed to think so as we find that the learned single
Judge has opined that the order of suspension was
unjustified and that is why it was revoked. He has also
ruled that there has been arbitrary exercise of power
Page 12
12
which was amenable to judicial review and, more so, when
the charges were dropped against the employee.
Commenting on the second charge-sheet dated 15.3.2004
the learned single Judge, referring to the decisions in
State of Andhra Pradesh v. N. Radhakishan9, State
of Punjab and others v. Chaman Lal Goyal10, The
State of Madhya Pradesh v. Bani Singh and
another11 and P.V. Mahadevan v. M.D. T.N. Housing
Board12, thought it appropriate to quash the same on the
ground of delay. The conclusion could have been arrived
at without making series of comments on the appellant,
who, at the relevant time, was the Chief Minister of the
State.
14. At this juncture, we think it apt to point out some of the
observations made against the appellant: -
“Arrogance of power by the Chief Minister seems
to be at play in this case”
xxx xxx xxx
9 (1998) 4 SCC 154
10 (1995) 2 SCC 570
11 JT 1990 (2) SC 54
12 (2005) 6 SCC 636
Page 13
13
“The petitioner is also justified in making a
grievance that first the Chief Minister had
suspended him on the basis of a loose talk in the
press conference and thereafter the officials of the
Government have attempted to justify their own
mistakes on the one pretext or the other. The
petitioner would term this case to be “a proof of
worst ugly look of Indian democracy”. He may be
an aggrieved person but his anger is justified to
refer this treatment to be an ugly face of
democracy. Is not it dictatorial display of power in
democratic set up? Final order is yet to be passed
regarding this charge sheet. It is orally pointed
out that the charge sheet is finalized on
16.9.2009. It is done without holding any enquiry
or associating the petitioner in any manner. How
can this be sustained in this background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the
well known maxim “be you ever so high, the law is
above you”.
xxx xxx xxx
“The respondents, thus, have made themselves
fully responsible for this plight of the petitioner on
account of the illegalities that have been pointed
out and which the respondents have failed to
justify in any cogent or reasonable manner. They
all are to be held accountable for this. This would
include even the then Chief Minister, who initiated
this illegal process and did not intervene to correct
the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from
all the officers and including the Chief Minister,
Page 14
14
who were either responsible for placing the
petitioner under suspension or in perpetuating the
illegality and had unnecessarily charged and
harassed the petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to
seek compensation for the harassment caused to
him by approaching any appropriate Forum,
including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
15. On a studied scrutiny of the judgment in entirety we
have no hesitation in holding that the observations made
by the learned single Judge were really not necessary as
an integral part for the decision of the case as stated in
Mohammad Naim’s case. Needless to say, once the
observations are not justified, as a natural corollary, the
directions have to be treated as sensitively susceptible.
16. In this context, it is necessary to state about the role of
a Judge and the judicial approach. In State of M.P. v.
Nandlal Jaiswal13, Bhagwati, CJ, speaking for the court
expressed strong disapproval of the strictures made by
the learned Judge in these terms: -
13 (1986) 4 SCC 566
Page 15
15
“We may observe in conclusion that judges should
not use strong and carping language while
criticising the conduct of parties or their witnesses.
They must act with sobriety, moderation and
restraint. They must have the humility to
recognise that they are not infallible and any
harsh and disparaging strictures passed by them
against any party may be mistaken and unjustified
and if so, they may do considerable harm and
mischief and result in injustice.”
17. In A.M. Mathur v. Pramod Kumar Gupta and
others14 the Court observed that judicial restraint and
discipline are necessary to the orderly administration of
justice. The duty of restraint and the humility of function
has to be the constant theme for a Judge, for the said
quality in decision making is as much necessary for Judges
to command respect as to protect the independence of
the judiciary. Further proceeding the two-Judge Bench
stated thus: -
“Judicial restraint in this regard might better be
called judicial respect, that is, respect by 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.”
14 (1990) 2 SCC 533
Page 16
16
18. In Amar Pal Singh v. State of Uttar Pradesh and
another15, it has been emphasized that intemperate
language should be avoided in the judgments and while
penning down the same the control over the language
should not be forgotten and a committed comprehensive
endeavour has to be made to put the concept to practice
so that as a conception it gets concretized and fructified.
