S. C. MOHAPATRA, J. ( 1 ) THIS revision has been filed by the defendant against an order of the trial Court refusing his prayer to be examined on commission. ( 2 ) DEFENDANT who was an advocate had been appointed to Government Service as the Judicial Member, State Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. He made the application to be examined on commission on the ground that his attending Court to be examined as witness will be detrimental to the public service he renders as Judicial Member of the Administrative Tribunal. ( 3 ) PLAINTIFF-BANK raised objection to such prayer asserting- (i) a member of Administrative Tribunal is not exempted from appearing in Court; (ii) Defendant stands in the position of a plaintiff having filed counter claim and is required to be examined in Court; (iii) Absence of judicial member would not have any effect on working of the Tribunal for the days of his absence and as such there would be no detriment to public service; and (iv) Even if it is detrimental, Tribunal does not hold sittings on Saturdays and defendant can be examined on a Saturday in Court whereby the detriment if any can be avoided. ( 4 ) TRIAL Court having rejected the petition of defendant on the finding that attendance of defendant in Court for examination as witness on his behalf is not detrimental to public service he renders, this Civil Revision has been filed. On 25-1-1990, I decided the Civil Revision at admission stage without hearing the plaintiff giving the plaintiff liberty to move to recall the order in case of prejudice giving direction to the trial Court to appoint a commission to examine defendant. Plaintiff having so moved, order dated 25-1-1990 was recalled today and with consent of parties, Civil Revision was heard on merits after obtaining the records from the lower Court. ( 5 ) NORMALLY, a witness whether a party or otherwise is to be examined in Court when the Presiding Officer gets opportunity to mark demeanour of the witness and observing the way in which various questions put to him in cross-examination are answered by him, Presiding Officer makes assessment of his credibility. Where the witness is credible, it is hardly material whether he gives evidence viva voce in Court or before a commission or by affidavit or otherwise. Where the witness is credible, it is hardly material whether he gives evidence viva voce in Court or before a commission or by affidavit or otherwise. It shall not, however, be assumed always that a witness is credible. For that reason, exhaustive provisions have been made in the Evidence Act with regard to oral evidence. Even when a matter is permitted to be decided on affidavits, Civil Procedure Code provides for summoning that person who gave affidavit for cross-examination. Legislature, well aware of the same, made provision in S. 132, C. P. C. , exempting appearance of certain women in Court and in S. 133, C. P. C. , exempted eleven categories of persons from such appearance. Member of State Administrative Tribunal does not come within those exempted persons. Even though an Administrative Tribunal constituted under the Administrative Tribunals Act excludes jurisdiction of High Court in matters it has been conferred exclusive jurisdiction to decide and by conditions of service its Chairman, Vice-Chairman or Member get similar or equal advantageous (sic) of High Court Judges, Administrative Tribunal is not High Court in respect of the limited jurisdiction it exercises or members thereof are not Judges of High Court. Being a Tribunal like any other Tribunal in the State High Court can exercise its writ jurisdiction over it except matters specifically excluded. Dress of' members address by members of the Bar to the members of the Tribunal in sitting or procedure for disposal of litigations in such Tribunal do not confer on the members, status of Judges of High Court and they do not come under S. 133 (1) (x), C. P. C. Plaintiff is correct in its objection that defendant being member of an Administrative Tribunal is not immuned from appearing in Court. ( 6 ) ORDER 16, Rule 19, C. P. C. provides for exemption of witness in certain circumstances stated therein to attend the Court in person to give evidence. Even if, defendant would have satisfied the said circumstances, he could not have been exempted from appearing in person since the said provision is not applicable to parties to a suit. See ILR (1979) 1 Cut 38, Anil Kumar Das v. Orissa Cements Ltd. To this extent objection of plaintiff is sustainable. Even if, defendant would have satisfied the said circumstances, he could not have been exempted from appearing in person since the said provision is not applicable to parties to a suit. See ILR (1979) 1 Cut 38, Anil Kumar Das v. Orissa Cements Ltd. To this extent objection of plaintiff is sustainable. However, Court has the discretion to examine any person on commission