19. It needs no special emphasis to state that a Judge is not
to be guided by any kind of notion. The decision making
process expects a Judge or an adjudicator to apply
restraint, ostracise perceptual subjectivity, make one’s
emotions subservient to one’s reasoning and think
dispassionately. He is expected to be guided by the
established norms of judicial process and decorum. A
judgment may have rhetorics but the said rhetoric has to
be dressed with reason and must be in accord with the
legal principles. Otherwise a mere rhetoric, especially in a
judgment, may likely to cause prejudice to a person and
courts are not expected to give any kind of prejudicial
15 (2012) 6 SCC 491
Page 17
17
remarks against a person, especially so, when he is not a
party before it. In that context, the rhetoric becomes sans
reason, and without root. It is likely to blinden the
thinking process. A Judge is required to remember that
humility and respect for temperance and chastity of
thought are at the bedrock of apposite expression. In this
regard, we may profitably refer to a passage from
Frankfurter, Felix, in Clark, Tom C.,16:
“For the highest exercise of judicial duty is to
subordinate one’s personal pulls and one’s private
views to the law of which we are all guardians –
those impersonal convictions that make a society
a civilized community, and not the victims of
personal rule,”
20. The said learned Judge had said: -
“What becomes decisive to a Justice’s functioning
on the Court in the large area within which his
individuality moves is his general attitude towards
law, the habits of mind that he has formed or is
capable of unforming, his capacity for detachment,
his temperament or training for putting his passion
behind his judgment instead of in front of it.17”
16 Mr. Justice Frankfurter : ‘A Heritage for all Who Love the Law,’ 51 A.B.A.J. 330, 332 (1965)
17 -FRANKFURTER, Felix, Foreword, to Memorial issue for Robert H. Jackson, 55 Columbia Law
Review (April, 1955) P. 436
Page 18
18
21. Thus, a Judge should abandon his passion. He must
constantly remind himself that he has a singular master
“duty to truth” and such truth is to be arrived at within the
legal parameters. No heroism, no rehtorics.
22. Another facet gaining significance and deserves to be
adverted to, when caustic observations are made which
are not necessary as an integral part of adjudication and it
affects the person’s reputation – a cherished right under
Article 21 of the Constitution. In Umesh Kumar v. State
of Andhra Pradesh and another18 this Court has
observed: -
“Personal rights of a human being include the right
of reputation. A good reputation is an element of
personal security and is protected by the
Constitution equally with the right to the
enjoyment of life, liberty and property. Therefore,
it has been held to be a necessary element in
regard to right to life of a citizen under Article 21
of the Constitution. The International Covenant on
Civil and Political Rights, 1966 recognises the right
to have opinions and the right to freedom of
expression under Article 19 is subject to the right
of reputation of others.”
18 (2013) 10 SCC 591
Page 19
19
23. In Kiran Bedi v. Committee of Inquiry and
another19 this Court reproduced the following
observations from the decision in D.F. Marion v. Davis20:
“25. … ‘The right to the enjoyment of a private
reputation, unassailed by malicious slander is of
ancient origin, and is necessary to human society.
A good reputation is an element of personal
security, and is protected by the Constitution
equally with the right to the enjoyment of life,
liberty, and property.”
24.In Vishwanath Agrawal v. Sarla Vishwanath
Agrawal21, although in a different context, while dealing
with the aspect of reputation, this Court has observed that
reputation is not only the salt of life, but also the purest
treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the
grave. It is a revenue generator for the present as well as
for the posterity.”
25. In Mehmood Nayyar Azam v. State of
Chhattisgarh and others22 this Court has ruled that the
reverence of life is insegregably associated with the
19 (1989) 1 SCC 494
20 217 Ala 16 : 114 So 357 : 55 ALR 171 (1927)
21 (2012) 7 SCC 288
22 (2012) 8 SCC 1
Page 20
20
dignity of a human being who is basically divine, not
servile. A human personality is endowed with potential
infinity and it blossoms when dignity is sustained. The
sustenance of such dignity has to be the superlative
concern of every sensitive soul. The essence of dignity
can never be treated as a momentary spark of light or, for
that matter, “a brief candle”, or “a hollow bubble”. The
spark of life gets more resplendent when man is treated
with dignity sans humiliation, for every man is expected to
lead an honourable life which is a splendid gift of “creative
intelligence”. When a dent is created in the reputation,
humanism is paralysed.
26. In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni and
others23, while dealing with the value of reputation, a
two-Judge Bench expressed thus: -
“The expression ‘life’ has a much wider meaning.
Where therefore the outcome of a departmental
enquiry is likely to adversely affect reputation or
livelihood of a person, some of the finer graces of
human civilization which make life worth living
23 (1983) 1 SCC 124
Page 21
21
would be jeopardized and the same can be put in
jeopardy only by law which inheres fair
procedures. In this context one can recall the
famous words of Chapter II of Bhagwad-Gita :
Sambhavitasya Cha Kirti Marnadati Richyate”
27. The aforesaid principle has been reiterated in State of
Maharashtra v. Public Concern for Governance
Trust and others24.
28. In view of the aforesaid analysis, we have no hesitation
in holding that disparaging remarks, as recorded by the
learned single Judge, are not necessary for arriving at the
decision which he has rendered, the same being not an
integral part and further that could not have been done
when the appellant was not a party before the court and
also he was never afforded an opportunity to explain his
conduct, and the affirmation of the same by the Division
Bench on the foundation that it has not caused any
prejudice and he can fully defend himself when a
subsequent litigation is instituted, are legally
unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have
24 (2007) 3 SCC 587
Page 22
22
been made that are likely to affect the reputation of the
appellant. Since, the appeal is confined only to expunging
of adverse remarks, the same is allowed. There shall be
no order as to costs.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
January 31, 2014.
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