as provided in O. 26, R. 4, C. P. C. The 'term' 'any person' includes a party also. Therefore, Court ought not to refuse to exercise its discretion in just and deserving cases merely on the ground that the person sought to be examined on commission is a party to the suit. ( 7 ) WHETHER the witness sought to be examined commission is a party or not, for exercising the discretion, Court must form an opinion that any of the guidelines of O. 26, R. 4, C. P. C. is satisfied. Since the opinion is a judicial opinion, it is required to be supported by reasons although not specifically provided for in R. 4. In the present case, defendant seeks exercise of discretion by Court on account of satisfaction of the requirement of O. 26, R. 4 (1) (c), C. P. C. which provides that a Court may in any suit issue a commission for examination of the person in the service of Government who cannot in the opinion of the Court, attend without detriment to public service. ( 8 ) WHILE exercising discretion Court is to make a distinction between a party and a person who is not a party since under O. 18, R. 3a, C. P. C. normal rule is that a party who wishes to appear as a witness shall appear first before any other witness is examined. Between a plaintiff and defendant Court will not regard the case of the defendant with the same strictness as the case of the plaintiff. See (1956) 22 Cut LT 72, The Union of India v. M/s. Natabarlal Jayshankar. Reason for the same is that plaintiff has chosen his own forum. Defendant in making claim for set off and counter claim does not choose his own forum and for the purpose of O. 26, R. 4, C. P. C. , he cannot be treated as plaintiff. Persuasive precedent reported in AIR 1982 Kant 236, Shrimaj Jagadguru Mummadi Shri Neelakantha Pattadarya Maheswamygalu v. Shankar Shivacharyaswamy Gurunanjundaswamy. Defendant in making claim for set off and counter claim does not choose his own forum and for the purpose of O. 26, R. 4, C. P. C. , he cannot be treated as plaintiff. Persuasive precedent reported in AIR 1982 Kant 236, Shrimaj Jagadguru Mummadi Shri Neelakantha Pattadarya Maheswamygalu v. Shankar Shivacharyaswamy Gurunanjundaswamy. Neelakanthamath need not be considered in this respect which was considering the case of plaintiff. ILR (1980) I Cut 141, Manoharlal Arora v. Atma Prakash Arora has not decided this question although the same was one of the questions to be decided as defendant No. 3 (a) in that case prayed to be examined on commission. Therefore, objection of plaintiff to this extent is not sustainable. 9. Whether a party or other person is sought to be examined in commission, it is essential for the Court to satisfy itself that the application has been made in good faith and not for the purpose of delay and embarrassment. See (1956) 22 Cut LT 72 (supra ). In absence of any submission in the trial Court or in this Court to that effect, I can safely conclude that the application was made in good faith and not for the purpose of delay and embarrassment. This finding, however, would not be sufficient to allow the petition. It is to be examined if the Court can be of opinion that attendance of defendant cannot be without detriment to public service. ( 9 ) IN AIR 1967 Ori 203 , Sankar Narayan Naik v. State, it was observed : "one significant principle must be borne in mind in deciding a question of this nature. Oridinarily witnesses are to be examined in Court. The reason is obvious. The trial Court must assess the truth or otherwise of the versions of the witnesses by taking into consideration the demeanour and the conduct of such witnesses while deposing in Court. The Court is deprived of this opportunity when they are examined on commission. This is the reason why examination on commission would not be allowed unless a case is strictly made out as provided for under O. 26, R. 4. Furthermore there is a judicial atmosphere inside the Court itself which creates a sense of we and sanctity. A psychological background prevails in the mind of the witness that perjury would not escape with impunity. Furthermore there is a judicial atmosphere inside the Court itself which creates a sense of we and sanctity. A psychological background prevails in the mind of the witness that perjury would not escape with impunity. Generally junior lawyers are appointed as commissioners to examine witnesses. The discipline maintained in Court is sometimes not observed before the commission. In the circumstances, an application for examination on commission is not to be liberally treated unless it strictly comes within the purview of O. 26 Rule 4". ( 10 ) A general principle cannot be laid down for coming to conclusion that examination of the witness would be detrimental to public service. The same would depend upon facts and circumstances of each case. Court is to weigh between effect of non-examination of a witness in trial and effect of his absence from discharging his public duties in the public service entrusted to him. It shall conclude in favour which tilts the balance to that side. ( 11 ) IN AIR 1967 Orissa 203 (supra) verbal permission of the Collector who was the Chairman of the Municipality also to the plaintiff for construction of the canteen on Government land as the shield of plaintiff against his eviction on ground of encroachment for which he wanted protection from the Civil Court when Tahasilder directed his eviction. Collector filed written statement denying the fact. To prove this, plaintiff summoned the Collector who gave oral permission. Collector prayed for exemption from attending the Court on the ground that he was the executive head of the Government in the district and has to attend to many emergency matters. This was not stated on affidavit. In this background this Court held that it is the paramount duty of the Collector where State of Orissa is a defendant to examine himself on behalf of the defendant and pledge his solemn testimony in Court that the averment of plaintiff that he got his verbal permission was false. Deposing in Court in support of Government case is a public duty. In absence of his examination a court may accept that such oral permission was granted. With this equal public duties added to judicial atmosphere in Court room creating awe and sanctity tilted in favour of examination of Collector in court. Deposing in Court in support of Government case is a public duty. In absence of his examination a court may accept that such oral permission was granted. With this equal public duties added to judicial atmosphere in Court room creating awe and sanctity tilted in favour of examination of Collector in court. ( 12 ) IT is well known that executive officers like Collector though discharge some judicial functions do not maintain the judicial sanctity of a Court room in maintaining punctuality in hearing matters. They do not possess such training. In the General Rules and Circulars Orders (Civil) made by this Court, Court hours are fixed. There is no such provision regulating conduct of Executive Officers. Even in midst of hearing, they leave the Court room or attend to telephone calls. Thus, they are not trained to maintain sanctity of a Court room. Possibly this weighed with this Court in AIR 1967 Orissa 203 (supra) though expressly the said reason was not adopted for examination of the Collector in Court. Besides, there was no statutory duty for the Collector to attend to emergent matters which can be attended to by other subordinate officers on his behalf. Again, if the absence of the Collector becomes emergent, he might remain absent suddenly while the date and hour of the commission is fixed. The same would delay the trial. ( 13 ) IN absence of any allegation of personal conduct of the petitioner in the past, normal presumption is that by training for a long period as Advocate in Courts, petitioner has imbibed the quality to maintain judicial sanctity of a Court room. If there would have been instances of any behaviour to destroy such judicial sanctity of Court rooms, possibly he could not have been selected to be appointed as a member of the Administrative Tribunal which is supposed to maintain punctuality, regularity and decorum of Courts. When defendant becomes a witness, he would maintain the same atmosphere as inside a Court whenever he is examined. A person holding the office of a judicial member of the Administrative Tribunal whose only duty is to adjudicate disputes ought not to be compared with a Collector of a district. ( 14 ) IF the claim of the plaintiff in the suit or the counter claim of the defendant would have been based mainly on oral evidence, consideration might have been different. ( 14 ) IF the claim of the plaintiff in the suit or the counter claim of the defendant would have been based mainly on oral evidence, consideration might have been different. While plaintiff depends upon entries in registers and documents and defendant also does not seriously dispute that he has not overdrawn the amounts, his defence and counter claim depend upon bills submitted for professional duties performed for the plaintiff. It is not disputed by the plaintiff that defendant was one of its Advocates. Main question for consideration in the suit would be correctness of the bills submitted by him. In case of dispute in that regard, plaintiff can call for the case records of proceedings in which defendant was engaged as a lawyer by the plaintiff wherefrom it can prove that the bills submitted or nature of works done as claimed are not supportable by the judicial records. Question of testing the veracity of defendant by marking his demeanour while answering to question in cross-examination in the facts of this case may not be very material. The very fact that defendant makes an application for his examination on commission itself indicates his anxiety for early conclusion of the litigation and not to delay the trial. As lawyer, defendant was appearing in Courts always and it cannot be said without further materials that to avoid embarrassment in attending court, he filed the application. ( 15 ) ONE of the grounds challenging the application of defendant is that in his absence functioning of the Administrative Tribunal would not be affected since within two months of his holding the office, he has remained absent on many occasions which has not affected the functioning of the Tribunal. Circumstances under which defendant took leave are not before me. In case defendant took leave which he could have avoided, the same cannot be appreciated and a conclusion can be drawn that he has not given due importance to the public service entrusted to him. Persons occupying high offices to exercise statutory or constitutional power must realise that they should not cause inconvenience to others by remaining absent if they could avoid such absence. They should not take leave merely because they are entitled to the same under conditions of service applicable to them. Persons occupying high offices to exercise statutory or constitutional power must realise that they should not cause inconvenience to others by remaining absent if they could avoid such absence. They should not take leave merely because they are entitled to the same under conditions of service applicable to them. In case this attitude is not developed, the institution of which they are members and they themselves would be ill reputed and silent disgruntlement of the sufferers would destroy not only their image but also image of the institution in the society which closely watches their performances and conduct. They have no chance to explain to the persons who draw inferences from their performances and conduct. ( 16 ) IT is not disputed that in absence of the defendant, Division Bench of the Tribunal cannot function. Matters which can be heard by Division Bench of the Tribunal cannot thus, be disposed of. Early disposal is a public policy. Interest of litigants suffer if there is delay. If he remains absent, he shall have to take leave which would be detrimental to public service. When statutory duties are entrusted to persons whose absence would cause great inconvenience to others since no one else can perform that duty, it can safely be concluded that absence of such persons is detrimental to public service. ( 17 ) PLAINTIFF asserted that evidence of defendant can be recorded on any Saturday in court which is not a day when Tribunal sits to adjudicate litigations. There is no dispute that by such examination detriment to public service can be avoided. If, however, the examination or cross-examination of defendant remains incomplete, the matter has to be adjourned to another Saturday. Where marking the demeanour to assess the evidence of a witness is not very material, delay by deferring trial is more harmful than examination of the person in court. ( 18 ) PLAINTIFF apprehended that in view of the office held by defendant, a lawyer appointed by the Court to record his evidence on commission shall not freely and correctly record the same. Plaintiff is a bank and has no living mind. It acts through individuals who are its officers. It is unfortunate for Officers of the bank to have such apprehension without any basis against members of the noble profession. This can, however, be taken care by the court while appointing a person. Plaintiff is a bank and has no living mind. It acts through individuals who are its officers. It is unfortunate for Officers of the bank to have such apprehension without any basis against members of the noble profession. This can, however, be taken care by the court while appointing a person. If the person so appointed has minimum experience of 15 years in the profession in civil litigation or has judicial experience for that length before joining the profession, fair recording of the evidence and control of the proceeding in that regard in maintaining the court atmosphere to a great extent can be assured. However, trial court shall deal with the matter giving opportunities to the parties of being heard. ( 19 ) MR. N. Prusty, learned counsel for the plaintiff submitted that the documents filed or proved may not be safe if handed over to the Commissioner. These are small details which can be sorted out by the trial court and I need not examine the same for academic interest only. In the result, Civil Revision is allowed, impugned order is set aside and application of the defendant to be examined on commission is allowed. There shall be no order as to costs. Before concluding, I may make it clear that discussions made above are for the purpose of determining the merit of the revision and shall not be utilised in any manner in the trial on merits. Revision allowed.